Hannon S G v Sutherland Shire Council
[2008] NSWLEC 1248
•24 June 2008
Land and Environment Court
of New South Wales
CITATION: Hannon S G v Sutherland Shire Council [2008] NSWLEC 1248 PARTIES: APPLICANT:
RESPONDENT:
Sean Gerald Hannon
Sutherland Shire CouncilFILE NUMBER(S): 11185 of 2007 CORAM: Watts AC KEY ISSUES: Section 97 Appeal :- Streetscape and building form, Prominence of carpark entrance, Height of proposal at rear, Landscaping and Pedestrian safety. LEGISLATION CITED: Sutherland Local Environmental Plan 2000, (SLEP2000)
Sutherland Local Environmental Plan 2006, (SSLEP2006)CASES CITED: Winten Properties Group Limited v North Sydney Council (2001) 130 LGERA 79 DATES OF HEARING: 10/04/2008 and 18/06/2008
DATE OF JUDGMENT:
24 June 2008LEGAL REPRESENTATIVES: APPLICANT:
Mr P N Vergotis, solicitor
SOLICITORS:
Cutler Hughes & HarrrisRESPONDENT:
Mr R O’Gorman-Hughes, barrister,
instructed by Ms J Amy, solicitor
SOLICITORS:
Principal Environmental Lawyer,
Sutherland Shire Council
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESWatts AC
24 June 2008
JUDGMENT11185 of 2007 Sean Gerald Hannon v Sutherland Shire Council
1 This involves an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Sutherland Shire Council (the council) to refuse a development application to demolish the existing dwelling/garage; to erect a mixed commercial/residential development comprising two shops, one shop/office and two residential dwelling units with basement car parking for nine cars, as amended, known as ‘shop top housing’ and to strata subdivide at Lot 3 DP 19697, being No 623 Port Hacking Road, Dolans Bay.
2 I visited the land in company with the parties on the morning of the first day of the hearing and I heard from local residents.
3 I have concluded that the further amended development application may be approved as the principal contested issues have been resolved and the appeal is upheld.
The land
4 The land is situated on the southern side of Port Hacking Road near the intersection with Lilli Pilli Point Road. It is irregular of shape and has a frontage to Port Hacking Road of 18.29m, a depth on the east of 44.95m and on the west of 33.99m and a 21.39m southern boundary giving an area of some 721.86m2. The land slopes down from the northeast to the southwest with a fall of some 3m.
5 Of the eight trees on the land five would be removed for the proposed development.
6 To the west of the land within the neighbourhood business zone, is a single-storey dwelling with an attached shop and further to the west is a neighbourhood centre comprising single-storey shops. To the east, south and across the road to the north are single and two-storey dwellings and dual occupancies.
Relevant planning controls
7 Under the provisions of the Sutherland Shire Local Environmental Plan 2000, (SSLEP2000) the land is zoned 3(b) Neighbourhood business and the proposal is permissible with consent.
8 The objectives of the neighbourhood business zone are to provide:
(a) Appropriately located land for the provision of small scale retail and business activities that principally aim to serve the day-to-day needs of the surrounding local community.
(c) Viable neighbourhood centres supported by appropriate forms of residential development.(b) Business centres with integrated public transport and pedestrian networks.
9 Specific clause of the SSLEP2000 of relevance include:
- Clause 2 general objectives;
- Clause 43 height limits: maximum height of 9m and 7.2 to the uppermost ceiling;
- Clause 44 floor space ratio: 1:1;
- Clause 45 minimum residential floor space to site area: 50% of the gross floor area.
10 Under cl 7(2)(b) of the Sutherland Shire Local Environmental Plan 2006, (SSLEP2006), that was gazetted 15 November 2006 “[a]ny development application lodged before the commencement of this plan, but not finally determined, before its commencement, is to be determined as if this plan had been exhibited under section 66 of the Act but had not been made”. This development application was lodged with the council before the coming into effect of SSLEP2006 fourteen days after gazettal of the new instrument, [Note: Exhibit 3, p 5, cl 2]. The parties are agreed that the application falls for determination under SSLEP2000 with the proviso in cl 7 of SSLEP2006 in mind.
