Freshwater Village Developments Pty Ltd v Warringah Council

Case •

[2011] NSWLEC 1127

•

24 May 2011

Land and Environment Court


New South Wales

Medium Neutral Citation: Freshwater Village Developments Pty Ltd v Warringah Council [2011] NSWLEC 1127
Hearing dates:4,5,6 April 2011
Decision date: 24 May 2011
Jurisdiction:Class 1
Before: Brown C and Tuor C
Decision:

Appeal dismissed

Catchwords: DEVELOPMENT APPLICATION - demolition of all existing improvements and the construction of mixed use retail and residential development - whether development is appropriate or consistent with the desired future character of the relevant locality, including built form controls and the relevant general principles of development control - height - number of storeys - bulk - density - amenity impacts
Legislation Cited: Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No. 65
Warringah Local Environmental Plan 2000
Draft Warringah Local Environmental Plan 2009
Cases Cited: Dem Gillespies v Warringah Council [2002] 124 LGERA 147
Minnici v Warringah Council [2009] NSWLEC 1098
Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21
Category:Principal judgment
Parties:

APPLICANT
Freshwater Village Developments Pty Ltd

RESPONDENT
Warringah Council
Representation:

APPLICANT
Mr A Galasso SC with Mr R Notley

RESPONDENT
Mr C McEwen SC with Mr A Pickles
APPLICANT
Herbert Geer Lawyers

RESPONDENT
Wilshire Webb Staunton Beattie Lawyers
File Number(s):11007 of 2010

Judgment

  1. COMMISSIONERS: This is an appeal against the refusal of Development Application No 2010/1446 by the Sydney East Joint Regional Planning Panel for the demolition of all existing improvements and the construction of a mixed-use retail and residential development at 5-19 Lawrence Street, 22A Albert Street and 18 Marmora Street, Freshwater (the site).

  1. The contentions in the appeal relate to:

  • the suitability of the development after consideration of the desired future character of the H1 Freshwater Beach locality, particularly the density and form of housing,
  • the suitability of the development or the inconsistency with the desired future character of the H2 Harbord Village locality, particularly the height and number of storeys,
  • the unacceptable impact on the amenity of future residents of the proposed development.

  1. The contention relating to additional traffic impacts on the residential amenity and the use of Soldiers Avenue and Marmora Street was further addressed by the traffic engineers prior to the hearing and it was agreed the contention could be satisfactorily addressed through the deletion of the proposed roundabout at the intersection of Moore Road and Albert Street. This has the effect of not directing vehicles from the proposed development towards Soldiers Avenue and Marmora Street, however a total of four on street car parking spaces would be lost through the revised entry/exit design to the car park. This agreed position was subject to submissions by the parties on whether the revised entry/exit design should be readvertised for public comment given the loss of four on street car parking spaces

  1. The Court also heard from a number of residents on the site inspection and the large number of submissions to the council during the advertising of the proposed development were also provided to the Court. The residents who gave evidence on the site inspection and the submissions supported the contentions raised by the council and raised following additional contentions:

  • inadequate existing on-street parking,
  • traffic congestion, including cars blocking existing driveways,
  • loss of privacy from the balcony of a proposed townhouse,
  • impact on the heritage significance of the street trees in Soldiers Avenue, and
  • traffic safety, particularly the inadequate width of surrounding streets and dangerous intersections.

The site and surrounding area

  1. The site is irregular in shape with a 65 m frontage to Lawrence Street, a 71.5 m frontage to Albert Street and a 25 m frontage to Marmora Street. The site comprises eight allotments with a total site area of 9565.6 sq m.

  1. The site forms part of the Freshwater Village, which is characterised by a mix of small retail and commercial businesses, with some older style ground level retailing with upper level accommodation or offices and some recently constructed shop top housing. Other land uses in the vicinity of the site comprise two separate council car parks, community facilities, an electricity substation and a telecommunications facility. Land adjoining the Freshwater Village is generally residential with the relevant area around Marmora Street consisting a mix of generally detached single dwellings and some older style residential flat buildings.

The proposed development

  1. The proposed development seeks the demolition of all existing improvements on the site and the construction of a mixed-use retail and residential development (see plan following par 8). The main components of the proposed development are:

  • the demolition of all existing improvements,
  • two basement levels of car parking providing for a total of 335 car spaces, made up of 156 retail spaces, 178 residential spaces and a car wash bay with access from Albert Street,
  • a part 2, part 3 and part 4 storey, mixed use building (retail and residential above) fronting Lawrence Street providing for 2271.18 sq m of retail space and 16 units (Building A),
  • a part 4 and part 5 storey mixed use building (retail and residential above) adjoining the western side boundary providing for 284.55 sq m of retail space and 280 units (Building B),
  • a 4 storey building providing for 21 units (Building C),
  • a 3 storey, mixed use building (retail and residential above) fronting Albert Street providing for 858.5 sq m of retail space and 26 units (Building D),
  • four townhouses in two attached buildings in the north-east corner of the site (TH.01 - 04) with pedestrian access from within the site and car parking in the proposed basement area, and
  • three townhouse in the north-east corner of the site (TH.05 - 07) with pedestrian access and vehicular access from Marmora Street.

