Golden Harvest Pty Ltd v Parramatta City Council

[2006] NSWLEC 376

Land and Environment Court

of New South Wales

CITATION:

Golden Harvest Pty Ltd v Parramatta City Council [2006] NSWLEC 376

PARTIES:

APPLICANT
Golden Harvest Pty Ltd

RESPONDENT
Parramatta City Council

FILE NUMBER(S):

10484 of 2004

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Alterations and additions to an existing shopping centre, over-development, excessive height, streetscape impact, traffic, parking disamenity, public interest

LEGISLATION CITED:

Parramatta Local Environmental Plan 2001
State Environmental Planning Policy No. 65 - Design Quality Principles

DATES OF HEARING:

21/06/2006 (22/09/2005 - Findings)

 
DATE OF JUDGMENT: 

06/29/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr J Bingham, solicitor
SOLICITORS
Deacons

RESPONDENT
Mr C Gough, solicitor
SOLICITORS
Storey and Gough

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

29 June 2006

Parramatta City Council

JUDGMENT

Background

1 This appeal was lodged against council’s refusal of a development application for alterations and additions to an existing shopping centre at 374 Pennant Hills Road, Carlingford. The site is in a prominent location near the existing Carlingford Court shopping centre. Consequently, a number of issues concerning the design of the proposal and its context were identified.

2 In order to address these issues, the parties agreed to Mr M Harrison being the Court-appointed expert (CAE) for the urban design issues. Accordingly he prepared an initial assessment report (Exhibit G), based on the prevailing planning controls. From this, he identified two key controls being the FSR limit of 1.5:1 and the building height of 3 storeys. But he considered these controls inappropriate for the site when the proposal is addressed in its locational context, which resulted in his conclusion that the proposal should be refused.

3 Notwithstanding this, Mr Harrison then provided his urban design approach to developing this site to better respond to the opportunities and constraints stated in the site analysis. This approach identified a number of urban design principles that he considered appropriate for the site and they included a FSR of 2:1 and building height of 3-6 storeys above Pennant Hills Road/Marsden Road. He said that:

This urban approach has considered the comprehensive redevelopment of the site. It is essential that redevelopment of the site look at the whole of the site and not an isolated building such as the approach taken by Applicant. We understand that a Master Plan has been prepared for the site that was refused by Council. While I also do not agree with the previous Master Plan I do agree that comprehensive urban design approach to developing the site is fundamental.

4 The applicant responded to this assessment by amending the proposal, including a reduction in the height of the building and consequential reduction in the number of residential units. The amended Statement of Issues (dated 28 July 2005), then presented the issues for the appeal on the following basis:

1. Whether the issues raised by the objectors warrant refusal of the development. In particular:

a) Whether the development is out of character with other development in the area in terms of excessive height, and scale of the development in the context of the neighbouring properties.
b) Whether the proposal will result in adverse visual impacts in the locality as a result its height, bulk and scale.
c) Whether the development will have significant adverse impacts associated with additional traffic generation and parking demand in the locality.
d) Whether the proposal will result in adverse privacy impacts on adjoining residential development on Keeler Street, the adjoining school and residential flat development on the opposite side of Marsden Road.
e) Whether the proposal will give rise to precedent for further development of the subject site.
f) Whether existing infrastructure in the locality is capable of accommodating the proposed development.
g) Whether the development provides adequate communal open space.

5 Mr Harrison then assessed the amended proposal and presented his final report (Exhibit H), wherein he recommended its conditional approval.

The site

6 The subject site is described as Lot 111, DP 707400 and is situated on the corner of Pennant Hills Road, Keeler Street and Marsden Road. It is of irregular shape and contains a total area of 12,040 sq m.

7 The existing improvements include the retail complex (Carlingford Village) consisting of basement car parking, ground floor retail area, first floor commercial premises and a second-storey restaurant. Hardstand car parking is located at the south-eastern part of the site.

8 The principal vehicular access is via Keeler Street and Marsden Road, however the Marsden Road entrance currently permits ingress only.

