Dyldam Developments Pty Ltd v Baulkham Hills Shire Council

[2001] NSWLEC 297

Land and Environment Court

of New South Wales

CITATION:	Dyldam Developments Pty Ltd v Baulkham Hills Shire Council [2001] NSWLEC 297
PARTIES:	APPLICANT: Dyldam Developments Pty Ltd RESPONDENTS: Baulkham HIlls Shire Council
FILE NUMBER(S):	11007 of 2000
CORAM:	Bignold J
KEY ISSUES:	Development Application :- density bulk and scale of apartment building-relationship to heritage items.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, s 80(3) Land and Environment Court Act 1979, s 37(1)
CASES CITED:	Grampian Regional Council v City of Aberdeen District Council (1984) 47 P&CR 633.
DATES OF HEARING:	25, 26, 28 September, 2001, 2-5 October 2001, 8, 10 October 2001, 16 November 2001
DATE OF JUDGMENT:	12/21/2001
LEGAL REPRESENTATIVES:	APPLICANT: Mr M Tobias, QC with Ms S Duggan, Barrister SOLICITORS Maclarens Solicitors RESPONDENT: Mr D Baird, Solicitor SOLICITORS PricewaterhouseCoopers Legal

JUDGMENT:

IN THE LAND AND

Matter No. 11007 of 2000

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

21 December 2001

DYLDAM DEVELOPMENTS PTY LIMITED

Applicant

v

BAULKHAM HILLS SHIRE COUNCIL

JUDGMENT

Bignold J:

A. INTRODUCTION

1. This is an appeal pursuant to the Environmental Planning and Assessment Act 1979, s 97 (EP&A Act) against the deemed refusal by Baulkham Hills Shire Council (the Council) of a development application to erect a housing development containing 120 dwellings on the site of the former Baulkham Hills Public School, comprising lots 1-6 in DP 866897 and lots 1-5 and 20-22 in DP 8214 and known as 257 Windsor Road, Baulkham Hills (the appeal site).

2. In hearing the appeal, I have been assisted by Commissioner Dr Roseth pursuant to the Land and Environment Court Act 1979, s 37(1)

3. Although the Council’s Statement of Issues raised numerous issues, ultimately after a comprehensive hearing involving many expert witnesses (encompassing a wide range of professional disciplines) and a comprehensive view of the appeal site and its environs (both immediate and more distant), three principal issues emerged as the focal points for consideration, namely: (i) the density and bulk of the proposal; (ii) its relationship to two retained heritage buildings; and (iii) its internal amenity.

4. For reasons which will hereafter be more fully expounded, I have concluded that development consent should be refused because of my findings that the proposal’s density and bulk are excessive in the context of its location, that it encroaches into the restricted development zone of the heritage buildings to the detriment of their heritage significance, and it provides inadequate amenity for future residents.

5. These findings principally focus upon the apartment building component of the proposal (Block F) which involves 88 apartments, being some 75 percent of the total amount of housing proposed. Although I have found that the other components of the proposal, comprising townhouse style development along the Windsor Road and Russell Street frontages to be acceptable, the proposal is a single indivisible development which is unacceptable because of my adverse findings in respect of Block F.
B. THE APPEAL SITE

6. The site is a triangular shape of land, bounded on the north by the M2 motorway, on the southwest by Windsor Road and on the southeast by Russell Street. The boundary to Windsor Road is 157m, to Russell Street it is 204m, and to the M2 it is 224m. The latter boundary, which is the longest, faces north. A noise attenuation wall runs parallel to it at a distance of 10m, along the side of the motorway. The 10m strip of land is part of the motorway reservation. The area is 16,479 m2.

7. The buildings comprising the Baulkham Hills Public School are still located on the land. The original classroom building and the schoolmaster’s residence have been identified as worthy of retention and the site is listed by the local environmental plan as a heritage item. The site contains numerous trees of which several were planted in the 1920s.

8. The surrounding residential area was developed in the 1960s as detached housing. Some redevelopment to flats and townhouses has occurred in the last ten years. On the southern side of Russell Street, opposite the site are two groups of townhouses only very recently developed. The remainder of Russell Street contains traditional detached housing. Further north on Windsor Road, close to the Baulkham Hills district centre, there are three storey apartment buildings. There are no traffic lights at the intersection of Russell Street with Windsor Road (an important matter to which reference must hereafter be made).
C. PLANNING CONTROLS, POLICIES AND STUDIES RELEVANT TO THE APPEAL SITE

