Innovative Architects Pty Ltd v Sutherland Shire Council

[2010] NSWLEC 1022

Land and Environment Court

of New South Wales

CITATION:

Innovative Architects Pty Ltd v Sutherland Shire Council [2010] NSWLEC 1022

PARTIES:

APPLICANT
Innovative Architects Pty Ltd

RESPONDENT
Sutherland Shire Council

FILE NUMBER(S):

10302 of 2009

CORAM:

Hussey C

KEY ISSUES:

DEVELOPMENT APPLICATION :-

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Sutherland Local Environmental Plan 2006
Sutherland Local Environmental Plan Amendment 4

DATES OF HEARING:

16, 17 September 2009, 10 November 2009

 
DATE OF JUDGMENT: 

5 February 2010

LEGAL REPRESENTATIVES:

APPLICANT
Mr I Hemmings (barrister)
SOLICITOR
Charles R Xuereb & Co

RESPONDENT
Mr J Cole (solicitor)
SOLICITOR
HWL Ebsworth

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

5 February 2010

10302 of 2009 Innovative Architects Pty Ltd v Sutherland Shire Council.

JUDGMENT

Background.

1 This appeal was lodged against council’s refusal of a development application for the demolition of an existing residential flat building and the construction of a part 5-storey/part 6-storey residential flat building (RFB) containing 3 large units over basement parking for 9 vehicles. The site is located at 12 McDonald Street, Cronulla.

2 For the appeal a number of issues were identified by council, which are summarised as follows:

Site area; non-compliance with the minimum site area and width requirements, which restricts economic orderly development with the adjoining site.
Building design in terms of scale, setbacks and height
Landscape area and design.
Impacts on amenity, privacy, solar access and scenic quality.
Parking.
Public interest.

The site

3 This site is situated in a prominent position overlooking the North Cronulla beaches. It is described as Lot 38 in DP 7024 and has an area of 531.1 sq m.

4 The site is of irregular shape with a width of 13.315m along the western boundary at McDonald Street. The eastern boundary is indicated as being the MHWM at a similar width. The northern boundary is 45.415m to the MHWM and the southern boundary is 41.125m from the western boundary respectively.

5 The site falls towards the eastern cliff edge and drops significantly below this point toward the eastern MHWM boundary. A well-used pedestrian pathway is located near the foot of the cliff, adjacent to the beach area.

6 There is low form coastal vegetation and dilapidated stairs along the cliff frontage. The remainder of the site comprises the existing 2 – storey RFB and separate outbuilding located in the south-western corner.

7 Adjoining the site to the north at No 10 McDonald Street is a similar style RFB containing 4 units. It has a similar site area. There is a RFB adjoining the south At No 8 Ozone Street, which is of more recent construction.

The proposal

8 This proposal involves the demolition of the existing RFB and other structures to enable construction of the part 5/6 storey RFB containing 3 larger style units. The design of the building has been subject to a number of amendments in response to objections, review by council’s ARAP and subsequent detailing amendments during the course of the appeal.

9 The building design is summarised as being of a contemporary nature with flat and clerestory roof elements. It is of elongated form to follow the lot shape and provides a variable (4m – 6m) setback to eastern, waterside cliff frontage. The building contains:

Basement, comprising 2 levels with 3 individual garages for each unit, which incorporates visitor parking to be managed by the individual owners. The basement extends to both side boundaries (zero setbacks) with its roof forming a podium level (about 2.5m above NGL) for the units. It includes a car lift and bin storage area.
Ground floor level; This is split level, containing the main entrance/lift and lower level of Unit 1. Unit 1 contains master bedroom/spa, 2 bedrooms/en-suites, guest/study, living room connected to a relatively large 41.3 sq m terrace incorporating a spa.
1 ^st level; The western part contains the upper level of Unit 1 (guest room, master bedroom) and the eastern part is the lower level of Unit 2, comprising master bedroom/en-suite/terrace, guest/study. It also includes an internal lift.
2 ^nd level; contains the upper level of Unit 2 comprising 2 bedrooms/en-suites, study living areas with eastern terrace incorporating spa.
3 ^rd level; Contains the lower level of and main living areas of Unit 3 (adaptable unit), comprising media, 2 bedrooms, bathroom, powder room, living areas with outdoor terrace incorporating spa on southern boundary. .
4 ^th level; Occupies a reduced footprint containing the upper level master bedroom, gym of unit 3. A roof deck is located off the western side of this level and a patio is located on the eastern elevation.

