Grove Group v Pittwater Council

[2008] NSWLEC 1415

Land and Environment Court

of New South Wales

CITATION:	Grove Group v Pittwater Council [2008] NSWLEC 1415
PARTIES:	Applicant: Grove Group Pty Ltd Respondent: Pittwater Council
FILE NUMBER(S):	10568 of 2008
CORAM:	Roseth SC
KEY ISSUES:	Development Application :- seniors living
DATES OF HEARING:	21 and 22 October 2008
DATE OF JUDGMENT:	24 October 2008
LEGAL REPRESENTATIVES:	Applicant: Mr C McEwen SC and Mr M Staunton, barrister, instructed by Mr K Webber, solicitor of Wilshire Webb Staunton Beattie Respondent: Mr A Pickles, barrister, instructed by Ms S Puckeridge, solicitor of Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

24 October 2008

10568 of 2008 Grove Group Pty Ltd v Pittwater Council

JUDGMENT

1 Senior Commissioner: This is an appeal against the refusal by Pittwater Council (the council) of a development application to erect four dwellings for seniors living on lot 2 DP 818498, known as 28 Cabarita Road, Avalon.

The site

2 The site has frontage to Cabarita Road; its rear boundary is to Careel Bay. It has an area of 1,236m2 and an 18o fall. There are six Spotted Gums on the site. It is identified as slip affected.

3 The site is within the Avalon Beach Locality. The area around is low density residential.

The proposal and its history

4 The applicant proposes to construct four dwellings for seniors living and associated five parking spaces.

5 The applicant lodged the development application in April 2008. Following notification, the council received 125 submissions, of which 123 were against and two were in favour. The applicant lodged the appeal against deemed refusal in June 2008. The council refused the application in August 2008 following the recommendations of its planning staff.

Relevant planning controls and policies

6 State Environmental Planning Policy (Housing for Seniors or People with a Disability) (the SEPPHS) allows medium density development on this site, provided one of the occupants of each dwelling is over 55 years or has a disability. Local Environmental Plan 1993 (the LEP) zones the site 2(a), which is a low-density housing zone. Pittwater 21 Development Control Plan (the DCP) establishes, among other things, localities according to their character. The site is in the Avalon Beach Locality.

7 Several council policies apply: Geotechnical Risk Management Policy for Pittwater; Interim Geotechnical Risk Management for Pittwater; and Estuarine Risk Management Policy for Development in Pittwater. To the extent that these are relevant, they have been incorporated in the conditions of consent.

Matters in contention

8 The council submitted its amended Statement of Contentions listing seven matters. During the hearing these were reduced to the following:

· The proposal is incompatible with the area’s existing and future character.

· The internal amenity is unacceptable.

· The site is isolated from Avalon Shopping Centre and the internal access arrangements are not convenient.

The objectors’ concerns

9 The Court heard the evidence of seven objectors on the site. Mrs Hancock, who lives 30 Cabarita Road adjoining the subject site to the south, was the only objector who had a concern about the proposal’s direct impact on her property. While she objected to being overshadowed and overlooked, these impacts are not borne out by the plans of the proposals. The planning experts agreed that there would be no unacceptable impact on No 30, mainly because the Hancocks’ house is on the water, whereas the proposal observes the 15m foreshore building line.

10 Mrs Hancock requested the Court to impose several conditions. Some of the conditions are in the council’s draft conditions and are imposed. Others are part of the proposal so they need not be imposed. The few that are unjustified have not been imposed.

11 The objectors who had more general concerns were Mr Padman of 13 Cabarita Road, Ms Hinds, the President of the Pittwater Residents Against Inappropriate Development, Ms McRae, representing the Avalon Preservation Trust, Ms Cobby of 33 Cabarita Road, Mr Hock, who is a councillor of Pittwater Council, Ms de Low of 29 Cabarita Road and Mr Marsh of 20 Cabarita Road. The main objection was to the traffic generation of the proposal, particularly in view of the narrow carriageway of Cabarita Road, which makes it hard for vehicles to park and buses to pass. Another concern was the medium density nature of the proposal, which the objectors considered to be incompatible with Avalon’s character. Some objectors thought that the location of the site was inappropriate for old frail people.

12 The council did not raise traffic as an issue, and there was no expert evidence to support the objectors’ concerns. I therefore have to accept what appears to be intuitively correct, namely that four additional cars in Cabarita Road will not materially change existing traffic conditions. I deal with character and the site’s accessibility below.

Character

13 Clause 32 of the SEPPHS requires a consent authority to be satisfied that a proposal demonstrates that adequate regards has been given to design principles in Division 2 of the Policy. The design principle relevant to character in Division 2 is cl 33(a):

The proposed development should recognise the desirable elements of the location’s current character (or, in the case of a precinct undergoing transition, where described in local planning controls, the desired future character) so that new buildings contribute to the quality and identity of the area.

14 The desired character is set out in the DCP. In my opinion, this is not relevant, since the area is not undergoing transition. Indeed much of the opposition to this proposal stems from a desire to keep the character unchanged. However, nothing turns on this, since, if the area were undergoing change, the balance between built and natural elements would change in favour of the built elements. This is because in wealthy areas under redevelopment new houses are invariably larger than those they replace.

15 The council’s planning expert was Ms K Munn, a council planner. The applicant’s was Mr R Fleming, a planning consultant. The applicant supplied two photomontages, one from Cabarita Road and one from the water. Ms Munn agreed that they were a reasonable representation of what would be seen if the proposal were built.