9. The following plans, policies and studies are relevant to the consideration of this application:-

(i) The Baulkham Hills Local Environmental Plan 1991

(LEP ) zones the site Special Uses 5(a) – Educational Establishments. The objectives of the Zone are stated in cl 9(1) and include objective (e) that states:

to permit land that is not immediately required for Special Uses purposes to be used for purposes permissible in adjoining zones where that use is compatible with the existing use or likely future use of the land.
When the hearing commenced, the adjoining land in Russell Street was zoned Residential 2(a). Included in the permissible uses in Zone 2(a) are “ apartment buildings ” and “ medium density housing ”. It is common ground between the parties that apartment buildings and medium density housing (ie townhouses) are permissible with consent.

was gazetted on 2 November 2001, during the course of the hearing. It does not change the zoning of the appeal site. However, it re-zones the adjoining lands to Residential 2(a3), a Zone in which the only form of medium density housing permissible is single storey villa homes. Amendment No 85 contains the following savings and transitional provision (which applies to the determination of the Applicant’s development application):

45. An application for consent to develop land for the purpose of an apartment building, medium density housing, town houses or villas, being an application made (but not finally determined) on or before 20 February 2001, may be determined and have effect as if Baulkham Hills Local Environmental Plan 1991 (Amendment No 85) had not been made.

(iii) Development Control Plan 4 – Townhouses

(DCP 4) was made in 1982 and revised in October 2000. DCP 4 establishes requirements for townhouses. Because the revision occurred after the application was lodged with the Council, it is reasonable to assess the application against the 1982 in addition to the 2000 version. DCP 4 establishes the maximum density for townhouses at 95 persons per hectare (p/ha).

(iv) Development Control Plan 23 – Apartment buildings

(DCP 23) was made in 1998 and revised in October 2000. DCP 23 establishes requirements for apartment buildings. For the same reason as above, it is reasonable to assess the application against the 1998 in addition to the 2000 version. DCP 23 establishes the “maximum” density for apartments at 175 p/ha. The “desirable” density is a range between 150 and 175 p/ha.

(v) The Baulkham Hills Shire Housing Strategy

, prepared in 1995, identified precincts with similar physical and demographic characteristics. The precincts nominated for increased densities are close to commercial centres, public transport nodes and employment centres. The Housing Strategy notes that there is a need in Baulkham Hills for diversity of housing.

(vi) The Baulkham Hills Shire Residential Development Strategy

followed on the footsteps of the Housing Strategy in February 1997. The Strategy committed the Council to rezone a number of “target sites” (ie sites suitable for increased density). Subsequently the Council identified 15 target sites, including the appeal site.

(vii) The Urban Capability Study

, completed in 1999, examined areas outside the target sites for their suitability for increased density development. It graded those areas that were found to be suitable as “high opportunity”, “medium opportunity” and “low opportunity”. The residential area to the south of Russell Street was graded as low opportunity, mainly on the ground that access to Windsor Street was difficult.

(viii) Baulkham Hills Shire Urban Design Guidelines for Multi-unit Housing

was prepared by a panel of architects and planners and adopted by the Council in September 2001. The Guidelines suggests that Precinct Quality Statements, Contextual Justification and Elements of Good Design should be matters considered with each multi-unit application.

(ix) Site specific Development Control Plans

: In June 2000 the Council resolved to request the owners of target sites to submit draft development control plans for their sites prior to, or concurrently with, any rezoning proposal or development application. The resolution resulted in a number of site-specific development control plans being prepared. There is no site-specific development control plan for the appeal site.

(x) Draft State Planning Policy 65 – Residential Flat Buildings

(draft SEPP 65) establishes a set of design principles on elements such as scale, built, form, density, aesthetics, amenity, etc.

D. THE PROPOSED DEVELOPMENT

10. The Applicant proposes to
· demolish the existing school buildings with the exception of the classroom and schoolmaster’s cottage located on the Windsor Road frontage which are to be restored and used as community building and caretaker’s residence;
· erect 120 dwellings in eight buildings referred to as Block A (two buildings of two floors and attic), Block B (two buildings of two floors and attic), Block C (one building of two floors and attic), Block E (two buildings of one storey and attic) and Block F (one building of three to five storeys containing 88 of the 120 dwellings);
· construct basement and above ground parking for 234 cars;
· landscape the site and the 10m strip of land between the site boundary and the noise attenuation wall of the motorway (this land is part of the motorway reservation and the Applicant has obtained a licence from Hills Motorway Ltd to landscape it); and
· subdivide the development under Strata title.

11. In addition, the Applicant offers to carry out improvements at the intersection of Russell Street and Windsor Road, including the installation of traffic lights, construction of a bus bay and right hand turn bay. Since this work requires the approval of the Roads and Traffic Authority of NSW (the RTA) and no such approval exists, the parties have invited the Court to consider the matter by way of a deferred commencement condition, under the EP&A Act, s 80(3).