11 Under cl 11, p 20, SSLEP2006 the land use table objective for the neighbourhood centre Zone 10 states:
(a) to promote small scale retail and business activities to serve the day-to-day needs of the local community,
(c) to encourage shop-top housing in association with small business uses.(b) to provide for pedestrian-friendly and safe shopping designed to cater particularly for the needs of all ages and disabilities,
12 Under cl 33, p 60, SSLEP2006 a building in Zone 10-Neighbourhood Centre must not exceed 2-storeys in height. A storey is defined as being “…a space within a building situated between one floor and the floor above… and includes the space within the following: (a) foundation areas, garages… and the like whose external walls have a height of more than 1metre, as measured from the ground level of the lowest point on the site”. The parties agreed that the ground level is to be taken at the point of the wall. Hence if the wall is greater than 1m it is considered to be a storey. Thus if this were the case here the proposal would be three storeys in height and not two.
13 The method of calculating the gross floor area under either SSLEP2000 or SSLEP2006 is different. This was not in issue, however, under the new controls the applicant would be favoured as the gross floor area under the new planning instrument is measured to the inner face of the outer enclosing walls and not the outer face as previously. Given that external load bearing cavity brick walls of any building occupy around 10% of the gross floor area and if the constant floor space ratio of 1:1 is maintained, as here, the applicant would be permitted to increase the gross floor area by around 10%.
The proposal and its history
14 Development application No DA 06/1376 was lodged with the respondent council on 23 November 2006 to demolish the existing dwelling/garage; to erect a mixed commercial/residential development comprising two shops, one shop/office and two residential dwelling units with basement car parking for nine cars, as amended, known as ‘shop-top housing’ and to strata subdivide the subject land.
15 The application has been amended on several occasions since lodgement and most recently on 21 April 2008, when the plans in Exhibit F were filed.
16 At the conclusion of the hearing, and by consent, the applicant submitted a State Environmental Planning Policy No 1, (SEPP1) objection to the development standard in cl 44(1)(b) of SSLEP2000, [Note: Exhibit L].
17 Clause 44 of SSLEP2000 states:
- (1). Except where the maximum floor space ratio is specified in a development control plan, the maximum floor space ratio for buildings in a business zone is:
- (a) …
(b) 1:1 in the 3(b) Neighbourhood Business Zone.
18 The definition of:
- “gross floor area” means the sum of the areas of each floor of the buildings on a site where the area of each floor is taken to be the area within the outer face of the external enclosing walls, excluding any of that area occupied by:
(a) life towers, motor rooms and stair wells within a basement or above the roof level, and
(b) car parking need to meet the requirements of the Council, up to 20 square metres per required parking space, and
(c) storage areas needed to meet requirements of the Council, and
(d) plant rooms, garbage storage areas, switch rooms or the like within a basement.
19 The applicant’s town planner and architect calculated the gross floor area (GFA) of the proposal under the plans in Exhibit F for the basement of 330.41m2. There was no dispute between the parties as to the GFA of the ground and first floors. The GFA including the basement is thus 671.26m2. Thus the commercial floor space generated a need for 7.08 car parking spaces. The site area is 721.86m2 and thus the floor space ratio, (FSR) under SSLEP2000 would be 0.93:1 and less than the maximum FSR allowed by cl 44(1)(b).
20 However, Mr Layman claimed that the proposal would exceed the allowable FSR by a small amount. He had assumed that only six car parking spaces were required by the council’s code. On the assumption that the FSR were exceeded and for more abundant caution the applicant elected to lodge an SEPP1 objection.
21 Mr O’Gorman-Hughes submitted that if the proposal did exceed the FSR by a small amount the council would not object to the applicant lodging an SEPP1 objection.
22 If the proposal were to exceed the FSR standard under SSLEP2000 I accept that the objection in Exhibit M is well founded and compliance with the development standard is unreasonable or unnecessary in the circumstances of this case. I consider an analysis of the proposal would satisfactorily answer the questions posed by his Honour Lloyd J in Winten Properties Group Limited v North Sydney Council (2001) 130 LGERA 79 at 89 in respect of SEPP1 objections generally.
