Equity Group Investments Pty Ltd v Pittwater Counncil

[2004] NSWLEC 339

Land and Environment Court

of New South Wales

CITATION:	Equity Group Investments Pty Ltd v Pittwater Counncil [2004] NSWLEC 339
PARTIES:	APPLICANT Equity Group Investments Pty Ltd RESPONDENT Pittwater Council .
FILE NUMBER(S):	11361 of 2003
CORAM:	Moore C
KEY ISSUES:	Development Application :- Cumulative effect of multiple SEPP 5 developments Streetscape Neighbour amenity Limitation of development of neighbouring site .
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, s 5(a)(ii) State Environmental Planning Policy No. 5, cl 25(a) .
CASES CITED:	Emmett v Ku-ring-gai Council 3 LGRA 177; .
DATES OF HEARING:	18 May 2004
EX TEMPORE JUDGMENT DATE :	05/18/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr A Galasso, barrister INSTRUCTED BY Hones Lawyers RESPONDENT Ms J Jagot, barrister INSTRUCTED BY Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Moore C

18 May 2004

11361 of 2003 Equity Group Investments Pty Limited v Pittwater Council

JUDGMENT

1 COMMISSIONER: This is an appeal pursuant to s 97 of the Environment Planning and Assessment Act 1979 (the Act), which commenced as an appeal against a deemed refusal to grant a development application pursuant to State Environmental Planning Policy 5 (SEPP 5) for the erection of 10 units for housing for those over the age of 55 or people with a disability at 85 and 87 Avalon Parade, Avalon (the site), being lots 70 and 71 in DP9151. The application was subsequently refused by Pittwater Council (the council) on 1 March 2004. The council asks me to dismiss the appeal essentially on two fundamental bases.

2 One is that the cumulative effect of already given approvals for SEPP 5 developments on the two lots immediately to the east of the subject site, together with a single allotment development, one lot removed to the west of the site, constitute between them a sufficient threshold that the granting of any further approval would constitute unacceptable aggregation. In that context I am taken by Ms Jagot, counsel for the council, to the decision of Sugarman J in Emmett v Ku-ring-gai Council 3 LGRA 177, particularly to p 182. I accept that the authority contained in this case together with the line of subsequent authority establishes adequately that it is possible for a series of otherwise compliant and acceptable propositions or proposals for development to be so ordinary and bland in effect that, when taken together, they amount to an unacceptable totality. In a qualitative sense, having viewed the streetscape: having considered the plans for the two earlier consents that were granted to the allotments immediately to the east of the subject site, together with the approval, I am advised, that was granted by the council to a combined development on the two allotments to the east and in consideration of the single allotment, three unit development approved at 91 Avalon Parade, I have considered the question of whether, in that context, that which is proposed for the site would be unacceptable.

3 Mr Dickson has given evidence that he considers that it is, in a planning sense, and, not unsurprisingly, a contrary position has been put by Mr Jensen and Professor Toon on behalf of the applicant. I accept the proposition that, at some stage, there might be reached a point where SEPP5 developments in Avalon Parade attain a sufficient aggregation where it would be appropriate for the council or the Court to say “enough is enough”.

4 However, I am not satisfied, from a consideration of the number developments already approved; the differences in style and design between them and the fact that the proposed development is located between the existing approvals, these should cause me to reach the point to say that that threshold has been passed. I might have had greater concern had the proposal been located somewhat to the east encouraging what might be regarded as an expanded SEPP 5 or similar development precinct within Avalon Parade.

5 I, however, am of the view that the proposal is acceptable because it is located between the two existing approved locations for SEPP 5 developments and on that basis, although I accept the proposition that a threshold might be reached in future, I do not accept that in this instance it has, in fact, been reached.

6 The second determinative issue that is put to me on behalf of the council relates to the impact on the residence at 89 Avalon Parade, which will in effect be left as an island residence between two SEPP 5 developments if the present application is approved. It is conceded, on behalf of the council, that there is not, in effect, a sterilisation of the site at 89 Avalon Parade such as would trigger serious concerns about the orderly and economic use and development of land - these being objectives contained in s 5(a)(ii) of the Act.

