Georgakis Z v North Sydney Council

[2004] NSWLEC 247

Land and Environment Court

of New South Wales

CITATION:

Georgakis Z v North Sydney Council [2004] NSWLEC 247

PARTIES:

APPLICANT
Zoi Georgakis

RESPONDENT
North Sydney Council

FILE NUMBER(S):

10032 of 2004

CORAM:

Bly C

KEY ISSUES:

Development Application :- Housing for older people and people with disabilities - landscaped area - density and scale

LEGISLATION CITED:

State Environmental Planning Policy No. 5
North Sydney Local Environmental Plan 2001

CASES CITED:

DATES OF HEARING:

16 and 19/04/2004

DATE OF JUDGMENT:

05/21/2004

LEGAL REPRESENTATIVES:

APPLICANT
Ms H Irish, barrister
SOLICITORS
Pike Pike & Fenwick

RESPONDENT
Mr D Parry, barrister
SOLICITORS
Mallesons Stephen Jaques

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

10032 of 2004 Bly C 21 May 2004

Zoi Georgakis
Applicant

v North Sydney Council
Respondent Judgment


Introduction

1. This appeal relates to development application No. 390/03 for the demolition of three existing dwelling houses and the construction of a two-storey building with basement under State Environmental Planning Policy No. 5 - Housing for Older People and People with Disabilities ("SEPP 5") at 20-24 Brook Street, Crows Nest. The development is to comprise seven, two-bedroom dwellings with nine carparking spaces. Whilst the dwelling houses are to be demolished a number of trees on the site are to be retained. Strata subdivision of the development is also proposed.

2. The site is situated on the western side of Brook Street opposite the northbound off-ramp of the Warringah Freeway, approximately 40 m south of the Brook Street underpass.

3. The site is rectangular in shape and comprises three existing lots each developed with a similar single storey detached dwelling. It has a total frontage of 21.03 m to Brook Street and a total area of 1240 m2. Its slopes downwards from south-east to north-west with a total cross fall of over 2.5 m.

The locality

4. The immediately adjoining development to the south comprises a two-storey townhouse development containing five dwellings with basement carparking. To the rear of the site in Wheatleigh Street is a tennis centre and a three-storey apartment building. To the north, between the site and the freeway there are two, single-storey detached dwelling houses similar to those on the site.

5. More generally development in the locality comprises a mixture of one to three-storey residential developments. The Crows Nest shopping centre on Willoughby Road is located between 500 m and 1 km walking distance from the site to the south-west. The bus stop, which facilitates access to the regional shopping and commercial centre at Chatswood, is just over 400 m distance.

Statutory provisions

6. The site is situated in the Residential B zone under the North Sydney Local Environmental Plan 2001 ("the LEP"). Housing for aged for disabled persons is permissible in the 2(b) zone subject to the provision of at least one appropriate on site facility for such persons. No such facilities have been provided however the proposal is permissible pursuant to the provisions of SEPP 5.

7. Also applicable is the North Sydney Development Control Plan 2002 ("the DCP").

Advertising and the council's decision

8. The application was advertised and six letters of objection were received. Matters of concern raised in these letters include:


• Inappropriate location for this form of development given the excessive distance to shopping and banking facilities and transportation.
• Excessive building bulk and size especially in the Residential B Zone.
• The development will create a traffic and pedestrian hazard for less able-bodied people being directly opposite the freeway exit ramp.
• Visual and acoustic privacy impacts and loss of light and ventilation for neighbouring buildings.


9 . The application was refused by the council for reasons relating to: excessive density and floorspace in the context of the requirements of SEPP 5; significant exceedence of council's scale and density requirements; non-compliance with the requirements of the DCP and SEPP 5; the landscaping does not comply with the landscape requirements in the LEP and the DCP; the development does not comply with the requirements of the LEP in relation to dwelling mix and yield, built form and massing and storage facilities; the site is in an inappropriate location for housing for the elderly and disabled with poor access to services; and would provide poor amenity for future residents.

The evidence

10 . On behalf of the respondent council expert evidence was provided by:

• Mr I Pickles - town planner
• Miss L Varley - landscape architect.


11 . In addition to the resident objectors' evidence which was given on site, Miss S. Donnellan the owner of the adjoining properties at Nos. 26 and 28 Brook Street gave evidence as to her concerns regarding overlooking and loss of aural privacy resulting from the large number of windows doors and balconies facing her property. She also explained that she proposes to develop her site and that this proposal would have an even greater impact on any such development.