10 The proposal also includes landscaping comprising planting within the side boundary setbacks on the podium and planter boxes on the various patios/terraces. Improved landscaping, including the removal of the existing steps is to be undertaken on the cliff face.

Planning controls

11 The following planning controls apply:

Sutherland Shire LEP 2006 ; under which the site is located within the Zone 6 – Multiple Dwelling B zone and the proposal is permissible with consent. There is Zone 13 – Public Open Space zone to the east of the site and the Cronulla Urban Zone 8 is located to the north and west of the site.

12 The stated objectives of this Zone 6 are:

( a) to allow residential flat buildings in a form that complements the predominantly urban landscape setting of the zone,
(b) to allow development that is of a scale and nature that reflects its position as part of an urban centre,
(c) to permit development on land at a density that is appropriate in terms of the land’s proximity to the retail/commercial centre, public transport, services and employment opportunities,
(d) to provide a range of housing choices in accessible locations.
Sutherland Shire LEP 2006 – (Amendment 4); This amendment commenced on 9 January 2009. However as the DA was lodged prior to this commencement date, Amendment 4 has the weight of a draft planning instrument. The purpose of Amendment 4 was to correct a number of minor errors and inaccuracies, including definitions that do not overlap (height, gross floor area and landscaped area), so as to avoid unintended outcomes. In the subject matter however, the numerical standards remain substantially unchanged, in respect of the application, except for the landscape definition/requirements.
Sutherland Shire DCP 2006 – (Amendment 5).
SEPP No 65 – Design Quality of Residential Flat Building.
SEPP No 71 – Coastal Protection
Sutherland Shire Section 94 plans.

The evidence

13 Detailed evidence was presented by the following experts in the context of the current planning controls:

Mr S Layman; Council’s consulting architect/planner,
Mr G Patch; Council’s consulting heritage advisor.

Mr L Fletcher; Applicant’s consulting planner.
Mr C Betteridge; Applicant’s consulting heritage advisor.

14 For my assessment of this proposal, I have firstly considered the differing expert evidence on the various elements, within the parameters of the relevant controls. From this, I have determined the cumulative impact of this proposal and its ultimate acceptability.

Site Area

15 A threshold issue in this matter concerns the site area restrictions as stated in clause 41:

(5) Residential flat buildings

The minimum area of a lot of land in Zone 6—Multiple Dwelling B on which it is proposed to erect a residential flat building is 1,800 square metres and the minimum width of any such lot is 30 metres.

(6) Despite subclause (5), a lot of land in Zone 6—Multiple Dwelling B on which it is proposed to erect a residential flat building may be less than 1,800 square metres, or have a minimum width of less than 30 metres, if the consent authority is satisfied that:

(a) the amalgamation of the lot with an adjoining lot is not reasonably feasible, or
(b) the orderly and economic use and development of the lot and the adjoining lot can be achieved if amalgamation is not feasible

16 The intent of this clause is for smaller lots to be amalgamated to achieve a desired form of development with an economic and orderly outcome. But sub-clause (6) allows the exercise of discretion in the circumstances of (a) or (b). Exhibit D contains extensive correspondence between the applicant and the various owners of the adjoining RFB at No 10 McDonald Street. It is clear that these owners do not wish to amalgamate and apparently have no objection to the subject application.

17 Insofar as the subject lot is then substantially deficient in respect of the area requirements, the planners addressed this. Mr Layman basically considers the proposal is of excessive scale and therefore considers that a schematic envelope should be prepared for an amalgamation of Nos 10 and 12.

