Gerendas v Waverley Council - [2011] NSWLEC 1284

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Gerendas v Waverley Council [2011] NSWLEC 1284
Hearing dates: 27, 28, 29 July 2011
Decision date: 29 September 2011
Jurisdiction: Class 1
Before: Pearson C
Decision: Appeal dismissed
Catchwords: Development application - dual occupancy - site specific design guidelines - unzoned site
Legislation Cited: Environmental Planning and Assessment Act 1979
Waverley Local Environmental Plan 1996
Waverley Development Control Plan 2006
Waverley Development Control Plan 2010
Cases Cited: Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472
Zhang v Canterbury City Council [2001] NSWCA 167
Category: Principal judgment
Parties: Steven Gerendas (Applicant)
Waverley Council (Respondent)
Representation: Mr G Christmas, Apex Planning and Environment Law (Applicant)
Mr S Patterson, Wilshire Webb Staunton Beattie (Respondent)
Mr M Wright (Applicant)
Mr G Newport (Respondent)

File Number(s): 10375 of 2011

Judgment

This is an appeal under s97 of the Environmental Planning and Assessment Act 1979 against the refusal by the respondent Council of consent to development application DA-652/2010 for the erection of a dual occupancy, including site preparation works and removal of a fig tree, on Lot 2, DP 1073097, Arnold Street Queens Park (the site).

The site is currently vacant, and was created through the closure of an unmade portion of the eastern end of Arnold Street at its intersection with Bourke Street. The site is irregular in shape, with a 15.65m frontage to Bourke Street to the east, a 20.1m frontage to Arnold Street to the west, and a variable length of between 25.4m to 25.8m, resulting in a total site area of 446sqm. The site is level with Bourke Street at its eastern boundary, and level with Arnold Street at its western boundary; there is a significant fall, and Bourke Street is approximately 9m higher than Arnold Street.

The proposed dual occupancy has a basement/garage accessed from Arnold Street, and four levels above. The dwelling at Arnold Street above the basement car parking has two levels, with the main entry and pedestrian access from Arnold Street. The upper dwelling has two levels, with pedestrian access from Bourke Street. The upper floor of the upper dwelling is configured within a pitched roof form; the ridgeline of the pitched roof is at RL73.6.

The site was formerly a quarry, and the eastern, northern and southern boundaries of the site are quarried sandstone rockface and retaining walls. There are three trees on the site: a Eucalyptus robusta (Tallowood) and Phoenix canariensis ( Phoenix palm) located at the Bourke Street level, which are proposed to be retained, and a Ficus rubiginosa (Port Jackson fig) growing on the rock face at the southern quarry face close to the eastern corner of the site, which is proposed to be removed. The site is adjoined on the northern and southern boundaries by residential dwelling houses, which are built at Bourke Street ground levels. The eastern frontage faces Bourke Street with approximately 5m of lawn area, and the western frontage faces the dead end of Arnold Street. Existing buildings on Arnold Street include single dwellings, some with frontage to Cuthbert Street, and three to four storey residential flat buildings.

The site is located within the Arnold Street Landscape Conservation Area under the Waverley Local Environmental Plan 1996 (the LEP). A stone retaining wall on the split level carriageway of the extension of Arnold Street to the east of Bourke Street is listed in Schedule 5-Heritage Items as a Landscape Item L35 under the LEP. The site is within the area of the draft Queens Park Heritage Conservation Area.

The site is affected by an easement for electricity purposes of 4.5m on the northern boundary. The applicant proposes to place the existing overhead cables underground.

Issues

The issues between the parties are whether the proposed development is an overdevelopment of the site, and whether it has unacceptable impacts on residential amenity, views, privacy, and the heritage significance of the site. The Council's first contention that the proposed development is an overdevelopment of the site has two aspects: that the proposed development is not consistent with Site Specific Design Guidelines adopted for the site, in particular in relation to the height of the proposed development, the proposed removal of the Port Jackson fig tree, and that it proposes a dual occupancy development; and secondly, that it is contrary to the height, floor space ratio (FSR), and site coverage controls in the development control plan.

Background

The site was previously owned by the Council and was sold to the current owners in 2009. Before selling the site the Council considered development options for the site. In September 2007 the Council commissioned an architect to prepare site specific guidelines. On 1 April 2008 a report to the Council's Finance, Ethics and Strategic Planning Committee (FESP Committee) presented three options for development:

Option 1: Single dwelling of three storey height and garage/basement level

Option 2: Single dwelling of two storey height and garage/basement level

Option 3: Dual occupancy of three storey height and garage/basement level.

Draft Site Specific Guidelines for the site, including the three options, were placed on public exhibition from 23 April 2008 to 21 May 2008. On 4 November 2008 a report to the FESP Committee recommended that Option 2 be excluded and that Options 1 and 3 be supported. The FESP Committee resolved that Option 2 be the only guideline. On 18 November 2008 the Council resolved to adopt Option 2 and to delete Options 1 and 3 from the draft Design Guidelines.

The Site Specific Design Guidelines (Design Guidelines) as adopted by the Council on 19 November 2008 were attached to the Contract of Sale for the site. Clause 32.7 of the Contract of Sale provided:

The purchaser acknowledges that it has made its own enquiries in relation to affectation of the property by a provision of the Environmental Planning Instruments identified in the Environmental Planning and Assessment Act 1979. In particular, the Purchaser acknowledges that the section 149(5) certificate attached to this contract contains the words: "Site Specific Guidelines apply for Lot 2 DP 1073097 Arnold Street Queens Park. This policy was adopted by Council on 18 November 2008 and became effective on the same day. Those Site Specific Design Guidelines are attached to this contract and form part of this contract. The purchaser is not entitled to make any requisition or claim for compensation in respect of any such matters.