Relevant planning controls

  1. The relevant environmental planning instrument is Warringah Local Environmental Plan 2000 (LEP 2000). LEP 2000 identifies geographical locations that are further delineated based on the character of the land. The site falls within the broader Harbord geographical location and specifically within Locality H1 - Freshwater Beach (18, 20 and 22 Marmora Street) and Locality H2 - Harbord Village (the remainder of the site). Each locality identifies development that is complying development, development that is permitted with the grant of development consent and prohibited development. Permitted development is divided into three categories; Category One, Category Two and Category Three (cl 14).

  1. Clause 12 sets out the matters to be considered before consent can be granted for any development. Clause 12(1) provides that before granting consent the consent authority must be satisfied that the development is consistent with any relevant general principles of development control in Part 4. Clause 12(2) provides that before granting consent to any development the consent authority must be satisfied that the development will comply with the relevant requirements in Parts 2 and 3 (cl 12(2)(a)) and the development standards for the development as set out in the relevant Locality (cl 12(2)(b)).

  1. Clause 12(3) provides that before granting development consent the consent authority must consider the desired future character (DFC) for Category One development (cl 12(3)(a)) or for Category Two or Three development, must be satisfied that the development is consistent with the DFC described in the Locality, "but nothing in a description of desired future character creates a prohibition on the carrying out of development"(cl 12(3)(b)).

  1. Clause 18(1) provides that built form will be controlled in accordance with the general principles of development control, the DFC of the Locality and the development standards set out in the Locality. Clause 18(2) provides that strict compliance with development standards, however, does not guarantee that the development is consistent with either the general principles of development control or the Locality. Clause 18(3) provides that "nothing in this plan requires development to comply strictly with a quantitative requirement made in any general principle of development control".

  1. Clause 20 addresses whether a development can be approved if it does not comply with a development standard. Clause 20(1) provides that:

(1) Notwithstanding clause 12(2)(b), consent may be granted to proposed development even if the development does not comply with one or more development standards, provided the resulting development is consistent with the general principles of development control, the desired future character of the locality and any relevant State environmental planning policy.

  1. State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65) applies to the proposed development. Clause 30 requires consideration to be given to the design quality principles in Part 2 (cl 30(2)(b)) and the publication Residential Flat Design Code (cl 30(2)(c)).

  1. Draft Warringah Local Environmental Plan 2009 (the draft LEP) applies as it has been advertised pursuant to s 79C(1)(a)(ii) of the Environmental Planning and Assessment Act 1979. The contention raised by the council relates to only the H1 Locality part of the site. The draft LEP was exhibited from 12 October 2009 to 30 December 2009 and was subject to correspondence from the Department of Planning on 7 December 2010 advising of a number of changes that were required to be made. The limited evidence on this matter did not indicate any substantive progress and as such the draft LEP could not be considered imminent or certain.

The H1 Locality

  1. The DFC for the H1 Locality is:

The Freshwater Beach locality will remain characterised by detached style housing in landscaped settings interspersed by existing apartment style housing and a range of complementary and compatible uses.
Future development will maintain the visual pattern and predominant scale of existing detached style housing in the locality except for the Harbord Diggers Club. The streets will be characterised by landscaped front gardens and consistent front building setbacks. Unless exemptions are made to the housing density standard in this locality statement, any subdivision of land is to be consistent with the predominant pattern, size and configuration of existing allotments in the locality.
The locality contains hillsides and elevated landforms, prominent coastal headlands and cliffs and remnant vegetation. These elements will be protected from development that would detract from their visual and natural qualities, presenting in some parts of the locality a constraint to further development.
The Harbord Diggers Club will continue to cater for the recreational and leisure needs of the community. If the existing approved building and carparking areas are to be expanded, regard must be had to any approved and detailed masterplan for the site. Such a masterplan is to address issues such as views, visual impact, natural features, management of traffic and impact upon the amenity of the locality.
The locality will continue to be served by the existing local retail centre shown on the map. Future development in this centre will be in accordance with the general principles of development control provided in clause 39.

  1. Development within the H1 Locality includes 5 townhouses. Two townhouses (TH.03 and TH.04) are located in one of the two attached buildings in the north-east corner of the site with pedestrian access from within the site and car parking in the proposed basement area. Three townhouses (TH.05 - TH.07) are located with a frontage and all access from Marmora Street.

  1. There was agreement that the proposed development that falls within the H1 Locality satisfies the built form controls with the exception of housing density. The proposed development provides 1 dwelling/329.9 sq m compared to the built form control that provides for 1 dwelling/450 sq m.

The applicant's evidence

  1. Ms Sue Francis provided town planning evidence, Dr Richard Lamb provided visual impact evidence and Mr Nigel Dickson provided urban design evidence for the applicant.

  1. Ms Francis notes that "detached style housing" is not defined in the Dictionary to LEP 2000. To consider whether the townhouses can be seen as "detached style housing" Ms Francis relies on a four-point test, which she states was established by the council during the assessment of a redevelopment of the Harbord Diggers Club site; a site that also falls within the H1 Locality. This requires a consideration of the form and scale, accepting that a detached style dwelling would generally be two storeys, the length of the building module fronting the street and the fact that detached style housing does not necessarily mean that each building only contains one dwelling. In her opinion, townhouses TH.05 - TH.07 are appropriately characterised as "detached style housing" because the townhouses:

  • comply with the built form controls (except density),
  • are 2 storeys in height,
  • have an acceptable spatial separation of 3 m on the ground level and 3 m of the upper level,
  • have a similar frontage to the buildings they replace,
  • have a length consistent with the existing building to the east (32A Albert Street), and
  • are consistent with the visual context that includes similar built form types for that part of the southern side of Marmora Street near the site.