12 . On behalf of the applicant expert evidence was given by:

• Mr R Chambers - town planner
• Mr M Relf - access consultant
• Mr J Hewitt - traffic consultant


The issues

13 . The filed and served amended statement of issues contained 17 separate issues of which five were withdrawn. Having considered all of the evidence and the submissions of the advocates and having visited the site and its environs I have concluded that the following issue requires the particular attention of the Court:

Whether the proposal has an excessive floorspace ratio, an excessive length, density and scale and an inappropriate form resulting in an incompatibility with the desired future character of the area.


Access to services and facilities

14 . Concerns were expressed by the council's Urban Design Advisory Panel ("the UDP panel") that the proposal is in an inappropriate location for housing of the elderly and disabled . In this context it was pointed out that the proposal does not comply with the 400 m distance development standard for access to facilities and services as contained in cl 12 of SEPP 5.

15 . Whilst internal access and access to services and facilities and aspects of vehicular traffic were initially raised as issues these were not pressed, particularly in the light of the evidence of Mr Ralph and Mr Hewitt. Also, Mr Pickles and Mr Chambers agreed that subject to appropriate conditions matters of internal residential amenity and access to transport and services would be satisfactory and council's Aged and Disability Community Worker was satisfied that this site has reasonable access to the services and facilities listed in cl 12 of SEPP 5.

16 . As a result of the non-compliance with the 400 m distance development standard an objection under State Environmental Planning Policy No. 1 - Development Standards ("SEPP 1") has been provided. Both town planners agreed that the objection is well founded and that strict adherence to the standard would be unreasonable and unnecessary particularly having regard to the minor departure from the numeric standard and the relative ease of walking to the bus stop and the shops. I would uphold this objection notwithstanding that closer access to services and facilities would be preferable, accepting as I do that what is available would be satisfactory.

Density, form and scale

17 . Mr Pickles and Mr Chambers agreed that the proposed development complies with the building height and building height plane requirements of the LEP and that the basement garage does not cause a bulk and scale impact. However they disagreed in relation to the form and scale of the proposed building.

18 . Mr Chambers pointed out that an exceedance of the floorspace ratio threshold in cl 12 of SEPP 5 cannot be determinative by itself. Nor was it critical, particularly as it amounts to only about 41 m2 of floorspace. Also there is no floorspace ratio limit in the LEP and apart from the exceedance of the landscape area site coverage requirement, the proposal complies with the primary controls associated with bulk and scale, comprising height, setbacks and building height plane.

19 . He also examined matters of overshadowing views and privacy and concluded that there would be no adverse impacts upon the adjoining property to the south at No. 16-18 Brook Street. In dealing with the question of the length of the building he noted that the development to the south extends to the west of the western most part of the proposed development which is a single storey construction only and on this basis the length proposed is not excessive. In these circumstances he concluded that the bulk and scale of the proposal is satisfactory and would not be out of character with the area.

20 . Mr Pickles argued that the proposal fails to recognise two of the local planning controls for site density, bulk and scale which comprise the dwelling yield requirement in s 7.1(a) of the DCP and the landscaped area requirement in cl 20 of the LEP. In applying the DCP the site has a theoretical dwelling yield of 5.2 dwellings by comparison with the seven dwellings proposed. Applying the landscaped area requirement under the LEP results in there being only 37% of the site area compare to the 60% requirement, a deficiency of about 219 m2.

21 . These matters supported his view that the form and scale of the building is inappropriate particularly in relation to its length, which is about 41 m at ground level and 38 m at first floor level. Whilst the length of the building was withdrawn as a separate issue he nevertheless pressed his concerns in relation to the avoidance of carriage development.

22 . In this context he explained that the proposal falls within the definition of carriage development , which comprises three or more dwellings in a row along a side boundary of a site, whether attached to each other or detached . Carriage development is specifically discouraged by objective (e) in cl 16 of the LEP although there are no specific provisions in the LEP that might assist in achieving this objective.

23 . In this context Mr Pickles accepted that even if the development were to be broken up by dividing it into two buildings with a separation somewhere in the middle of the site it would probably still comprise carriage development but would be more acceptable.

24 . He also pointed to the requirement in cl 25(a) of SEPP 5, which requires that development should contribute to an attractive residential environment and where possible should maintain an appropriate residential character by using building form and siting that relates to the site's land form . He contended that these requirements were not met and that the exceedance of the SEPP 5 density and scale threshold in cl 14 was an indicator of this.

25 . The landscaped area development standard in cl 20 of the LEP is not met by the proposal and notwithstanding the absence of an objection under State Environmental Planning Policy No. 1 - Development Standards the application cannot be refused because the proposal exceeds the landscaped area requirement in cl 14 (c) of SEPP 5. Despite this Mr Pickles believed that because the landscaped area control acts as a de facto site density control particularly in the absence of any other density controls in the LEP it should be applied as such. On this basis contended that the proposal has a density, which is incompatible with that expected in the area, and that it would be incompatible with the desired future character of the area in terms of built form and landscaping.