Planning controls

The site is unzoned. The surrounding land is zoned 2(a) Residential - Low Density under the Waverley Local Environmental Plan 1996 (the LEP). The objectives of the 2(a) zone are:

(a) to allow for housing only in the form of dwelling-houses and boarding houses,

(b) to maintain and improve the amenity and existing characteristics of localities predominantly characterised by dwelling-houses, and

(c) to allow certain non-residential uses of low intensity which are compatible with the character and scale of low density housing.

Development for the purpose of "dwelling house" and "dual occupancy" is permissible with consent in the 2(a) zone.

Clause 29 of the LEP provides:

29 Development on land, including footway restaurants on public roads, shown uncoloured on Zoning map

(1) A person must not carry out development on land, shown uncoloured on the Zoning map, except with the consent of the Council.

(2) Consent to a development application required by subclause (1) may only be granted if the Council is of the opinion that the development:

(a) is compatible with the nature of development permissible on neighbouring land and the development standards applicable to development on neighbouring land, and

(b) is consistent with the aims of this Plan and the objectives of the zoning applying to neighbouring land.

...

Clause 32 of the LEP provides:

32 Development along zone boundaries

In granting consent to the carrying out of development on land adjoining land in another zone, the Council must have regard to the objectives of the adjoining zone and to the measures to reduce the adverse impact of the development on land within the adjoining zone.

Part 4 of the LEP contains Heritage provisions, including cl 45, requiring development consent for certain activities within a heritage conservation area, and cl 49, requiring consideration of likely effect of proposed development on the heritage significance of any heritage item or heritage conservation area on land in its vicinity.

The Waverley Development Control Plan 2010 (the DCP 2010) came into effect on 23 June 2010. At the time the Design Guidelines were adopted and the site was sold the applicable development control plan was the Waverley Development Control Plan 2006 (the DCP 2006).

Evidence

The hearing commenced on site as a conciliation conference under s34AA of the Land and Environment Court Act 1979 (the Court Act). The parties were unable to reach agreement and pursuant to s34AA(2) the conciliation was terminated and the matter proceeded to a hearing.

Evidence was given on site by the owners of 70 Queens Park Road, which has its rear frontage to Arnold Street; 61 Bourke Street and 74 Queens Park Road, to the south of the site; and by a representative of the Executive Committee of the Queens Park precinct. That evidence related to concerns for overlooking, the outlook currently provided by the fig tree, the appearance of the proposed building from Arnold Street, privacy and overshadowing.

The site view included a view from the properties at 70 Queens Park Road, 61 Bourke Street and 74 Queens Park Road, and the surrounding locality.

Evidence was given in court by the owner of 59 Bourke Street, who had initially objected to the proposed development. That evidence was supportive of the design, and the removal of the Port Jackson fig tree.

Expert evidence was given on behalf of the applicant by Ms Deborah Laidlaw (planning), Ms Jean Rice (heritage), Mr Andrew Scales (arborist), and Mr Robert Ferguson (structural engineer). Expert evidence was given on behalf of the respondent by Mr Lee Kosnetter (planning), Mr Colin Brady (heritage), and Mr Adrian Swain (arborist).

Site Specific Design Guidelines

The Design Guidelines (Ex 8) applies to the site (cl 1.2). The document refers throughout to it being "Policy", and cl 1.1 states that:

This policy was adopted by Council on 18 November 2008 and became effective the same day.

The Policy provides detailed objectives and provisions to guide the design of any future development on the site which is in a landscape conservation area listed under Waverley LEP 1996.

Any proposal for new development shall incorporate controls as outlined in Part D1 - Single Dwelling and Dual Occupancy Development (especially Section 3, Queens Park residential Character Statement) of Waverley Development Control Plan 2006 and the specific design guidelines outlined in the Policy.

The aims and objectives are provided in clauses 1.3 and 1.4:

1.3 What is the aim of the Policy?

The aims of the Policy are to:

Provide clear objectives and detailed design guidelines for development of the site;
Guide the developer to a quality design oriented approach to the development;
Guide the developer to provide a historical interpretation of the quarry;
Provide precise criteria to ensure that the development relates to the topography, vegetation and adjoining site uses; and
Provide precise criteria to ensure that the development is ecologically sustainable.

1.4 What are the objectives of the Policy?

The objectives of the Policy are:

To identify and where possible retain the significant cultural landscape features of the site;
To facilitate and guide appropriate future development of the site, enabling opportunity for a range of design developments including contemporary development; and
To provide detailed guideline constraints for the assessment of future development option for the site.

Clause 1.5 provides that the Policy should be read in conjunction with specified parts of the DCP 2006. Part 3 of the Design Guidelines provides Development Application Requirements. Clause 3.1 states:

When lodging a development application for any development on this site, the applicant must demonstrate that the primary aims and objectives of the Policy have been met and that the DA complies with all other statutory requirements. Where the applicant proposes an alternative way of achieving the objectives of the Policy, the Statement of Environmental Effects and Statement of Heritage Impact submitted with the Development Application must clearly demonstrate how this is to be achieved.

