Hazouri Investments Pty Limited ATF Hazouri Property Trust v Penrith City Council

[2016] NSWLEC 1257

Land and Environment Court

New South Wales

Medium Neutral Citation:	Hazouri Investments Pty Limited ATF Hazouri Property Trust v Penrith City Council [2016] NSWLEC 1257
Hearing dates:	16 June 2016
Date of orders:	16 June 2016
Decision date:	16 June 2016
Jurisdiction:	Class 1
Before:	Fakes C
Decision:	Appeal upheld – see [41]
Catchwords:	CONSENT ORDERS: Multi-dwelling housing; urban design; parking; waste management
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development Penrith Local Environmental Plan 2010
Category:	Principal judgment
Parties:	Hazouri Investments Pty Limited ATF Hazouri Property Trust (Applicant) Penrith City Council (Respondent)
Representation:	Counsel: Applicant: Ms A Hemmings Respondent: Mr S Nash   Solicitors: Applicant: Thomson Greer Respondent: Sparke Helmore Lawyers
File Number(s):	165998 of 2016

Judgment

1. COMMISSIONER: The applicant appeals Penrith City Council’s refusal of a development application for a multi-dwelling residential development at 119 Glengarry Drive, Glenmore Park (the site). The appeal is made pursuant to s 97(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

The site and locality

2. The site is a vacant allotment on the north-western corner of Glengarry Drive and Bradley Street, Glenmore Park. Bradley Street is one of the access points from the Northern Road into Glenmore Park.

3. The site is irregular in shape with an area of 4,482 m2 with a cross fall of about 10m from east to west.

4. The site is zoned R1 General Residential under Penrith Local Environmental Plan 2010 (PLEP). Nearby residential development off Glengarry Drive and adjoining streets is typically one and two storey detached dwellings or dual occupancies. On Bradley Street adjoining the site to the west, is an existing four storey residential flat building, which in turn adjoins three other residential flat buildings of a similar scale.

5. The allotment directly opposite the site at the corner of Glengarry Drive and Bradley Street is currently vacant. Directly opposite Bradley Street to the south is a large lot, the subject of a council-endorsed Concept Plan, upon which a range of residential accommodation, including one and two storey dwellings, multi-unit housing and residential flat buildings, is proposed.

Relevant background

6. The history of this development application is detailed in council’s Statement of Facts and Contentions (SFC) dated 6 August 2015. At all stages, relevant plans were notified to nearby residents and those who made submissions. The following points summarise its progress.

7. In April 2013 the applicant lodged Development Application DA13/0311 with Penrith City Council seeking consent for a multi-unit development comprising 63 apartments and 80 basement car parking spaces with vehicular access via Glengarry Drive.

8. Following a review process held between June 2013 and February 2014, the development was reduced in scale and amended to 42 apartments and 7 townhouses with access via Bradley Street. Council refused consent on 6 November 2014.

9. In March 2015, the applicant applied under s 82A EPA Act for a review of council’s determination. The application for the s 82A application proposed 44 apartments, 6 townhouses and 67 car spaces with vehicular entry off Glengarry Drive.

10. In April 2015, the applicant filed the Class 1 application with the Court appealing council’s refusal of consent. The council prepared its SFC on the basis of the amended s 82A proposal.

11. The matter was listed for a conciliation conference under s 34 of the Land and Environment Court Act 1979 (Court Act); I was the presiding Commissioner. The conciliation commenced on site on 23 September 2015 and a number of residents made oral submissions opposing the proposed development. The principal concerns went to incompatibility with the character of nearby low density residential development and traffic and safety concerns arising from the driveway off Glengarry Drive. The conciliation was adjourned to enable ongoing without prejudice discussions between the parties’ urban design, planning, and traffic experts on the detailed contentions raised by council in its SFC.

12. Relevantly, a restriction on user which burdened the site had the practical effect of preventing vehicular access from Bradley Street. In December 2015, following further negotiations with council, this restriction was modified and no longer applied thus allowing the relocation of vehicular access from Glengarry Drive to Bradley Street.

