Executive Estates Pty Limited v Gosford City Council

[2005] NSWLEC 665

Land and Environment Court

of New South Wales

CITATION:	Executive Estates Pty Limited v Gosford City Council [2005] NSWLEC 665
PARTIES:	APPLICANT Executive Estates Pty Limited RESPONDENT Gosford City Council
FILE NUMBER(S):	11467 of 2003
CORAM:	Cowdroy J
KEY ISSUES:	Development Application :- height control - setback - solar access - objectors
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Gosford Development Control Plan 100 Gosford Planning Scheme Ordinance Rivers and Foreshores Improvement Act 1948 State Environmental Planning Policy No 1 – Development Standards State Environmental Planning Policy No 14 – Coastal Wetlands State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development cl 30(2)
DATES OF HEARING:	15/08/2005, 18/08/2005, 18/11/2005
DATE OF JUDGMENT:	11/18/2005
EX TEMPORE JUDGMENT DATE:	11/18/2005
LEGAL REPRESENTATIVES:	APPLICANT C McEwen SC SOLICITORS Home Wilkinson Lowry RESPONDENT S Duggan SOLICITORS P J Donnellan & Co

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Cowdroy J

18 November 2005

11467 of 2003

EXECUTIVE ESTATES PTY LIMITED
Applicant

GOSFORD CITY COUNCIL
Respondent

JUDGMENT

1 Cowdroy J: In this matter the Court has been assisted by Commissioner Tuor. This matter comes before the Court for consent orders between Executive Estates Pty Ltd and Gosford City Council (“the Council”). The appeal is in relation to the refusal by the Council of a development application (20254/2003) under the Environmental Planning and Assessment Act 1979 (“EP&A Act”). The application is for proposed filling, townhouses, residential flat buildings and subdivision under community title subdivision on lot 1 DP 1051411 Yallambee Avenue, West Gosford (“the site”).

2 The appeal originally came before the Court in June and July 2004 with a number of matters in dispute between the parties. The Court visited the site and heard evidence from a number of experts and from resident objectors. To address these concerns the parties sought an adjournment to prepare amended plans.

3 An amended application was lodged with Council in early 2005 and renotified. Council reconsidered the application and consequently the parties agreed to request the Court to make Consent Orders.

4 The Court heard the application for consent orders on 15 and 18 August 2005. The Court heard further expert evidence from Mr Grech, town planner for the applicant, and residents. The Court adjourned the proceedings to allow further amendments and additional details to be provided. The Court also requested that the amended application be referred to Council’s Design Review Panel (“the Panel”). This panel is established under State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development (“SEPP 65”). Clause 30(2) of SEPP 65 requires a consideration of the comments of the Panel. The Panel had considered the original application and subsequent amendments, and the Court considered it appropriate that the amended scheme for which consent orders were being sought should also be considered. The Panel considered the amended application in August 2005. The Court will address its comments below in respect of their findings.

5 The amendments included the redesign of the townhouses along Fagans Bay to improve solar access and provide variety, greater detail, including dimensions and RLs, updated landscape drawings, and engineering drawings which show the extent of fill and concept drainage.

6 The issues between the parties have been resolved. Of these the key issue was the non-compliance with the height control in cl 28 (4) of Gosford Planning Scheme Ordinance (“GPSO”). The application was amended to reduce the height of the residential flat buildings to achieve greater compliance. There is still some non-compliance and Mr Grech provided an objection under State Environmental Planning Policy No 1 – Development Standards (“SEPP 1”). This non-compliance results largely from the requirement to fill the site, since the maximum height is measured from existing ground level. Mr Grech’s evidence, which the Court accepts, was that the proposed height met the objectives of the standard. Accordingly the Court upholds the SEPP 1 objection.

7 Other issues which the Court and Council accept have been addressed by the amended plans are:

· The setback to Fagans Bay which has been increased to exceed the minimum requirement in Gosford Development Control Plan 100 (“DCP 100”).

· The solar access to the residential flat buildings has been improved by reorientation of the buildings to more than meet the requirements the SEPP 65 residential design code. The units have also been redesigned to provide dual aspect apartments which improves the amenity to these units by providing flow through ventilation, orientation away from the adjoining commercial development to the north and improved solar access. Solar access to the town houses has also been improved to meet the requirement in DCP100 for the equinox as well as midwinter. The most recent amendments have changed the design of the townhouses along Fagans Bay to improve solar access while maintaining views to the Bay. This change has also introduced further variety into the development.