Part 5 of the Design Guidelines provides Specific Design Criteria. Clause 5.1 provides Heritage Conservation Criteria, and includes as an objective "leave part of the wall face visible as a reminder of the past quarrying activities", and includes in the planning guidelines "the rock quarry face north of the Easement is to be left exposed and non encumbered with structures", and "the Arnold Street elevation has to contain a minimum of 30m2 of sandstone wall facing".

Clause 5.4 Planning Guidelines General provides that "the following site specific controls apply to the site". Clauses 5.5-5.13 address views (cl5.5), height (cl5.6), built form, massing and siting (cl5.7), setbacks (cl5.8), landscaping controls (cl5.9), landscape conservation area - trees, vegetation and natural features (cl5.10), roof form (cl5.11), solar access and environmental sustainable design (cl5.12), and car parking (cl5.13). Clause 5.5 provides that a view corridor "of at least one third of the Bourke Street frontage width (5.2m) and parallel to the Easement" has to be maintained on the northern side of the site. Clause 5.6 provides that the maximum building height is "restricted to AHD (Australian Height Datum) level of 67.50mm". Clause 5.8 provides that the northern setback is to be consistent with the southern easement line, the eastern setback is to be 6m, the western setback of the basement/garage is to be a minimum of 1m and 4m away from the western boundary for all floors above the basement/garage level, and the southern setback a minimum of 2m; and:

However, any structure projecting above AHD level 67.40 has to be set back another 1.2m south of the easement."

Clause 5.10 provides that the Tallowood and Phoenix palm are to be retained, and the Port Jackson fig "has to be preserved and supported as necessary". Clause 5.11 provides that a flat roof will be accepted, and a "landscaped roof, a 'green' roof or pebble covered roof is also encouraged. Clause 5.11 further states:

In cases where the roof will be below the AHD level of 68.50, the roof has to be a landscaped roof, a "green" roof or a pebble covered roof and has to be designed as the "fifth" faade of the building.

Attachment 8-1 Design Opportunities Plan is as follows:

Respondent's submissions

The respondent submits that the Design Guidelines should be given significant weight, and that in adopting Option 2 the Council made it clear that there were to be no buildings above the Bourke Street frontage. The proposed building does not comply with the setback requirements to the north, east or south; exceeds the FSR required by the DCP and that indicated in the Design Guidelines derived from the reference to 267sqm gross floor area; exceeds the height limit in having the two storeys above Bourke Street; and has an adverse effect on the conservation area. The policy adopted by Council in the Design Guidelines recognises that the site has constraints and provides the opportunity to dispense with the requirements if there is an alternative way of achieving the objective of the policy. The policy is consistent in crucial matters and is the starting point from which to proceed.

Applicant's submissions

The applicant submits that the Design Guidelines is poorly drafted and does not contain clear coherent specific controls for the site. The proposed development adopts an approach that is an alternative means of achieving the aims and objectives of the policy, and is not an attempt to abandon the policy but a deliberate careful approach to its application. The Design Guidelines does not prescribe or prohibit or prevent this form of development, but invites alternatives and is expressed as a guideline. The specific height controls are inconsistent and cannot be reconciled, and the history of the adoption of the Design Guidelines explains the confused approach to its drafting. It would only be if the Court considered that the height limit and gross floor area limit were intended to be the maximum permitted that it would be relevant to consider the weight to be given to the Design Guidelines. The applicant submits that the issue in these proceedings is not a matter of determining the weight to be given to the Design Guidelines, because the applicant has adopted a deliberate and careful approach to its application by reference to the aims and objectives of the Design Guidelines.

Evidence

The expert planners addressed the Design Guidelines and the planning controls in their joint report (Ex 5) and oral evidence. The planners agreed that the proposed development varies the Design Guidelines by proposing two levels of development above Bourke Street with the variation to height; the removal of the fig tree; and variations to the side setbacks below Bourke Street. The planners agreed that there are no privacy or overshadowing impacts that would warrant refusal; that the streetscape presentation to Bourke Street is satisfactory and consistent with the established and desired future character of Queens Park generally; that there are no reasons to preclude dual occupancy as such, and the overriding consideration is the built form; that the district view sought to be maintained through the view corridor on the northern side of the site is maintained; that the proposed building occupies a part of the site over which there is currently no district view, being obscured by vegetation; and that there is a benefit to the streetscape and quality of the district view through the undergrounding of the overhead electricity cables. The planners disagreed as to whether the proposed development's variations to the Design Guidelines would warrant refusal of the application, irrespective of the merits of the proposal; the manner in which the DCP 2006 or DCP 2010 controls should apply; whether the scale of the proposed development facing Arnold Street is appropriate on merit; and whether the proposal is contrary to the specific aims of cl 3(7)(d) and objective (b) of the Residential 2(a) zone.

Mr Kosnetter was of the opinion that the Design Guidelines provide a planning policy of significant and determinative weight, on the grounds that the process of adoption over a 12 month period included extensive consultation, the policy applies exclusively to the site which at the time of adoption was a Council owned asset and was attached to the contract of sale, and the Design Guidelines articulate the importance of an assessment of the controls.

