Grandview Estate Pty Limited v Bankstown City Council

[2007] NSWLEC 841

Land and Environment Court

of New South Wales

CITATION:	Grandview Estate Pty Limited v Bankstown City Council [2007] NSWLEC 841
PARTIES:	APPLICANT Grandview Estate Pty Limited RESPONDENT Bankstown City Council
FILE NUMBER(S):	11104 of 2006
CORAM:	Tuor C
KEY ISSUES:	Development Application :- Residential Flat Buildings Setback and landscape buffer to Hume Highway and Stacey Street
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Bankstown Local Environmental Plan 2001 State Environmental Planning Policy No 65
CASES CITED:	Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472
DATES OF HEARING:	19 and 20/11/2007
DATE OF JUDGMENT:	24 December 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr D Wilson, barrister SOLICITORS Mark McDonald & Associates RESPONDENT Mr A Seton, solicitor of Marsdens Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

24 December 2007

11104 of 2006 Grandview Estate Pty Ltd v Bankstown City Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Bankstown City Council (the council) of a development application (1042/2005) under the Environmental Planning and Assessment Act 1979 (the Act) to demolish existing structures and construct new residential flat buildings at 177-183 Banksia Road and 315 Hume Highway, Greenacre (the site).

2 For the reasons set out in this judgment I have concluded that the appeal should be dismissed and development consent refused.

The site and its context

3 The site is four allotments (lot 2 DP 552715, lot B DP 414318, lot 2 DP 703355 and lot 1 DP 703355). It is located on the south east corner of the Hume Highway and Stacey Street which are both classified as State Roads. The part of Stacey that immediately adjoins the development is used as a service road (Old Stacey Street) this is closed to the Hume Highway but merges with that part of Stacey Street, which connects to the Highway.

4 The site has an area of 10,156 sqm with frontages of about 65m to the Hume Highway, 45m to Old Stacey Street and 101m to Banksia Road. The site has a fall of about 6m from north west to south west with a change in level of about 3m at the existing boundary of 315 Hume Highway and 177 Banksia Road.

5 There are two storey brick houses each on 181 and 183 Banksia Road and brick and metal industrial buildings on the rest of the site.

6 Adjoining the site to the north is a service station and industrial development is on the opposite side of the Hume Highway. A water tower is diagonally opposite the site on the north west corner of the Hume Highway and Stacey Street. Adjoining the site to the east and on the opposite side of Banksia Road are detached dwellings of 1 and 2 storeys.

The history of the proposal

7 The application was lodged on 27 September 2005 and was notified to adjoining and nearby residents. Council received 68 objections (including 65 pro forma letters) and a petition with 40 signatures supporting the proposal. Council refused the application on 14 March 2006. The appeal was lodged on 17 November 2006. Amended plans were prepared and renotified and a similar number of objections were received.

The Proposal

8 The proposal, as amended, involves the demolition of the existing buildings and construction of 6 residential flat buildings containing a total of 91 units and basement parking for 170 cars. The buildings comprise:

· Block A, Banksia Road, 2 storeys plus loft with 6 units

· Block B, Banksia Road, 2 storeys plus loft with 10 units

· Block C, corner of Stacey Street and the Hume Highway, part 3/4/5 storeys with 35 units.

· Block D, Hume Highway, four storeys with 16 units

· Block E, part 2/3 storeys with 12 units.

· Block F, 3 storeys plus loft with 12 units

9 The proposal includes a 2.8m acoustic wall setback 3m from the Hume Highway and Old Stacey Street boundaries. The wall comprises a 2m masonry wall and 0.8m transparent panel. On the Hume Highway the wall is screened behind a 1m earth mound and therefore has the appearance of a 1.8m fence.