13. On the basis of the ongoing discussions and negotiations, the applicant prepared amended plans; these were subsequently publically notified in February 2016.

14. The amended plans provide for 40 residential apartments along Bradley Street, 9 townhouses facing Glengarry Drive, and 68 basement car parking spaces and garbage storage facilities accessed from Bradley Street.

15. In March 2016, the council resolved to proceed to a consent orders hearing; the s 34 conciliation was subsequently terminated pursuant to s 34(4)(b) of the Court Act. In accordance with the Court’s directions and the Practice Note: Class 1 Development Appeals, objectors were notified and advised of the agreed draft without prejudice conditions of consent.

16. The matter recommenced on site on 16 June 2016 to provide those who had made submissions with an opportunity to make further submissions on the amended plans and proposed conditions. The issues raised include:

• Concerns about exacerbating the already limited availability of, and given the relatively narrow width of the streets, difficulties with, on-street parking and whether sufficient parking is to be provided on-site;

• Safety concerns arising from additional traffic and likely parking problems;

• Apparent lack of on-site disabled parking spaces and spaces for delivery vehicles;

• Privacy and overlooking issues arising from the proximity of the development to adjoining properties in Cooee Avenue;

• The proposed housing mix is incompatible with the existing character of the nearby residential development which typically comprises one and two storey dwellings;

• The proposed flat-roofed form of the townhouses along Glengarry Drive is out of character with the typical pitched roof form in the area;

• The bulk and scale of the development is unacceptable given its prominent location on the ridge and its position near a major entry point into Glenmore Park;

• The proposal fails to meet the objectives for the R1 zone and exceeds the targets set down in Penrith DCP for the number of units to be built in the local area, especially given the number of apartments already approved or constructed.

• Waste management and garbage collection concerns; and

• The proposal is not in the public interest, as demonstrated by the number of local residents present on site.

The assessment framework

17. State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development (SEPP 65), Penrith Local Environmental Plan 2010 (PLEP) and Penrith Development Control Plan (PDCP) Part 6 Section 6.18 – Glenmore Park Stage 2, all apply.

18. The site is zoned R1 General Residential under PLEP. Multi-dwelling housing and residential flat buildings are two of several forms of residential accommodation permitted with consent in the R1 zone. Clause 2.3(2) requires the consent authority, in this case the Court, to have regard to the objectives for development in a zone when determining a development application. The relevant zone objectives are:

• To provide for the housing needs of the community.

• To provide for a variety of housing types and densities.

• To ensure that a high level of residential amenity is achieved and maintained.

• To ensure that new development reflects the desired future character and dwelling densities of the area.

19. The site is located in Glenmore Park Stage 2 as illustrated in maps in Part 6 Section 6.18 PDCP (the DCP). The land to the north and east of Glengarry Drive is shown as ‘existing Glenmore Park’ and is not land to which this part of the DCP applies. Figure 3, cl. 2.3 shows the site to be in Precinct B which sets a minimum dwelling yield in the precinct of 255 dwellings. A diversity of dwelling types is to be provided in each precinct. The DCP provides general guidelines for development across Stage 2.

20. Specific aspects of SEPP 65 and PDCP are considered in the discussion of the issues raised by council and objectors.

The issues and evidence

21. Council’s SFC raises the following contentions and detailed particulars:

1. Context and scale (SEPP 65)

2. Architectural and landscape design (SEPP 65)

3. Residential amenity (SEPP 65)

4. Waste management

5. Insufficient information – stormwater, noise attenuation, compliance with AS 2890 (Parking facilities), Bushfire prone land

6. Public interest – matters raised by objectors.

22. Expert evidence was provided by: Mr Craig McLaren – Traffic Engineer; Mr Adam Byrnes – Town Planner for the applicant; and for the respondent: Mr Robert Craig – Town Planner, and Mr Brett Newbold – Urban Designer/ Architect. The parties’ experts addressed the contentions on the basis of the amended plans and prepared joint and or individual reports. In Court, the experts clarified a number of issues raised on site by objectors.