Ms Laidlaw's opinion was that the background to the development of the Design Guidelines is relevant to determining the weight to be given. The Council commissioned an architect to prepare site specific guidelines, which proposed either a single dwelling or dual occupancy option both of three storeys plus basement/garage (Options 1 and 3); and the further option of a single dwelling house of two storeys and basement/garage (Option 2) was added in response to submissions from residents opposed to the sale of the site. Option 2 was not supported by the Council's assessment officer as it would create discontinuity in the streetscape, there would be risk management and safety issues associated with the use of the roof as open space, and technical issues associated with runoff and drainage. The Council resolved to support Option 2, instead of Options 1 and 3 which were expressed by the consultant and recommended by the Council officer, and which would involve development above the level of Bourke Street. In doing so, the Design Guidelines were not the product of the research the Council commissioned or the advice of its professional staff, and on the design issue, the Design Guidelines are directly contrary to the advice of the Council's staff.

Findings

In Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 McClellan CJ discussed the approach to be adopted in consideration of policy by a consent authority. Stockland concerned an application to redevelop a site of some 2.8ha to construct a new shopping centre with two supermarkets, a number of speciality shops, car parking, and residential development of 250 dwellings comprised of townhouses and residential flats. The applicable planning controls were the local environmental plan and two development control plans. The council had engaged in a consultation process with the property owner and others about appropriate development controls for the site, and that consultation process resulted in two policy documents, the Urban Design Controls and Urban Design Plan, which were adopted by the council. The Urban Design Controls were said to be supplementary to the local environmental plan and the development control plans.

McClellan CJ considered (at [86]-[87]) the proper approach to be adopted to a development control plan in undertaking the assessment required by s79C(1)(a)(iii) of the Act. His Honour went on to consider the proper approach to statements of policy adopted by a council which are not included in a development control plan, noting that "the public interest" as acknowledged as a relevant consideration under s79C(1)(e) of the Act "must extend to any well-founded plan adopted by a council for the site of a proposed development either alone or forming part of a greater area, even if it is not formally adopted as a development control plan". McClellan CJ held:

91 In my opinion, the weight to be given to a detailed policy will depend upon a number of matters. If the policy has been generated with little, if any, public consultation and was designed to defeat a project which is known to be under consideration by a developer for a particular site, it may be given little weight. Of course, the intrinsic attributes of the policy may be given significant weight, but that weight is not dependent on then being included in a policy. It can be established in other ways. However, the position would be markedly different if the policy is the result of detailed consultation with relevant parties, including the community and the owners of affected land, and reflects outcomes which are within the range of sensible planning options.

92 To my mind, the matters which are relevant when determining the weight to be given to a planning policy adopted by a council are as follows:

the extent, if any, of research and public consultation undertaken when creating the policy;

the time during which the policy has been in force and the extent of any review of its effectiveness;

the extent to which the policy has been departed from in prior decisions;

the compatibility of the policy with the objectives and provisions of relevant environmental planning instruments and development control plans;

the compatibility of the policy with other policies adopted by a council or by any other relevant government agency;

whether the policy contains any significant flaws when assessed against conventional planning outcomes accepted as appropriate for the site or area affected by it.

93 Evaluation of the evidence in the present case leads to the conclusion that the controls expressed in the Urban Design Controls must be given significant weight. Relevant matters include, firstly, the fact that they were adopted after a detailed process of consultation with the local community, including the owner of the site. Secondly, not only have the controls not been departed from but, where appropriate, amendments have been made to the Manly Local Environmental Plan to give effect to them. Thirdly, the controls were expressed to be, and are, complementary to the Council's adopted Business Development Control Plan. Fourthly, the controls allowed for a relaxation of the Business Development Control Plan in relation to the height of the high rise section of the development. Fifthly, the controls provide an appropriate planning outcome having regard to the scale of the development contemplated, the relationship with adjoining development, and, although marking the significance of the site, do not significantly alter the character of the surrounding area. The planning outcome provided by the Urban Design Controls was appropriate for a district as opposed to a regional shopping centre. Sixthly, the Urban Design Controls and Urban Design Plan were consistent with Council's adopted residential strategy. Finally, they are compatible with the environmental planning instrument and development control plans, including the Residential Development Control Plan, which controls residential development to the north. The controls in the Urban Design Controls allow for effective integration of the development on this site with the residential development to the north.

94 In my opinion, the opinions of Professor Webber, Mr Shiels and Mr Cady failed to recognise the significance of the Urban Design Controls and give appropriate weight to them. As I understand their evidence, each of them supported approval of the application because they believed that the design provided an acceptable solution for the site. However, none of them sought to compare the consequences of the proposed development with the more confined impacts of a proposal which complies with the Urban Design Controls. That analysis was undertaken by Ms Morrish and leads to the inevitable conclusion that if the height controls contemplated by the Urban Design Controls were met, the impact of the development on the immediate neighbourhood would be significantly diminished.

95 Where, as in the present case, urban design controls which may not have been embodied in a development control plan have, nevertheless, been carefully thought out after detailed consultation with relevant parties, a council should make decisions which give them practical application. Unless cogent reasons suggest otherwise, a council is also entitled to expect the Court to require development to conform to the adopted parameters. The evidence of the expert witnesses called by the applicant failed to acknowledge the significance of the Urban Design Controls and the role of detailed policy in providing for the orderly development of land which is, of course, one of the fundamental objectives of the planning legislation. Content to argue that the quality of the design of the buildings justified departure from the Urban Design Controls, they failed to appreciate the proper role of urban design controls in the planning process.

The applicant submits that Stockland is distinguishable, on the ground that the Urban Design Controls in that matter were a carefully developed control, while the Design Guidelines is not, demonstrated by the belated inclusion of Option 2 and the last minute abandonment of Options 1 and 3.