9 There is a mix of uses and building types in the surrounding locality. In the immediate vicinity of the site, Pennant Hills Road is characterised by mixed commercial and retail uses ranging from 1 to 3 storeys in height and further to the north is Carlingford Court Shopping Centre. To the east, Keeler Street is characterised on medium and low-density housing, maximum of 2 storeys. To the south, Marsden Road contains large public open space areas and some 3 storey residential flat development.

The proposal

10 The initial proposal considered by council was for a reduction in area of existing retail/commercial shopping centre, retaining 9,400 sq m of retail/commercial floor area and erection of a part 8/part 9 storey residential building comprising 72 apartments. The unit mix was 4 x 1 bedroom units, 53 x 2 bedroom units,13 x 2 bedroom units+ study and 2 x 3 bedroom units.

11 Some 297 car parking spaces, including three basement levels and at grade parking adjacent to the building were proposed as part of the development.

12 As I have noted, following consideration of Mr Harrison’s initial report, the applicant amended the proposal and the parties agreed that this was the application before the Court for determination. The amended proposal comprises for 51 dwellings, as shown in Mr Harrison's following Table 1:

DA03/1874	DA as amended 16 June 2005
Unit mix	4 x 1 bed, 53 x 2 bed, 13 x 2 bed + study, 2 x 3 bed Total – 72 dwellings	7 x 1 bed, 36 x 2 bed, 8 x 3 bed Total – 51 dwellings
Height	Part 8 storeys and Part 9 storeys	5 and a half storeys (above Marsden Road); [6 storeys – eastern elevation]
FSR	1:47:1	1:24:1
Setbacks	7.05 m to south west (Front – Marsden Road) 26 m to north east (rear)	10.0 m – 16.6 m (Front – Marsden Road)

Planning controls
Parramatta LEP 2001

13 Under this LEP the property is zoned 3A Business Centre and the proposal is permissible with consent. It contains a number of aims and objectives, including:

(1) The aim of this plan is to introduce planning controls that will encourage ecologically sustainable development, being development which satisfies the principles of ecological (environmental, economic and social) sustainability as set out in Schedule 1.

14 Also relevant are the following section 2 objectives:

a) to consolidate, simplify and update planning controls in the City of Parramatta, …

f) to provide planning controls which contribute to, and facilitate economic growth and employment opportunities within, the city of Parramatta, …

(k) to create one integrated planning framework for more detailed controls to be contained within development control plans.

Parramatta DCP 2001

15 This DCP came into effect to provide the detailed planning controls to support the objectives in the Parramatta Local Environmental Plan 2001. The guidelines and controls are focused on new development responding to its context and being compatible with existing and desired neighbourhood character. It is to contribute to the quality of the built environment and the public domain.

16 Part 4 contains the general controls for development, which includes in section 4.4 general design issues covering streetscape, built form, building design and appearance, landscaping and amenity. This part of the DCP outlines the principles that form the basis for the Performance Criteria and Design Solutions/Controls within the DCP. The design of all new development is required to clearly demonstrate that these principles have been satisfied.

17 Section 4.4.1 requires that new development provides an acceptable relationship with the existing streetscape. The stated objectives for new development to:

• complement and conserve the visual character of the street and neighbourhood through appropriate building scale, form, detail and finish.
• reinforce or sensitively relate to existing streetscape features such as building setbacks, alignments, heights, landscaping/vegetation and fence design.
• optimise street address and passive surveillance by residents of the streetscape.

18 Section 4.4.2 contains the controls for building form so that the size, bulk, structure and appearance of new development provides an acceptable built form. The issues involved with built form include:

The aim of built form controls is to ensure that the proposed development is on appropriate scale to protect and enhance desirable aspects of the existing local character whilst reflecting the desired future character of the area as determined. Built form controls provide council and the community with more certainty of the future form of a local area and developers and the community with more certainty regarding development capacity. The bulk and scale of new housing has significant impact on neighbourhood character. Setbacks, footprint controls, floor space ratio and height are critical controls, which define building envelopes.