Notification
23 The application was notified to nearby owners and occupants and the council received many objections from local residents, [Note: Exhibit 5, pp 47, 48].
The council’s decision
24 The development application was recommended for approval in a council Report of the Director of Environmental Services dated 24 July 2007. This report was submitted to the council’s Independent Hearing and Assessment Panel, (IHAP) “…in response to the high volume of objections”.
25 By notice dated 23 August 2007 the council after considering a report of the IHAP refused the application for the following reasons:
(a). The application is considered unacceptable pursuant to the provisions of Section 79C(1)(a)(i) of the Environmental Planning and Assessment Act 1979, in that the proposal does not comply with the Building Code of Australia in relation to fire egress with regard to the path of travel from the residential units to the point of discharge in the rear yard of the site and from the basement car park.
(b). The application is considered unacceptable pursuant to the provisions of Section 79C(1)(b) of the Environmental Planning and Assessment Act 1979, in that the proposed development adversely affects the character of the streetscape as the design of the building is not considered to be of high architectural quality particularly regarding the integration of shops with the street and footpath and the visual impacts of the blade wall at the western end of the shop façade.
(d). The application is considered unacceptable pursuant to the provisions of Section 79C(1)(b) of the Environmental Planning and Assessment Act 1979, in that the design of the driveway access to the development may result in potential safety conflicts between pedestrians and vehicles.(c). The application is considered unacceptable pursuant to the provisions of Section 79C(1)(b) of the Environmental Planning and Assessment Act 1979, in that the design of the development results in poor amenity for the future occupants of the residential units with regard to lack of direct street access to the residential units, access and security issues from the basement car park and private open space area to the residential units.
(f). Pursuant to the provisions of Section 79C(1)(e) of the Environmental Planning and Assessment Act 1979, it is considered that the development is not in the public interest.(e). The application is considered unacceptable pursuant to the provisions of Section 79C(1)(b) of the Environmental Planning and Assessment Act 1979, in that adverse impacts upon neighbouring properties may be created with regard to overlooking and noise impacts from the design of the building and the increased use of the site.
The hearing
26 The appeal was filed on 27 April 2008.
27 At the hearing the Court heard evidence on behalf of the respondent council from Mr S Layman, consultant town planner and many residents including Mr and Mrs Wyatt of No 625 Port Hacking Road.
28 On behalf of the applicant Mr R Aberline, consultant town planner, gave evidence.
The contentions
29 On 25 February 2008 the council filed a further amended statement of facts and contentions. The applicant in reply filed a statement of facts and contentions on 5 March 2008.
30 During the hearing many of the contentions that were originally cited had been sufficiently addressed by amendments to the plans that they were no longer pressed. For instance the path of travel in time of fire has been addressed.
31 In final submissions Mr O’Gorman-Hughes stressed the issues relating to streetscape and building form especially in regard to the entrance to the basement carpark that is now proposed to be roofed over; the height of the proposal at the rear; the lack of landscaping on the eastern side of proposal.
32 Mr Vergotis addressed each of these concerns in submissions in reply.
33 At the conclusion of the hearing the principal contested issues were:
- the visual prominence of the driveway entrance;
- the height of the proposal at the rear; and
- lack of landscaping on the east.
- Visual prominence of the driveway entrance
34 Mr O’Gorman-Hughes submitted that having regard for the additional objectives for mixed use development contained in SSDCP2006 the council is seeking to achieve a high quality working and living environment and to this end the applicant is to ensure that “…vehicle access points do not dominate the street frontage of developments…”, [Note: Exhibit 4, Chapter 3 Urban Design, cl 7.a.5, p 3-44].