The factual background to the development of the Design Guidelines was not disputed. The Council records (Ex 2, tab29) confirm that the Council commissioned the preparation of site specific guidelines in September 2007; held a Councillor workshop on 5 December 2007; and held a further workshop for Councillors and adjoining residents on 12 February 2008. At that workshop Options 1 and 3 were presented; and residents expressed opposition to the sale or development of the site. Following that workshop the consultant provided the further option for a single dwelling house of two storeys and basement, Option 2. The draft Design Guidelines were then placed on exhibition. Submissions received by the Council (Ex 2, tab 52) opposed the sale of the site and expressed a preference that the site be retained by Council and used for a park; those commenting on the Design Guidelines opposed Options 1 and 3 on the basis of loss of views, and three supported a single dwelling. The Report to the FESP Committee of 22 October 2008 (Ex 2, tab 53) stated that while Option 2 was the preferred option in several submissions as it would provide for unobstructed views along Bourke Street because the green roof level would be consistent in height with the Bourke Street level, it had constraints of risk management and safety issues; technical issues; and visual impact. The report noted that the use of the Bourke Street level as open space or a public park "would not be recommended as risk management and safety issues would be difficult to address"; that the "creation of open space on the roof deck would present technical challenges regarding runoff and drainage"; and that Option 2 "would create discontinuity in the streetscape along Bourke Street". The report recommended that Option 2 be deleted, and the draft Guidelines adopted. On 4 November 2008 the Council resolved not to delete Option 2, and to adopt Option 2; that the green roof not be accessible to the public; and that the Port Jackson Fig tree be preserved and supported as necessary (Ex 2, tab 54).

Having regard to this background, in my view the relevant factors are that the Design Guidelines were adopted after a detailed process of consultation with the local community; Option 2 was included by the consultant engaged by the Council as one of three options following an initial consultation with the local community, and was supported in submissions made as part of the public exhibition process; in adopting Option 2 at the meeting of 4 November 2008 the Council addressed one of the constraints identified by Council staff, namely the risk management and safety issues associated with having public access to a green roof; and the Design Guidelines address the relationship with other planning controls by incorporating the relevant provisions of the then applicable development control plan. The decision to adopt Option 2 instead of Options 1 and 3 was made at the end of the consultation process, which had been engaged in for the purpose of providing controls for an unzoned site which had acknowledged technical and other constraints. As a consequence of that process, the Design Guidelines represent the Council's expectations for the site. The policy adopted in the Design Guidelines specifically incorporates relevant provisions of the development control plan applicable for the area surrounding the site, and is expressed to have been adopted in conjunction with the adjacent residential 2(a) zoning under the LEP. In my view, applying Stockland at [95], the Council was entitled, in adopting the Design Guidelines and including them in the contract of sale, to make a decision to give practical application to the design controls applicable to the site. As noted by McClellan CJ at [95], unless cogent reasons suggest otherwise, the Council is entitled to expect the Court to require development to conform to those parameters. I am of the view that, applying the principles articulated in Stockland , the Design Guidelines must be given significant weight, but not determinative weight as would be the case for an environmental planning instrument.

The issue then becomes whether, as submitted by the applicant, when read as a whole the Design Guidelines are not capable of practical application on matters of detail. A related issue is whether, notwithstanding that the proposed development may not comply with any of the requirements of the Design Guidelines, it nonetheless represents an alternative approach which meets the aims and objectives of the Design Guidelines.

The evidence focussed on three aspects: the built form of the proposed development, heritage, and whether the Port Jackson fig can be retained.

Built form

Considering first the height of the proposed development, cl 5.6 of the Design Guidelines specifies a maximum height of AHD 67.50m (the parties agreeing that the reference in the text to "67.50mm" is a typographical error); cl 5.8 specifies the required setback if any structure projects above AHD level 67.40; and cl 5.11 makes provision for construction of the roof where the roof "will be below the AHD level of 68.50". I agree with the respondent that in interpreting the Design Guidelines, the starting point is cl 5.6, and that cl 5.11 would be applicable in circumstances where an applicant was able to justify a height above that. Clause 5.8 is not inconsistent with cl 5.6. The survey included with the plans (Ex J) indicates that the Bourke Street grassed area is at RL67.13. A building erected to a height of RL67.50 would be consistent with the diagrammatic representation of Option 2, Attachment 8-1 of the Design Guidelines, which is that the building not extend above Bourke Street. The proposed development exceeds that by 6.1m, and does so by the inclusion of two additional levels above the Bourke Street frontage.

The calculation of the floor space ratio of the proposed development was the subject of evidence from the planners. The Design Guidelines do not include a specific FSR control, but refer (in Attachment 8-1) to a maximum gross floor area of 267sqm plus the basement/garage area. The experts agreed that this equates to a FSR of 0.6:1. The proposed development at 1.67:1 exceeds this.

The evidence of Mr Kosnetter was that the proposed development does not comply with the setback controls in the Design Guidelines. All three of the lower levels project into the setback area to the north; the first and second levels project into the setback area to the east; and all three lower levels project into the setback area to the south. The proposed development generally complies with the western setback, there being architectural devices such as blade walls that project into the setback area. Ms Laidlaw disagreed with Mr Kosnetter. Her evidence was that the front setback to Bourke Street is dimensioned at 6.05m which complies with the Design Guidelines, and that in relation to the levels below Bourke Street, that part of the building is hidden from public view. The side setback encroachments are confined to a level below Bourke Street and are set sufficiently far back from the Arnold Street frontage as to have no material impact. The northern side setback was influenced by the electricity easement, and that issue has been resolved by alternative means, namely by undergrounding of the cables.