7 Whilst there may be some constraints on future re-development of 89 Avalon Parade, it is conceded, properly, by Ms Jagot that a dual occupancy dwelling proposal would be possible on the site and that it is possible that some development under the successor State Environmental Planning Policy to that which is presently before the Court might also be possible – although that has not been explored to any degree of certainty in these proceedings. Indeed, I do not consider it is necessary to do so, given that the development potential through dual occupancy of 89 Avalon Parade is not impacted.

8 I am therefore satisfied that there is no development potential impact on 89 Avalon Parade that would warrant refusal of the present appeal.

9 With respect to the amenity on the residents of 89 Avalon Parade, two matters are raised. Mr Dickson raised the issue of the possible impact on privacy from the balcony of proposed unit 8. Professor Toon acknowledged, in his evidence, that that balcony was some 1 m above the present ground level. The witnesses conceded, as a collective, that it would be possible to deal with that privacy issue, if I were minded to indicate that it were of concern, by an appropriate screening device. I am satisfied that the impact of the balcony from unit 8 is such that it would be appropriate to deal with it by way of screening device and that would remove any privacy concerns for the private open space of 89 Avalon Parade.

10 The more substantive issue that was raised by Ms Jagot is the question of the perception of the built form enclosing the existing dwelling at 89 Avalon Parade both on the eastern and western sides. There is a significant degree of articulation along the western side of the proposed development on the site and that is accompanied by a generous set back on that side – although a set back that will be modified somewhat by my conclusion that an increase in the width of the central corridor of the development as discussed by the expert witnesses would be desirable. But, if the position be as Mr Galasso, counsel for the applicant, has foreshadowed that Mrs Lewis, the resident of 89 Avalon Parade, has now consented to the removal of tree 61 that is a matter which can be accommodated without having an otherwise potential adverse impacts on the root zone of that tree.

11 I am satisfied that the articulation of the development at 91 Avalon Parade – although in a significantly different form to that proposed for the site, coupled with the articulation of the development proposed on the site does not constitute such an impact on the resident of 89 Avalon Parade as to be unacceptable.

12 That leads me to the remaining issues which are those of the design of the site. Mr Dickson quite strongly put the proposition that the central location of the driveway would open up a view from Avalon Parade to the front of the proposed development that would lead to a presentation that was inappropriate in the streetscape. I accept his view on that point. I am satisfied that, with the driveway at its present proposed location, the development would be unacceptable and that the landscaping would not be able to respond adequately to its presentation in the streetscape.

13 However, the three planning witnesses all concurred in the view that it would be possible to relocate the driveway to one side or the other (in my view, appropriately to the east and not westward towards Mrs Lewis’ residence) in a fashion that would enable a better landscaping treatment to the front and a softening of that presentation. I am satisfied that that would be a desirable course to be followed as would be the presentational position advocated to varying degrees of strength by all three expert witnesses with respect to Professor Toon’s suggestion for putting a pitched roof on the property.

14 Finally, I am satisfied that the proposition put by Mr Dickson and not significantly cavilled at by Mr Jensen or Professor Toon as to the increasing in the width and the elimination of what Mr Dickson described as the gun barrel corridor presentation of the central area would be desirable. As a part of all of that, obviously, a re-consideration of the landscaping in the area that is to be vacated by the driveway would be appropriate as that, too, would provide screening and softening to the development.

15 I am satisfied that the additional proposals advocated by Mr Dickson are not appropriate in the absence of further evidence for me to require the applicant to pursue, with respect to the alteration of the levels through the building. It was Mr Jensen’s evidence that that could exacerbate flooding issues associated with the site. In effect, with respect to the substitution of a design consistent with the module-like design presently being erected on 91 Avalon Parade, I am satisfied that it would be better to have a variety of designs through the three sites that are to have SEPP 5 development erected on them, rather than to have a greater degree of homogeneity – provided all three of them were of good design in accord with the principles set out in cl 25 of SEPP 5.

