Huntington MacGillvray Architects Pty Ltd v Rockdale City Council

[2003] NSWLEC 330

>

Land and Environment Court

of New South Wales

CITATION:	Huntington MacGillvray Architects Pty Ltd v Rockdale City Council [2003] NSWLEC 330
PARTIES:	APPLICANT Huntington MacGillvray Architects Pty Ltd RESPONDENT Rockdale City Council
FILE NUMBER(S):	10867 of 2003
CORAM:	Brown C
KEY ISSUES:	Development Application :- demolition of existing improvements - erection of mixed commercial/residential development - impact on residential properties - height - bulk - scale - impact on commercial centre - noise - carparking - tree protection - disabled access - BCA
LEGISLATION CITED:	Environmental Planning and Assessment Act, 1979 State Environmental Planning Policy No. 65 Rockdale Local Environmental Plan 2000
CASES CITED:
DATES OF HEARING:	2, 3 December 2003
DATE OF JUDGMENT:	12/17/2003
LEGAL REPRESENTATIVES:	APPLICANT Mr G Newport, barrister SOLICITORS Huntington Karras RESPONDENT Mr J Cole, solicitor SOLICITORS Abbott Tout

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10867 of 2003

Brown C

17 December 2003

Huntington MacGillvray Architects

Applicant
v

Rockdale City Council

Respondent

Judgment

Introduction

1 This is an appeal against the refusal by Rockdale City Council (the council) of development application No 067/2003 to demolish all existing buildings at 266 - 268 Rocky Point Road, Ramsgate, (the subject site) and erect a mixed residential/commercial development.

2 I record that a view of the subject site and surrounding properties was undertaken on the afternoon of the first day of the hearing with representatives from both parties and a number of local residents. With the agreement of the parties a number of the local residents provided their evidence on site. A summary of this evidence was later tendered.

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

Subject site

4 The subject site is lot 32 and lot 33 in DP 2032. It is rectangular in shape with side boundaries of 45.72 m and front and rear boundaries of 20.115 m giving a total site area of 919.6 m2. The subject site is relatively flat with a very slight fall from Rocky Point Road to the rear and from north to south. Each lot is occupied by a single-storey commercial building. The buildings were originally cottage style dwellings that have been modified to include a shopfront addition built to the street alignment of Rocky Point Road.

5 The subject site is located towards the northern end of the Ramsgate commercial area. The opposite side of Rocky Point Road is also a commercial area but within the Kogarah local government area. The rear boundary of the subject site adjoins a low density residential area with frontage to Campbell Street. This residential area is characterised by single and two-storey dwellings.

The proposal

6 The proposal involves the demolition of all existing structures on the subject site and the erection of a 4 level mixed residential/commercial development. The ground level comprises retail and commercial floorspace and a 21 space parking area with access off Rocky Point Road. Further commercial floorspace is provided on the first level together with residential units. The upper two levels consist solely of residential units. The residential component consists of 2 x 1 bedroom units, 10 x 2 bedroom units and 2 x 3 bedroom units. The total gross floor area of the proposed development is 1553 m2 of which the commercial component occupies 249 m2.

Relevant planning controls

7 The subject site is zoned 3(a) General Business Zone under Rockdale Local Environmental Plan 2000 (LEP 2000). The proposed development is defined as a "mixed use premises" and is permissible within the zone with consent. Clause 12(3) provides that consent must not be granted unless the Court is of the opinion that the proposed development is consistent with one or more of the objectives of the zone, although compliance with this requirement was not an issue raised by the council. The objectives are found in cl 36. Clause 18 provides requirements for noise and vibration and cl 23 provides requirements for ecologically sustainable development. Clause 37 provides for a maximum floor space ratio (FSR) of 2:1, this being the only relevant development standard in LEP 2000 for the subject site. There was no dispute that the proposed development satisfied this standard, having an FSR of 1.67:1.

8 The Mixed Use Development/Interim Planning Policy (the interim policy) was adopted on 21 April 1999 and amended on 28 August 2002 and 2 September 2002. It contains 6 requirements for mixed use developments.

9 State Environmental Planning Policy No. 65 - Design quality of Residential Flat Buildings (SEPP 65) applies to the subject application by way of cl 4 of the policy.

10 The council filed a Statement of Issues containing 7 issues and a number of sub-issues. These can be conveniently grouped into the following areas:

1) whether the proposed height, bulk, size and scale is appropriate where it adjoins residential development,
2) whether the proposed height, bulk, size and scale is appropriate in the Ramsgate commercial area,
3) whether adequate noise protection is provided,
4) whether adequate parking and access arrangements are provided,
5) whether adequate protection is provided to existing trees,
6) whether adequate disabled access is provided and
7) whether the proposal complies with the Building Code of Australia (BCA).