10 Access and egress to the car park is off Banksia Road with an exit only into Old Stacey Street.

11 The site is zoned 3(b) Business – Other Centres under Bankstown Local Environmental Plan 2001 (LEP 2001). The proposed development is permissible with consent within the zone. The objectives of the zone are:

(a) to encourage the provision of retail, business, community, service and entertainment facilities to serve residential areas in the catchment of the zone, without detracting from the primary role of the Bankstown CBD, and
(b) to promote the redevelopment of older centres and those in decay, and
(c) to enable residential development in business zones, whether or not in conjunction with commercial activity, to promote activity and services in those zones.

12 Bankstown Development Control Plan 2005 (DCP 2005) is also relevant. It has been amended since the application was lodged but the parties agreed that Part D4 – Business Zones applies to the site subject to the development standards in Part D5 – Key Development Sites in Business Zones.

13 Section 1 – Preliminary of Part D5 provides:

Part D5 of Bankstown Development Control Plan 2005 supports the LEP by providing more detailed development standards:

· for key development sites within Zone 3(a) Business - CBD and Zone 3(b) Business – Other Centres; and

· for certain land in Zone 2(b) Residential that form part of shopping centres.

The development standards include height, setbacks, amenity, landscaping, and access.
Development in the business zones must also comply with Part D4 of this DCP. Part D4 provides additional objectives and development standards to achieve Council's vision for well-designed centres in the City of Bankstown.
…….
If applicable to a development application, the development standards of Part D5 will prevail if there is an inconsistency with any other development standards in this DCP.

14 The site is included as a Key Development Site. Section 9 of Part D5 provides the following objectives and development standards for the site:

Objectives
The objectives are:
a) to encourage business activities and an active business frontage on this key development site;
b) to have development on the Hume Highway that achieves high quality architectural and landscaping outcomes;
c) to have a landscape buffer zone to the Hume Highway and Stacey Street that enhances the Remembrance Driveway landscape corridor and improves the amenity of development;
d) to have a minimum setback to arterial roads that improves the amenity of dwellings in terms of air quality and acoustic privacy; and
e) to have appropriate density and vehicle access that will not have an adverse effect on other land in the vicinity of this key development site.


Development standards
The development standards to achieve the objectives are:

9.1 Council may apply Section 9 to the allotments at 315 Hume Highway and 177-183 Banksia Road, Bankstown only if it is satisfied that a development:
a) will consolidate all the allotments into a single allotment;
b) achieve appropriate vehicle access to the single allotment from the Hume Highway, and not from Banksia Road;
c) will not have an adverse effect on other land in the vicinity; and
d) a development can achieve the minimum setback for dwellings to the Hume Highway and Stacey Street boundaries of the allotment.

9.2 If in Council's opinion a development does not satisfy clause 9.1, Part D4 of this DCP will continue to apply to each allotment. This includes the landscape buffer zone and a 2 storey limit.

Height
9.3 The maximum height for a business development is 2 storeys.
9.4 A residential development must comply with the height limits shown in Figure 9A, and must ensure:
a) a development adjoining the Banksia Road boundary of the allotment does not exceed 2 storeys;
b) a development adjacent to the Hume Highway boundary of the allotment does not exceed 4 storeys; and
c) a development adjacent to the Stacey Street boundary of the allotment does not exceed 5 storeys; and
d) a development in the remaining area of the allotment does not exceed 3 storeys.


Setbacks
9.4 A development must provide a minimum 5 metre wide landscape buffer zone to the Hume Highway and Stacey Street boundaries of the allotment to enhance the Remembrance Driveway landscape corridor.
9.5 The minimum setback for a business development to the Hume Highway and Stacey Street boundaries of the allotment is 5 metres.
9.6 A residential development must comply with the minimum setbacks shown in Figure 9A, and must ensure a dwelling is setback a minimum 20 metres from the Hume Highway and Stacey Street boundaries of the allotment.
9.7 A business development or landscape buffer zone or indoor communal space should occupy the minimum 20 metre setback for dwellings to act as a buffer between the dwellings and the Hume Highway/Stacey Street.

Vehicle Access
9.8 Vehicle access to the allotment may be permitted from the Hume Highway, but is not permitted from Banksia Road.