18 However, Mr Fletcher firstly says that the Amalgamations Map under SSDCP 2006 does not include the subject site in an amalgamation pattern. On the basis of the rejection of the amalgamation offer by No 10 and the fact that the other neighbouring building at No 8 Ozone Street is large strata titled RFB in good repair, Mr Fletcher says that that is most unlikely to result in an amalgamations.

19 Consequently he concludes it is not feasible to amalgamate the subject site with its neighbours and supports the proposal on the basis of 41(6)(a).

Furthermore, he says that the dimensions of the adjoining site will not present any impediment to its future development in accordance with SEPP 65 design principles or prevent the overall economic and orderly development of these properties.

20 Whilst there was some discussion about the application of cl 41(6) in terms of whether the or effectively means and, I think they can be considered separately and not conjoined. Accordingly I accept the evidence that it is not feasible to amalgamate the adjoining properties and therefore cl 41(6)(a) is satisfied.

21 But on the alternative assumption, I am also satisfied to rely on Mr Fletcher’s evidence that the approval of this development will not offend the economic and orderly development considerations. In this, regard, I am satisfied it is possible to achieve a satisfactory scale RFB on the subject site alone and as No 10 is of similar size, a similar outcome could likely be achieved if desired by those owners in the future.

22 Therefore, I rely on the planning experts agreement that amalgamation is not feasible and consider it appropriate to proceed with the consideration of the merits of the subject application.

Development controls.

23 Insofar as there are various sets of controls contained in the relevant documents to guide development, one of the obvious problems arises in assessing the merits of the subject application against the controls, because they have been formulated on the basis of amalgamation of sites to allow larger scale development. Consequently, the council submission is that in the event that site amalgamation cannot be achieved, then the reduced site area should correspondingly reduce the size of any resultant development.

24 The council’s submissions also rely on the provisions of SEPP 71, particularly the following qualitative matters listed for consideration in cl 8:

(a) existing access to and along the coastal foreshore for pedestrians or persons with a disability should be retained and, where possible, public access to and along the coastal foreshore for pedestrians should be improved.
(d) the suitability of development given its type, location and design and its relationship with the surrounding area,
(e) any detrimental impact that development may have on the amenity of the coastal foreshore, including any significant overshadowing of the coastal foreshore and any significant loss of views from a public place to the coastal foreshore,
(f) the scenic qualities of the New South Wales, and means to protect and improve these qualities,
(n) the conservation and preservation of items of heritage, archaeological or historic consideration…

Building height

25 This is one of the critical elements assessed in this appeal. Relevantly, cl 33 contains the building height controls, wherein the following objectives are required to be considered before granting any consent:

(a) to ensure the scale of buildings:
(i) is consistent with the desired scale and character of the street and locality in which the buildings are located, and
(ii) complements any natural landscape setting of the buildings,
(b) to allow reasonable daylight access to all buildings and the public domain,
(c) to minimise the impacts of new buildings on adjoining or nearby properties from loss of views, loss of privacy, overshadowing or visual intrusion,
(d) to ensure that the visual impact of buildings is minimised when viewed from adjoining properties, the street, waterways and public reserves,
(e) to ensure, where possible, that the height of non-residential buildings in residential zones is compatible with the scale of residential buildings on land in those zones.
(3) The consent authority must not consent to development for the purpose of a building unless it has considered the objectives of this clause.

26 Clause 33 (15) states that a residential flat building must not exceed any maximum height specified in the Height and Density Control Maps. The relevant map is contained in the DCP and it divides the site into 2 different height components, being 4 storeys at McDonald Street and 6 storeys towards the eastern (ocean side) frontage.

27 Despite some examination of the planning experts, no compelling explanation was presented regarding the location of the division line. However it appears that there was a relatively minor non-compliance brought about by the height of the basement garage above natural ground level.

28 Mr Layman nevertheless considers the proposal is of excessive height at the 4/6 storey interface and it should incorporate “stepping back” of the western elevation above level 2. He says the excessive height is compounded by the proposed floor – ceiling heights and raised podium level that basically forms wall 2.5m high (approx) adjacent to No 8 Ozone. These excessive floor/ceiling heights vary from 3.2m, 3.9m (unit 1) to 4m for master bedroom in unit 3. According to Mr Layman, a more acceptable visual and amenity outcome could be achieved by reducing these heights to the order of 2.7m.