  1. Dr Lamb states that the current character of the H1 Locality includes a broad mix of detached and attached residential built forms. He states that if the buildings were seen to be too alike then minor modifications could be made to minimise this effect. He further states that he does not accept that the driveways provide excessive hard surfaces compared to the existing, recent and contemporary developments within the H1 Locality. He supports the conclusions of Ms Francis in relation to consistent setbacks and the opportunity to improve the landscape appearance through the retention of an additional street tree.

  1. Mr Dickson also agrees with the conclusions of Ms Francis. He states that townhouses TH.05 - TH.07 have been designed, not through a literal interpretation of the locality statement but to seek to replicate the "style" of detached housing, in that it will maintain the scale and visual pattern of detached style housing in landscaped settings. Mr Dickson further states that the proposed townhouses provide a visual separation through the upper floors when viewed from Marmora Street. These "slots" provide adequate separation to reinforce townhouses TH.05 - TH.07 as a "detached" style of housing.

  1. Notwithstanding the issues raised by the council experts on the internal amenity of the proposed townhouses, Mr Dickson states that such issues are unfounded as the fencing and landscaping will provide a sufficient vegetated buffer will address any amenity issues. In his opinion, any impacts relating to potential overlooking are not a consequence of any breaches of any development standard and, if considered appropriate by the Court, additional screening or landscaping could be provided.

The council's evidence

  1. Mr Harvey Sanders provided town planning evidence, Ms Gabrielle Morrish provided urban design evidence and Mr Anthony Powe provided landscape evidence for the council.

  1. Mr Sanders comes to a different conclusion to the applicant's experts. He states that the part of the development within the H1 Locality will not maintain the visual pattern and predominant scale of the locality of detached style dwellings in landscaped settings. He notes that the DFC refers to "detached style housing" and not to "detached housing". He accepts that the dwellings can be attached to a minor extent but should not appear to be attached, however, the townhouses clearly do not have a detached style. Townhouses TH.05 - TH.07 are attached when viewed from Marmora Street and their combined overall width in the streetscape is not consistent with the pattern of surrounding detached housing. Additionally, it is apparent from the northern elevation that that the same design is repeated for each dwelling which further reinforces their inconsistency with the visual pattern of housing in the locality. The lack of landscaping between dwellings reinforces the inconsistency with the desired future character. Mr Sanders draws similar conclusions for townhouses TH.03 and TH.04.

  1. Mr Sanders also draws attention to the non-compliance with the density control for the H1 Locality that would allow for the erection of a maximum of three dwellings compared to the proposed five dwellings proposed for that part of the site in the H1 Locality. In the opinion of Mr Sanders, this exceedance of the density requirement is a further indication that the proposed townhouses will not be consistent with the visual pattern of detached dwelling houses in the locality.

  1. Ms Morrish states that the H1 Locality is very specific about the form of development that is encouraged and allowed in the area. Any transition between this locality and the adjoining H2 Locality is inappropriate as it pulls townhouse typologies into an area that provides only for detached housing typologies. In her opinion, the proposed townhouses introduce a development form that is not contemplated by the controls. Such a transitional form is appropriate within the H2 Locality where it is intended to occur and where it is not visible to Marmora Street. The Marmora Street land should be redeveloped for detached contemporary dwellings ensuring a more consistent character is maintained to the street. Ms Morrish does not regard the proposed townhouses as "detached style housing" due to their narrow frontages and small lot sizes. These factors do not encourage the same type of landscaped setting that can be achieved by detached dwellings within the street. To satisfy the desired future character, townhouses TH.05 - TH.07 should be replaced by two dwelling houses.

  1. Ms Morrish also raises amenity issues, particularly the relationship with the rear ground level of townhouses TH.05 - TH.07 and the communal open space and potential overlooking. Potential overlooking was also a matter raised by an adjoining resident on the site inspection.

  1. Mr Powe agrees with the comments of Ms Morrish. He states that in terms of landscaped impacts, the proposed buildings present a solid wall of built form at ground level with the majority of the front landscape setback occupied by driveways, entrance paths and bin bays. As presented, the driveways will require the removal of a street tree with no opportunity for replanting due to the minimal distance between driveways and the need for adequate sightlines to be maintained. He acknowledged that changes to the driveway suggested by Mr Dickson may retain the street tree currently shown to be removed however no details have been provided to allow him to be satisfied.

Findings

  1. Townhouses are not separately defined but fall within the definition of "housing". Housing is identified as Category One development within the H1 Locality. The Dictionary to LEP 2000 defines housing as:

housing means development involving the creation of one or more dwellings whether or not used as a group home.

  1. The proposed basement car parking, access ramp to the basement car park, and a switch room, being ancillary development to both the residential and retail uses are classified as Category Three development within the H1 Locality, being "shops" not located within the local retail centre although this was not pressed by the council because of the relatively minor extent of the Category Three development within the H1 Locality.

  1. Clause 12(1)(a) requires a finding of consistency with any relevant general principles of development control, the development standards for the Locality and, for Category One development, cl 12(3)(a) requires consideration of the DFC for the Locality.