35 Mr O’Gorman-Hughes also pointed to the additional controls for mixed-use development in neighbourhood centres that requires “…if basement car park entry points are to be located on the main street frontage of a development, these should be designed so as to reduce the visual impact.” [Note: Exhibit 4 Chapter 3 Urban Design, cl 11.b.6, p 3.76]
36 On this point Mr Layman stated: “The enclosure of the driveway up to approximately 7.8m from the street boundary increases the visual prominence of the car park entry from the street”, [Note: Exhibit 11 p 3].
37 Mr Aberline pointed to the fact that the enclosure of the ramp and basement driveway near the boundary with No 625 Port Hacking Road would reach a maximum height around 200mm higher than the 1.8m high boundary fence and would project around 500mm forward of that neighbouring dwelling. As a result he considered there would be no visual amenity impacts on the Wyatts at No 625 Port Hacking Road or on the streetscape.
38 He was satisfied that the proposal with its awnings along the Port Hacking Road frontage would eventually appear as part of the neighbourhood shopping centre and the proposed covered access driveway would not adversely detract from the streetscape.
39 I consider the covered access driveway would not visually dominate the streetscape. Taking the elevation as a whole, I consider the covered driveway would be subservient to the whole. The height of the covered entrance would be around 200mm higher at the front than the proposed common 1.8m-high side fence with No 625 Port Hacking Road. Of greater impact on the streetscape is the width of the driveway. This is required for engineering reasons and by setting back the driveway from the common boundary with No 625 Port Hacking Road and landscaping the strip the visual impact of the driveway would be softened.
40 I am satisfied that the proposed awnings designed to connect with the existing awnings of the existing shops further to the west, would emphasise the “human scale” and the horizontal in the streetscape and would attract the eye satisfactorily away from the covered access driveway. I am satisfied that the concerns expressed by Mr Layman in this regard would not be a reason to refuse the application as the “…visual prominence of the car park entry” would be downplayed. I accept the evidence of Mr Aberline in this regard.
41 The applicant included the covered access driveway to assist in attenuating the noise of vehicles entering and leaving the basement especially in the evening hours. Mr G Atkins, acoustic engineer addressed this question in Exhibit J and he anticipated that with a covered driveway as proposed vehicular noise at the western window of No 625 Port Hacking Road driveway noise would be reduced by at least 10 to 12 dB(A). I am satisfied on the basis of his evidence that the driveway cover would ameliorate any perceived noise impacts on the Wyatts at No 625 Port Hacking Road and would be controlled to satisfy recommended criteria.
Height of the proposal at the rear
42 Mr O’Gorman-Hughes submitted that on the evidence of Mr Layman the floor-to-floor height of the ground floor retail areas could be reduced from 3.3m to 2.7m in order to reduce the visual impact of the two-storey development at the rear.
43 Mr O’Gorman-Hughes also submitted the proposal might breach the 1m height limit for the basement wall, however this breach, if it existed at all, would be of the order of 50mm at best. The parties agreed that the measurement of the basement wall height would be from natural ground level to the top of the basement wall and not the top of the slab.
44 The earlier plans showed an accessible terrace on top of the car park on the southern elevation. The applicant has amended the plans to show this terrace replaced by an inaccessible slab. Thus, I am satisfied that the basement wall height would be less than 1m at the face of the southern face of the basement and might be slightly higher further to the north at the line of the southern window wall of the proposed ground floor shops. Mr Virgotis indicated that the applicant was willing to submit to a condition limiting the height of the basement to less than 1m above the natural ground line at any point of the building. Compliance with such a condition would ensure that the proposal could only be characterised as being two-storeys in height when considered under cl 33(8) of SSLEP2006. I am satisfied that this breach if it does exist is minimal and could be addressed by condition.
45 Mr Aberline stressed that the proposal would provide a satisfactory transition between the existing shops that may be developed to a floor space ratio, (FSR) of 1:1 and the dwelling houses to the east at a FSR of 0.4:1. He suggested that the superstructure of the proposal would be at a FSR of 0.6:1 and would thus achieve that end. I accept that evidence.