12. This suggestion arises because both parties recognise that the proposed development could not realistically be contemplated for the appeal site (where all vehicular access is via Russell Street) unless traffic lights are installed at the intersection of that road with Windsor Road. The Applicant has encountered the obvious difficulty that the RTA to date has resisted the suggestion for the signalised intersection. Despite this difficulty, the Applicant has prosecuted the appeal on the assumption that the signalised intersection will ultimately be approved by the RTA and all of its expert evidence is predicated upon the realisation of this assumption. Presumably because the Council itself supports the signalised intersection, it has joined with the Applicant in inviting the Court to impose a deferred commencement condition requiring the installation of the signalised intersection before any development consent that may be granted to the Applicant’s development application is enlivened. A similar type of condition was approved by the House of Lords in Grampian Regional Council v City of Aberdeen District Council (1984) 47 P&CR 633. In my judgment, such a condition falls within the ambit of the EP&A Act, s 80(3) and despite some misgivings (based upon the RTA’s resistance of the suggestion), I am prepared to adopt the parties’ joint submission that the requirement for the installation of the signalised intersection be imposed by way of deferred commencement condition with the practical consequence that the evaluation of the merits of the Applicant’s proposed development may be undertaken on the assumption that the signalised intersection exists.
E. HISTORY OF THE APPLICATION

13. From 1876 to 1998 the Baulkham Hills Public School operated on the appeal site. Following the school’s closure, the State Government put the site to public auction in 1999. Before disposing of the site, State Property, an arm of the State Government charged with the disposal of surplus Government sites, arranged for a “preliminary heritage assessment” to be carried out. The purpose of the assessment was “…to confirm that the site is of heritage significance, the level of such significance, and to propose measures to conserve any identified heritage aspects. Identification of possible future uses/development options is also required.”

14. State Property commissioned the consultant firm of Clive Lucas, Stapleton and Partners to carry out the heritage assessment. The firm completed its assessment report in July 1999. The report suggested that two of the existing buildings, the original classroom and the schoolmaster’s residence be retained, the historical curtilage of the school be kept free of buildings and a larger area be available for development that was restricted to two-storey buildings. The purpose of the restricted areas was identified as:

preservation of the sense of the historic boundaries of the original school site and provision of an area within which the two buildings and associated landscaping can be protected from encroaching development.

15. The sales brochure of the site included the principal findings of the preliminary heritage assessment. In addition, it included a letter from the Council making three points about the development potential of the site. The first point was that, while the existing zoning permits medium density housing and residential flat buildings, the appropriate course for any purchaser of the site was to submit a rezoning application and a site-specific development control plan. The second point was that the development control plan should reflect all the opportunities, constraints and design principles applicable to the site, such as vehicular access, areas of density, noise attenuation, the provision of open space, drainage and heritage constraints. The third point was that,

while apartment buildings are permissible, consideration of the site analysis and locational criteria may indicate that the site is remote from community facilities and services, and may not be appropriate for this form of development.

16. The Applicant purchased the site in late 1999 and submitted its development application on 24 May 2000. On 5 June 2000 the Council wrote to the Applicant advising it that the application should be considered in conjunction with a draft local environmental plan rezoning the appeal site for residential development and a draft development control plan. On 13 June 2000 the Applicant responded, stating that it did not want the site to be rezoned because “any application to re-zone would only delay the re-development of the land” and requested the Council to assess the application on its merits under the current zoning.

17. Following public notification of the application, the Council received 27 objections. On 2 August 2000, the Council held a conciliation conference, following which the Applicant amended the application. The amended application was notified resulting in 162 submissions. In November 2000 the Applicant filed the appeal against the Council’s deemed refusal. A further conciliation conference was held in June 2001, however it failed to resolve the dispute.

18. The Council referred the application to the RTA several times. The most recent response from the RTA, dated 2 August 2001, dealt with the question of traffic lights at the intersection of Russell Street and Windsor Road. The letter stated:

….the RTA does not support traffic signals as a traffic control device at the intersection of Windsor Road/Russell Street because:….

(The letter then lists 10 reasons why the RTA does not support the traffic lights which generally relate to its desire to minimise delays and to increase efficiency for traffic on Windsor Road, which carries large daily traffic volumes.)

19. The Council referred the application to its Urban Design Panel (an independent group of professionals appointed to advise the Council on urban design). The Panel provided detailed comments on matters such as car parking, private open space, building bulk, heritage buildings, landscape, vehicular access, overshadowing, setbacks and habitable areas. Two of the Panel’s comments under the topic of building bulk are relevant:

suggest deletion of the southern wing of Block F in favour of stepped building that relates to Blocks B and E,

and

suggest deletion of Block D.