16 According to Ms Munn, the proposal, when viewed from the water, fits into the existing character. When viewed from the street, it does not fit because the driveway is visible behind the street boundary, thus displaying too much concrete. Ms Munn’s main objection is to the fact that the built-upon area (ie the building footprint plus the driveway) is 60%, whereas in nearby properties it is between 40% and 50%. The DCP establishes a maximum of 40% for built-upon area.

17 I do not accept Ms Munn’s evidence for two reasons. The proposal includes a landscaped strip along the street frontage. There are four canopy trees there, which the council does not like because they are not native to the area. The council’s draft conditions require the applicant to replace them with four other canopy trees of a species that council prefers. As a result, the dominant element to the street will be vegetation, at least after the new trees become established. Many of the nearby properties are far less natural looking, since they use the street frontage for garages and driveways, leaving little or no space for landscaping. If the proposal does not fit into the streetscape, it is only because it complies with the DCP’s somewhat idealised description of the locality better than its existing neighbours.

18 The major reason Ms Munn gives for her criticism of the proposal is that its built-upon area is 60% instead of the 40% required by the DCP. In her opinion, this reduces the opportunity for landscaping. The DCP is subservient to the SEPPHS, which contains a development standard for landscaped area (30%), which is the corollary of the built-upon area control. I note that the proposal provides 40% of landscaped area. The landscaped area will contain eight canopy trees, of which four already exist, so that their benefit can be enjoyed now instead of in fifteen years’ time. The bulk of the landscaping is towards Careel Bay, which is where it is most beneficial. However, there is landscaping towards the street, along the northern side, and, to a lesser extent, along the southern boundary.

19 The two photomontages demonstrate that the proposal does recognise the desirable elements of the Avalon Beach Locality’s current character. It contributes to the quality and identity of the area. It does this far better than the existing houses that are built close to the water’s edge.

Internal amenity

20 Ms Munn believes that Unit 4 does not receive enough sunlight. She agrees that the proposal meets the requirements of the SEPPHS (75% of apartments receive at least 3 hours of sunlight to their living areas). Her criticism is that one of the four apartments does not perform well.

21 I agree that this is regrettable. However, given the slope of the site towards the east and the outlook to Careel Bay, I do not think that three hours of sunlight to all the apartments can be achieved without losing some other aspect of amenity, such as the view of the water.

Access

22 Clause 38 of the SEPPHS states that the proposed development should:

(a) Have obvious and safe pedestrian links from the site that provide access to public transport services or local facilities, and
(b) Provide attractive, yet safe, environment for pedestrians and motorists with convenient access and parking for residents and visitors.

23 It is clear that cl 38(a) is directed to the site’s external accessibility, while cl 38(b) is directed to internal access.

Access to the Avalon Shopping Centre

24 Access to the Avalon Shopping Centre, which contains all facilities required by the residents, is by the local bus. The conditions of consent require the applicant to provide a footpath from the entrance to the bus stop, which is very close to the site.

25 The council’s expert on access was Mr J Storer while the applicant’s was Mr M Relf. Mr Storer and Mr Relf agreed that the access for residents of the proposed development to the Avalon Shopping Centre is acceptable. Ms Munn disagrees with Mr Storer. In her opinion, reliance on the local bus is not good enough. The council’s advocate, Mr A Pickles, relied on Ms Munn, rather than on his access consultant in his submissions.

26 There are two reasons for preferring the evidence of Mr Relf and Mr Storer to that of Ms Munn. First, the language of cl 38(a) is clear. The pedestrian link needs to be provided either to the bus stop or the shopping centre, not to both. If this were not the correct interpretation, the location of housing for seniors and people with a disability would be restricted to within walking distance of shopping centres, generally considered to be 400m. Second, public transport is often more convenient for people with restricted mobility than being within 400m of a centre. This is because buses drop passengers near the heart of a centre, whereas, if a development is located 400m from the edge of a centre, the actual distance to a service such as a pharmacist could be much longer.

27 There is one flaw in the above argument: only some of the local buses serving Cabarita Road are wheelchair-accessible and they do not follow a regular timetable. This is a circumstance over which neither the applicant nor the council has control. The SEPP does not appear to deal with the issue. I understand that bus companies replace their existing vehicles with wheelchair-accessible ones, so that eventually all public buses will be accessible. The purpose of constructing a footpath between the development and the bus stop at a grade that can be negotiated by a wheelchair is that, as the number of accessible buses increases, residents who rely on a wheelchair are able to reach the Avalon Shopping Centre by bus.

28 In my opinion, the site’s accessibility to the Avalon Shopping Centre is acceptable.

Internal access

29 I turn to internal pedestrian environment, which has to be attractive and safe, and access, which has to be convenient. On these matters Mr Storer and Mr Relf disagree. Mr Storer’s main criticism is that pedestrian and vehicular paths in the car park are not segregated. I do not understand the problem. The car park is for five cars. The people using it presumably visit shopping centres where they have to negotiate unsegregated pedestrian and vehicular paths among hundreds of cars.

30 Mr Storer also objects to the need to use two lifts for getting to Unit 4 from the street. I agree that this may be a little circuitous, but hardly a reason for refusing the application. I note that Mr Storer believes that the parking should be at street level. If this were the case, cars would take up the entire street frontage and Ms Munn’s complaint that the proposal does not fit into the street would become valid.

31 The internal access is acceptable. The proposal meets cl 38 of the SEPPHS. The appeal is upheld.

Orders

1. The appeal is upheld.

2. Development application to erect four dwellings for seniors living on lot 2 DP 818498, known as 28 Cabarita Road, Avalon is determined by the grant of consent subject to the conditions in Annexure A.

3. The exhibits are returned except Exhibit B.

______________
Dr John Roseth
Senior Commissioner