Jefferson M Robinson and Associates Pty Ltd v Sutherland Shire Council

[2004] NSWLEC 556

Land and Environment Court

of New South Wales

CITATION:

Jefferson M Robinson & Associates Pty Ltd v Sutherland Shire Council [2004] NSWLEC 556

PARTIES:

APPLICANT
Jefferson M Robinson & Associates Pty Ltd

RESPONDENT
Sutherland Shire Council

FILE NUMBER(S):

10594 of 2004

CORAM:

Bly C

KEY ISSUES:

Development Application :- Mixed residential and commercial development - transition with adjoining residential zone - amenity impacts on neighbouring residential properties - future redevelopment of business centre - car parking and goods loading

LEGISLATION CITED:

Sutherland Shire Local Environmental Plan 2000
draft Sutherland Shire Local Environmental Plan 2004
Environmental Planning and Assessment Act 1979

CASES CITED:

Novara Crescent Pty Ltd v Sutherland Shire Council [2004] NSWLEC 403;
Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117

DATES OF HEARING:

25-26/08/2004

DATE OF JUDGMENT:

10/07/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr A Galasso, barrister
SOLICITORS
Hannaford Lawyers

RESPONDENT
Mr R O'Gorman-Hughes, solicitor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

8 October 2004

10594 of 2004 Jefferson M Robinson & Associates Pty Ltd v Sutherland Shire Council

JUDGMENT

1 This appeal relates to Development Application No. 03/2094 which is for the demolition of an existing dwelling and the construction of a mixed-use building containing four ground-floor shops, two three-bedroom residential flats with on-site parking and a six lot strata title subdivision at 623 Port Hacking Road, Caringbah.

2 The two flats occupy the first floor level and have terraces at the front and at the rear. They will be accessed via an internal stairway. The lower level car parking, which is partly within the building, will be accessed from a driveway off Port Hacking Road along the eastern boundary of the site. Additional parking at 90° to the kerb is to be provided at street level.

3 The trapezoidal shaped site comprises Lot 3 in DP 19697, has a frontage of about 18 m to Port Hacking Road and an area of some 1722 sq m. It falls approximately 2 m from its street frontage to the rear.

4 The site is in a residential area characterised by low and medium density detached housing in landscaped settings including numerous canopy trees. To the north-west of the site is a dwelling and a group of shops and local businesses. To the south and east is low and medium density residential.

Statutory provisions

5 The site and the adjoining businesses to the west are included in the 3(b) Neighbourhood Business Zone under Sutherland Shire Local Environmental Plan 2000 ("the LEP"). The proposal is permissible with development consent. The relevant objective of this zone seeks to achieve viable neighbourhood centres supported by appropriate forms of residential development.

6 Clause 43 of the LEP sets a maximum height for a building in the Business Zone of 7.2 m to any point on the uppermost ceiling and 9 m to the highest point on the roof. Clause 44 of the LEP sets a maximum floor space ratio in the 3(b) zone of 1:1. Clause 45 of the LEP specifies the maximum amount of residential floor space for a building at 50% of the total gross floor area of the buildings on the site.

7 Adjoining land to the south, east and west is included in the Residential 2(a1) Zone which zone has objectives which seek to protect the scale, amenity and the general character of the area and where the streetscape is characterised by detached one and two-storey residential buildings.

8 It is proposed that the LEP be replaced by draft Sutherland Shire Local Environmental Plan 2004 ("the draft LEP") which will include the site in the Neighbourhood Centre Zone. The draft LEP contains relevant provisions dealing with urban design, building and maximum height, building density and maximum floor space ratio.

9 The draft LEP contains, in clause 8, provisions dealing with urban design, including the following objective:

(2)(b) to ensure design and development strengthens, enhances and integrates into the existing character of distinctive locations, neighbourhood centre streetscapes and/or contributes to the desired future character.