29 For the assessment of this design element, reference was made to the other neighbouring buildings along this waterfront, whereby the summary in Exhibit 17 indicates an average height of 25 .7m. As the proposal has an eastern parapet height of RL 31.7m, Mr Layman says this is another indicator of the excessive height of the proposal, relative to neighbouring development.

30 The associated concern relating to the “stepping” of the façade to reduce visual impacts is subsequently dealt with in connection with the setback controls. According to the council’s submissions, the progressive stepping back of the upper level as shown in Diagram H would reduce the apparent height and bulk of the proposal.

Building density

31 Another building element examined in light of the non-amalgamation concerns the proposed density of the development and its ability to achieve the objectives. Clause 35 deals with the building densities on the basis of the following objectives:

(a) to ensure that development is in keeping with the characteristics of the site and the local area,
(b) to provide a degree of consistency in the bulk and scale of new buildings that relates to the context and environmental qualities of the locality,
(c) to minimise the impact of buildings on the amenity of adjoining residential properties,
(d) to ensure, where possible, that non-residential buildings in residential zones are compatible with the scale and character of residential buildings on land in those zones.

32 There is some confusion in the numeric controls for the Zone 6 because cl 35 (9) (b) (i) in the LEPs stipulate that where the area of the site is less than 1200 sq m, the prescribed FSR is 0.7:1. But this qualified in (iii), where the FSR is specified on the Height and Density Controls Map. Reference to this Map shows the site has a permissible FSR of 1.8:1.

33 I understand that the proposal has a FSR in the order of 1.6:1. In view of the apparent conflict and evidence from the planners, I accept that reliance on the Map provisions would achieve numeric compliance. Accordingly I have assessed this amount of bulk and scale within the overall set of controls and objectives. In doing so, I note that this amount of floor area is at the maximum end of the scale.

Setbacks

34 The achievement of the aforementioned objectives in this case depends to a large extent on the building setback impacts. The building setbacks are set out on Map 9/Diagram H and cl 3.b.9 of the DCP. However reference to these documents shows confusing and inconsistent setback distances. This particularly so with the different setbacks from the cliff shown on Map 9 and Diag H.

35 Map 9 indicates at least 6m from the eastern cliff face. It also indicates a 4m setback in McDonald Street, increasing to 8m above the 2^nd level. The associated controls in terms of the desired footprint are side setbacks of 4m as set out in cl 3 b 9. In this regard I note that there was some discussion about whether Diag. H does require any “stepping back” along the eastern façade, as suggested by Mr Layman.

36 However, as noted previously, the application of these setback controls that are based on a larger consolidated lot are difficult to apply to the subject smaller site having a width of 13.31m at the western boundary and approximately 11.4m at the eastern boundary because the developable width would be in the order of 5.31m.

37 Insofar as Mr Fletcher says compliance with these controls is not feasible and he supports the proposal, Mr Layman is dissatisfied in this case because he considers side setbacks over a protruding basement garage with nil side setback is inappropriate. Furthermore that the proposed elevated planter boxes above the basement on the side walls are also unsatisfactory due to adverse visual impacts and loss of solar amenity and inconsistent with the limitations in the controls on podium planting.

38 Mr Layman says that to achieve a reasonable design outcome, typical side setbacks for RFBs are 3m + 1/3 of the height above 3m. By reference to the RFDC, he notes that it suggests a 12m separation between 12m high (4 storey) RFBs and an 18m separation between buildings 12 – 25m high (5-8 storeys). As the separation from No 10 is 3.8 – 4.5m and from No 8 Ozone is 4.2m – 6.4m, this is inadequate and causes undesirable amenity impacts.

39 Mr Layman identified a specific concern with the eastern setback from the cliff face. Insofar as the setback was amended during the course of the appeal by a reduction in the Unit 1 terrace and incorporation of a corner planter, this still results in a setback of about 3m from the planter to the designated ‘face of rock’. Mr Layman indicated on Exhibit Q his preference that the setback line should be increased to more closely follow the cliff face and achieve 6m setback. The adoption of this provision would reduce the terrace area by about 50% and significantly reduce its amenity.