20. In the yet further amended proposal that was before the Court, Block D has been deleted, but Block F has not changed. At the date of hearing the Council has not determined the application.

F. EVALUATION ON THE PLANNING MERITS

21. As indicated at the outset of these reasons, at the hearing ultimately three prime issues concerning the planning merits of the development proposal provided the focal points for the required evaluation pursuant to s 79C of the EP&A Act. These were—
(i) the density, design, bulk and scale of the proposal;
(ii) the relationships of the proposal to the retention on site as heritage items, of the two school buildings on the Windsor Road frontage; and
(iii) the internal amenity of the proposal.

22. As mentioned at the outset of these reasons, my consideration of the proposal by reference to these three focal points has concentrated on the apartment building (Block F) because I have found to be generally acceptable the townhouse components of the proposal which flank the Windsor Road and Russell Street boundaries.

23. However, before separately considering these issues in detail, I would interpose a brief comment on two other matters encountered at the hearing namely:
(i) the planning process adopted by the Applicant; and
(ii) resident objections.

24. Ultimately there is little that needs be said about the planning process other than to acknowledge that the Applicant was entirely at liberty to promote and prosecute its development application on the basis of the Special Uses zoning of the appeal site under the LEP, rather than to adopt the Council’s suggestion that the development application should be accompanied by, or be preluded by, a residential rezoning of the appeal site via a LEP amendment supported by a particular development control plan. This is because it cannot be inferred from the evidence in the case what would have been the resultant development proposal if the Council’s preferred process had been employed by the Applicant. Ironically for the Applicant, hindsight has revealed that rejection of the Council’s preferred planning process on account of the delay factor anticipated in that process, has not resulted in an accelerated processing of its development application with some 18 months passing between the date it lodged its original development application and the completion of the hearing of the present appeal, and the recent making of Amendment No 85 has reduced residential density for lands adjoining the appeal site and it would appear inevitable that if the Applicant desires to develop the appeal site “as a target site” yielding higher density, it will be compelled to adopt the procedures and processes suggested by the Council in June 2000.

25. In addition to the wide scale written objections raised against the development proposal in its original and amended form, the Court heard evidence from two resident objectors, Mr Noel Kerrigan of 20 Russell Street and Mrs Dorothy Muddle of 22 Russell Street. Neither objector is directly affected by the proposal in a significant way. Their objection is based on their belief that the bulk, density and height of the proposal are excessive and therefore the development is not in sympathy with the character of Baulkham Hills. Their objection is strongest to the five-storey Block F. Additionally, they voiced their disquiet at the prospect of Russell Street having to cope with a vast increase in traffic movements generated by the proposal in circumstances where they already experienced great difficulty in gaining access to Windsor Road. In respect of the last-mentioned matter, they welcomed the prospect of the signalised intersection.

(i.) Density, Bulk And Scale

The evidence

26. Mr Peter Lee, a town planner and the Manager of the Council’s major/special projects section, gave evidence that may be summarised as follows:
· The Urban Capability Study categorises the area adjoining the appeal site (ie the area south of Russell Street) as “low opportunity”. A major reason for this was the difficulty of turning in and out of Russell Street at the Windsor Road intersection. If traffic lights are installed at the intersection, the classification of “moderate opportunity” would be more appropriate. “High opportunity” is appropriate only for sites close to a commercial centre.
· The draft LEP rezones the residential areas near the appeal site to 2(c). The residential areas near the appeal site are therefore likely to be single storey villas. If the traffic lights are installed, the appropriate development may be two –storey townhouses. (I interpose that this draft LEP came into force on 2 November 2001 as Amendment 85 and rezoned the nearby residential areas 2(a3). This occurred after Mr Lee had given his evidence.)
· There is no single development control plan appropriate to the appeal site. In the absence of such a plan, DCP 4 and DCP 23 become relevant. To apply the density requirements of these two DCPs, one must divide the site notionally between townhouses and the apartment building Block F. If this is done, the density of the notional area on which Block F is accommodated is in excess of 300 p/ha. The maximum density in DCP 23 is 175 p/ha.
· Mr Lee accepts that site has good accessibility to public transport. However, it is 1.2km from the Baulkham Hills town centre. The appropriate density for the site is therefore somewhere between the density for townhouses and apartment buildings, around 120 persons/hectare (p/h).
· Mr Lee does not object to a five-storey building per se, so long as it is well designed. He does not consider that Block F is well designed.
· The 6m setback from Windsor Road of Block C is inadequate. DCP 3 requires 10m.
· There is no certainty that the 10m strip of landscaping on the motorway reservation between the site boundary and the noise attenuation wall can be maintained throughout the life of the project. The licence granted to the Applicant by the Hills Motorway Ltd may be terminated at three months notice.