  1. The relevant general principles of development are Landscape Open Space (cl 63) and Building Bulk (cl 66). These state:

63 Landscaped open space
Landscaped open space is to be of such dimensions and slope and of such characteristics that it will:
    • enable the establishment of appropriate plantings to maintain and enhance the streetscape and the desired future character of the locality, and
    • enable the establishment of appropriate plantings that are of a scale and density commensurate with the building height, bulk and scale, and
    • enhance privacy between dwellings, and
    • accommodate appropriate outdoor recreational needs and suit the anticipated requirements of dwelling occupants, and
    • provide space for service functions, including clothes drying, and
    • facilitate water management including on-site detention and the infiltration of stormwater, and
    • incorporate the establishment of any plant species nominated in the relevant Locality Statement, and
    • enable the establishment of indigenous vegetation and habitat for native fauna,
66 Building bulk
Buildings are to have a visual bulk and an architectural scale consistent with structures on adjoining or nearby land and are not to visually dominate the street or surrounding spaces, unless the applicable Locality Statement provides otherwise.
In particular:
    • side and rear setbacks are to be progressively increased as wall height increases,
    • large areas of continuous wall planes are to be avoided by varying building setbacks and using appropriate techniques to provide visual relief, and
    • appropriate landscape plantings are to be provided to reduce the visual bulk of new buildings and works.

  1. The built form controls for the H1 Locality include housing density, building height (overall), building height (floor-to-ceiling), front building setback, rear building setback, side boundary setback, side boundary or envelope, and landscaped open space.

  1. The relevant parts of the H1 Locality DFC are:

  • the locality will remain characterised by detached style housing in landscaped settings interspersed by existing apartment style housing,
  • future development will maintain the visual pattern and predominant scale of existing detached style housing in the locality,
  • be characterised by landscaped front gardens and consistent front building setbacks, and
  • any subdivision of land is to be consistent with the predominant pattern, size and configuration of existing allotments in the locality , unless an exception to the density standard is appropriate.

  1. The application of the term "consistent" has been addressed by the Court on a number of occasions and has been was found to mean "not antipathetic, nor incompatible or inconsistent with" ( Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21 (at 27)). The Court has also found the words to have its ordinary and natural meaning ( Dem Gillespies v Warringah Council [2002] 124 LGERA 147 ). In this case, we accept that the term "consistent" should be given its ordinary and natural meaning because the Dem Gillespies case refers to LEP 2000, although we accept that either meaning would not change our conclusions.

  1. In considering the competing evidence and the assessment framework provided by LEP 2000, we agree with the conclusions reached by the council's experts. In considering the DFC for the H1 Locality, we accept that townhouses TH.05 - TH.07 could not reasonably be described as "detached style housing". We agree with Mr Sanders who states that it is not necessary for the townhouses to be completely detached however there must be an appearance that the townhouses are detached. The upper levels are not attached, and attempts have been made to provide the visual appearance of detachment through the courtyards at the street frontage, however, in our view, the attempts are largely tokenistic with the actual separation or the "slots" referred to by Mr Dickson, at the first level being only around 1 m. The ground level is clearly attached notwithstanding the attempts to offset the townhouses from each other at the street frontage.

  1. We also agree with Mr Powe that the majority of the front landscape setback is occupied by driveways, entrance paths and bin bays and it could not reasonably be argued that the townhouses are located in "landscaped settings" or "characterised by landscaped front gardens". It is a fundamental problem with this part of the application and not a matter that could be simply addressed through minor modifications, as suggested by Dr Lamb. Also, the issue relating to the applicant's submission that the existing significant street tree could be retained was not addressed sufficiently to dismiss Mr Powe's concerns.

  1. We are satisfied that townhouses TH.05 - TH.07 are inconsistent with the general principle of development relating to Landscaped Open space (cl 63) in that these townhouses do not enable the establishment of appropriate plantings to maintain and enhance the streetscape and the desired future character of the locality and do not enable the establishment of appropriate plantings that are of a scale and density commensurate with the building height, bulk and scale.

  1. Similarly, we are also not satisfied that that townhouses TH.05 - TH.07 are consistent with the general principle of development relating to Building bulk (cl 66) in that the buildings are to have a visual bulk and an architectural scale consistent with structures on adjoining or nearby land and are not to visually dominate the street or surrounding spaces.

  1. We also do not consider that the proposed townhouses will be consistent with the predominant pattern, size and configuration of existing allotments in the locality. That part of the site within the H1 Locality currently contains three residential dwellings and the housing density standard also provides for 3 dwellings based on 1 dwelling/450 sq m . The proposal provides for 5 townhouses. While the opportunity exists for the housing density standard not to be enforced, we do not accept that there is any reasonable basis for an exemption in this case, particularly for townhouses TH.05 - TH.07 .

  1. In our view, the density is at the heart of the unsuitability of the proposed townhouses. There can be no doubt that the H1 Locality over this part of the site is an attempt to maintain the character, style and pattern of development in Marmora Street. We have little trouble in concluding that townhouses TH.05 - TH.07 are unacceptable when considered against the H1 Locality DFC .

  1. The situation is somewhat different for townhouses TH.03 and TH.04 where their location has only a small visual relationship with Marmora Street and the detached style of dwellings and landscaped front setbacks that predominate in this street. While Ms Francis placed some emphasis on the adjoining property at 32A Albert Street to support her position, we do not accept that this should be used as any form of guide, given the greater consistency in building form and character elsewhere in Marmora Street. We note that the H1 Locality DFC contemplates variations to the housing density standard and provides an exemption to the requirements for consistency with the predominant pattern, size and configuration of existing allotments if a higher housing density standard is allowed . If townhouses TH.03 and TH.04 had a minimal visual relationship with Marmora Street (and this would depend on the form of development where townhouses TH.05 - TH.07 were proposed) we accept that the potential exists for a higher density than contemplated by the housing density standard within the H1 Locality.