Landscaped area

40 A relevant associated control is that for landscape area. Clause 36 of the LEP contains the landscape area contains with the following relevant objectives:

(a) to ensure adequate opportunities for the retention or provision of vegetation that contributes to biodiversity,
(b) to ensure adequate opportunities for tree retention and tree planting so as to preserve and enhance the tree canopy of Sutherland Shire,

(c) to minimise urban run-off by maximising pervious areas on the sites of development,
(d to ensure that the visual impact of development is minimised by appropriate landscaping and that the landscaping is maintained,…

41 At the time of lodgement of the DA, the operative control was SLEP 2006, which required a minimum landscaped area of 60% in the Multi Dwelling B Zone.

42 Subsequently, Amendment 4 reduced the required landscape area to 40% of the site. In doing so, the definition of “landscaped area” has been amended so as to now effectively only count deep soil landscaped areas and disregard reinstated landscaped areas from the calculation. Landscaped area is defined as:

That part of the site that is used for growing plants, grasses or trees (including bushland), but does not include any building, structure, hard paved area, driveway, garbage storage area or swimming pool, or any planting over a basement, on a podium or roof top or within a planter box.

43 Considering the relativity between the two LEPs, the parties agreed that the application be assessed on the basis of Amendment 4, which is somewhat more focussed and less onerous for the applicant. I accept this situation that the Amendment 4 be given determining weight because it shows the current intent for landscape area requirements.

44 A SEPP 1 objection was lodged against this landscape area development standard, based on the current requirement for 40%. The SEPP 1 states that the proposal provides 210 sq m of landscaping, which is 40% of the site. According to Mr Fletcher, there is about 12.3% site landscaping together with another 23.7% on the podium and in planter boxes, which achieves the nominated 40%. Taking into account quality of the proposed quality of the landscaping treatment, he says it satisfies the objectives and requirements for approval, notwithstanding its non-compliance with the definition, which does not include podium planting.

45 Against this, Mr Layman does not accept the numerical compliance (he calculates site landscaping to be about (10.5%) and is dissatisfied because:

the landscape area does not comply with the landscape area definition regarding podium planting and is significantly deficient and does not provide suitable areas for vegetation that contributes to biodiversity.
There is limited opportunity for tree canopy planting.
The pervious areas of the site are not maximised due to the extent of the basement level beyond the ground floor level.
The size, shape and area of landscaping proposed does not provided for landscaping of an appropriate scale to minimise the visual impact of the development.

Urban design, scenic impacts

46 Clause 48 of the LEP deals with the urban design considerations, which must be considered prior to granting any consent and includes:

a) the extent to which high quality design and development outcomes for the urban environment of Sutherland Shire have been attained, or will be attained by the proposed development

47 Clause 49 also requires the consent authority to consider other relevant urban design matters effecting residential buildings as follows:

(b) the extent to which any adverse impacts of the proposed development on adjoining land and open space in terms of overshadowing, overlooking, views, privacy and visual intrusion will be minimised,

(c) the extent to which the quality of the streetscape concerned will be improved by the development,

(d) the extent to which there will be private open space of a sufficient area and dimensions to enable proposed and required activities,

(e) the extent to which any adverse impacts of the proposed development on adjoining land in terms of size, bulk, height, scale and siting will be minimised,

(f) the extent to which the residential building concerned integrates with a well-designed landscaped setting,

48 These matters have been considered in conjunction with the particular issues raised by the council and neighbours objections concerning the loss of amenity due to the lack of adequate side setbacks, resulting in additional shadowing, loss of daylight and reduced visual amenity arising from the elevated podium with nil side setback.

Heritage impacts

49 This issue arises because the cliff is identified as a Schedule 6 – Heritage Item (Lf35) under SSLEP 2006.The draft Statement of Significance for the item states:

“The sandstone cliff above The Esplanade walkway has high scenic qualities and is a landmark in the Cronulla foreshore. The cliff was also the centre of community action for the preservation of a 100 m foreshore strip without development for the enjoyment of the public. The cliff is the backdrop to the heritage listed “The Esplanade”, a foreshore walking path built in the 1930s. It has local significance”.

