Green Point v Gosford Council

[2005] NSWLEC 234

Land and Environment Court

of New South Wales

CITATION:

Green Point v Gosford Council [2005] NSWLEC 234
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:

Applicant:
Green Point Pty ltd

Respondent:
Gosford City Council

FILE NUMBER(S):

10940 of 2004

CORAM:

Roseth SC

KEY ISSUES:

Development Application :- addition of residentialdevelopment to existing shopping centre

DATES OF HEARING:

14/03/2005, 15/03/2005, 06/04/2005 and 11/05/2005

 
DATE OF JUDGMENT: 

05/11/2005

EX TEMPORE JUDGMENT DATE:

05/11/2005

LEGAL REPRESENTATIVES:

Applicant:
Mr T Robertson, SC instructed by Mr A Perkins of Colin Biggers &Paisley

Mr P Tomasetti, barrister instructed by Mr P Donnellan of P J Donnellan & Co

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

11 May 2005

10940 of 2004 Green Point Pty Ltd v Gosford City Council

JUDGMENT

The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. The conditions are not reproduced as part of this decision but are available for inspection at the Council. A copy the Court’s Orders and conditions may be obtained from the Court’s registry on payment of a fee. For details of the fee payable and process for obtaining a copy of the Orders and conditions see the Court’s web site at

1 Senior Commissioner: This is an appeal against the refusal by Gosford City Council (the council) of a development application to renovate and extend the Bayside shopping centre on lot 2 DP 506904, located at the intersection of Avoca Drive, Bayside Drive and Orana Street, Green Point.

The site

2 The site is on the western side of Avoca Drive. It is roughly trapezoidal in shape, with frontages to Avoca Drive, Bayside Drive and Orana Street. Its area is 4,400m2. The existing shopping centre building is in the western part of the site, while the car park is towards the east. The centre appears underused, with most of its shops vacant. There is a drive-in bottle shop in the northwest corner and a take-away food shop facing the car park.

3 The development along Orana Street and Bayside Drive opposite the site is detached housing, with a sprinkling of medium density. The buildings are one or two-storeys high. Avoca Drive is a busy road.

The proposal and its history

4 The applicant proposes to renovate and extend the existing two-level shopping centre to contain 24 shops and a space that may, subject to further development consent, be used as a restaurant. The upper level of the shopping centre is to be extended towards Avoca Drive (east) and Bayside Drive (north) to provide four additional shops, a pedestrian plaza and car parking. The applicant also proposes to erect two additional residential floors containing 15 apartments. The existing loading dock off Orana Street is to be retained.

5 The applicant lodged the development application in October 2003. Following notification, the council received 65 submissions objecting to the proposal. The council referred the application to the Central Coast Design Review Panel. On 16 and 25 February 2005 the Panel reported that it did not support the proposal. The Panel’s criticisms were:

· The proposal is too dense and bulky.

· The site coverage is excessive.

· Part of the car park should be deleted.

· There is not enough deep soil for landscaping.

· Pedestrian circulation lacks generosity and clarity.

· The existing shopping centre should be demolished and redeveloped, rather than refurbished and extended.

6 The applicant lodged the appeal in August 2004.

Relevant planning controls

7 The Gosford Planning Scheme Ordinance zones the site 3(a) Business General. Retailing and residential flat buildings are permissible in the zone. State Environmental Planning Policy 65 – Design Quality of Residential Flat Development (SEPP 65) applies to the residential part of the development. In addition the following development control plans (DCPs) apply:

· DCP 128 – Public Notification of Development applications

· DCP 89 – Scenic Quality

· DCP 159 - Character

· DCP 111 – Car Parking

· DCP 108 – Energy Smart Homes

· DCP 106 – Controls for Site Waste Management.

The issues

8 The council submitted a Statement of issues containing five issues. During the hearing, and in response to amended drawings, the council re-expressed the issues as follows:

· The proposal is too high and bulky in its context.

· The proposal makes an ambiguous statement as a mixed used development with no street presence. The street frontages in Avoca Drive and Bayside Drive should be retailing or landscaping.

· While the proposal should be shopping centre first and residential flats second, it makes no such land use statement.

· Internal circulation is poor, there are no joyful public spaces and corridors lead to dead ends.

· The proposal has an adverse impact on several dwellings on Orana Street.

· The proposal does not provide adequate soft landscaping.

· The proposal does not comply with the design principles of SEPP 65. In particular access to some units is inconvenient and it is possible to look into bedrooms from corridors.