  1. Having found that townhouses TH.05 - TH.07 are unacceptable, and if no other issues warranted the refusal of the application, we would have deleted these townhouses from any approval, however, as other issues that are set out later in the judgment warrant the refusal of the application, this is not a course of action that can be taken in this case.

The H2 Locality

  1. The DFC for the H2 Locality is:

The Harbord Village will retain its retail character incorporating a mix of small retail and business uses with low-rise shop-top housing. A range of retailing and after-hours activities at street level will reinforce the character of the village.
Future development will maintain the continuity of existing building facades ensuring that they are broken into distinct vertical segments reflecting the traditional pattern of shopfront development. The design and treatment of buildings will also reflect the exposed nature of the locality incorporating continuous footpath awnings and creating a pedestrian environment which is safe, comfortable and interesting. Commercial use of part of the footpath for outdoor eating is appropriate.
Buildings greater than 2 storeys in height are to be designed so that the massing is substantially reduced on the top floor thereby reducing the visual bulk of the development and enabling views between buildings.
Development that adjoins residential land is not to reduce the amenity enjoyed by adjoining occupants. In this regard the built form of development in the village is to provide a transition to adjacent residential development, including reasonable setbacks from side and rear boundaries, particularly above the ground floor level.

  1. The H2 Locality includes the reminder of the development of the site, made up of Buildings A, B, C and D and two townhouses (TH.01 and TH.02) in the north-east corner of the site. A pedestrian plaza runs in an east-west direction between Buildings A and D, ending at Building B and where pedestrian access is provided in a northerly direction to Building C.

The applicant's evidence

  1. Ms Francis states that the proposed development presents as three storeys to Albert and Lawrence St consistent with the existing development opposite the site and the expectations of council's planning controls. "Shop top housing" is not defined in LEP 2000, however an accepted characterisation of shop top housing is that the development should constitute one or more dwellings located above or attached to ground floor retail/business premises. Ms Francis states there is no presumption in the DFC that all buildings are to have a mix of retail/business in a low-rise shop top housing format. Buildings B and C do not contain any retail uses at ground level but are part of an integrated development that sits on top of a basement retail car park. In the opinion of Ms Francis, the proposed development constitutes shop top housing. Also, the density of the proposed development as perceived visually from the public vantage points is similar to that which would be anticipated with a complying development.

  1. Mr Dickson understands that the treatment of Buildings A and D is not the subject of any disagreement between the experts. He concurs with the evidence of Ms Francis in that the building heights along the edge of the site, importantly on the public domain along Lawrence and Albert Streets, reflect a low scale of development consistent with the DFC. In his opinion, the bulk of buildings that vary from the height standard are only perceived in limited instances, internal to the site. As the departures from the building height requirements are located internal to the site, Mr Dickson describes the impacts as negligible.

  1. Buildings B and C will be visible as approximately 3-storey buildings from the council car park due to the slope of the land according to Mr Dickson. Any non-compliance with the height standard will not be visible from the areas external to the site and given the proposed planting along the western boundary the height variants do not contribute to an increase in building bulk from this location. The relationship of the built form of Building C to the adjoining church is appropriate as this building has a stepped form away from the church. Mr Dickson notes that the northern portion of Building C fully complies with the height requirement.

  1. Mr Dickson further states that the proposal has provided retail and commercial activities in the most logical locations; the main street frontages to Freshwater Village, which reinforces Lawrence and Albert Streets as the primary retail street. The internal plaza is secondary to the main retail/commercial offerings and is akin to the concept of an internal arcade.

  1. On the question of integration with Freshwater Village, Mr Dickson states that the proposed development addresses and adequately satisfies this requirement. He defines the retail/commercial developments fronting Lawrence Street and Albert Streets as the focus of the Freshwater Village. In his opinion, the proposal does not turn its back on the village, as it continuously establishes retail and commercial activity along both the Lawrence Street and Albert Street frontages to reinforce activation of the village. He also rejects the council's approach of conductivity from the adjoining and nearby council car parks to the site, as this will potentially draw patrons away from the retail activities on Lawrence Street and Albert Street.

  1. In response to the council's concerns over lack of solar access to the plaza, Mr Dickson states that this area will provide a high level of outdoor amenity despite being overshadowed, and offers pedestrian relief to the exposed nature (and absence of natural shade from tree canopies) of the Freshwater Village. In his opinion, the provision of shaded outdoor eating areas is consistent with the nature of outdoor dining in the village.

  1. Dr Lamb adopts the same approach as Mr Dickson and states that from the public domain none of the buildings will appear to be of excessive scale or height. In his opinion, it would also be difficult to sustain an argument that Buildings B and C are excessive in height in any internal view. Building B will have a partly 5-storey appearance from the plaza but this will not significantly detract from the way the public will predominantly perceive the H2 Locality. Dr Lamb states that there is no reason to object to the height of Building C as it has a minor non-compliance and its height has a minimal visual impact.