50 The particular concerns identified are the adequacy of setbacks to the eastern façade terraces so as to result in acceptable scenic impacts. Also, the situation with the undesirable steps and proposed drainage infrastructure on the cliff face.

51 The heritage controls are contained in cl 54, on the basis of the following objectives:

(a) to conserve the environmental heritage of Sutherland Shire,

(b) to conserve the heritage significance of heritage items, including associated fabric, settings and views,

(e) to protect and recognise locally significant trees and natural landforms as part of Sutherland Shire’s environmental heritage,

52 This issue was dealt by the respective heritage experts, who firstly disagreed on the exact boundary of the cliff face due to the partial modifications over time. This uncertainty involves whether the setback is measured from the HWM or the top of the cliff.

53 Mr Patch says that the setback should be measured from the top of the cliff rather than the HWM and it should be 6m to the balcony faces. He considers the proposal’s reduced setback and excessive height poses unacceptable visual impact on the significance of the sandstone cliff, The Esplanade and Rock Pool.

54 Against this Mr Betteridge says the proposal is acceptable because the existing development above the cliff face is such that the site has relatively high visual absorption capacity, thereby reducing any potential adverse impacts of the proposal on the amenity and scenic quality to an acceptable level. Due to the level of the footpath at the bottom of the cliff, the views of the proposal will be restricted.

55 With regard to the cliff face works, it was agreed that the removal of the stairs would be beneficial. Some concerns were however expressed about potential impacts of the new drainage infrastructure proposed on the cliff face. However full details of this were not available for final heritage impact assessment

56 An associated consideration of the natural landform is required under cl 55 as follows:

55 Significant trees or natural landforms
(1) This clause applies to land on which a significant tree or significant landform is located.
(2) The consent authority must not consent to development on land to which this clause applies unless it is satisfied that:

(a) the development will be carried out in a manner that ensures the continued good health of the tree or the continued structural integrity and visual quality of the landforms, and

(b) in the case of development involving the erection of a building:

(i) the building will be set back from the drip-line of any significant tree, and

(ii) the building will not encroach on, or `adversely affect, any significant landform…,

Objections

57 A considerable number of written objections were lodged and these have been considered in conjunction with the further oral objections given at the view. The objections relate to the excessive height of the building in the absence of any amalgamation with adjoining properties, inadequate setback to the cliff face causing adverse visual impacts, loss of values, adverse amenity impacts in terms of increased shadowing and view loss for a number of neighbouring properties. These matters have been considered in conjunction with the related expert evidence.

Conclusions

58 Having considered the evidence, the submissions and undertaken a view, I do not consider this application merits consent because it represents an overdevelopment of this existing lots environmental capacity to reasonably satisfy the planning objectives.

59 It is apparent that this site is in a prominent position atop the cliff face near the North Cronulla beaches. As such it is subject to the raft of local planning controls as well as the various SEPPs, particularly SEPP 71. The relevant controls that require the consent authority to consider before granting any consent have been identified and considered.

60 Unfortunately, whilst there have been some inconsistencies in the controls that have sought to be clarified with Amendment 4, it appears some still remain, particularly the height, density controls in cl 35 and reference to the Height and Density Controls Map. Also the setback controls in Map 9 and Diagram H are inconsistent, unnecessarily complicating assessment of the proposal.

61 Nevertheless, it is apparent from the evidence that the controls present numeric and qualitative statements to achieve the desired form of development. This form of development is to be attained by site amalgamation to achieve a minimum lot size of 1800 sq m and minimum frontage of 30 m, which then would allow a suitable RFB of 4/6 storeys on the site, together with designated setbacks and landscaping. Such development is to have a satisfactory relationship with the surrounding area.