16 I am also not satisfied that the moving forward of the eastern element and the pushing back of the western element would be necessary given the movement of the driveway to one side and the increased ability of the on site landscaping to address and soften the presentation of the development to the street.

17 I should also turn specifically to the provisions of cl 25(a) of SEPP 5. Ms Jagot took me to sub cll (i), (iii), (iv), (v), (vi) and (vii) – there not being any issue with sub cl (ii) relating to heritage conservation areas or sub cl (viii) relating to landscaping as there is broad agreement about the landscaping concepts.

18 I will leave till last dealing with the provision of cl 25(a)(i). With respect to 25(a)(iii), it merely provides that there is a need for providing building setbacks that progressively increase as wall heights increase to reduce bulk and overshadowing. I do not understand there to be any issues as to overshadowing in the present matter. As to bulk, I am satisfied that the design on both the eastern and western sides has sufficient variety, both in a horizontal and in a vertical sense, as not to create unacceptable bulk when viewed from either the proposed SEPP 5, or the alternate now approved SEPP 5, development to the east, nor from Mrs Lewis’ premises.

19 I am satisfied that with respect to sub cl (iv) reasonable neighbour amenity, that an appropriate residential character has been addressed by a built form and siting that relates to the site’s land form. Indeed the presentation to the properties at the rear, which face Elouera Avenue, is significantly better than that of the approved SEPP 5 development at 91 Avalon Parade, both as to the proximity of the rear boundary and as to the height of the development viewable by the neighbouring properties to the rear. I am therefore satisfied that with respect to 25(a)(iv), the present development is of sufficiently good design not to be unacceptable.

20 The building heights to the street frontage are clearly in scale and compatible with those of the SEPP 5 development immediately to the east and to the SEPP 5 development at 91 Avalon Parade. However, that is not the totality of matters. Although the word, "adjacent" is used, it is my understanding that has been taken in the past in a somewhat more expansive fashion than those that are immediately on the boundary. However, even if it were immediately on the boundary, the present proposal is compatible with that immediately to the east. Looking further than that, the development at 79 Avalon Parade presents a building height with which the present proposal is compatible and indeed, on the other side of the street, there was what one might describe as a Spanish influenced white building with a very steeply pitched roof that was not incompatible with the present proposal.

21 Subclause (vi) does not arise as there are no boundary walls proposed to be erected on the boundary of the property.

22 As to cl 25(a)(vii), I am satisfied that, although there is not a strict compliance with the 18 m set back envisaged by the Development Control Plan, the set back that is proposed in the present application is generally in sympathy with and not necessarily the same as, using the words of the provision of SEPP 5 as the existing building line that is followed along that portion of Avalon Parade.

23 Finally, with respect to cl 25(a)(i), I am satisfied that considering the similarities with but the differences from the approvals that were given separately for numbers 81 and 83 Avalon Parade and presumably, but not necessarily superseded by the aggregated consent given last evening by the council for that site as a consolidated development in conjunction with the approved development at 91 Avalon Parade (which is currently under construction) that there will be a clear character of the combined re-developments that are taking place along that section of Avalon Parade. All things considered, I am satisfied that, with the changes to the present proposal that will take place as a consequence of this decision, there will be a generally attractive residential development through that portion of Avalon Parade.

24 As a consequence, I am satisfied that the appeal should be upheld and that (subject to the changes that I have dealt with and were pursued by the planning witnesses in the witness box) appropriate Orders at a future time should be issued. As I outlined to the representatives the parties at the commencement of the hearing, if such a conclusion were to be reached, I would propose to adjourn the matter for a sufficient period of time for the applicant to prepare revised plans and for those to be submitted to the council so that its expert witness can give some advice on them. If necessary I will hold a short supplementary hearing if any of those matters remain in contention.

Tim Moore

Commissioner of the Court