19 With regard to the height performance criteria, the stated design solutions and controls provide that:

Building height must comply with the height specified in the specific controls for each development type set out in Part 5 of this document and Parramatta Local Environmental Plan 2001 .

20 Section 4.4.3 deals with building design and appearance on the basis that this is central to neighbourhood and streetscape character.

21 Section 5.7 contains the controls for mixed use development, which involves permitting residential and non-residential uses as part of the same development in a manner that complements each land use and does not disadvantage the continued operation of existing land uses.

22 Section 5.8 applies to all development that is permissible in the Centre Business 3(a) zone. Various performance criteria for development pattern and building sightings is provided, together with the following design solutions and controls:

All development is to have a maximum height of three (3) storeys …

The evidence

23 The principal evidence in this matter was presented by the objectors and the Court-appointed expert, Mr Harrison. According to objectors evidence, there was a degree of consistency in their concerns that:

• the proposal represents an over-development of the site, particularly its height, in excess of the maximum 3-storey height prescribed in DCP 2001,
• this excessive height results in unacceptable visual appearance and streetscape impact on this very prominent site,
• The proposed height will result in excessive overlooking of neighbouring properties and the school to the east.
• the additional height proposed allows more residential units to be constructed, in turn will generate more traffic that will add to the current traffic and parking disamenity in neighbouring streets.

24 It is apparent from the evidence that the principal contested issue concerns height of the proposal, because the proposed 6-storey height of the residential units exceeds the maximum permitted 3 storey height limit in the commercial zone.

25 Mr Harrison undertook a detailed assessment of the identified issues. With respect to the building height issue, he stated that:

• I consider the DCP height control of 3 storeys to be inappropriate for large sites in the Carlingford Town Centre. Tall tree canopy to parts of the ridgeline and slopes around the Town Centre as well as the main road location and commercial zone means that higher heights are justified on larger sites in the Town Centre. The subject site is a large site. Other town centres such as the 8 town centres on the Pacific Highway corridor in Ku-ring-gai have medium density housing zones adjacent to their town centres of 5 storeys. There are many town centres in metropolitan Sydney than allow height higher than 3 storeys given local context circumstances. Consequently I do not consider the lack of compliance with the DCP three-storey height requirement as determinative issue (with heights up to 6 storeys).
• Generally, orderly town planning would be that the density and height of development in town centres should reflect the status of the Town Centre in the metropolitan centres hierarchy. Carlingford Town Centre has the function of a large district centre near a railway station.
• Topographically, the centre is on a ridge and is exposed to views from distant locations. Consequently, I consider that 6 storeys and up to 2.5:1 FSR is appropriate of the status of the town centre and the ridgeline exposure (being of similar height to some of the existing tree canopy).
• The amended height of the proposed development is 5 and half storeys above Marsden Road. I consider this is acceptable for the reasons stated above and council officers have indicated in an earlier meeting that 6 storeys would be generally acceptable.

26 In addition to this, Mr Harrison considered the various objectives of the 3A Centre Business Zone and SEPP 65 considerations, although these matters do not appear to have been specifically mentioned in the more recent set of issues, contained in council’s bundle of documents.

27 Notwithstanding this, his following assessment of Principle 2 – Scale, from the SEPP 65 Design Quality Principles is of some relevance:

The future scale of the Carlingford Town Centre is currently controlled by a 3 storey height limit as noted above. I have noted previously that I consider a 3 storey height limit on this town centre is not appropriate and that development up to 6 storeys better responds to the status of the Carlingford Town Centre in the hierarchy of the urban centres in Parramatta and Sydney Metropolitan Region.

The contextual analysis in my August 2004 SoE and my urban design approach to the site shows what I consider to be appropriate scale of development from the context and my view of the desired future character.

28 From this Mr Harrison concluded that:

The scale of the proposal in the southern part of the site is generally consistent with my contextual analysis and urban design approach and will properly make a transition between the Carlingford Town Centre and the Residential Zone/Marsden Road streetscape character to the south. Consequently, I consider that the scale of the proposal is acceptable.