62 Whilst cl 41 (6) (a) or (b) allows the relaxation of these minimum controls, and that is the basis on which I have assessed the proposal, reasonable compliance with the overall objectives should be achieved. In my assessment, the existing lot size of 531 sq m and 13.3 m frontage is significantly under the stated minimum and this therefore imposes corresponding limitations on adoption of the maximum controls allowed for a larger complying site.

63 In this case, the two critical controls regarding the overall building design and resultant amenity concern the setbacks and landscaping provisions. The site width is a major limitation in this regard.

64 The minimal site width is firstly a significant constraint to providing the desired car parking in terms of access and gradients. Consequently, a 2 level basement car park (with car lift) is proposed to accommodate these 9 car spaces. But the site constraints apparently necessitate this basement having zero side setbacks with the sidewalls (incorporating side planters) protruding about 2.8m above natural ground level.

65 However the setback controls for RFBs in 3.b.9 of the DCP require a minimum side setback of 4m and sidewalls to be articulated to prevent continuous linear walls. I do not consider the proposed 30m long, straight walls with zero setbacks satisfy this control because they will create a relatively high compounding effect alongside No 8 Ozone, which itself is setback about 4m. I agree with Mr Layman that it will reduce the outlook and amenity for the northern side units in No 8.

66 Whilst I acknowledge that some reduction in designated 4m side setback may be appropriate for a smaller building, nevertheless this building still proposes maximum heights adjacent to the common boundaries, which indicates to me that setbacks, at the ground level at least equal to the existing building, should be provided so as not to reduce amenity that is achieved by the adequate separation of tall buildings.

67 The zero set back also eliminates the opportunity of providing deep planting of canopy trees at ground level. It is apparent to me that the intent of the controls is to achieve the integration of appropriate landscaping to minimise the visual impact of development. This outcome could be achieved taking into account the 4m side setback at No 8, which would allow a combined open area for tree planting. The proposed zero setback with elevated podium is not consistent with this outcome.

68 In this regard, I note the applicant’s submissions about the lack of tree planting in the foreshore area, but consider this absence is a matter sought to be addressed in the cl 12 DCP controls. They seek to enhance tree canopy in new developments and also achieve an integrated system resulting greater aesthetic quality and amenity for residents and neighbours. In my opinion, this development does not reasonably achieve these objectives because of its substantial reliance on podium planting.

69 The provision of suitable landscaping is an important issue in this matter. Recognising that the controls have been amended, I accept the parties agreement that the LEP Amendment 4 controls should be given determinative weight. Whilst this effectively reduced the overall landscape area to 40%, this is on the clear basis that planting on podiums and planter boxes is not included.

70 In this case, the planting at natural ground level is about 12%, which I consider is a significant deficiency in terms of the cl 36 controls and objectives. Having considered the SEPP 1 Objection to this development standard, I do not consider that the supplementary podium planting (about 28%) to achieve the 40% should be used as complimentary because this is not consistent with the landscape area definition. Consequently it does not provide the requisite amount of deep planting area to achieve the desired form of landscaping.

71 By reference to the SEPP 1 tests identified in Winten, it seems to me that when the question is asked whether compliance with this development standard would tend to hinder the attainment of the objects, the answer is clearly no. I am satisfied that in this case, compliance with the standard by way of a smaller building footprint would achieve the intent of this standard.

72 In the circumstances, I consider the deficiency in appropriate landscape area, as defined in the LEP, is significant and the applicant has not demonstrated that it is unnecessary or unreasonable to comply with this development standard. Therefore as the SEPP 1 is not well founded, I consider it should be disallowed.

73 Apart from this, the other urban design matters listed in cl 48 and 49 of the LEP aim at high quality design outcomes, which minimise impacts on adjoining land, improves the streetscape and integrates into a well-designed landscape setting. It appears to me that the constrained width of the lot, necessitating the access driveway adjacent to the western boundary and the extent of the basement car park leaves little natural ground level for tree planting. I consider the proposed frontage landscaping is minimal, which does not adequately satisfy the cl 48, 49 objectives.

74 The next critical building element concerns the design of the units. In my assessment the proposed 3 units are generously proportioned in terms of the number of rooms/facilities, external terraces and car parking, which are in a split level design for each unit.