27. Mr Lee nominated the following as his three most important concerns. First, the density of the project is too high for its location. Second, the proposal (mainly Block F) is incompatible with the surrounding area. Third, the design of Block F results in poor internal amenity.

28. Professor P Droege, an architect with special expertise in urban design, complemented Mr Lee’s evidence. Professor Droege’s evidence made the following points:
· The scale of Block F is alien to the local environment.
· The appearance of the building is inappropriate, its style being “a cross between farmstead and Austrian ski resort”.
· The apartments in Block F have no cross ventilation and poor solar access. The opportunities on this site are excellent for achieving 100% solar access performance.
· The proposal does not respond sensitively to the topography of the site or the existing vegetation.
· The social aspects of 88 units in one building are questionable.

29. In Professor Droege’s opinion the scale of the existing school buildings give an indication of the appropriate bulk. He believes that 80-90 units could be accommodated on the site in buildings up to four storeys, but in an improved layout.

30. Mr A Lester, an architect planner, supported Mr Lee’s and Professor Droege’s evidence. His objections are on four main grounds. First, the scale and bulk of Block F is excessive for its context. It will be clearly visible from the motorway. Second, Block F will overshadow and visually overpower the internal communal area. Third, the buildings are too close to each other and create a “canyon effect”. Fourth, the proposal involves the removal of too many trees.

31. Mr A Ludvik, a planning consultant who gave evidence in the Applicant’s case, disagreed with Mr Lee’s assessment of the appropriate density for the site. Mr Ludvik places major weight on the proximity of the site to public transport, which he considers a more important criterion for increased density than proximity to a commercial centre. In addition, the largeness of the site and its isolation from nearby residential areas on which it might otherwise have an impact, make it suitable for the highest range of density permitted in Baulkham Hills.

32. Mr Ludvik regards the bulk of Block F acceptable. He believes that a tall building adjoining the M2 is appropriate. Moreover, Block F will be screened by dense landscaping. He notes that from the few vantage points on Windsor Road and Russell Street from which Block F is visible, only its top floor can be seen.

33. Ms D Laidlaw, a planning consultant who gave evidence in the Applicant’s case, supported Mr Ludvik’s evidence. In her opinion, the site is an excellent location for urban consolidation. It has a high level of accessibility. There are little adverse external impacts. Moreover, the design responds to the site by placing the highest density near the least sensitive boundary ie the Motorway. Block F, when viewed from the M2, will not be out of context. From other directions, such as Russell Street and Windsor Road, it will be seen only through a few gaps between buildings.

34. Professor J Toon, an architect/planner who gave evidence in the Applicant’s case, supported Mr Ludvik and Ms Laidlaw. Because of its high level of accessibility, the site is ideal for intensified use from a metropolitan planning perspective. In his opinion it would be a mistake to develop the site at the relatively low density of 90 – 95 p/ha. Professor Toon also believes that Block F, when analysed in detail, will not appear as a large building. It will be seen above the tree line. It is a recessive building.

The Court’s Findings

35. Essentially, the Council’s experts object to the proposal on the ground that its density is too high and its bulk is out of character with surrounding development.

36. Since all the experts agree that the appeal site is suitable for increased density housing, the dispute focuses on what is the appropriate level of density for the appeal site. The density of the project, calculated over the site excluding the curtilage of the heritage buildings, is about 160 p/ha. The Applicant justifies this level of density on the basis that DCP 23 establishes the maximum density for apartment buildings as 175 p/ha. Mr Lee suggested that the appropriate density for this site is around 120 p/ha. Professor Droege expressed the appropriate density as 80-90 dwellings on the site. This translates to about 110-120 p/ha.

37. The difference between the experts hinges on what criteria they consider important in the selection of sites for high density. The Council’s experts place major weight on the need for new development to fit into its context. They endorse the planning principle that high density housing should be near commercial centres. The Applicant’s experts, on the other hand, place major weight on the site’s accessibility and on its relative isolation from other residential areas, especially those to the north of the appeal site separated by the major engineering works comprising the M2.

38. In my opinion, the Council’s case is more persuasive than that of the Applicant. I see nothing about this site that would justify development being out of scale with the planned density of residential development within the various residential zones in Baulkham Hills. In the absence of a specific DCP for the appeal site I accept the utility and soundness of Mr Lee’s approach of applying distributively to the appeal site, according to the different components of the proposed development, DCPs 4 and 23. That approach yields a density for the apartment building in excess of 300 p/ha, which in my judgment is excessive for the appeal site in its context, notwithstanding the fact, much relied upon by the Applicant, that Block F is essentially shielded from external viewing by virtue of the townhouse development flanking most of the Windsor Road and Russell Street boundaries by the M2 partially shielding and distancing Block F from viewing from the north. Mr Lee’s approach is sound because it is inconceivable that development of the appeal site flanking Windsor Road and Russell Street would be any more intense than the proposed townhouse development, because of the constraints posed by the existence of the heritage buildings to be retained on the Windsor Road frontage and the form of the prevailing residential development in Russell Street.