15 The Figures in Section 9 provide a “Master Plan” for development of the site which reflects the above controls.

16 The General Objectives of Part D4 of DCP 2005 include:

vii) to limit medium and high density housing along the Hume Highway to suitable locations that:

· can achieve a high standard of acoustic privacy for dwellings;

· can achieve a high standard of air quality protection for dwellings;

· can provide a business development or generous landscape buffer zone to act as a buffer between the Hume Highway and dwellings.

17 Section 4 of Part D4 - Building Envelopes in Town Centres and Neighbourhood Centres provides development standards which apply provided there is no inconsistency with Part D5 of DCP 2005 or if the matters in cl 9.1 of Part D5 are not satisfied.

18 The key difference in the controls in Part D4 is that cl 4.5 limits the maximum number of storeys for a development in a neighbourhood centre to 2 storeys. Clause 4.9A requires that a development and landscape buffer zone adjoining the Hume Highway must comply with cl 8.3 and Figure 8.1, which specify a minimum setback for a residential flat building of 20m. Business development and shop top housing requires a minimum setback of 5m.

19 Section 5 of Part D4 provides the following controls in relation to front fences:

5.22 A development must design a landscape buffer zone to appear as part of the public domain, and must not erect a front fence forward of the landscape buffer zone.
5.23 The maximum fence height for a front fence is 1.8 metres.
5.24 The external appearance of a front fence along the front boundary of an allotment or facing an arterial road must ensure:
a) the section of the front fence that comprises visually impenetrable solid materials must not exceed a fence height of 1 metre above natural ground level; and
b) the remaining height of the front fence must comprise visually transparent materials that enhance and unify the building design.
5.25 Council does not allow the following types of front
fences along an arterial road:
a) chain wire, metal sheeting, brushwood, and electric fences; and
b) noise attenuation walls.

20 Clause 7.1 of Part D4 provides:

Where an allotment adjoins an arterial road, a development must ensure the siting and design of any dwellings:
a) comply with AS 3671 - Acoustics – Road Traffic Noise Intrusion;
b) consider a combination of acoustic treatments such as building design, dual aspect dwellings, setbacks, and landscaping; and
c) Council does not allow the erection of a noise attenuation wall.

21 Clause 8.1 of Part D4 requires a minimum private open space per dwelling of 15sqm with a minimum depth of 3m. In addition, under cl 8.2 a residential flat building with 10 or more dwellings is required to provide communal open space.

22 State Environmental Planning Policy No 65 – Design Quality of Residential Flat Buildings (SEPP 65) establishes ten design principles for residential flat development. Under SEPP 65, the Residential Flat Design Code (the Code) must be considered.

The evidence

23 The Court heard evidence from Mr S Gauld, the Court appointed acoustic expert and Mr C Hazell, the Court appointed traffic expert. Mr N Aley, for the council and Mr N Kennan, for the applicant provided expert planning evidence.

24 The following experts provided Joint reports but were not required for cross examination:

25 For the council

· Dr K Holmes, air quality

· Mr J Flower, urban design

26 For the applicant

· Mr P Stephenson, air quality

· Dr R Lamb, urban design

27 The Court heard evidence on site from the following residents:

· Ms P Bezzina, 194 Banksia Road

· Mr B Sherwood, 9 O’Donnell Avenue

· Ms P Parkinson, 417 Stacey Street

· Ms J Grealy, 15 O’Donnell Avenue

· Mr R Reid, 175 Banksia Road

28 The main concerns of the residents can be summarised as being the impact of increased traffic and on street parking and the safety of cars exiting onto Old Stacey Street, especially where it merges. They considered the height and density of the proposal to be excessive and not characteristic of development in the area, which is 1 to 2 storeys. Other concerns related to impacts on privacy, noise, construction, loss of views and security.