75 Insofar as I have previously addressed the lack of adequate open space at NGL, a further concern arises due the eastern boundary setbacks. Mr Layman expressed particular concern with the alignment of the Unit 1 terrace. It is a large terrace, which has a variable setback to the cliff edge of about 4m (northern end) and 2m (southern end).

76 Whilst this setback is somewhat difficult to ascertain due to the changing alignment of the cliff face, nevertheless I am satisfied to rely on Mr Layman’s evidence that this elevated terrace has inadequate set back to satisfy the visual impact objectives. In light of the uncertainty, I consider that the terraces should be reduced in size, or building line of the units further increased so as not to protrude past the established building line of the adjoining buildings. This non-compliance is an element of the overdevelopment of the site in my assessment.

77 The restricted site width has resulted in a tall, slender building design with a maximum parapet height of 31.7m along the eastern façade and set on an obvious 2.5m (approx) high podium. As such, I do not consider it is the form of development envisaged by the primary amalgamation controls, which envisage a much wider form of development at this height and with greater separation between the buildings.

78 I note that the urban design controls in 11c of the DCP indicate that the visual impact of the development is somewhat dependent on the height of buildings being compatible and not introducing abrupt changes in height and also providing adequate side setbacks to provide the rhythm and void.

79 Consequently, it also seems to me that the various controls require new development in any case to be compatible with its neighbours and to protect and improve the scenic qualities of the coastal foreshore (SEPP 71). Reference to the neighbouring building heights indicates the proposal is about 7m higher on its eastern elevation than No 8, which is on a wider lot. Likewise the proposal generally seems noticeably higher than the other comparable buildings along this ocean frontage.

80 Considering then the necessity for this height, I am satisfied that the proposed internal floor space to provide the designated facilities, together with the relatively high floor/ceiling heights above the raised podium does not represent a reasonable balance between the competing private and public interests. In my assessment, this proposal is of excessive height for the narrow site, whereby it does not satisfy the zone objectives or urban design controls for a development being of a scale and nature that is compatible with its neighbours in this part of the urban centre.

81 A consequence of the constrained site area and width is that the building at maximum height is proposed at a considerably reduced setback to its neighbours, particularly No 8. Considering that No 8 provides a side set back in the order of 4m, I am satisfied that the residents of this property will incur reduced privacy due to resultant separation of a building of this height and a reduction in solar access. Overall there will be an unreasonable diminution of amenity for the adjoining properties, which does not adequately satisfy the cl 48, 49 LEP objectives.

82 With regard to the heritage impacts, I agree with Mr Patch that the predominant terrace for Unit 1 should be further set back so as to achieve a minimum distance of 6m to any building. Otherwise I consider that the proposal to remove the dilapidated structures from the cliff face would be a positive initiative.

83 Insofar as issues were raised about view impacts, this is somewhat difficult to reasonably assess because compliance with the controls would effectively eliminate any views between No 10 and No12. But it would open up the view corridor between No 12 and No 8 Ozone Street. The proposal reduces views along this corridor but opens up views between No 10 and 12. This results in a significant redistribution of view opportunities as envisaged by the controls. However I do not consider it necessary to resolve this matter because this proposal fails on other substantive grounds.

84 In the ultimate, I am satisfied that this development proposes excessive floor space and height for this constrained narrow site. Consequently it does not provide reasonable setbacks for the scale of the building proposed and is significantly deficient in landscape area, which limits its opportunity to positively contribute to the landscape character identified in the LEP and DCP. I also consider it will result in the reduction in amenity to adjoining property residents.

85 For these reasons then. I rely on the opinions of Mr Layman that this proposal is an overdevelopment of the site and on merit should be refused.

86 The Court orders:

1 The appeal is dismissed.
2 The SEPP 1 Objection to the landscape area development standard in cl 36 of the LEP is disallowed.
3 Development consent for the demolition of an existing RFB and construction of a new residential flat building containing 3 units at 12 McDonald Street, Cronulla is refused.

4 The exhibits may be returned except 4 and Q.

_______________________
R Hussey
Commissioner of the Court
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