39. While it is true that the site is located alongside the M2 and fronts Windsor Road and is therefore highly accessible via vehicular transport, this does not automatically justify the highest level of density. If it did, every site along the motorway would be similarly suitable. I accept Mr Lee’s evidence that proximity to a commercial centre is an appropriate (though not the only) criterion for locating high density housing. I note that this principle underlies the Urban Capability Study as well as the Amendment 85. It is an integral part of the Council’s planning policies.

40. I turn to the bulk and scale of the proposal. The Council’s experts and the resident objectors focused their criticism on Block F, a 100m long building, of which 75m rise to a height of five storeys. I accept that, from Windsor Road and Russell Street, Block F will be seen only intermittently and partially. However, its bulk will be perceived from the motorway, notwithstanding the acoustic wall that obscures the lower floors and the landscaping to be planted in front of it. (It will also have a visual impact internally—however this is dealt with later in this judgment.) I agree with Mr Lee that it is not the five-storey height that is unacceptable. What makes this building excessively bulky is the combination of its uninterrupted length and height rather than its height per se. In the context of prevailing developments in Baulkham Hills, a 100m long building predominantly of five storey height will appear like a wall.

41. I do not accept the evidence of the Applicant’s experts that a bulky building on the motorway is appropriate because the motorway itself is a large scale engineering structure. When one travels on the M2 in a westerly direction, the last group of large scale buildings occurs near Lane Cove far removed from the appeal site. After that one sees mainly landscaping. To be confronted with the proposed Block F at Windsor Road would be a visually jarring experience.

42. While the Council’s objection is focused on Block F, Mr Lee is also critical of the 6m setback of Block C from Windsor Road. I accept that his concern is valid, though I do not think that this aspect alone would justify refusal. As regards the question whether the landscaping on the motorway reservation is likely to be a permanent feature of the development, I accept the Applicant’s submission that it is unlikely that the land will be needed for another purpose and that accordingly the Applicant’s licence is likely to be long lasting.
(ii.) Relationship of Proposal to Heritage Items

The evidence

43. As mentioned earlier, the Clive Lucas, Stapleton and Partners heritage assessment of the site identified two buildings located on the Windsor Road frontage as worthy of retention. The application retains and re-uses these buildings. The assessment identified two restricted zones, one to be kept free of buildings and the other allowing development that is limited to two-storey development. The proposal complies with the requirement of the building-free zone. Blocks A, C, E and F either wholly or partly within the two-storey zone. The portion of Block A within the zone is very small. Block E is single-storey with attic and thus complies with the two-storey restriction. Block C is two storey with attic and Block F is partly three-storey and partly five storey. The section of Block F within the two-storey zone is 21m long. 13 m of which rises to a height of three storeys, and 8 m which rises to a height of five storeys.

44. The Applicant tendered a copy of a letter from Clive Lucas, Stapleton and Partners, dated 16 June 2000 (Exhibit 6) addressed to the Applicant’s Solicitors. The letter states that “we generally support the proposals.”

45. Mr David Scobie, an architect/planner with expertise in heritage issues, gave evidence in the Council’s case. He considers Block C to be three storeys high and believes that it is inappropriate in the two-storey zone. His main objection, however, is to the encroachment by Block F into the two-storey zone. He considers the relationship of Block F to the heritage buildings to be unacceptable.

46. Mr Scobie’s evidence was supported by Mr Lee and Mr Lester who believe that Block F is too close to the heritage buildings.

47. Mr Robert Staas, a heritage architect who gave evidence in the Applicant’s case, proffered a different view. In his opinion, Block C is a two-storey building with rooms in the roof. He would not lower the pitch of Block C, since it is similar to the pitch of the heritage buildings. As regards Block F, Mr Staas points out that it will not be dominant in the two-storey zone, that it is 26 m distant from the closest heritage building and that there is landscaping in the space between them. Moreover, the section of Block F that is closest to the heritage building is partially sunk into the ground. Mr Staas told the Court that the relationship of Block F to the heritage buildings is “entirely acceptable”.