Amendments offered by the applicant

9 On the second day of the hearing, the applicant responded to the council’s criticisms (as expressed by its planning expert, Professor J Toon) by offering the following amendments:

· Deep soil planting to basement 1 level.

· Reconfiguration of northwest parking with the loss of ten cars.

· Addition of 3.6m deep soil planter to southeast corner of level 1 floor plan.

· Addition of tree planting between drive to bottle shop and site vehicle entry/exit on north boundary.

· Cutting back of planter overhang to north and east side of corner stair to Avoca Drive and Bay Drive, and articulation of glass feature wall to street corner.

· Addition of 1m wide planter to north edge of level-2 restaurant terrace.

· Change of planter bed depth from 1m to 1.2m, located adjacent to retail mall entry off Avoca Drive.

· Reduction of level 2 by 500mm to the Avoca Drive Bayside Drive residential module.

· Setting back of north planter by 1m to level 2 Avoca/Bayside Drive residential module.

· Stepping of planter to Orana Street elevation.

· Reversal of planting arrangement to view corridor, ie planting to adjacent units.

10 The amendments were represented graphically on butter paper sketches. While this was sufficient to explain the changes to the participants in the hearing, they were inadequate as a basis for approval.

The six experts

11 The Court appointed Mr R Fleming as its planning expert. The council made an application to bring evidence from two additional experts, Professor J Toon, an architect planner; and Mr M Wassan, an architect. The applicant made application to bring evidence from three experts, Mr S McMahon and Mr S Verity, planners and urban designers, and Mr T Bastas, an architect and the proposal’s designer. Given that Mr Bastas designed the building, his role was restricted to providing clarification. The Court heard the evidence of the six experts concurrently.

The objectors’ evidence

12 A group of 81 objectors attended the site meeting on 14 March 2005. Three objectors addressed the Court, explaining their objections. The Reverend Neville Gray, who lives at 1/28 Orana Street, objected to height, character, relation of old to new, view obstruction, lack of economic viability and lack of community amenities.

13 With the exception of economic viability and community amenities, Reverend Gray’s issues are the same as those raised by the council, and are discussed below. As regards the Reverend’s concern with economic viability, it is true that the applicant has not submitted an analysis of economic viability. However, the planning system does not require this. Moreover, there is no power to refuse an application on the basis that it might not be economically viable. The system assumes that applicants undertake development at their own risk. I note that the current shopping centre appears to have failed. A refurbishment and extension is likely to improve the economic viability and unlikely to make it worse. As regards community amenities, it is rare for small shopping centres to provide major facilities like playgrounds or skating rinks. The proposal does provide an entry plaza. I agree that a larger space would be a benefit; however, I do not think that its absence is a reason for refusal.

14 Mr Brian Cahill, who lives at 18 Bayside Drive opposite the site, listed the following concerns: traffic in Bayside Drive; the terrace of the new restaurant; and lack of landscaping. The council did not support the concern about traffic and provided no expert evidence on the subject. A condition of consent requires the applicant to lodge a further development application for using the space as a restaurant, so noise problems associated with the terrace can be considered then. The lack of landscaping is an issue of the council and is discussed below.

15 Ms Lillian Bennetts, who lives at 6 Berry Avenue and represents the Green Point Resident Association, made the following points:

· The proposal is out of scale with the surrounding area. It will be the only four-storey building in the area.

· The view impact is severe.

· It would be better to demolish the existing building and build a new development.

· The proposal is poorly designed and provides poor amenity to future residents.

16 The issues raised by Ms Bennetts are the issues in the case and are discussed below.

Bulk and height

17 While not all the experts, and certainly not all the residents expressed it in this way, the concern about bulk and height had two components, namely the four-storey height of the proposal and its closeness to the street.

18 As I understand it, none of the experts (including Mr Wassan, who appeared to be the most critical witness of the proposal) said that four-storeys was too high. Professor Toon and Mr Wassan said, in relation to the unamended proposal, that it was too close to the Bayside Drive boundary. The applicant’s amendments set the building back and provide a 3m wide deep-soil planting strip. All experts agreed that this was an improvement. My understanding of the evidence is that, following the amendment it was common ground that the view of the proposal from Bayside Drive was acceptable. It was also common ground that the proposal was acceptable as seen from Orana Street.