46 The proposal would comply with the height controls of SSLEP2000 of 9.0m and 7.2m and would comply with anticipated setbacks within the neighbourhood business zone. In fact, as pointed out by Mr Aberline, the setback of the building from the eastern boundary, if the basement car park were excluded, (ground and first floor included) would be greater than the allowable 1.5m setback of a two-storey dwelling that might be hypothetically built on the land.
47 The height and configuration of the proposal at the rear is depicted in the southern elevation, [Note: Exhibit F, Plan No HAN-DA-04cA-b]. Because of the generous setbacks to that elevation from most of the adjoining properties, I consider the elevation to be not so overbearing as to require refusal of the application. I consider the proposal would appear as a permissible two-storey building when viewed from adjoining properties to the south and would provide a satisfactory transition between the shops to the west and the dwellings to the east.
48 I consider it unnecessary to limit the height to the ground floor and I accept that a 3.3m floor to floor as proposed would be reasonable, if slightly generous, for the ground floor retail/commercial areas.
49 Any viewing by people standing in the position of the rear terrace would be overcome by the provision of a non-trafficable roof at this point.
Landscaping on the east
50 Mr Layman considered the revised design of Mr Aberline that would provide for at least a 1m-wide landscaped strip beside the proposed driveway, for the first 4m or 5m from the street alignment “…was helpful.” With the 1m-wide landscaped strip near the street frontage and a narrower landscaped strip further removed from the street along the eastern side of the driveway an adequate vegetated screen might be established there. I consider the provision of landscaping beside the ramp to be acceptable and I would not refuse the application for this reason.
Pedestrian safety
51 Given that the access driveway levels out near the footpath and is widened to two lanes, it is anticipated that pedestrian safety in the vicinity of the ramp would be adequately addressed. Messrs C McLaren traffic engineer and S Layman agreed that any lingering concerns may be resolved by incorporating the following design measures. These included: installation of a kerbside loading zone along the frontage of the land; width of driveway being at least 5.5m and pavement arrows identifying separate entry and exit points, [Note: Exhibit 8].
Other matters
52 During the hearing additional glazed screens were added to the terraces on the upper levels to limit overlooking, especially of No 625 Port Hacking Road. This aspect of privacy was not in issue at the conclusion of the hearing.
53 I accept the evidence of Mr Abeline that the proposal would be in character with the locality envisaged by the changes to Zone 10 under SSLEP2006. Provided the development is carried out in a craftsmanlike manner I would expect it to be appropriate in its context.
54 At the conclusion of the hearing there was no issue between the parties as to car parking provision within the basement. Seven spaces are now proposed for the retail/commercial and two for the residential component. Two of the seven car parking spaces for the retail component are proposed for visitors. I would not refuse the application for lack of car parking.
55 The car park ramp has been designed to facilitate driver sight lines and improve pedestrian safety.
56 Kerbside parking would address the reasonable access needs of the disabled.
57 Garbage collection would be by private contractor and collection is proposed to take place within the basement. Kerbside loading is recommended in Port Hacking Road in front of the proposed new shops in the joint statement in Exhibit 6. I accept the evidence of Mr McLaren, that the traffic and parking issues had been adequately addressed by the applicant.
58 Some overshadowing of No 625 Port Hacking Road would occur however, given the generous setbacks to the superstructure now proposed to the eastern boundary this would be expected to be not any greater than if a two-storey dwelling had been erected on the land and is within reasonable expectations.
59 For the above reasons, the appeal is upheld.
Conditions
60 The conditions are those in Exhibit 12 as amended during the hearing.
61 My orders are:
(1). The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.
(3). The exhibits except for Exhibits B, C, F, G, J, 1 and 12 are returned.(2). Development application No DA 06/1376 lodged with the respondent council on 23 November 2006 to demolish the existing dwelling with garage; to erect a mixed commercial/residential development comprising two shops, one shop/office and two residential dwelling units with basement car parking for nine cars, as amended, known as ‘shop top housing’ and to strata subdivide the subject land at Lot 3 DP 19697, being No 623 Port Hacking Road, Dolans Bay, is approved subject to Conditions 1 to 69 in Annexure A.
___________________
- S J Watts
Acting Commissioner of the Court
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