The Court’s Findings

48. The dispute between the experts relates to the intrusion by Blocks C and F into the two-storey restricted zone designated to protect the two small scale heritage buildings on the Windsor Road frontage to be retained in the development in a rehabilitated state. I agree with the Council’s experts that Block C appears as a three-storey building. Accepting that the intention of the two-storey zone was to moderate the relationship between new development and the heritage buildings, then Block C does not fulfil this object. I do not think, however, that the attic roof is so intrusive in the two-storey zone as to justify the refusal of the application in pursuance of cll 18 and 19 of the LEP which impose conventional heritage restrictions on development of land comprising “a place that is a heritage item” or of “land in the vicinity of a heritage item”, noting that the LEP lists as the relevant heritage item the Baulkham Hills Public School.

49. However, the intrusion of Block F into the two-storey zone is quite another matter. Block F intrudes for a considerable distance and part of the intruding portion rises to a height of five storeys. While it is true that the corner of Block F closest to the heritage buildings is sunk into the ground, this is not true of the five-storey portion, the height of which is fully visible in its relationship to the heritage buildings. I do not think that such disregard of the restriction of the two-storey zone is acceptable with the consequence, in terms of cl 18(2) of the LEP that I find that the affectation of the heritage significance of the item and its site is unacceptably detrimental.

50. In so concluding, I have taken into account the June 2000 letter of Clive Lucas, Stapleton and Partners, who did the preliminary heritage assessment of the site and who appear to have endorsed the proposal. However, since the letter does not explain why the consultants who propounded the two-storey restriction now endorse a significant degree of non-compliance with it, and since the author of the letter was not a witness before the Court, the letter provides only limited assistance to the Court, and does not displace or undermine my conclusion that the relationship of Block F to the heritage buildings is unacceptably detrimental to the heritage significance of the items and their site.
(iii.) Internal amenity of Proposal

The Evidence

51. The matters at issue are the proximity of buildings to each other, quality of communal open space, the extent of the landscaped areas above the basement garage and the amenity of apartments in Block F. The criticisms of Block F relate to noise, cross ventilation and solar access.

52. Mr Lester considers the relationship between Blocks E and F to be unsatisfactory. It would result in a “canyon effect”, ie a narrow gap between two high walls. Mr M Eriksson, a landscape architect retained by the Applicant, told the Court that the canyon effect can be resolved by the judicious use of landscaped terraces.

53. The criticism about the quality of communal open space relates to the visual dominance of Block F when viewed from the communal open space, and the amount of shadow cast by Block F in the winter months. Professor J Weirick, a landscape consultant retained in the Council’s case, said that the communal open space will be dominated by the excessive scale of Block F. As regards the landscape plan, he agreed that his concerns may be expressed as conditions of consent. Any issues relating to the species to be planted were thus resolved.

54. The Applicant has submitted shadow diagrams indicating shadows cast at 9am, 12 noon and 3pm in mid-winter. The landscaped area to the north of Block F is in uninterrupted sunlight. The communal area to the south of it is significantly overshadowed at 9am and 3pm. At noon the majority is in sunlight.

55. In Mr Lester’s opinion, the amount of landscaped area over basement parking is excessive. Mr Eriksson responded that with modern techniques landscaping over concrete slabs can survive indefinitely. He agreed that the waterproof membrane between the slab and the soil fails eventually, but said that it can be repaired with relative ease, with landscaping being temporarily removed and then repositioned.

56. Mr Lester’s and Professor Droege’s evidence highlighted a number of instances where the privacy of private areas was compromised. The Applicant responded to these criticisms by changing levels and placing privacy screens, highlight windows and obscure glass in strategic locations. As regards Blocks, A, B, C and E, Mr Lester is satisfied that, as a result of the amendments, the privacy issue has been resolved.

57. As regards Block F, the Council’s experts were concerned mainly about the amenity of the apartments. Most of the privacy concerns arise at the T-intersection of the southern wing of Block F with the main part of the building. To meet the valid criticism, the Applicant amended the layout of the corner apartments and added privacy screens to the balconies. This solves the problem of visual privacy but not aural privacy, since noise travels through the privacy screens. Mr L Challis, an acoustic expert retained by the Council, submitted a belated report on this issue. As the report was tendered late in the proceedings and did not give the Applicant reasonable opportunity to deal with it, I have not given it major weight.

58. The issue of traffic noise reaching the north facing apartments in Block F was resolved by agreement between the experts that those apartments need acoustic treatment. The Council’s experts pointed to the consequence of this solution, namely that it will not allow residents to keep open their north facing doors and windows.

59. Professor Droege and Mr Lester were critical of the lack of cross ventilation in the apartments in Block F. The Applicant’s experts responded that with double loaded corridors, it is not possible to provide apartments with cross ventilation. Other forms of layout would result in more expensive apartments.

