JBL Developments Pty Ltd v Sutherland Shire Council

[2003] NSWLEC 340

>

Land and Environment Court

of New South Wales

CITATION:	JBL Developments Pty Ltd v Sutherland Shire Council [2003] NSWLEC 340
PARTIES:	Applicant: JBL Development Pty Ltd Respondent: Sutherland Shire Council
FILE NUMBER(S):	10923 of 2003
CORAM:	Roseth SC
KEY ISSUES:	Development Application :- non-compliance with landscaped area standard Objection under SEPP 1
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Sutherland Shire Local Environmnetal Plan 2000
CASES CITED:	Pascoe-Webbe v; Sutherland Shire Council
DATES OF HEARING:	09/12/03 and 10/12/03
DATE OF JUDGMENT:	12/12/2003
LEGAL REPRESENTATIVES:	Applicant: Mr J Robson, barrister instructed by Spiegel and Associates Respondent: Mr S Griffiths, solicitor of Pike Pike & Fenwick

JUDGMENT:

- 7 -

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10923 of 2003

Roseth SC

15 December 2003

JBL Developments Pty Ltd

Applicant
v

Sutherland Shire Council

Respondent

Judgment

Introduction

1 This is an appeal against the refusal by Sutherland Shire Council (the council) of a development application to erect a three-storey residential flat building containing 14 dwellings on lots A and B DP 361914, known as 17a and 19 Searl Road, Cronulla.

The site

2 The site is wedge-shaped, with a 42m frontage to Searl Road, a northeast boundary to the railway line of 62m and a 43m west boundary to an adjoining residential flat building site. The site’s area is 1,420m2. Searl Road and surrounding streets are developed with three to four-storey apartment buildings. The site is the last un-redeveloped property in the street.

The proposal and its history

3 The applicant proposes to demolish the two existing houses on the site and to erect a three-storey apartment building containing 14 dwellings over basement car parking for 19 cars. The apartments on the ground floor have access to courtyards. The apartments on the first floor are two-storeys and are accessed via four separate staircases. This allows the apartments to face both the front and the rear of the building and to receive cross ventilation.

4 The basement carpark is entered from the western side of the Searl Road frontage. A landscaped roof covers the driveway, about 4m above the road level at the street frontage. Adjoining the driveway is a staircase leading to the carpark and a pergola defining the pedestrian entrance.

5 The applicant lodged the development application in July 2002. Following notification, the council received one objection on the grounds that there are already too many flats in Cronulla. The council referred the proposal to the Architectural Review Advisory Panel, which concluded: “the internal planning is somewhat mean and will ultimately produce an overdevelopment of the site”. In July 2003 the council accepted the recommendation of its planning staff to refuse the application. It provided eleven reasons for refusal. The applicant lodged the appeal in August 2003.

Relevant legislation, planning instruments and policies

6 State Environmental Planning Policy 65 – Design Quality of Residential Flat Development (SEPP 65) establishes ten design principles against which proposals for apartment buildings should be assessed.

7 Local Environmental Plan 2000 (LEP 2000) zones this site 2(c). The relevant part of the objective of the zone is to produce a high-density residential environment, in close proximity to the major shopping centres and railway stations, and with coordinated efficient and economical development of residential flat buildings of high quality design. The LEP contains a minimum landscaped area standard, expressed as 65% of the site’s area.

8 State Environmental Planning Policy 1 – Development Standards (SEPP 1) under which the applicant has lodged an Objection to the minimum landscaped area standard.

9 Development Control Plan for Residential Flat Buildings (the DCP) establishes detailed controls for apartment buildings.

The issues

10 The council submitted a Statement of Issues containing 16 issues. At the commencement of the hearing the council’s advocate Mr S Griffith, reduced these to three issues, namely:

· The landscaped area is short of that required by LEP 2000;

· The proposed building is too dominant in the street; and

· The amenity of the apartments is poor.