29 The Further Amended Statement of Issues before the Court contained 5 issues which the parties agreed could be summarised as whether:

i. the setback from the Hume Highway and Stacey Street is adequate.
ii. the proposal provided an adequate landscape buffer between the Hume Highway and Stacey Street.
iii. the carpark exit onto Stacey Street has acceptable traffic impacts.
iv. the private open space areas are of sufficient size.

30 Both Part D4 and D5 of DCP 2005 require a minimum 20m setback for residential development from the boundary of the site to the Hume Highway. Part D5 also requires a minimum 20m setback from Stacey Street. Mr Aley and Mr Kennan agreed that:

a minimum setback of 9m to the Hume Highway at the ground floor level to the built form of “Block D” is provided, with that setback increasing to 11m. The minimum setback to the upper level balconies of “Block D” is 6m and that setback increases to 7.8m.
a minimum setback of 9.163m to the Hume Highway at the ground floor level to the built form of “Block C2” is provided with that setback increasing to 11.6m. The minimum setback to the upper level balconies of “Block C2” is 6m and that setback increases to 10m, and
a minimum setback of 6.4m to the closed section of Stacey Street at the ground floor level to the built form of “Block C1” is 5.6m and that setback increases to 6.286m.

31 Mr Aley stated that the 20m setback control sought to achieve an improved amenity for residential development along the Hume Highway, rather than just meeting the minimum environmental criteria for noise and air quality. He considered the amenity of the units to be poor as compliance with noise criteria relied on windows being always closed and double glazed. The open space and balconies that faced the roads did not comply with the noise criteria.

32 In Mr Aley’s opinion the purpose of the setback was also to address the Remembrance Driveway corridor aspect of the Hume Highway. He conceded that the Remembrance Drive concept was not defined or identified within the planning documents and he was not aware of its planning rationale.

33 Mr Kennan considered that compliance with the setback and the “Master Plan” in D5 of DCP 2005 would have a greater impact on the amenity of residents as it would reduce the size and result in greater overshadowing of the communal open space, provide less building to building separation and greater overlooking.

34 Mr Kennan considered the purpose of the standard was for amenity purposes with regard to air quality and noise criteria. He noted that:

Both the air quality and acoustic experts have agreed that, with appropriate conditions in the case of the acoustic consultant, the proposed setbacks are satisfactory.

35 Mr Kennan stated that there are recognised building techniques available to achieve natural ventilation of units with windows closed. Further the Code states that “60% of residential units should be naturally cross ventilated” which in Mr Kennan’s opinion recognises that cross ventilation may not always be able to be achieved.

36 Mr Kennan considered that the generous communal open space more than compensated for the amenity of the balconies and private open space which faced the Hume Highway and Stacey Street. He stated dual aspect apartments had been initially provided but were deleted in the amended plans for reasons, which related to the bulk of the development.

37 Mr Kennan stated that DCP 2005 permitted shop top housing setback only 5m from the Hume Highway and therefore concluded that council considered residential development along the Hume Highway to be acceptable.

38 The joint reports of Dr Holmes and Mr Stephenson referred to the Holmes Air Sciences Report prepared as part of the Hume Highway Master Plan Study – Environmental Analysis Report undertaken by BBC Consulting Planners in April 2004 (the BBC Report). This report established air quality goals for development and recommended a setback distance of 50 to 100m for sensitive land uses such as schools and residential.

39 The joint report of Dr Holmes and Mr Stephenson in relation to the original application (Exhibit B) concluded that:

3. the pollutant concentrations due to the roadway emissions at 20 m from the roadway would be less than concentrations at 10 m from the roadway.
8. the set back distance of 20 m will provide some improvement to exposure to air pollutants compared to a set back distance of 10 m or less, but concentrations at all distances are likely to be within respective air quality goals for all pollutants.

40 This opinion was reiterated in Dr Holmes and Mr Stephenson’s the joint report on the amended plans (Exhibit 8) which states:

In summary, the amendments to the plan do not alter the conclusion of the previous statement. The amended design does not comply with the Bankstown City Council’s recommended 20m setback distance which would provide some improvement to exposure to air pollutants compared to a 10 metre setback distance. However, as outlined in the previous statement, concentrations at all distances from the road at which there are proposed units, are likely to be within respective air quality goals for all pollutants.