60. As regards solar access, the Applicant tendered an analysis of solar access at mid-winter prepared by Ms Laidlaw: Exhibit 20 Of the 88 units in Block F, 49 (55%) receive 3 hours of sunlight or more, 5 units (6%) receive 2 hours of sunlight or more, 6 units (7%) receive one hour of sunlight or more, and 28 units (32%) receive less than one hour of sunlight. Some of the latter units receive no sunlight.

61. The Council’s experts believe that the solar performance of Block F is profoundly deficient. It should be possible to achieve a better performance because the site is ideal for achieving good solar performance, being essentially a “green fields” site with expansive uninterrupted northern exposure On such a site it is reasonable to expect that a high proportion of apartments should receive sunlight.

62. The Applicant’s experts pointed out that the Council’s controls do not include a minimum period of solar access, or a minimum proportion of apartments that should receive sunlight. DCP 23 (on p 15) refers only to maximisation of solar access, ie

The amount of solar access to living rooms and private open space areas shall be maximised having regard to siting and orientation of the building, together with the placement of windows and use of balconies.

63. Other planning guidelines that apply to the State or nationally are similarly generalised. Ms Laidlaw and Professor Toon said that no housing project can perform well on every criterion. They draw attention to the need for diversity of housing, including low cost housing being goals that are expressed in the Council’s documents on housing policy, such as the Housing Strategy and the Urban Capability Study. In their opinion, the provision of low cost housing involves inevitable compromises on amenity, but their opinion is that the result achieved by Block F is “acceptable”.

The Court’s Findings

64. It is clear from the evidence that the weight of criticism is directed against Block F. Without Block F, or with a smaller building in its place, the objections to the proposal would have been significantly reduced, if not resolved and I have already noted my finding that the townhouse component of the proposal is generally acceptable.

65. I accept Mr Eriksson’s evidence that the “canyon effect” between Blocks E and F can be moderated by landscaped terraces. As regards the extent of landscaped areas that are placed over the basement parking, I also accept his evidence that there are techniques to provide long term effective landscaping over concrete slabs, albeit at a cost to residents involving contributions to the sinking fund of the strata scheme, when the waterproof membrane inevitably fails.

66. As regards the overshadowing of the communal open space, it appears that for about three hours in the middle of the day during winter a significant proportion of the communal open space is in sunlight. In my opinion this aspect of the proposal is acceptable. However, the concern of Mr Lester, Professor Droege and Professor Weirick that the quality of this space is nonetheless compromised by the bulk of Block F is in my judgment, a valid criticism of the proposal.

67. I turn to the concerns with the degree of amenity enjoyed by the apartments in Block F. The apartments at the intersection of the southern wing with the main block and their balconies are not only close but also at right angles to each other. As they look straight into each other, privacy can be provided only by the use of screens. I accept that in the latest amendments the Applicant has produced a solution that avoids direct overlooking. It would be much better, however, to design the building so as to avoid the potential for overlooking.

68. As regards solar access, I accept that it is unrealistic, and hence unreasonable, to require a residential flat building to provide good solar access to all dwellings. I note that there are no numerical standards on the proportion of dwellings that should have good solar access. I do not think that there can reasonably be stipulated such numerical standards, since some sites obviously have better potential for solar access than others. However, the point in the present case is, that whereas the appeal site provides abundant opportunity for excellent solar access, the proposal does not realise on this opportunity.

69. I accept the Council’s evidence that the performance of Block F on solar access is unacceptably poor. One third of the apartments will receive less than one hour’s sunlight. Some of them will receive no sunlight. I do not accept the Applicant’s claim that any building with a double loaded corridor will perform just as poorly. The reason for the poor performance of Block F is that, in addition to having apartments on both sides of the building, it has an uninterrupted length of 100m and a southern wing that cuts out the little sun that would otherwise reach the less favoured side of the building. This observation also applies to the opportunities for cross ventilation of the apartments.

70. I have given consideration to the Applicant’s submission that it is an important social planning objective to provide a diversity of housing and that housing at lower prices necessarily involves some reasonable compromises on amenity. I accept that the proposal provides a diversity of apartment sizes, and that this is an appropriate response to the need for housing choices. However, I do not think that the quest to provide housing at lower prices justifies the creation of poor residential amenity, and my ultimate conclusion is that the level of residential amenity provided for the apartments in Block F (being 75 per cent of the total number of apartments provided in the overall development) is inadequate and therefore unacceptable, particularly in terms of the inadequacy of solar access and cross-ventilation to those apartments.
G. CONCLUSIONS AND ORDERS

71. For all the foregoing reasons, which reflect my evaluation of the proposal pursuant to s 79C and the EP&A Act, I have concluded that development consent should not be granted in the present case. Accordingly, I make the following orders.

1. The appeal is dismissed.

2. Development consent is refused.

3. The exhibits are returned.

4. No order as to costs.