Impact on residential development

11 Evidence for the council was provided by Mr Brian Kirk, a town planner. He describes the proposed development as towering over the low density, single-storey residential development to the rear. The six balconies in the rear elevation will overlook the dwellings and backyards and also overshadow these areas. The building will provide an intimidating presence that is inappropriate and will destroy the amenity that the residences currently enjoy. The existence of a large tree in the rear of the subject site will help ameliorate this impact but not sufficiently to totally offset the poor disposition of mass and the excessive scale and bulk of the building.

12 Dr Richard Lamb, a visual impact consultant also provided evidence for the council. He states that the amenity issues for the residents in Campbell Street are quite significant. In his assessment, the building does not adequately consider the interface with the residential area. This aspect of the development is totally inadequate because of the overlooking and impact on visual privacy. The use of louvres to limit overlooking makes the building unattractive and does not address the issue of overlooking. Dr Lamb suggests that rear setbacks should be sufficient to ensure the protection of the privacy of residents to the rear, with sufficient space for significant areas of soft landscaping in deep soil so that screening of the buildings can be achieved. Parking should also be provided underground.

13 On the site view, the Court visited the properties to the rear of the subject site as well as other properties in the immediate area. The local residents who provided evidence were:

• Mrs Sonya Sarkis of 15 Campbell Street,
• Mrs Lucy Blue of 17 Campbell Street,
• Mrs Cheryle Owen of 19 Campbell Street,
• Mrs Nena Karasalidis of 21 Campbell Street,
• Ms Jodi Carter of 47 Campbell Street and
• Mr Brian Pisani, a pharmacist who owns and operates from the property adjoining the subject site in Rocky Point Road.

14 They agreed with the concerns expressed by Mr Kirk. They also expressed concern that the proposed development will set a precedent for other similar developments along Rocky Point Road.

15 Evidence for the applicant was provided by Mr Lindsay Fletcher, a town planner. He acknowledges that the most significant amenity impacts relate to the residential properties in Campbell Street. In his opinion, however, the design includes sufficient mitigation measures to reduce impacts on those properties. These include the retention of the existing large tree in the rear of the subject site and privacy screens to the rear facing balconies. Additionally, any shadow impacts are minor and acceptable.

16 Additional evidence on behalf of the applicant was provided by Mr Steve Kennedy, an architect. He generally supports the conclusions of Mr Fletcher and accepts that while the proposed development is likely to have a significant impact on its immediate environment, this impact must be considered in terms of both the provisions of the planning controls for the site and the long-term changes anticipated for the area. On this basis, he concludes by stating that the scheme is supportable.

17 In dealing with this important issue, the Court’s role was made unnecessarily difficult by a general lack of planning controls for mixed use premises. While Mr Kirk argued that Development Control Plan No. 35 - Residential Flat Building (DCP 35) applied to the subject development, cl 1.1 states that it applies only to "residential flat buildings". As "mixed use premises" are separately defined in LEP 2000 then strict compliance with the standards within DCP 35 is questionable. There was, however, some agreement that some elements may be applicable but none were specifically identified. SEPP 65 is a relevant consideration and provides a number of principles to achieve good design and evaluate the merit of proposed solutions, however, cl 8 states that the "design quality principles do not generate design solutions". The policy is clearly not designed to operate in a vacuum of local planning controls. The interim policy must also be given limited weight. It is not an environmental planning instrument or a development control plan. Despite being defined as interim, it has been in existence for over 3 years. Its contribution to the impact on the adjoining residential property is limited to par (d) where it provides little specific direction by the general statement that "the design of the proposal have regard for its location and be designed so the components of the development are compatible with development in the locality". The 2:1 FSR in LEP 2000 is also of limited use. While it provides a limit on the amount of floor space, there are no complementary controls to show how this floor space should be distributed on the site and particularly how this floorspace should relate to the adjoining residential properties.

18 Notwithstanding the lack of specific controls but with the benefit of the site view, I am inclined to agree with the evidence of the council experts. In my view, the proposed development shows little respect to the adjoining residential development. The interface between a commercial and a residential zone has inherent problems because of the different and often conflicting activities carried out in the different zones and the different building forms. For this reason alone, particular consideration needs to be given to how a proposed commercial building relates to its residential neighbour. I agree with Mr Kirk that the building will be an imposing and dominating figure when viewed from a number of the rear yards Campbell Street. The bulk is created by the 12 m high rear face of the building that is setback 6 m from the balconies and 8 m to the wall of the building on the first floor and 8 m to the balconies and 10 m to the wall of the building on the second and third floors. Because of the substantial form of the balconies (and proposed screening devices), the visual presence of the building is generally read from line of the balconies. The suggestion by Dr Lamb of increased setbacks at the upper levels and the provision of basement carparking has some merit in addressing bulk, scale and height of the proposed building.