10 This plan has been exhibited on two occasions and has been processed under the Environmental Planning and Assessment Act 1979 and forwarded to the Department of Infrastructure Planning and Natural Resources ("DIPNA") for finalisation. It has not progressed beyond that point and cannot be said to be imminent or certain. However the provisions of the draft LEP can, in the circumstances, be given significant but not necessarily determinative weight. (See Novara Crescent Pty Ltd v Sutherland Shire Council [2004] NSWLEC 403).

11 The application was advertised on at least two occasions and more than 300 letters of objection were received. Whilst on-site a number of these affected residents gave evidence as to their concerns regarding the proposal:

· Mr A Bentley
· Mr & Mrs Mansfield
· Mrs P Wyatt
· Mr G Hadenham
· Dr K Reeve
· Mr H Evans
· Mr N Yee
· Mr C Vass
· Mrs J Thorpe
· Mr R Bradney
· Mr S Shaw
· Mrs B McDermaid

12 Matters of concern raised by the objectors include:

· There is no need for any additional shops in this business centre.
· The proposed built form would be incompatible with the existing building environment and this is worsened by the insufficiency of landscaping.
· Inadequate provision of off-street car parking and inappropriate and unsafe driveway location. Unsatisfactory loading area. Worsening traffic congestion in Port Hacking Road.
· Adverse impacts on neighbouring residential properties including noise, overshadowing and loss of privacy.

13 The application was referred to the council's Architectural Revue Advisory Panel. That panel did not support the application for a number of reasons. First, the proposed scheme does not acknowledge the form of the existing shopping strip and does not provide an appropriate model for the future redevelopment of the centre. Second it does not provide a transition to the adjoining low-density residential development.

14 The council’s, failure to determine the application resulted in the application coming to the Court as a deemed refusal.

15 On behalf of the respondent council, expert evidence was given by:

· Mr P Brooker - architect
· Mr M Adamson - town planner
· Miss L Kilani - landscape officer
· Mr Anderson - traffic engineer

16 In addition a statement of basic facts was provided by Mr G Hand, a council town planner.

17 On behalf of the applicant expert evidence was given by:

· Mr C Blythe - town planner
· Mr D Ford - arborist
· Mr J Coady - town planner and traffic engineer

18 There are four principal issues in this case:

· Whether the design of the proposal provides a satisfactory transition with the adjoining residential zone.
· Whether the proposal would have adverse amenity impacts on neighbouring residential properties in terms of privacy, overshadowing and visual intrusion.
· Whether the design of the proposal would be compatible with the future redevelopment of the business centre.
· Whether the car parking and goods loading provision would be satisfactory.

The transition issue

19 Whilst meeting the two-storey limit in cl 8.4 of the draft LEP, Mr Adamson was concerned that the proposed building was so elevated that it would result in adverse impacts on the adjoining property including an unsatisfactory visual relationship. It fails to meet the objective in cl 8.4(d), which requires the minimisation of impacts of new development on adjoining properties particularly in terms of visual intrusion. This is the same concern as expressed by Mr Wyatt regarding the proximity of the proposed driveway and parking area and the appearance of the proposed building when viewed from his property.

20 Again, despite compliance with the height and setback controls Mr Adamson was of the opinion that the proposal fails to meet the objective in cl 8.4(d) of the draft LEP that requires that the visual impact of development be minimised when viewed from the street. He explained that the proposed development would result in a building of excessive bulk and scale that also lacks the necessary design sensitivity. It would not respect the visual amenity of the neighbour and the adjoining low-density residential zone.

21 In the same context Mr Brooker was of the opinion that the character and form of the proposed development was not in keeping with the surrounding neighbourhood. More particularly he said that:

The proposed development would not compliment or relate to the existing buildings in the surrounding locality as it responds to the maximum extent of the development controls instead of identifying the existing lower scale character of adjoining development. The existing scale of development represents an appropriate building form for this type of activity within its fringe location. The potential for the full exploitation of this type of development is also further reduced by existing similar development within close proximity.
The proposal does not provide a suitable transition to the adjoining residential development with tall blank wall facades that would dominate those existing developments.

And

The hard edge termination of the proposed building form as it presents itself to the southeast elevation only reinforces the "back door" entry character to the residential and rear shop uses thereby providing poor amenity to both the users of the proposal and the adjoining property owners.