41 The joint report (Exhibit B) notes that:

...for CO, NOx, and PM10 the concentrations due to roadway emissions at 20 metres from the road are about 70% of the concentrations at 10 metres…..while there is a decrease in concentrations at increased distances from the road, all predicted concentrations are below relevant goals.

42 Mr S Gauld applied the NSW EPA Environmental Criteria for Road Traffic Noise (Noise Criteria) to the development he stated that:

new residential land use developments affected by freeway/arterial traffic noise should achieve an outdoor noise criteria of:

· Leq,15hour 55dBA during the day and Leq, 9 hour 50dBA at night.

Where the EPA external noise criteria would not be practically or reasonably be met, the RTA recommends that Council apply the following internal noise objectives for all habitable rooms under ventilated conditions complying with the requirements of the Building Code of Australia:

· All habitable rooms other than sleeping rooms: Leq,15hour 45dBA and Leq, 9 hour 40dBA.

· Sleeping rooms: Leq, 9 hour 35dBA

43 Mr Gauld concluded that:

The outdoor noise level adjacent to the Hume Highway will be above the acceptable criteria, even with the 2.8m metre high acoustic fence. The outdoor noise level at distances greater than 80m from the roadside curb, will be within the acceptable noise criteria across the site.

It is my opinion that with the installation of heavy glazing and other appropriate building façade details, the traffic noise level may be reduced to an acceptable level within rooms of the development. Air conditioning with ventilation will be required for rooms which require windows to be close, in order to provide comfort and fresh air to occupants.

44 Under cross examination, Mr Gauld addressed whether there would be a an appreciable difference in acoustical impact between the proposed setback from the Hume Highway (about 9m to the building façade) and a 20m setback. Mr Gauld stated that with the windows and doors closed the greater setback would be of little benefit as the development would require acoustic attenuation measures to be incorporated into the design of the façade at either setback distance to achieve the criteria. With the doors and windows open, on the balconies or in the outdoor space the proposed setback does not meet the criteria.

45 In the daytime Mr Gauld estimated that with the greater setback the proposal would achieve 57dBA being 2dBA above the criteria which would be imperceptible. At the 9m setback the criteria is exceeded by 5dBA which is noticeable. The EPA consider a 1 or 2dBA exceedance of the criteria to be acceptable but a 5dBA exceedance has an unacceptable noise impact.

46 Mr Gauld stated that the greater setback would mainly make a difference to the noise impact of the balcony, outdoor space and the internally with the doors and windows open. He noted however, that the figures were a logarithmic mean of noise levels measures over 15 minute periods. The noise being variable over the period with some noises exceeding the level by a significant amount.

47 Mr Flower and Dr Lamb agreed that:

...the amended plans satisfactorily address the “gateway” issue and appearance and design of the corner of the Hume Highway and Stacey Streets. They agreed that it was acceptable that the setback from the two boundaries was below the 20m control, given the spacious nature of the intersection and width of the road reserve outside the boundaries.

…the relationships between the buildings and the streetscapes in which they would exist were also acceptable.

48 The submission of Mr Wilson, for the applicant, is that the evidence of the urban designers, the acoustic expert and the air quality experts concludes that the setback of the proposal is acceptable. Further Mr Wilson submits that there would be no appreciable improvement in amenity, air quality or noise attenuation achieved by a 20m setback and that it was an arbitrary figure which did not result from the BBC report or any documented planning rationale. Mr Wilson submits that DCP 2005 permits shop top housing with a 5m setback from the Hume Highway and is therefore inconsistent in its approach to the amenity of residential development along this road. Further, the development provides generous communal open space with excellent amenity, which would more than compensate for any lack of amenity in areas of private open space. If the development were further setback, increased overshadowing would compromise the amenity of the communal open space.