I agree with the applicant that the primary view corridor along the northern side of the site, referred to in cl 5.5 on the Design Guidelines, is maintained. However, I am not persuaded that retention of the district view from Bourke Street in this way is, as Ms Laidlaw maintained, the underlying purpose of the adopted Design Guidelines. In my view, the height, gross floor area, and setback controls together with the diagrammatic representation of Option 2 in Attachment 8-1 in the Design Guidelines, also require consideration of the presentation of the proposed development from Arnold Street. The provisions in cl 5.1 requiring that part of the wall face remain visible, and that the rock quarry face north of the easement be left exposed, indicates that any future dwelling should not be of a size or location that would obscure the quarry face. There is no indication that the requirement in cl 5.3 that the built form and intensity of new development respect the desired future character of the area relates only to the Bourke Street frontage. I accept the evidence of Ms Laidlaw that the applicant has attempted to ensure that the top floor maintains a recessive presentation to Arnold Street. In oral evidence, Ms Laidlaw was of the opinion that with the solid basement plinth and the raked roof design for the top storey, the building reads from Arnold Street primarily as three storeys and a roof above the plinth. Based on the photomontages and the view, I accept that the proposed development reads from most perspectives in Arnold Street as a four level building including the solid basement/garage faade; and I agree with Mr Kosnetter that from some angles, it would read as five levels. That is significantly in excess of the two storey and basement structure envisaged by the Design Guidelines. The orientation of the building being set close to the eastern and southern boundaries contributes to the bulk of the building when viewed from Arnold Street. While there are three storey residential flat buildings in Arnold Street, the development on the northern and southern adjoining lots is for single dwellings. The height of those buildings is, because of the significant height difference between Arnold Street and Bourke Street, consistent with the height of the proposed building; however, the single dwelling model adopted in Option 2 would be consistent with the Bourke Street dwellings in form.

I agree with the applicant that the starting point in consideration of the Design Guidelines is the statement of aims and objectives in cll 1.3 and 1.4. The specific controls, including the height control in cl 5.6, identified in the Design Guidelines are not determinative. Clause 1.3 includes as an aim of the Design Guidelines that they provide "precise criteria to ensure that the development relates to the topography, vegetation and adjoining site uses". I agree with the respondent that the height and appearance from Arnold Street of the proposed development are such that it does not fulfil this aim. The proposed development is not consistent with the respondent's expectations for the site as represented in the Design Guidelines, and should not be approved.

Heritage

The Design Guidelines provide Heritage Conservation Criteria at part 5.1. The objectives are:

Leave part of the wall face visible as a reminder of the past quarrying activities.

Record and if possible conserve any archaeological evidence to maintain stability of the quarry face.

Encourage the interpretative reminder of the quarrying activity by integrating interpretative elements in the design.

Ensure compatibility of any new development with the identified significance of the item.

The Planning Guidelines include retaining the 5m wide Bourke Street lawn area; leaving the rock quarry face north of the easement "exposed and non encumbered with structures"; consolidating the rock quarry face if it is considered unstable; re-using stone from the quarry; and providing a minimum of 30 sqm of sandstone wall facing on the Arnold Street elevation.

The experts agreed that the site has local heritage significance associated with the historical subdivision and as evidence of widespread local extraction of sandstone. They disagreed on the level of significance. Ms Rice considered that the site as a quarry is not rare, being one of four small quarries in the immediate vicinity and one of many in the local area. It was agreed that the quarry had been most likely been hand excavated by relief workers during the Great Depression, and that much of the material quarried would have been used for road base. In Mr Brady's opinion the building should be separate from the quarry face and should not excavate it, and that the proposed development has a substantial impact on the significance of the former quarry by virtue of the removal of the existing quarry workings, and concealment of remaining areas of the quarry face with deep soil planting. Ms Rice's evidence was that the extent of the rock face proposed to be retained would allow a viewer from Arnold Street to see the man made rock face and quarry on this and adjoining sites: the north rock face remains visible, as would the western end of the south rock face except for the lower 2.4m behind the proposed stone faced podium. In Ms Rice's opinion much of the U shaped rock face particularly at upper levels is not on the site but is on adjoining properties.

The experts addressed the Design Guidelines in their oral evidence. Mr Brady was of the opinion that the "significant cultural landscape features of the site" in cl 1.4 referred to the overall form, face, relationship to the setting, and the geology exposed by the quarry workings. Ms Rice was of the opinion that this refers to the fact that the man-made face of stone is evidence that it was a quarry. In considering the Heritage Conservation Criteria at cl 5.1, both agreed that the first objective was to leave part of the quarry wall visible; the second was to record archaeological evidence, including facilitating location of items during clearing, and stabilise the quarry face; and that the third objective was to keep part of the wall visible and integrate stone into the design. In relation to the Planning Guidelines in 5.1, Mr Brady was of the opinion that the second guideline required that the northern face be clear. Ms Rice's evidence was that the proposed development complies with the Design Guidelines in relation to the rock face on the northern side and also leaves unencumbered the western most part of the southern wall.