22 Mr Blyth disagreed with both Mr Adamson and Mr Brooker, being of the opinion that the proposal represents a development of a height and scale compatible with the locality, taking also into account the fact that similar scale buildings are permissible in the adjoining residential zone. It would have an appropriate fit and relationship in its context especially considering the significant setback to both the east side and the rear providing a significant separation to the abutting residential land uses. Also the landscape proposal will be significant and effective in screening the building.

23 Whilst the town planning experts agreed that the proposed development is in compliance with the built form controls relating to building height, floor space ratio and setbacks as contained in the LEP and the draft LEP, these matters, although being relevant are not determinative.

24 At a zone interface, as exists here, between a residential and a commercial zone, any commercial development proposal needs to recognise and take into account existing residential development or development likely to occur in the adjoining residential zone. Impacts on existing residential development in the adjoining zone may well be greater than might be the case if adjoining land was in the same zone and being developed accordingly. Conversely, in taking into account the zone interface and adjoining residential development any commercial development of the subject site, it must be accepted that achievement of the full potential otherwise indicated by the commercial zone may not be possible.

25 Hence in relation to this proposal its form and character may be more restricted than would otherwise be the case, needing to be particularly sensitive to development in the adjoining zone. (See Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117). This approach is not inconsistent with and reinforces the objective in clause 8(2)(b) of the draft LEP.

26 As for the relationship of this proposal to adjoining residential development I agree with the advisory panel and have decided that the proposal is unsatisfactory.

27 The impact of the proposal on Mr Wyatt's adjoining residential property at No. 625 Port Hacking Road is excessive. Whilst there is a significant setback from the common boundary, the setback area is, for most of the length of the site, occupied by the driveway, car parking and the loading area. No landscaping is proposed to soften the appearance of the car park or the almost 22 m long building which will in part present as being well in excess of two storeys. In the circumstances I have concluded that the design shows very little sensitivity in terms of its presentation to No. 625.

28 In terms of streetscape the relationship between the form and character of proposal and that of existing or even future development in Port Hacking Road is inappropriate for similar reasons. The eastern elevation of the building is largely without articulation and together with the driveway this will form a hard edge to the shopping centre and an unsatisfactory presentation in the streetscape. Again the presence of the driveway and the car park and the absence of any landscaping along the eastern boundary of the site is critical.

29 In these circumstances I agree with Mr Brooker and Mr Adamson. Recognising that development of a similar bulk and scale might be possible in the adjoining residential zone I am nevertheless satisfied that the proposal fails to meet objectives 8(2)(b) and 8(4)(d). I have therefore decided that the proposal does not warrant approval and the appeal should be dismissed.

Other issues

30 In the circumstances it is unnecessary for me to deal in any detail with the remaining issues although I do make the following comments. As for the issue of the relationship of the redevelopment of this site with the remainder of the commercial centre I was inclined towards the position presented on behalf of the applicant that the proposal would have been capable of integration with any redevelopment. Council's position in this regard was not helped by the absence of a master plan for the centre.

31 In relation to car parking and loading the arrangement proposed is generally inadequate. I would expect that a revised design for this site would provide more appropriate and convenient loading facilities for ground floor shops. I also expect that the conflict between the 90° car parking and the pedestrian footpath would be reconsidered.

32 I accept, taking into account modifications to the proposal and the agreement between the town planning experts aspects of privacy are within reason. Whilst the proposal would result in additional overshadowing of No. 625, I do not accept that such overshadowing, taking into account that the proposal complies with the applicable and setback height controls that it would be unacceptable although a different design may have produced a better outcome.

33 The orders of the Court are therefore that:

1. The appeal is dismissed.
2. Development Application No. 03/2094 for the demolition of an existing dwelling and the construction of a mixed-use building containing four ground floor shops, two three bedroom residential flats with on-site parking and strata title subdivision at 623 Port Hacking Road, Caringbah, is determined by the refusal of development consent.
3. Exhibit A is retained.
________________________
T A Bly
Commissioner of the Court
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