  1. Dr Lamb maintains that to achieve compliance with the H2 Locality it is not necessary for every building to be a low scale building with retail/commercial uses at the ground floor and shop top housing above. The proposal has provided retail to the most logical and accessible places and resolved the problem of there being a significant fall along Lawrence Street as well as a significant change of level between the Lawrence Street car park and the site.

The council's evidence

  1. Mr Sanders states that the proposed development is inconsistent with the DFC as it does not comprise a mix of small retail and business uses with low-rise shop-top housing. The proposed development comprises primarily residential floor space, including, in part, housing at ground floor level (that is, not over a shop). In addition, the proposed buildings, which have heights above finished ground level of up to five storeys, are not considered to constitute "low-rise" development. In his opinion, the proposal will undermine the retail character and role the Freshwater Village through the predominance of residential development. More specifically, Buildings B, C and D contain residential units at the ground floor level and consequently are not "shop top housing".

  1. Mr Sanders notes that the built form controls for the H2 Locality provide that buildings are neither to exceed 3 storeys or 11 m measured from natural ground level. All buildings exceed the 11 m height requirement and three of the four buildings (Buildings A, B and C) exceed the storey requirement. Even accepting that the apparent height of some of the buildings is reduced from vantage points surrounding the site, due to the excavation of the proposed development into the site, the overall height of the buildings would be apparent internally, particularly from the proposed plaza, which is proposed as a public space. The perception of height is also exacerbated by the massing at the upper levels and the inappropriate transition to the lower scale development in the adjoining residential area.

  1. Mr Sanders sees additional negative aspects of the proposed development in the "dead end" nature of the plaza and the inability to adequately landscape along the northern boundary.

  1. Ms Morrish states that the storey and height controls are important for human scale and perceived bulk. The storey control establishes the number of floors seen from the public domain and also the height of the building facade from the public domain. The intent is for a two-storey street wall to the public domain that is reminiscent of the lower scale buildings seen in Freshwater but allowing some additional development in an extra third-floor but setback 5 m to ensure it has a very low visibility. The test of visual impact, bulk and scale needs to be considered in light of these controls and this intent. The buildings maximum heights are far greater than contemplated by the control with Building A being 13.8 m - 4 storeys (to the arcade), Building B being 15.6 m - 5 storeys and Building C being 12.2 m - 4 storeys.

  1. In the opinion of Ms Morrish, the visual impact has been manipulated by sinking the buildings below ground level. This may lower the roofs to be closer to the 11 m height standard above natural ground level but the scale and massing overall is far outside the intent of the control and creates other issues with connectivity, integration and amenity. Ms Morrish states that even though the development presents, to its edges, a form that is not 4 - 5 storeys, it is nonetheless out of scale and has a visual impact. In her opinion, the proposal is inconsistent with the general principle of development relating to Building bulk (cl 66) in that the buildings are to have a visual bulk and an architectural scale consistent with structures on adjoining or nearby land and are not to visually dominate the street or surrounding spaces.

  1. Ms Morrish acknowledges that Building A and part of Buildings B and D contribute retail active uses to the arcade, Lawrence Street and Albert Street, which is positive and achieves the goal of the controls, however parts of the ground floor of Buildings A, B and D and all of Building C do not have any retail/business uses and provide residential uses to the ground floor. Residential uses at this level privatise a significant portion of the site for private and communal open space for these residential units which was not the intent of the controls.

  1. On the question of integration, Ms Morrish states that the proposed development is generally unresponsive. Integration includes a sensitive response to built form, landscape, architectural character and use but also requires consideration of connectivity, movement networks and permeability. Good development on large sites should link to and connect with its surroundings. The proposed development fails as it closes its face to all boundaries other than one public connection to Albert Street and the retail interface to Lawrence Street. The only other connection is to Marmora Street which is only for the residents of the development. By not connecting to the surrounding area, it captures retail activity generated by the major tenant it proposes, within the site rather than encouraging movement into the village more broadly and beyond its plaza. In her opinion, this is a lost opportunity given the amalgamation of nine sites that are a significant proportion of the northern side of the village and a very large land holding for the Freshwater Village.

  1. Ms Morrish also raises internal amenity issues, specifically the effect of sinking the development below ground level combined with the decision to orientate many units to the west overlooking the substation and the public car park. Building B, and to a lesser extent Building C, are recessed into the site. This has the effect of restricting the potential to connect to the public car parks, but also means that the proposed residential units on the ground level of these buildings are to varying degrees below natural ground. A number of units rely for their secondary outlook on a sunken courtyard that is enclosed by Building B itself, the end of Building A, the mechanical plant for the retail areas and a 4 m fence required to screen the substation above an existing wall. Based on the applicant's plans, the fence to the substation rises up to the third level of Building B and will be a very tall dominant form for anyone within the lower areas of Building B. Other areas of concern relate to the design of the units themselves, particularly the proximity of a common walkway to the units in Building B on levels 1 and 2 and internal overlooking.

  1. In addition to the dead-end nature of the plaza, Ms Morrish also raises concern over the amenity of this feature. As the DFC encourages outdoor dining and currently the village provides little opportunity for this activity due to the poor quality of existing building stock. Ms Morrish is critical of the inadequate width, height of adjoining buildings and lack of solar access to a plaza. She calculates at 9 a.m. there will be no sun, by midday a small amount of sun will be available near the escalators at the western end of the plaza and by 3pm the plaza will be totally overshadowed again.