26 . He particularly pointed to the form of the adjoining town house development to the south, which is situated on a site having the same length as the subject site and where the massing of this development is mitigated by a gap in the building which is utilised as private open space thus facilitating deep landscaping.

Court's conclusions

27 . The landscaped area requirement in cl 20 of the LEP has a number of objectives including the provision of usable private open space for residents, the provision of a landscaped buffer between adjoining properties and the promotion of characteristic landscaping and streetscapes. In addition it seeks, by virtue of objective (g), to control site density . In the circumstances this development standard can be considered to be not only a landscape and private open space control but also a means of controlling the extent of development on a site. This makes particular sense when read together with cll 17, 18, and 19 of the LEP.

28 . Clause 14(c) of SEPP 5 has the effect of prohibiting the refusal of any development application which complies with the particularised landscape area requirements on the grounds of insufficient landscaped area. However it seems to me that the landscaped area requirement in cl 14(c) is for the purpose of providing landscaped area for dwellings. This is to be contrasted with the requirement in the LEP which whilst it relates to the provision of private open space it has the additional and specifically identified planning purpose of controlling site coverage or density. It does this by requiring a percentage of the site area at existing ground level not to be occupied above or below by any building structure as distinct from requiring a certain area of private open space per dwelling. When read in conjunction with the other controls it has the clear effect of controlling density by limiting building volume and form.

29 . As for objective 16(e) of the LEP, which requires the avoidance of carriage development, I do not accept that this objective should be disregarded simply because there are no specific controls relating to it. I also accept that to the extent that this proposal comprises carriage development, this could be mitigated by the effective reduction in the length of the building by dividing it into two elements. In turn this would have the benefit of mitigating the continuous uninterrupted view of building that would otherwise occur from the adjoining properties to the north and south.

30 . The proposal, by exceeding floorspace ratio threshold in cl 14(b) of SEPP 5 can be critically examined in terms of density and scale without the restriction, which, applies in relation to the landscaped area requirement in cl 14(c). In this context it is relevant to take into account the significant non-compliance with the landscaped area requirement in the LEP in so far as this requirement relates to the control of site density. When this is considered together with the dwelling yield requirement for attached dwellings in s 7.1(a) of the DCP and the length of the building in the light of the objective of the residential zone, which is to avoid carriage development I have concluded that the proposal, despite being acceptable in other respects, has an excessive scale.

31 . In this context I believe Mr Pickles was correct by suggesting that this could have been resolved by a reduction in the length of the building by, for example, dividing it into two parts something along the lines of what exists at Nos. 16-18. I accept that the LEP seeks to break up building forms and the length of the site enables this to happen. In turn, the resulting development would probably be more responsive to the likely and desired future character of the area, taking into account the form of development, which would be likely to be approved on the adjoining property to the north. Also a lesser continuity of built form would have reduced impacts on neighbouring properties to the north and south.

32 . Mr Pickles contended that the proposal should be significantly reduced in size from its floorspace ratio of 0.63:1 so as to meet the threshold floorspace ratio of 0.5:1 in SEPP 5 and that this should occur not only in the basement carpark but also in the aboveground building. It would then have a density appropriate for this locality.

33 . In relation to Mr Pickles' analysis of floorspace ratio I agree that that part of the basement garage which contains carparking spaces and associated manoeuvring areas in excess of council's carparking requirements should be included in the calculation. If the additional floorspace associated with carparking is excluded the floorspace ratio would be 0.53:1 and this produces a better indication of aboveground building bulk. However I do not agree with him that exceedance of this floorspace ratio threshold, by itself, results in a development that is necessarily incompatible with the desired future character of the area.

34 . Whilst the application cannot be refused on the basis of landscaped area a modified development more responsive to the requirements of cl 20 of the LEP and cl 7 of the DCP would facilitate a landscaped setting for development on this site which in turn could be an improvement on the essentially perimeter landscape scheme as proposed.

35 . Whilst the proposal is generally consistent with the general objectives for residential zones and its presentation in the streetscape would be consistent with the character of the neighbourhood the scale of the development particularly as to its relationship to the adjoining sites is such that in its present form the proposal does not warrant approval. The appeal should therefore be dismissed.

Orders

1. The appeal is dismissed.
2. Development application No. 390/03 for the demolition of three existing dwelling houses and the construction of a two-storey building with basement under State Environmental Planning Policy No. 5 - Housing for Older People and People with Disabilities and strata subdivision at 20 - 24 Brook Street, Crows Nest, is determined by the refusal of development consent
3. Exhibit E is retained.
___________
T A Bly
Commissioner of the Court
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