19 In my opinion, the proposal’s height and bulk are acceptable. The height is within the 12m limit imposed by the Planning Scheme for zone 3(a). The proposed buildings are partly three and partly four-storeys high. While the development in the surrounding area is one and two-storey residential buildings, they are in residential zones. By applying a 12m-height limit to this site, the makers of the Planning Scheme have differentiated it from the surrounding areas. Given the commercial zoning and the separation of the site (at least on three sides) by three wide roads, it would not be reasonable to insist that the applicant imposes on itself the same height as the surrounding residential area.

Retailing facing the frontage to Avoca Drive

20 The main point of disagreement between the experts was the appearance from Avoca Drive, where Professor Toon, in particular, suggested a 3m-wide landscaped setback. Professor Toon said that the proposal should have shops facing Avoca Drive. He suggested shop fronts parallel to the street boundary and set back from it. Mr Wassan supported his suggestion. Mr Fleming, Mr McMahon and Mr Verity did not agree.

21 I note that, while there is no row of shops parallel to Avoca Drive, the four new shops are close to it and accessible through a retail street entrance. I accept that a row of shops facing Avoca Drive constitutes one design solution; however, it is not the only solution. Avoca Drive is not a pedestrian street. I see no justification to force the applicant to provide a retail frontage along it.

Shopping centre first and residential second

22 This issue is related to the preceding one. Since there is no retail frontage facing Avoca Drive, the nature of the development as a shopping centre may not be obvious at first sight to people driving along Avoca Drive. The residential component, on the other hand, is clearly visible. According to Professor Toon, the development should be instantly recognisable as a shopping centre, and the residential development should appear secondary.

23 I do not think that this is a major issue. After all, the problem with most shopping centres is that, in their attempt to attract customers, they make themselves too conspicuous. The proposal is a mixture of retailing and residential and it appears like a mixture.

Internal circulation, lack of joyful public spaces and dead-end corridors

24 In Professor Toon’s and Mr Wassan’s opinion, the internal circulation of the shopping centre is poor. I note that many of the features they criticise (ie two levels, lack of public meeting places and dead-end corridors) are part of the existing centre. I agree that in a new centre these things could be designed better. However, the applicant has elected to renovate the existing shopping centre. I do not think that the result is so poor that it justifies refusal.

Impact on residences in Orana Street

25 The proposal has an impact on several dwellings on Orana Street, in particular on the views from Nos 32 and 1/28. The applicant submitted a photograph from the veranda of No 32 showing the impact of the proposed development. It appears from the photo that, while there will be an impact on the view to the north, most of the water view will be retained. The impact on the view from the kitchen of No 1/28 will be similar, though that property has views from other parts of the house. I note that all the experts agreed that the impact on views is acceptable.

Soft landscaping

26 In Professor Toon’s and Mr Wassan’s opinion, the proposal does not provide adequate soft landscaping. It appears that the applicant agreed with this criticism with regard to the original application, since it amended it and provided a substantial strip of deep-soil landscaping along Bayside Drive. Given that amendment, the main difference between the experts is reduced to the treatment of the Avoca Drive frontage. While I agree that Professor Toon’s and Mr Wassan’s vision of a row of shops behind a landscaped strip along Avoca Drive is an attractive alternative, I do not think that it is the only acceptable form of design.

SEPP 65

27 According to Professor Toon and Mr Wassan, the proposal does not comply with the design principles of SEPP 65. In particular, the access to some units is inconvenient and it is possible to look into bedrooms from corridors. In my opinion, both these criticisms have validity, though I do not consider them major flaws.

28 I have considered the report of the Central Coast Design Review Panel, which appears damning. The amendments offered by the applicant go some way towards meeting the Panel’s criticism, though it is likely that the Panel would consider many of its original criticisms still valid. Some of the Panel’s comments are in conflict with the council’s experts’ evidence, ie the suggestion that there should be fewer shops and more dwellings. This only shows that design experts often disagree.

Conclusions

29 In my opinion, the applicant’s amendments suggested on the second day of hearing bring the application from the borderline to the acceptable range. Following adjournment, at a third hearing day on 11 May 2005, the applicant tendered drawings that, according to Professor Toon, incorporated all the amendments above. The parties have agreed on the conditions to be imposed on the consent. The case is therefore ready to be concluded and I make the following orders.

Orders

1. The appeal is upheld.

2. Development application to renovate and extend the Bayside shopping centre on lot 2 DP 506904, located at the intersection of Avoca Drive, Bayside Drive and Orana Street, Green Point is determined by the grant of consent subject to the conditions in Annexure A.

3. The exhibits are returned except Exhibits 9 and A.

_______________
Dr John Roseth
Senior Commissioner

12/05/2005 - Date of council refusal not known to Court - Paragraph(s) 6