  1. Mr Powe agrees with the landscape comments of Mr Sanders and Ms Morrish and adds that while the term character may be open to interpretation, guidance may be gained from that part of the DFC that states:

The Harbord Village will retain its retail character incorporating a mix of small retail and business uses with low-rise shop-top housing. A range of retailing and after-hours activities at street level will reinforce the character of the village.

  1. The selection of the words "small" and "low-rise" indicate development compatible with a local village, servicing predominantly its retail and business uses and street level activity. Mr Powe states that the proposed development is at odds with the H2 Locality DFC.

Findings

  1. Business premises, health consulting rooms, housing (not on ground floor), medical centres, offices, shops and restaurants are a Category One use in the H2 Locality. Housing that is on ground floor is a Category Two use, being "other buildings, works, places or land uses that are not prohibited or in Category 1 or 3".

  1. The built form controls for the H2 Locality include building height (not to exceed 3 - storeys nor 11 m), front building setback (minimum front building setback to any third storey is 5 m) and footpath awnings. The maximum height is the distance measured vertically between the topmost point of the building and the natural ground level below.

  1. There was agreement that not all buildings satisfy the 11 m building height, 3- storey and third storey setback controls. The council's Final Statement of Facts and Contentions states that Building A has a height between 11.2 m and 14.2 m to the parapet and 3-4 storeys, Building B has a height between 12.1 m and 13.5 m to the parapet and 4-5 storeys, Building C has a height between 11.2 m and 12.5 m and 4 storeys and Building D has a height between 9.5 m and 13.5 m to the top of the skylights and 3 storeys. The townhouses in the H2 locality satisfy the building height and storey control.

  1. The relevant parts of the H2 Locality DFC are:

  • the locality will retain its retail character incorporating a mix of small retail and business uses with low-rise shop-top housing,
  • provide a range of retailing and after-hours activities at street level that will reinforce the character of the village, including commercial use of part of the footpath for outdoor eating,
  • maintain the continuity of existing building facades ensuring that they are broken into distinct vertical segments reflecting the traditional pattern of shopfront development,
  • create a pedestrian environment which is safe, comfortable and interesting,
  • buildings greater than 2 storeys in height are to be designed so that the massing is substantially reduced on the top floor thereby reducing the visual bulk of the development and ....
  • development that adjoins residential land is not to reduce the amenity enjoyed by adjoining occupants, and
  • the built form is to provide a transition to adjacent residential development, including reasonable setbacks from side and rear boundaries, particularly above the ground floor level.

  1. Clause 12(1)(a) requires a finding of consistency with any relevant general principles of development control and the development standards for the H2 Locality. For Category One development, cl 12(3)(a) requires consideration of the DFC described in the H2 Locality. For Category Two development, cl 12(3)(b) requires a finding of consistency with the DFC described for the H2 Locality. Clause 20 provides that consent may be granted even if there is non-compliance with the development standards providing the development is consistent with the general principles of development control and the DFC.

  1. In considering the competing evidence and the assessment framework provided by LEP 2000, we agree with the conclusions reached by the council's experts for a number of reasons. Clause 12 requires first, the Court to positively consider the DFC described in the H2 Locality for Category One uses and second, make a finding of consistency with Category Two uses for the application to proceed. In our view, the departures from the DFC are so significant, for either test imposed by cl 12, that the refusal of the development application is warranted for a number of reasons.

  1. First, and while we acknowledge that the applicant has attempted to provide the "retail character incorporating and mix of small retail and business uses" along the street frontages and the plaza, the remainder of the site is given over exclusively to residential use. The DFC contemplates a "retail character" rather than a residential character. Even though "housing" on ground is permissible as a Category Two use the intent of the DFC is clear in that it seeks a retail character by the use of the words "the ground floor of buildings will be predominantly used for business purposes". The DFC makes no reference to ground floor business purposes being restricted to street frontages. In the absence of any evidence to suggest that the provision of additional business floor area would be unviable, the proposed development does not satisfy this fundamental requirement of providing a retail character for the H2 Locality.

  1. We also find that the proposed development is inconsistent with Principle 1: Context of SEPP 65 in that the development does not represent the desired future character as stated in planning and design policies.

  1. Second, we do not accept that the proposed development can reasonably be described as "low-rise shop top housing" even when commercial or retail premises are located on ground floor. While this term is not defined in LEP 2000, any reference to "low-rise" must be seen in the context of the DFC where reference is made to "buildings greater than two storeys in height are to be designed so that the massing is substantially reduced on the top floor". If read in conjunction with the height and storey requirements in the built form controls for the H2 Locality, where buildings are not to exceed 3 storeys or 11 m in height with the third storey front setback a minimum 5 m, then this adds greater weight to the conclusion that the proposed development can reasonably be described as "low-rise shop top housing".

  1. We note that the built form controls provides for a "minimum front building setback of any third storey is 5 metres" and while it was argued by the applicant's experts that this related only to the buildings with a street frontage, this approach pays little attention to the words in the DFC that are not as restrictive or prescriptive and state "buildings greater than two storeys in height are to be designed so that the massing is substantially reduced on the top floor...." The proposed development clearly exceeds these requirements (see par 65) and little, if any attempt has been made to reduce the mass of the buildings on the top floor, let alone to a substantial degree, as required by the DFC. We are also mindful that the H2 Locality does not have floor space or density requirements and controls on the form of development rest principally with the height and storey requirements. In our view, this heightens the importance of these requirements.