23. Overall, the experts agree that the final amended plans have resolved all significant matters raised in the contentions and particulars and that minor, residual matters can be resolved by simple conditions. The agreed positions, noting the changes made, are summarised below.

Context and scale

24. In regards to building form, massing, scale, and landscaping, the planning and urban design experts agree that:

• The buildings no longer appear as a single building form but have been redesigned as four separate buildings, each with an individual character and different height.

• The buildings step down the site from east to west.

• The scale is not excessive and is compatible with the character of existing development along the Bradley Street ridge.

• Street setbacks have been increased with appropriate deep soil landscaping.

• The widths of apartment buildings have been reduced and deep soil separations between buildings have been widened.

• Increased deep soil setbacks and landscaping between the townhouses and the rear boundaries of adjoining dwellings along Cooee Avenue.

• Redesign of the basement has lowered the heights of apartment buildings and enabled the stepping down of buildings to follow the site’s sloping topography thus eliminating the former substantial podium and enabling direct access from ground floor apartments to the landscaped street setback.

• Relocation of the basement driveway has removed originally proposed blade walls.

• The identity of each building is accentuated by deep soil landscaping which separates the street frontages of successive buildings, by variations in street setbacks, and by redesigning the facades to eliminate former ‘boxy’ design elements and introducing steel-framed balconies and other lighter elements which provide layered articulation.

• The quality of the amended street elevations has been applied to the rear facades that surround the central open space and which are oriented towards the rear of properties along Cooee Avenue.

Architectural and landscape design

25. The experts agree that the architectural and landscape design amendments, many of which are listed above, have eliminated or avoided a ‘bulky’ appearance and have eliminated the ‘street wall’ character of the original proposal. In regards to landscaping, the deep soil setbacks along the street frontages, between the buildings and along the northern boundary, will accommodate trees ranging in heights up to 20m.

Residential amenity

26. It is agreed that the design amendments provide satisfactory amenity for neighbours and future residents, and will improve security as well as the potential for social interaction. The changes that have enabled this include:

• Elimination of below ground apartments.

• Reorientation of most apartments so that bedrooms rather than living rooms face the central open space and adjoining properties in Cooee Avenue.

• Improved security through wider paths and security gates.

• Direct access from the basement to each townhouse and to four apartments with the opportunity for the installation of private chair lifters.

• Relocating the driveway to Bradley Street eliminates potential impacts for surrounding properties on Glengarry Drive and will not expose apartment bedrooms to excessive noise.

• Potential acoustic impacts to neighbouring properties in Cooee Avenue have been reduced substantially by reorientation of living rooms to face Bradley Street and by lowering the primary common open space areas to below existing ground level along the northern boundary.

Waste Management

27. The planners agree that the waste management contention has been resolved. The bin storage area is fully accommodated within the basement; it provides a separate bulky household waste storage area, provides adequate circulation, will be mechanically ventilated, and provides a dedicated bin transfer route which can accommodate a bin trolley to take bins to the street. The location of the waste collection bay will not impede traffic flows along Bradley Street.

Insufficient information

28. The stormwater issue is resolved. Conditions of consent have been drafted to require acoustic certification and compliance with AS 2890 (Parking Facilities). There is no longer a need for compliance for Planning for Bushfire Protection as nearby land that was previously considered as bush-fire prone has been developed.

Public interest – objectors’ concerns

29. In their joint report, the planners and urban designers agree that the concerns raised by objectors which coincide with contentions 1-5 have been resolved appropriately and adequately by the amended design.

30. As noted above at the commencement of proceedings on site, a number of residents raised further concerns – see [16]. In order to address those concerns, the parties’ experts, Mr McLaren, Mr Brynes, Mr Craig and Mr Newbold, all gave oral evidence.

31. In regards to parking and traffic issues, Mr McLaren confirmed that the type, size and number of on-site parking spaces comply with council’s controls and with the relevant Australian Standards. It was acknowledged that the disabled parking spaces and parking for service/delivery vehicles had not been shown on some of the plans. The parties agreed that a condition of consent be drafted to rectify this. Exhibit E is a marked up plan showing the location of four disabled parking spaces close to the lift.