The heritage experts gave evidence as to views. Mr Brady was of the opinion that the works proposed above Bourke Street level detract from the setting, the established street pattern and related views and as such have a significant and negative impact on the existing Arnold Street Landscape Conservation Area and the draft Queens Park Conservation Area. Construction above the level of Bourke Street will interrupt the visual line to the west. Ms Rice's evidence was that the proposed development retains the view identified in the Design Guidelines.

It was common ground that the view corridor referred to at cl 5.5 of the Design Guidelines is maintained by the proposed development, and I am satisfied that it will be enhanced by the proposed undergrounding of the existing electricity cables. It was common ground that the proposed development leaves the northern wall of the quarry clear; however, the proposed development obscures parts of the other walls. The proposed development incorporates a sandstone element at the base, consistent with the Design Guidelines. I am satisfied that the proposed development is generally consistent with the requirements of part 5.1 of the Design Guidelines.

Port Jackson Fig Tree

Clause 5.10 of the Design Guidelines states that the Port Jackson Fig tree "has to be preserved and supported as necessary". The tree is not shown on the Design Opportunities Plan (see [28]). The applicant submits that if the Council's preferred setback is provided, the tree will have to be removed as it is 2.7m from the boundary, and that in any event the condition and location of the tree are such that it will have to be removed.

Mr Swain and Mr Scales provided a joint report in which they agreed that the tree is in fair health and has an average structure; the crown cover appears less than what would be expected of a healthy specimen of the same species; there are signs of epicormic growth on at least one horizontal bough (as would be expected from a tree under stress or duress); the tree is anchored to the rock face by a root mass, which has two observable likely wounds from pruning which had exposed and decaying heartwood; there are two dead roots passing down across the lower 3m of the sandstone cliff face below the tree; minor dieback was observed at the tips of branches on the western portion of the crown; there were minor dead and decaying branch stubs from either pruning wounds or branch failure; there has been minor lopping to the south eastern portion of the crown from where branches had overhung the neighbouring property; and the crown was generally biased to the north west.

Mr Swain and Mr Scales disagreed on the structural integrity of the tree. In Mr Scales' opinion the tree has poor to fair structural condition comprising of three co-dominant trunks, two of which have been compromised with the presence of a bark inclusion. Mr Swain's opinion was that the tree structure is average to fair, on the basis that the majority of specimens of this species would display similar co-dominant trunks without a detriment. In relation to the included bark union, Mr Swain's opinion was that inclusions are common in this species; the inclusion is located on a single side of the trunk and on the compression side of the union, and is thus less likely to fail. In Mr Scales' opinion the fact that the defect is visible presents a risk of some nature.

The arborists disagreed as to whether landscaping work at 61 Bourke Street has impacted on the tree. In Mr Scales' opinion, based on his observations during the view, substantial landscaping works undertaken on that property in 2006 are likely to be contributing to the stress relating to the tree, such impacts being likely to be manifested some 5 to 7 years after the work. Mr Swain did not agree, on the basis that there was no evidence of any particular change in levels; in his opinion, the presence of two dead roots and sparse crown is likely to be feeder root damage rather than structural root damage.

Further arboricultural evidence comes in the form of a report commissioned by the Council from Mr George Palmer in March 2008. At that time, Mr Palmer observed that the tree was in good health and appeared to be structurally sound. Mr Palmer noted that the tree appeared to have grown at the base of and over a portion of the original sandstone block and that the dry sandstone retaining wall to the west was a more recent construction; the lower roots were growing under that sandstone retaining wall. Mr Palmer considered that the tree is close to its biological potential.

The applicant relied on evidence from Mr Ferguson, who was of the opinion that the tree has its centre of gravity far outside the face of the retaining wall, and that there is a risk that at some point in the future the anchorage of the tree might fail resulting in its sudden collapse on to any residential property on the site. Mr Ferguson was also of the opinion that the extent of the canopy constitutes a construction phase hazard, especially once construction rises above first floor level. In oral evidence Mr Ferguson stated that as a structural engineer he could not certify the tree because of the limited information about its anchorage.

While I note the concerns expressed by Mr Ferguson based on his expertise as a structural engineer, the arboricultural evidence which would sustain findings as to the structural stability of the tree is equivocal. I accept the applicant's submission that the distance of the tree from the side boundary is relevant to consideration of the setback required for the proposed building, and that the setback identified in the Design Guidelines may need to be increased. Mr Scales' evidence as to the viability of the tree in the short to medium term was based in part on his conclusions about landscaping work undertaken at 61 Bourke Street. I am not persuaded that there is sufficient evidence as to the extent of those works that would support such a conclusion in the absence of further information. The available arboricultural evidence would support a finding that the tree is at best in fair health and close to its biological potential. Given my conclusions on the built form of the proposed development, it is not necessary for me to express a concluded view on whether the tree should be removed as submitted by the applicant. It may be that a re-designed development could enable the retention of the tree consistent with the Design Guidelines.

Development Control Plan

If I am wrong in my consideration of the weight to be given to the Design Guidelines, either because Stockland is distinguishable and should not be applied, or because the detailed requirements of the Design Guidelines cannot, as the applicant submits, be sensibly applied, there is still the issue of the application of the planning controls in the LEP and the DCP. Clause 29 of the LEP requires that the proposed development be considered to be compatible with the nature of development permissible on neighbouring land. That assessment includes consideration of the provisions of the DCP, in particular those applicable to the Queens Park area. The DCP controls are both a focal point of the general assessment ( Zhang v Canterbury City Council [2001] NSWCA 167), and are specifically incorporated by cl 1.5 of the Design Guidelines.