  1. Third, the H2 Locality DFC promotes "a range of retailing and after hours activity at street level (to) reinforce the character of the village". We do not accept the evidence of Mr Dickson that somehow the after hours activities contemplated for the village in the H2 Locality DFC should be restricted to the street frontages along Lawrence Street and Albert Street. Also, that the purpose of the plaza should be seen principally as an access to the car park and the residential components of the development rather than a legitimate opportunity for retailing and after hours activity to reinforce the character of the village.

  1. The development of the site undoubtedly calls for some form of pedestrian access to those parts of the site that cannot be accessed directly from Lawrence Street and Albert Street. Considering the terms of the H2 Locality DFC, we do not accept that there is any sound planning reason why pedestrian access to the central and rear parts of the site should not also provide the opportunity for after hours activities, given its more desirable location away from the vehicle movements along Lawrence Street and Albert Street. We agree with the evidence of Ms Morrish that the proposed plaza is unattractive and provides little amenity because of its narrow width, lack of solar access, tall and overbearing buildings on each side, lack of connectivity with the public domain and its dead-end nature.

  1. Fourth, we also do not accept the evidence of Mr Dickson that providing a pedestrian connection to the proposed development from the two nearby public car parks will somehow affect the viability and vitality of the village by drawing people away from the commercial activities along Lawrence Street and Albert Street. In our opinion, to provide public parking and not provide efficient pedestrian access from these facilities to the commercial activities on the village and the development is a lost opportunity. To do otherwise would be in conflict with the terms of the H2 Locality DFC to create a pedestrian environment, which is safe, comfortable and interesting.

  1. Fifth, we agree with Ms Morrish that the excavation to place the buildings below ground level minimises the breach of the 11 m height standard measured from the existing ground level however the built form controls require satisfaction of both the 11 m height standard and the storey standard. The scale and massing when viewed internally and externally is not what is anticipated by the height and storey standards and the DFC. On the site inspection, we observed the recently constructed Caville development, directly opposite the site. We have little trouble in concluding that this development reflects the form of development contemplated in the H2 Locality in terms of height and storeys rather than that proposed in this application

  1. We acknowledge that the ability to view the development externally and appreciate the height and number of stories is limited to a relatively small number of viewing locations external to the site, however, in nearly all locations on all buildings, there is a breach of the 11 m height requirement. Internally, the height and number of storeys is clearly visible from a number of locations, particularly the plaza area. We can comfortably conclude that the proposal is inconsistent with the general principle of development relating to Building bulk (cl 66) in that the buildings are to have a visual bulk and an architectural scale consistent with structures on adjoining or nearby land and are not to visually dominate the street or surrounding spaces.

  1. Sixth, we place no weight on the decision in Minnici v Warringah Council [2009] NSWLEC 1098. This was an approval by the Court by way of consent orders, for a property that forms part of the subject site. The approval provided for a mix of retail and residential uses in which Building A did not comprise shop-top housing and Buildings B and C were wholly residential and did not comprise any retail business uses. Mr Dickson maintained that this decision supports his evidence that the proposal is consistent with the H2 Locality DFC.

  1. A copy of the judgement was provided to the Court, however, we are not fully aware of the circumstances that led to this decision, and in any event, the basis for any assessment of the appeal must be the provisions of LEP 2000 rather than the particular circumstances of a single development application, notwithstanding that the same planning controls apply to both sites.

  1. For the Category One use, and in consideration of the DFC described in the H2 Locality, we are satisfied that the variations are of such significance that the development application must be refused. For the Category Two use, we are satisfied that the variations are so inconsistent with the DFC described in the H2 Locality that the development application must be refused. We did not accept that the opportunity to vary the development standards, in this case, is available because the proposed development is inconsistent with the general principles of development control and the DFC.

Internal amenity

  1. Ms Morrish raises a number of internal amenity issues, although we accept that all would not warrant the refusal of the development application. We do, however, accept that the amenity of the west facing lower level units in Building B is unacceptable. These units have a setback around 4.5 m to a vertical 3-storey height wall that consists of excavation, retaining wall and boundary fence. This area adjoins a public car park and an electricity sub-station that requires a high fence for protection from electromagnetic radiation. These are constraints to the development of the land and we do not accept that the design responds appropriately to these constraints.

Other issues

  1. Of the other issues raised by residents, the issue of inadequate existing on-street parking would not support the refusal of the application given that the proposed development satisfies, and actually exceeds the number of car parking spaces required by the council. Similarly, potential traffic congestion and width of surrounding streets would not be a matter that would warrant the refusal of the application given the agreement of the traffic experts and the use of the site is as anticipated by LEP 2000.

  1. The potential overlooking from the balcony of townhouse TH.07 into the adjoining residential property could adequately be addressed through the provisions of privacy screen and the potential impact on the heritage significance of the street trees in Soldiers Avenue was not substantiated.

Orders

  1. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application No 2010/1446 for the demolition of all existing improvements and the construction of a mixed-use retail and residential development at 5-19 Lawrence Street, 22A Albert Street and 18 Marmora Street, Freshwater is refused.

3. The exhibits are returned with the exception of exhibit 1.

G T Brown

Commissioner of the Court

Annelise Tuor

Commissioner of the Court

Decision last updated: 24 May 2011

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Minnici v Warringah Council [2009] NSWLEC 1098