32. The experts confirmed that the waste management issues have been fully resolved.

33. Concerning the setbacks from the rear of a dual occupancy dwelling in Cooee Avenue, close to the existing units and relatively close to the proposed units, owned by one of the objectors, the applicant’s architect prepared marked up plans demonstrating more than compliant setbacks. The distance from the closest part of the proposed building, a bedroom window, to the objector’s back fence is 7.425m and to the rear of the dwelling, some 15.375m. The required rear setback is 6m. The planning and urban design experts reiterated the fact that the potential privacy and acoustic impacts arising from the previous design have been resolved by reorientating the living rooms to Bradley Street and bedrooms to the rear of the proposed buildings and that sufficient deep soil has been retained along the northern boundary to enable the establishment of screen planting.

Submissions

34. The parties agree that consent orders are appropriate and rely on the opinions of the experts. Ms Hemmings made brief submissions summarising the progress of the matter and noting the agreed positions of the experts. Given the agreed position, Mr Nash, for the council, declined to make submissions.

Findings

35. Notwithstanding the parties’ agreed position, the Court, as the consent authority, must satisfy itself that the orders the parties seek can be made. This requires consideration of matters listed in s 79C(1) of the EPA Act. These matters relevantly include any environmental planning instrument such as a SEPP or LEP, any development control plan, the likely impacts of the development, the suitability of the site, any submissions made, and the public interest.

36. The form of residential development is permissible in the R2 zone under PLEP. I am satisfied that the proposed development achieves all of the relevant objectives for the R1 zone (listed in [18]).

37. Considering the comprehensive refinements made to the design of the proposed development and the agreed and well-articulated positions of the planning and urban design experts, I am satisfied that the proposal accords with the Design Quality Principles in Part 2 SEPP 65 and with the relevant requirements provided in PDCP Part 6 Section 6.18 Glenmore Park Stage 2. The form, style, character and range of development anticipated and permitted in Part 6 Section 6.18 PDCP appear to differ from the style and character of the existing and nearby parts of Glenmore Park. I am satisfied that the amended proposal, while different to the existing lower density residential development, is compatible with it.

38. I am satisfied that the site is suitable for the proposed development, particularly given the relocation of the driveway to Bradley Street, and that the likely impacts have been minimised and mitigated by careful redesign. While a number of residents raised concerns about the current inadequate provision of on-street parking and the narrow width of the roads, the proposal complies with the controls. Council has not raised traffic safety as an issue. It is beyond the Court’s powers in determining a single development application such as this to make any findings about road widths that were established at the sub-division planning stage.

39. While I accept that there are many people who object to this development, having considered the broader planning issues, I am satisfied that the proposal is in the public interest.

Conclusions and orders

40. Having considered the expert evidence and with the benefit of the site view and taking into account the matters raised by objectors, the development can be approved and the orders sought by the parties made.

41. By Consent, the orders of the Court are:

1. The applicant is granted leave to rely upon the amended plans referred to in condition 1 of Part A of the conditions of consent annexed hereto at annexure “A”.

2. The applicant is to pay the respondent’s costs pursuant to section 97B of the Environmental Planning and Assessment Act 1979, in a sum as agreed or assessed, being the costs thrown away by reason of the amended plans referred to in Order 1 above, within 28 days of the making of these orders.

3. The appeal is upheld.

4. Development Application No. DA13/0311, as amended, being for ‘multi-dwelling housing comprising 40 residential apartments, 9 townhouses and 68 basement car parking spaces’ on land at 119 Glengarry Drive, Glenmore Park, is approved subject to the conditions of consent annexed hereto at annexure “A”.

5. Exhibits C, 1, 2 and 3 are returned.

_____________________

Judy Fakes

Commissioner of the Court

165998.16 Annexure A -Conditions (282 KB, pdf)

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Decision last updated: 23 June 2016