The Council's Statement of Facts and Contentions (Ex 1) contended that the proposed development would result in an overdevelopment of the site contrary to the requirements of the DCP 2010 in relation to height (cl 5.1.2), FSR (cl 5.2), and site coverage (cl 5.8). As noted above, DCP 2010 came into effect on 23 June 2010, and the Design Guidelines refer in cl 1.5 to specific provisions in DCP 2006.

The planners disagreed as to the extent to which the DCP 2006 or DCP 2010 applies to the site. Mr Kosnetter was of the opinion that the DCP applies to all land in the Waverley local government area, and thus to the site; Ms Laidlaw was of the opinion that the DCP does not apply other than to the extent referenced by the Design Guidelines, because Part D1 states that it applies to "all dwelling house, dual occupancy, ...on land zoned "Residential" under the Waverley Local Environmental Plan 2006...". The DCP also acknowledges that the Queens Park Character Guidelines take precedence. The planners agreed that the proposed development would meet the provisions of Parts G1, G2, G4 and I1, and that in relation to Part D1, it makes no difference whether the DCP 2006, as incorporated by cl 1.1 and 1.5 of the Design Guidelines, or the DCP 2010, which has replaced the DCP 2006, is applied, as the relevant requirements of Part D1 are the same. The parties' submissions were directed to the relevant provisions in the DCP 2006 rather than DCP 2010.

The Design Guidelines specifically reference a number of the requirements of Part D1 of the DCP 2006, including at cl 5.9 applying the landscaping controls; otherwise, cl 1.5 states that the Design Guidelines "should be read in conjunction with" Part D1. I agree with the Council that this requires consideration of the proposed development by reference both to the Design Guidelines, and to any relevant objectives and numerical controls in the DCP 2006 to the extent that they address matters not dealt with in the Design Guidelines. Mr Kosnetter's evidence was that the proposed development exceeds the height limit of 8.5m and the FSR control of 0.6:1 in the DCP 2006 or DCP 2010, and that it would generally comply with the setback controls, fencing, privacy and noise controls and vehicular access and parking controls. Ms Laidlaw agreed that the proposed development would not comply with the DCP controls relating to height, FSR or site coverage, however in her opinion the variation is justified having regard to the fundamental underlying objectives of the Design Guidelines.

I agree with the expert planners that the proposed development would when viewed from Bourke Street be an appropriate form of infill development, as it presents as a two storey built form consistent with the surrounding development from that frontage. I agree with Ms Laidlaw that the flat green roof depicted in the Design Guidelines would not be consistent with the desired future character objective 4.3 of reinforcing "the existing pitched roofscape as the desired character of the area". However, the inclusion of a raked roof in the proposed development does not of itself justify a development that exceeds the height controls of the Design Guidelines or the DCP 2006.

I agree with Mr Kosnetter that when viewed from Arnold Street the presentation of the proposed building is both tall and wide, and is out of scale with the surrounding area which is characterised by single dwellings with scattered residential flat buildings. While there are existing residential flat buildings in Arnold Street, those buildings would not be permissible under the LEP, and the addition of a new development of comparable height would not be consistent with the performance criteria relevant to the Streetscape objective 2.1 of the Desired Future Character provisions for Queens Park in the DCP 2006, namely that new development "should be compatible and consistent with development both in the immediate vicinity and in the overall context of the street".

Conclusion

I am satisfied that on an assessment of the proposed development against the aims and objectives and the specific requirements of the Design Guidelines, together with consideration of the requirements of the DCP 2006, the proposed development should not be approved.

The orders of the Court are:

1.The appeal is dismissed.

2. Development Application DA-652/2010 for the erection of a dual occupancy, including site preparation works and removal of a fig tree, on Lot 2, DP 1073097, Arnold Street Queens Park, is refused.

3. The exhibits are returned except for exhibit 1 and D.

Linda Pearson

Commissioner of the Court

Amendments

29 September 2011 - Image failed to upload

Amended paragraphs: [28] Image modified

Decision last updated: 30 September 2011

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Citations

Gerendas v Waverley Council [2011] NSWLEC 1284

Cases Citing This Decision

0

Cases Cited

2

Statutory Material Cited

4

Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472

Zhang v Canterbury City Council [2001] NSWCA 167

Medium Neutral Citation:	Gerendas v Waverley Council [2011] NSWLEC 1284
Hearing dates:	27, 28, 29 July 2011
Decision date:	29 September 2011
Jurisdiction:	Class 1
Before:	Pearson C
Decision:	Appeal dismissed
Catchwords:	Development application - dual occupancy - site specific design guidelines - unzoned site
Legislation Cited:	Environmental Planning and Assessment Act 1979 Waverley Local Environmental Plan 1996 Waverley Development Control Plan 2006 Waverley Development Control Plan 2010
Cases Cited:	Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 Zhang v Canterbury City Council [2001] NSWCA 167
Category:	Principal judgment
Parties:	Steven Gerendas (Applicant) Waverley Council (Respondent)
Representation:	Mr G Christmas, Apex Planning and Environment Law (Applicant) Mr S Patterson, Wilshire Webb Staunton Beattie (Respondent) Mr M Wright (Applicant) Mr G Newport (Respondent)
File Number(s):	10375 of 2011