19 SEPP 65 contains a number of design principles that seek to provide a guide to achieving good design:

Principle 1: Context, states in part that " responding to context involves identifying the desirable elements of a location's current character or, in the case of precincts undergoing a transition, the desired future character as stated in planning and design policies."

Principle 2: Scale, states in part that "good design provides an appropriate scale in terms of the bulk and height that suits the scale of the street and the surrounding buildings" .

Principals 3: Built form, states in part that " good design achieves an appropriate built form for a site and the building's purpose, in terms of building alignments, proportions, building height and the manipulation of building elements".

Principle 4: Density, states in part that " good design has a density appropriate for a site and its context, in terms of floor space yields (or number of units or residents)" .

20 The Court was informed that consultants have recently been appointed to undertake a study of the Ramsgate commercial centre in conjunction with Kogarah Council. On this basis it could be reasonably argued that the commercially zoned area is an area undergoing transition although this transition could not be said to be in the form of any specific planning and design policies. It is however a reasonable expectation, based on the existing 2:1 FSR, the number of pending applications and the forthcoming study, that the form of commercial development in this area will change in the future. Some emphasis was placed on this by Mr Fletcher, in addition to Rockdale Shopping Centre Audit of June 2001 that recommended 4 level development. However, SEPP 65 speaks of precincts as distinct from zoned areas. The context in which the subject site is located varies considerably in the form, type and use of buildings essentially as it spans residential and commercial zonings. In my opinion, is not possible to divorce the residential areas from any assessment required under SEPP 65. This is particularly important in this instance where the subject site is at the boundary of the two different zones.

21 The stark contrast in scale, height and bulk between the proposed development and the adjoining residential properties indicates a poor contextual fit. Under any test the proposed development could not be seen to have a bulk and height that suits the scale of surrounding buildings. The massing of the built form, particularly at the upper levels indicates an unacceptable design. Even accepting that the proposed development satisfies the FSR development standard in LEP 2000, little thought appears to have been given to the positioning of the floorspace on the subject site. Overall, and in the words of SEPP 65, the proposal could not be seen as being of "good design". .

22 Privacy to the yards of the adjoining residential properties was addressed through the screening effect provided by the existing tree at rear of the subject site and screening devices located on the balconies. There was agreement between the experts that the existing tree would provide a level of screening to the adjoining residential properties, although some trimming of the tree would be required to accommodate the proposed development. The screening devices extend horizontally from the balconies for a distance of around 1.5 m and while achieving their desired aim, provide a less than attractive element to the design and visually bring the building closer to the residential properties at the rear. In this location it would be more appropriate that measures to ameliorate overlooking should be a more integral part of the design or addressed through a greater separation distance.

23 Overshadowing was also an issue raised by a number of residents. The shadow diagrams provided by the applicant indicate that at 3.00 pm in midwinter the proposed building will cast a shadow over a small portion of 19 Campbell Street and a larger area of 21 Campbell Street, including a cabana and shed. Interpolating the 3.00 pm shadow and the shadow cast by the building at midday in midwinter, 19 Campbell Street would not be affected by any overshadowing until around 2.00 pm and 21 Campbell Street until around 1.00 pm. Based on this assessment, the impact of overshadowing would not be a sufficient reason to refuse the development application.

24 In considering the unacceptable impact that the proposed development has on the adjoining residential properties to the rear, I find that the proposed development is unsatisfactory and that the degree of impact is sufficient to warrant the refusal of the development application for this reason.

25 Pursuant to s 79C(1)(b) of the Environmental Planning and Assessment Act 1979, I find that the proposed development creates unacceptable impacts on the adjoining residential properties largely through its bulk, scale, massing, height and design.

26 For completeness, I will briefly deal with the other issues.

Impact on Ramsgate commercial centre

27 The impact on the Ramsgate commercial centre poses a difficult issue for the Court in the absence of any specific development controls for the commercial centre. The forthcoming study can provide no assistance to address this particular issue and little weight can also be given to the Rockdale Shopping Centre Audit as it has never been adopted by the council. It is known that the 2:1 FSR that applies to the subject site would alter the largely older style and lower density development that currently exists at present. It is also known that the 2:1 FSR is significantly higher than the corresponding maximum FSR of 1:1 within the Kogarah local government area on the opposite side of Rocky Point Road. There was also a common thread through the submissions from the local residents that they considered the form of the proposed development and particularly its presentation to Rocky Point Road as being inappropriate.

28 Essentially, the Court is being asked to determine the appropriate building form for future redevelopment of the Ramsgate commercial centre. As submitted on a number of occasions by Mr Cole, the council's advocate, there are a number of pending development applications awaiting the decision of the Court in this matter and that the decision will likely have some bearing on the determination of these development applications. The Court was urged to address this issue from basic town planning principles.