49 Mr Seton, for the council, submits that the setback controls sought to achieve better amenity for residential development along major roads by requiring either a 20m landscape setback to provide a buffer zone or permitting commercial development within the buffer zone to shield any residential development behind. The controls were the result of detailed studies including the BBC Report and a public consultation process. Consistent with the principles in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472, DCP 2005 should be given considerable weight. Mr Seton submits that the BBC report recommended greater setbacks than the 20m in DCP 2005 but there is no evidence that this is an arbitrary figure but a balance between achieving an improved air quality and acoustic environment without unreasonably limiting development potential. There were no particular circumstances of this development that warranted the controls being varied, particularly as they were site specific and there is clear evidence from both the acoustic and air quality experts that while the development met minimum standards the amenity would be improved with a greater setback. Further Mr Seton submitted that cl 9.2 of DCP 2005 provides a ”concession” which permits an increase in height for residential development, but only if certain criteria are satisfied, including the setback requirement. If not met the standards in Part D4 of DCP 2005 apply.

Findings

50 I accept Mr Seton’s submission. Under DCP 2005 the site is identified as a Key Development Site. Section 9 provides site specific objectives and controls. The objectives aim to improve the amenity of dwelling in terms of air quality and acoustic privacy by requiring a minimum setback from arterial roads. The objectives also aim to achieve a high quality landscape outcome along the Hume Highway and provide a landscape buffer along Stacey Street and the Hume Highway, which enhances the Remembrance Driveway landscape corridor and improves the amenity of development.

51 The development controls in Section 9 of Part D5 only apply if under cl 9.1 the consent authority is satisfied that certain criteria are met which include consolidation of the allotments, no vehicular access off Banksia Road but off the Hume Highway, acceptable impact on other land in the vicinity and a minimum setback from the Hume Highway and Stacey Street boundaries (being 20m). Although access is not provided off the Hume Highway, council is satisfied that this and the other criteria, except for the minimum setback, are met.

52 Under cl 9.2, if the consent authority is not satisfied that cl 9.1 is met, Part D4 would apply, which permits a maximum height of development of 2 storeys in a Neighbourhood Centre. The parties did not dispute that the site was a Neighbourhood Centre. I note that Figure 8.1 of Part D4 also requires a minimum setback of 20m from the Hume Highway for residential flat buildings although the maximum height permitted is only 2 storeys. It therefore appears that significant benefit is obtained through the additional height achievable by consolidation of the site into one allotment with an area of some 10,156 sqm. The size of the site provides opportunities for greater areas of communal open space, separation between the buildings, different building heights to respond to the context as well as the minimum setbacks to Hume Highway and Stacey Street as illustrated in the “Master Plan” in Section 9 of Part D5.

53 The evidence of Mr Kennan and the submissions of Mr Wilson are that there is no benefit to be gained by the additional setback as the urban form is appropriate and there would be no improvement in the amenity of the units. The communal open space compensates for any loss of amenity to the private open space facing the Hume Highway and if the buildings were setback further they would increase overshadowing of the communal open space.

54 I accept the evidence that the built form of the development is an appropriate response the corner of the Hume Highway and Stacey Street. However, this does not preclude a development with greater setback also achieving an appropriate response.

55 I do not accept that there would be no appreciable difference in the air quality and acoustic environment of the units if the development were setback further, particularly the units in Blocks D and C2 which front the Hume Highway. The units are single aspect. Their only open space and living areas face the road. The setback of the buildings is about 9 to 11m with the balconies being setback about 6 to 10m from the boundary.

56 The proposed setbacks meet the goals for air quality but if greater setbacks were provided there would be an improvement in concentrations for CO, NOx, and PM10, the emissions at 20 metres from the road being about 70% of the concentrations at 10 metres.

57 In relation to noise, the oral evidence of Mr Gauld is that with the windows and doors closed there is no difference between proposed and increased setback. However, there would be an improvement to the balconies, outdoor space and internally if the doors and windows are open if the development were setback 20m.