8 In relation to the comments of the Panel, its previous concerns in relation to height and layout were addressed by the amended proposal. It raised additional concerns about the provision and public accessibility of open space in the development. These comments were not supported by either the Council or Mr Grech. There is no requirement that the development provide public access to the private open space in the development and is not desirable for security and liability reasons. The proposal provides private open space in excess of Council’s requirements as well as public open space in the form of a cycle way along Fagans Bay. The cycle way will provide significant public amenity as a landscaped visual buffer between the buildings and the water. Other comments of the panel were relatively minor and have either been addressed in the amended plans are not considered to be necessary.

9 In accordance with the Court’s Practice Direction No 23, the opportunity was provided for any person who has objected to the proposal to seek leave to be heard in the Court’s consideration of the request for consent orders. At the hearing in August Mrs P Khoshnoud, 15 Kulara Avenue; Mr H Wedlake, 16 Bellhilton Parade and Dr M Johnstone, 16 Kulara Avenue gave evidence.

10 Despite the amended plans, the concerns of these residents and others that gave evidence earlier on site in 2004, centred on the residential flat buildings. The residents considered this form of development to be inconsistent with the character of the adjacent existing detached residential housing and were particularly concerned about impacts on their privacy. Mr Grech’s evidence, which the Court accepts, is that the site is zoned 3(b) business (special) under GPSO which permits residential flat buildings with consent. The adjoining area is zoned residential 2(b). It is therefore reasonable to expect that development of a different form and character to surrounding development will occur on the site. The density of housing on the site is less than half that permissible under GPSO. An appropriate transition between the residential areas to the west and the proposal is achieved by the setback of the residential flat buildings from the western boundary by distances of between 15 m and 25 m, where landscaping is proposed. These setbacks provide sufficient separation to ameliorate any privacy concerns.

11 The other main concerns of the residents have been discussed above with the exception of drainage and impact on the wetlands in Fagans Bay. Part of the site is affected by State Environmental Planning Policy No 14 – Coastal Wetlands (“SEPP14”). The proposal is integrated development, as a permit under Pt 3A of the Rivers and Foreshores Improvement Act 1948 is required because the development is within 40 m of protected waters (Fagans Bay). The Department of Land and Water Conservation has issued General Terms of Approval which form part of the proposed conditions of approval. The General Terms of Approval include a requirement for works to be undertaken to restore and stabilise the riparian corridor and buffer zone along the western boundary and a requirement that the proposal not adversely impact on the foreshore or wetlands of Fagans Bay. The applicant has submitted amended engineering drawings which show the extent of fill and concept stormwater plan. The Council is satisfied that these drawings and the proposed conditions will ensure that there is no adverse impact on Fagans Bay or adjoining dwellings. In the absence of any other evidence the Court accepts the Council’s satisfaction.

12 For the above reasons the Court is satisfied that the issues between the parties and the concerns of the residents have been appropriately addressed by the amended plans and the further details provided. The changes have resulted in significant improvements in the design of the proposal. As originally proposed the Court found several shortcomings. The amendments result in a development for which the consent orders that are sought by the parties may be granted.

13 Accordingly the Court, by consent, makes the following orders:

1. The appeal be upheld.
2. Deferred commencement development consent be granted for a proposed filling, town houses and residential flat buildings and subdivision under community title development on Lot 1, Deposited Plan 1051411 at Yallambee Avenue, West Gosford, subject to conditions of consent numbered A i and B 1-98 annexed to the orders and marked “A”, and in accordance with:
(i) the plan of the proposed subdivision prepared by Mepstead and Associates Pty Limited number 3326;

(ii) landscape concept plan 0524/R2 Issue B (5 sheets) dated 17 November 2005 prepared by Jocelyn Ramsay and Associates Pty Ltd;

(iii) engineering plans prepared by Mepstead & Associates Pty Limited number 3326-401 to 406 inclusive; and

(iv) plans prepared by Leffler Simes Architects listed in the table which is attached to the orders and marked “B”.

3. The exhibits, except exhibits 27, O, V, W and X be returned.

****************************