29 While both parties provided considerable evidence on this issue, I am not prepared to make any specific findings for a number of reasons. Firstly, it is not necessary to determine the appeal. Secondly, and of considerable importance is that it is not the role of the Court to set policy. This role falls squarely with the council. Thirdly, and also of some importance is that the fundamental requirement for public participation in the formulation of appropriate planning policies will be essentially by passed. Fourthly, the development of appropriate development standards for a commercial strip, such as Ramsgate, can be complex and the determination of a specific development application is unlikely to properly address the wider planning implications for the total area. In this case, the complexity is exacerbated by the commercial centre being split between two local government areas.

Noise

30 A joint report was prepared by Ms Tracy Gowan for the applicant and by Mr Graham Atkins for the council. Both experts addressed the requirements in cl 18 of LEP 2000 relating to noise and vibration. Agreement was reached on the appropriate criteria for noise assessment. The areas of disagreement involved potential noise impact from a mechanical plant on the commercial premises to the north and south of the subject site. Mr Atkins maintains that it is not acceptable to rely on the closing of windows to control noise from mechanical plant whereas Ms Gowan states that noise controls for mechanical plan are commercially available and can be readily added to silence noisy plant. The extent of treatment can be determined during noise tests conducted at the earliest practicable stage of construction. On this matter I agree with the approach of Ms Gowan as it provides a practical solution to an issue that is not necessarily determinative.

31 A further disagreement centred on potential noise impacts between bedroom windows of units in the western and eastern wings that overlook the terraces and balconies of units located in the centre of the building. Mr Atkins states that is not acceptable to rely on the closing of windows to control acoustic privacy between different occupancies. Ms Gowan states that there are no characteristics in the proposed development that make it any more prone to generating unacceptable noise than other medium/high-density residential developments. I generally support the conclusions of Ms Gowan and while the situation is not optimal, it is not an issue that would warrant the refusal of the development application.

Carparking and access

32 Carparking and access was not an issue specifically raised by the council in the proceedings although a number of modifications to the carparking area and access were made during the hearing. A number of local residents, however expressed a concern over the potential additional carparking in the residential streets adjoining the subject site. In this regard, I note that the proposed development complies with the level of carparking required by the council's Parking and Loading Code. For this reason and in the absence of any further evidence, the concerns of the local residents cannot be supported.

Tree protection

33 A joint report was prepared by Ms Megan Geddes for the applicant and by Lee McLellan for the council. As I understand, the retention of the substantial tree at the rear of the subject site was not an issue subject to a number of requirements for the maintenance and planting of the area surrounding the tree. These requirements were not opposed by the applicant. A difference remained over the amount of trimming required to accommodate the building and proposed privacy screens and effect this would have on ability of the tree to screen the proposed buildings from the residential properties at the rear. The amount of trimming required for the tree was explained on the site view and involved the removal of some lower limbs. The substantial area of the tree is to be retained and for this reason the impact on the tree is not significant and would not be a reason to refuse the application.

Disabled access

34 A joint report was prepared by Mr Howard Moutrie for the applicant and by Mr Mark Relf for the council. They both address the Disability Discrimination Act 1992 (DD Act) and the council's Development Control Plan No. 28 - Requirements for Access (DCP 28). There was agreement that the proposed development generally satisfies the access requirements of DCP 28 in terms of access to the ground floor areas, lift access to the first floor and one adaptable unit. In terms of the DD Act, Mr Relf maintains that all units should be capable of being purchased or rented by a person with a disability therefore access to 100% of the units should be provided. Mr Moutrie disagrees and states that providing access to all units is neither feasible nor viable and that disabled access to 10% to 20% of units is realistic and appropriate. In this case, access is provided to 28% of the units.

35 On this matter I agree with Mr Moutrie. The DD Act provides no specific standards for disabled access. DCP 28 postdates the DD Act and is a matter that is specifically addressed within DCP 28. I must presume that some consideration was given to the more qualitative requirements of the DD Act in the council's formulation of DCP 28 where more quantitative requirements are provided.

Building Code of Australia

36 A joint report was prepared by Mr Stuart Boyce for the applicant and by Mr David Jones for the council. Their reports identified some areas of disagreement however the submission of amended plans overcame any areas of disagreement.

37 For the foregoing reasons the Orders of the Court are:

1. The appeal is dismissed.
2. Development application No. 067/2003 for the demolition of all existing buildings and the erection of a mixed residential/commercial development at 266 – 268 Rocky Point Road, Ramsgate, is determined by the refusal of development consent.
3. The exhibits may be returned.

_____________________

G T Brown

Rjs/ljr