58 The private open space and balconies of the proposal do not comply with the relevant standard. If setback 20m these areas would be 2dBA above the criteria, but would be within the margin that is acceptable. Whereas the degree of non-compliance of the proposal of 5dBA with the lesser setback is unacceptable. Even taking into account the variable nature of the noise source I find that there would be some benefit to the amenity of these units if the required setback were provided. In reaching this conclusion, I note that the units are single aspect and their only open space and balconies face the road. While generous in size these areas would provide poor amenity and not provide an area that would be attractive to use. I do not accept Mr Kennan’s evidence that this is compensated for by the communal open space. Private open space and communal open space serve different needs and both are a requirement of DCP 2005 and the Code. Nor do I accept that dual aspect units could not be provided which could provide alternate private open space away from the road. Clause 7.1 of Part D4 of DCP 2005 clearly requires a consideration the combination of acoustic treatments such as building design, dual aspect dwellings, setbacks, and landscaping to achieve an appropriate acoustic environment for dwellings adjoining an arterial road.

59 If Block D and C2 were setback in their current configuration they would reduce the size of the communal open space, decrease building separation and increase overshadowing. However, I do not accept that this is sufficient justification for a lesser setback. Clearly there are other options such as deleting the units that front the Hume Highway or redesign to provide dual aspect units. I recognise that these options would result in a loss of yield but there is significant additional yield in satisfying cl 9.1.

60 Block C1 adjoins the closed section of Stacey Street and is therefore setback from the main part of Stacey Street, which carries the significant levels of traffic. A lesser setback than the 20m requirement may be appropriate in this area.

61 I also do not accept Mr Wilson’s submission that as shop top housing is permissible with only a 5m setback the controls in DCP 2005 are inconsistent. A dwelling with an office or shop is a different form of development to a four to five storey residential flat building in density, open space requirements and provision of an active street frontage. Each form of development is assessed independently under the requirements of DCP 2005.

62 The 20m setback is the minimum setback requirement in DCP 2005 for residential flat buildings. No compelling argument has been provided why, on a large site such as this, the minimum setback requirement could not be achieved or that DCP 2005 should not be given considerable weight consistent with the principles of McClellan CJ in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472. The proposal, with the exception of the noise criteria for outdoor space, achieves the minimum requirements for noise and air quality but clearly DCP 2005 is aimed at achieving better amenity for residential development than just the minimum. The proposal does satisfy cl 9.1 (d) nor meet the objectives of Section 9 in DCP 2005 and on this basis the application must fail.

63 For completeness, I will briefly discuss the other issues in the case.

Landscape buffer

64 Clause 9.4 of Section 9 of Part D5 of DCP 2005 requires a minimum 5m wide landscape buffer to the Hume Highway and Stacey Street boundaries to enhance the Remembrance Driveway Landscape corridor. Clause 9.6 requires a minimum 20m setback for residential development and cl 9.7 requires that:

A business development or landscape buffer zone or indoor communal space should occupy the minimum 20m setback for dwellings to act as a buffer between the dwellings and the Hume Highway and Stacey Street.

65 The proposal provides a 3m landscape buffer in front of the acoustic fence. Mr Flower and Dr Lamb agreed that:

..the 5m minimum setback required by the DCP for a landscape buffer to the development for the purpose of plantings relevant to the Remembrance Driveway had been achieved

The experts noted that the landscape space was sufficient to provide for appropriate tree planting to provide continuity with the Remembrance Driveway.

66 Mr Flower and Dr Lamb considered the acoustic fence to be visually acceptable from the Hume Highway and Stacey Street. I note that in their early joint report Mr Flower raised concerns about the appearance of the acoustic fence from within the development. It is unclear how or if these concerns have been resolved.