Landscaped area

11 Clause 36 of LEP 2000 requires a minimum of 65% of the site’s area to be landscaped area, and at least half of the landscaped area to be deep landscaping. The LEP defines landscaped area as follows:

Landscaped area means any part of the site of a building or a proposed building that contributes to achieving the objectives of the landscaped area development standards of this plan. The site is taken to be only that part of the site zoned to permit the development for which the building is proposed to be used.

Landscaped area includes any areas used for gardens lawns, shrubs or trees, but does not include any part of the site occupied by buildings, driveways, service access ways, parking areas, communal drying yards, garbage storage areas, swimming pools, balconies or decks.

12 The objectives of the landscaped are requirement are:

(a) To ensure opportunities for tree retention and tree planting to preserve and enhance the tree canopy of Sutherland shire; and
(b) To ensure that unbuilt upon areas balance the built form; and
(c) To contain urban run-off flows by minimising the impervious areas on residential development sites.

13 The DCP contains its own different definition; however I have not taken this into account since the DCP cannot change the LEP’s definition. In a rational world the two definitions would be the same.

14 The council’s planning expert, Mr M Adamson, calculated the landscaped area differently from the applicant’s expert, Mr D Crane. The difference between them was that Mr Adamson excluded all paved areas on top of the carparking slab, while Mr Crane included them where they were near planting beds. They both included planting beds on top of the slab. In my opinion, Mr Crane’s approach is the more logical. Once the landscaped area is on top of a slab, paving it or treating with planting beds makes no difference in relation to urban run-off. On the other hand, a well-considered balance between paving and planting results in an attractive landscaped space. Paving and planting can equally contribute to objective (b), namely the balancing of built form with unbuilt upon areas.

15 A second difference between Mr Adamson and Mr Crane was that Mr Crane included the landscaped roof over the driveway, while Mr Adamson excluded it on the ground that it was 4m above the street level. On this point Mr Adamson’s approach is the more logical. Accepting Mr Crane’s inclusion of paved areas, but excluding the roof over the driveway, the landscaped area is 835m2, or 59% of the site. There is a shortfall of 88m2, or about 6% of the site.

16 The evidence included an Objection under SEPP 1 to the landscaped standard of 65%. The written Objection was supplemented by Mr Crane’s oral evidence. I accept that the Objection is well founded, for the following reasons.

17 The site is an unusual shape, with a major railway line running along its longest boundary. The building is placed parallel to the railway line, leaving the majority of the landscaped area to the front and providing ample opportunity for planting. The landscaping plan suggests that the applicant will make the most of this opportunity. The average width of deep landscaping along the site’s frontage is about 6m. The average setback of the building is about 12m. Despite the fact that the landscaped area is less than 65% of the site, it provides an excellent opportunity of achieving objective (a) of the standard, namely to provide opportunities for tree planting to preserve and enhance the tree canopy of Sutherland shire.

18 Non-compliance with cl 36 of the LEP 2000 is not a reason for refusal.

Visual dominance in the street

19 Mr P Brooker, an architect, joined Mr Adamson in opposing the proposal on the basis that it would appear too dominant in the street. As I understood it, the main objection was to the roof over the driveway and the entrance structure consisting of a staircase and pergola. This structure is at the street frontage. Mr Brooker also objected to the “planar form” of the building. I propose not to take this into account, since it is an expression of architectural taste. I note that there are other flat-roofed building within sight.

20 Mr Adamson noted that the other buildings in the street were set back without driveways and entrance structures at the street frontage. However, the other buildings have at-ground parking and are therefore a full storey higher than the proposal. Their unattractive garages can be seen from the street. I do not think that the existence of an entrance structure (which by its very nature must be at the street frontage) would be perceived as a visual disturbance just because other buildings do not have it. No one suggested that the other apartment buildings in the street had any particular design merit and should be imitated. Most streets can cope with a certain amount of variety. Searl Street, being a high-density street, can cope with a significant amount of variety.