Conclusion

29 Having considered the evidence, the submissions and undertaken the view, it is obvious that there are fundamentally different opinions on how this prominent site should be developed. On the one hand, the objectors place significant reliance on the DCP controls, which allow a maximum 3-storey development in the commercial zone. However against this, the Court-appointed expert Mr Harrison considers that a larger scale development, up to 6 storeys represents an appropriate urban design outcome for the site.

30 In the light of the minimal submissions on behalf of council and the reduction in the outstanding issues for the appeal, the matter was adjourned to enable a s 82A review to be undertaken. This process apparently took a considerable amount of time and involved further detailing amendments to the proposal. Despite support for these amendments by council assessing officers, the council resolved to reconfirm its previous decision to refuse the application for the following reasons:

1. The height of the development is considered excessive and does not comply with the three-storey height requirement contained in the Parramatta Development Control Plan 2001 and does not satisfy the objectives of this control.

2. The development is inconsistent with the objectives of the 3A Centre Business Zone under Parramatta Local Environmental Plan 2001 and the objectives for Mixed Use development contained in DCP 2001.

3. The design quality of the proposed development is considered to not satisfy the requirements of State Environmental Planning Policy 65 with regard to the design quality principles contained in Part 2. In particular, the proposal fails to adequately address design quality principles relating to context, scale built form, amenity and aesthetics.

4. The applicant has submitted insufficient information to address potential of traffic noise on internal amenity for future occupants of the proposed building.

5. Issues raised by objectors and the public interest.

31 Accordingly, I am satisfied that the public interest considerations in this matter result in the failure of this proposal. The planning controls comprising the LEP and DCP are relatively recent, having come into effect in 2001. As the subject development application was initially lodged in 2003, it seems reasonable that it should have paid due regard to the controls, particularly the 3-storey height limit. But the applicant ignored on this control, with the lodgement of the initial 8-9 storey building.

32 Even though the amended proposal has been reduced in height to the order of 6 storeys, it still exceeds the DCP 3-storey height control by a considerable margin. I accept the objectors’ submissions that the proposal is of excessive height and bulk, when compared to the scale of buildings allowed by the DCP controls.

33 Insofar as Mr Harrison supports this larger amended proposal, it is on the basis of his perception of the desired future character of the commercial zone, because he considers the 3 storey limit is inappropriate. Accordingly it seems to me that his assessment is of limited value to the Court because the starting point for assessment of the appealed development, should be the relevant DCP provisions and not to discount them as inappropriate. An assessment undertaken on this basis would likely result in reduced levels of amenity impacts on the residential properties and school to the east who objected to the proposal. Also the streetscape and visual impacts would be of a different magnitude, according to the DCP provisions.

34 In the ultimate then, I accept the submissions presented by the objectors that the 5-6 storey proposal is of excessive bulk and height, which does not demonstrate adequate compliance with the DCPs 3 storey height limit. This conclusion is consistent with council’s review of the proposal, which reconfirmed its position to maintain the 3 storey limit for the site. For these reasons then, I consider this application should be refused.

35 In giving determinative weight to this relatively recent DCP, I note its statement that these “built form controls provide council and the community with more certainty of future form of a local area and developers and the community with more certainty regarding development capacity”.

36 Notwithstanding this, I acknowledge that there are alternative urban design outcomes, as suggested by Mr Harrison, which may generate a better urban design outcome. But those design alternatives involving significant policy changes should be exhibited and subject to public participation, as required by the relevant planning controls, so that all the public interest matters are considered and the desired community outcome is achieved. It is not considered appropriate for the Court to make significant policy changes, on the basis of a significantly, non-complying development application.

Court orders

37 The orders of the Court are therefore:

1. The appeal is dismissed.

2. Development application DA03/1874 for alterations and additions to include 51 residential dwellings at the Carlingford Village Shopping Centre, situated at 374 Pennant Hills Road, Carlingford, is refused.

3. The exhibits may be returned except for A, G and H.

___________________

R Hussey
Commissioner of the Court
rjs