Findings

67 The requirements of DCP 2005 in relation to a landscape buffer zone are not clear. It would appear that a 5m buffer zone is required to enhance the Remembrance Drive corridor under cl 9.4 although this corridor is not mapped or defined in DCP 2005. Clause 9.7 requires that for residential development and a landscape buffer zone should occupy the 20m setback area to act as a buffer between the dwellings and the road. This purpose is different to the Remembrance Drive Corridor requirement and is aimed at achieving objectives (b) and (d) of Section 9 for high quality landscaping and to improve the amenity of development. I note that the conclusions of the BBC Report in relation to noise suggest noise attenuation measures for residential development including noise barrier, dwelling treatment, setbacks or a combination. For the recreational use of outdoor space the report suggests shielding by earth mounds, solid walls or 15m thick dense vegetation. Therefore while the 3m wide landscape buffer may be an acceptable urban design outcome I do not consider that it is sufficient to meet the requirement of DCP 2005 for improved amenity.

68 DCP 2005 clearly does not support the provision of noise attenuation walls. However, the BBC report and the evidence of Mr Gauld demonstrate that there is acoustic benefit at ground level with the provision of an acoustic fence. The proposed fence generally meets the requirements of cl 5.24 of Part D4 and I accept the evidence of Mr Flower and Dr Lamb that from the Hume Highway and Stacey Street the fence and earth mound would be acceptable. However, there is no landscape plan submitted with the amended plans which demonstrate that the fence would be acceptable when viewed from the open space within the development. Cleary greater landscaping and earth mounding on both sides of the fence would better mitigate its impacts

Car park exit into Stacey Street

69 The residents were particularly concerned about the increase in traffic using Banksia Road and the exit from the development into Old Stacey Street and merging into the main part of Stacey Street. The council shared the concerns of the residents in relation to the need for the Stacey Street exit.

70 Mr Hazell found the proposal to have acceptable impact on traffic and parking. He considered that a secondary exit into the closed section of Stacey Street was not required by the development and that it could function effectively with access and egress only off Banksia Road. However, Mr Hazell raised no objection to the additional exit being provided. He stated that the additional exit would only be used by cars turning south and would reduce the traffic on Banksia Road by reducing the number of cars exiting into this street. Mr Hazell did not raise any issues in relation to the safety of cars exiting into Old Stacy Street and merging into the main part of Stacey Street as cars already accessed Old Stacey Street from Banksia Road which he did not consider to be problematic.

Findings

71 In the absence of any expert evidence to the contrary, I accept Mr Hazel’s opinion.

Open Space

72 Council initially raised an issue in relation to the compliance of some areas of private open space with the requirements of the Code. Mr Kennan and Mr Adey’s agreed that all units complied with the requirements of DCP 2005 and the Code, except unit 19. The non-compliance of unit 19 was not the overall area of 25sqm but the minimum dimension of 4m. Mr Aday considered that the minimum dimension should be in both directions whereas Mr Kennan considered that it was only required in one direction.

Findings

73 The Code is a “rule of thumb” and the key objective is whether the open space provides acceptable amenity and is usable rather than strict numerical compliance. I accept that the open space of unit 19 meets these criteria. However, I make the comment that other areas of private open space including the balconies facing the Hume Highway, achieve numerical compliance, however their amenity is poor and usefulness questioned.

Other issues

74 The other issues raised by residents are either not matters raised by council or were considered to be acceptable by the planning and urban design experts. The residents main concern was the height of buildings being greater than the predominantly 2 storey height of existing development. The expert evidence is that the proposal complies with the requirements of DCP 2005, is of acceptable urban form and achieves an appropriate relationship with adjoining development without adversely impacting on amenity. I accept these opinions.

Orders

75 For the above reasons the Orders of the Court are:

1. The appeal is dismissed.

2. The development application to demolish existing structures and construct new residential flat buildings at 177-183 Banksia Road and 315 Hume Highway, Greenacre is refused.

3. The exhibits, except Exhibits 1 and 2, may be returned.

__________________
Annelise Tuor
Commissioner of the Court