21 I note that the subject site is the only site that still contains single-storey detached houses in this high-density zone, the rest having been developed to substantial-looking apartment buildings. To criticise a relatively minor entrance structure in this visual setting on the grounds that it is dominant, seems to me unjustified.

The amenity of apartments

22 Mr Brooker criticised the planning of the apartments on the following grounds:

· There is no lift to all the apartments, despite the DCP’s requirement for a lift.

· The two-storey dwellings are not oriented to the north.

· There are not enough dwellings with good cross ventilation.

· The dwellings are too narrow and they do not relate to the “seaside” atmosphere of the suburb.

23 Mr Brooker agreed that none of the above was determinative on its own, though together they added up to sufficient grounds for refusal.

24 In my opinion, the criticisms are not justified. The planning of the building is based on four staircases. The great advantage of this layout is that the apartments face towards both sides of the building, unlike apartments along a central corridor that face only in one direction. In this way the apartments have much better cross ventilation and amenity. However, without a central corridor the provision of lifts tends to be uneconomical. To provide lift access to the first floor apartments in this proposal, four lifts would be needed to serve eight apartments.

25 The orientation of the dwellings is influenced by the location of the railway line to the north. If the dwellings were oriented to the north, they would have to suffer the view and noise of the train.

26 I do not understand the criticism regarding lack of cross ventilation. The dwellings in this proposal have excellent cross ventilation. I also do not understand the criticism regarding the narrow width of the dwellings, nor their lack of relationship to “seaside” atmosphere. I perceived no seaside atmosphere in the existing buildings in Searl Road. They looked to me just like blocks of flats anywhere in Sydney.

S E PP 65 and LEP 2000

27 SEPP 65 includes ten design principles. While the condensed issues did not specifically relate to SEPP 65, if the council’s criticisms were justified, the proposal would also offend one or more of these principles. According to Mr Adamson the proposal offends the principle that residential flat development contribute to the quality and identity of the area. I do not accept this. For reasons explained above, the proposal meets the principle.

28 In addition, Mr Adamson said that the proposal offends also several of the Special Considerations in Residential Zones in cl 30(b) of LEP 2000. These consideration relate to the effect on the quality of the streetscape and the natural and built environment, and the impact on adjoining properties in terms of size, bulk, height and amount of landscaped area. I have already determined these issues above. The assessment of the proposal against the special considerations results in a positive outcome.

29 In my opinion, the council’s objections to this proposal do not justify refusal. On balance, the positive aspects outweigh the negative ones. The appeal is therefore upheld.

Orders

1. The appeal is upheld.

2. Development application to erect a three-storey residential flat building containing 14 dwellings on lots A and B DP 361914, known as 17a and 19 Searl Road, Cronulla in accordance with the details and specifications set out on drawings-CCAM01 Issue B, CCA01, Issue F, CCAO2, Issue G, CCA03, Issue D, CCA04, Issue E, CCA05, Issue D, CCA06, Issue D, CCA07, Issue E, CA08, Issue G CCA09, Issue E, CCA10 Issue B, CCA11 Issue B, CCA12 Issue A, CCA13 Issue B, CCA14 Issue B, prepared by CCA Architecture, Landscaping Plan No02-1434c, sheets 1-3 dated Feb 03 Issue O prepared by Zenith Landscape Designs, 2002, landscape calculations (untitled) and Drainage plans Job No.02126 Drawing 01b,dated 5.07.02,Revision C; Drawing 02d, dated 5.07.02, Revision D, Drawing 03C, dated 5.07.02, Revision C; Drawing 04a, dated 22.01.03, Revision A; Drawing 05, dated 22.01.03, Drawing 06, dated 22.01.03 prepared by Michael Ell Consulting Engineers Pty Limited and the Schedule of Finishes in Exhibit “M”, is determined by the granting of consent subject to the conditions in Annexure A.

3. The exhibits are returned, except Exhibits 8, 9 and B.

_________________
Dr John Roseth
Senior Commissioner