Jett Developments v Hawkesbury City Council

[2006] NSWLEC 226

Land and Environment Court

of New South Wales

CITATION:	Jett Developments v Hawkesbury City Council [2006] NSWLEC 226
PARTIES:	Applicant: Jett Developments Pty Ltd Respondent: Hawkesbury City Council
FILE NUMBER(S):	11054 of 2005
CORAM:	Roseth SC
KEY ISSUES:	Development Application :- mixed retail, commercial and residential development, compliance with standards, impact on adjoining residential property
DATES OF HEARING:	04/05/2006 and 05/05/2005
DATE OF JUDGMENT:	05/23/2006
LEGAL REPRESENTATIVES:	Applicant: Ms C Schofield, solicitor of Pike Pike & Fenwick Respondent: Mr P McEwen, SC instructed by Mr D Brigg, solicitor of D G Briggs & Associates

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

23 May 2006

11054 2005 Jett Developments Pty Ltd v Hawkesbury City Council

JUDGMENT

1 Senior Commissioner: This is an appeal against the deemed refusal by Hawkesbury City Council (the council) of a development application to demolish the existing buildings and construct a mixed retail and commercial development containing four retail tenancies, two commercial tenancies and 26 dwellings with associated parking for 54 cars on lot 1 DP 128701 and lot X DP 374639, known as 510 George Street, and lot B DP 383474, known as 512 George Street, South Windsor.

The site

2 The site is on the eastern side of George Street, between Argyle and Campbell Streets. It is regular, slopes from west to east and has an area of 1,703m2. Two houses now occupy the site, while shops, offices, flats and houses surround it.

3 A 6m wide lane, Dickson Lane, separates the site from the rear yards of residential properties that face to Macquarie Street. The existing development is single houses; however, the area is zoned 2(c).

The proposal and its history

4 The applicant proposes to demolish the existing buildings on the site and to erect a mixed retail and commercial development containing four retail tenancies, two commercial tenancies and 26 dwellings with associated parking for 54 cars.

5 The applicant lodged the development application in September 2004 and amended plans in December 2004. The first amended drawings were notified, after which the council received four objections. The applicant then lodged a second set of amended plans in March 2005. Following notification of the second amended plans, the council again received four objections.

6 The applicant lodged the appeal in September 2005. At the time of hearing the council had not determined the matter.

Relevant planning controls

7 Local Environmental Plan 1989 (the LEP) zones the site General Business 3(a). The LEP does not contain standards for the zone, apart from a maximum building height of 12m for residential flat buildings in the zone. Draft Amendment No 130 to the LEP (draft Amendment 130) proposes to permit residential flat buildings in the 3(a) zone. Development Control Plan (the DCP) contains detailed requirements for, among other things, residential development. The most relevant requirement for this case is that, for dwellings and multi-unit houseing, the DCP requires a setback of 5.5m from Dickson Lane.

8 State Environmental Planning Policy 65 – Design Quality of Residential Flat Development (SEPP 65) applies to the proposal. It contains design principles. It relies on the Residential Flat Design Code (RFDC) for detail.

The experts

9 The parties had agreed on the appointment of Mr R Dickson as the joint planning and urban design expert. When Mr Dickson’s report did not support the proposal, the applicant successfully applied to have its own planning expert, Mr T Byrnes, provide evidence. At the joint meeting between Mr Byrnes and Mr Dickson, Mr Dickson changed his position on the rear alignment of the building. The council then applied to have its own expert, Mr R Nej, a council planner, admitted as an expert in the proceedings. The applicant did not oppose the application. As a result, three planning experts gave evidence.

The issues

10 The council submitted a Statement of Issues containing seven issues. However, following the meeting of Mr Dickson and Mr Byrnes, the issues were reduced. The following issues emerged as salient during the hearing:

· Does the DCP 2002 apply to the site?

· Is the bulk and scale of the proposal to George Street appropriate?

· Are the setbacks from Dickson Lane appropriate?

· Is the floor to ceiling height of the first floor adequate?

The objectors’ concerns

11 The Court heard the evidence of five objectors. Ms C Elphick of 251 Macquarie Street, whose rear yard adjoins the lane, said that her concerns were visual impact, overlooking, noise and overshadowing. Ms E Demattia of 249A Macquarie Street was concerned about having her access from the lane inhibited. She would like the applicant to build her a fence and sliding gate. Ms J Worger of 249 Macquarie said she was concerned about overlooking and overshadowing. She considered the proposal to be out of scale with South Windsor. Ms M Edgar of 247 Macquarie Street said that her concerns were overlooking (particularly of her pool) and the excessive height of the building. Ms T Vizza of 498 George Street said that she supported the proposal because she thought the area needed upgrading.

12 The objectors were concerned mainly with the height and setback of the proposal. These are also the issues in the case and are discussed below.

Does the residential chapter of the DCP apply?

13 The introduction to the residential chapter of the DCP states that it applies to dwellings and multi-unit housing. The applicant submits that the proposal is neither of these, but mixed-use development. Mr Byrnes and Mr Dickson agreed, though Mr Dickson believed that, in the absence of directly relevant standards, those of the DCP were the most appropriate. In Mr Nej’s opinion, there was no question that the DCP applies to the rear part of the proposal.

14 In my opinion, this debate is one of those often argued in this Court, where the answer does not contribute to the resolution of the real issue, namely what the setback should be. The proposal is in two buildings, at least above the ground. The rear building is entirely residential, so it is not a mixed-use building. If it is nevertheless considered a mixed-use building by virtue of the fact that underground it is connected to the front building, which is mixed-use, and the DCP therefore does not apply, then an appropriate setback must be determined without the assistance of the DCP. Given that the 6m wide Dickson Lane separates allotments on which residential flats may be built, it is likely that one would determine the appropriate setback to be larger than 5.5m. In my opinion, the applicant is assisted by the application of the DCP, which requires a very modest setback from Dickson Lane.

Bulk and scale to George Street

15 In his written report, the Court-appointed planning expert, Mr R Dickson suggested what he considered to be an appropriate envelope for the site. Mr Dickson’s recommended building envelope allowed two storeys at the George Street frontage, with a third storey set back 4.6m. The rationale was that that two storeys were the appropriate scale of future development of the shopping centre. The rationale for the setback was to ensure that the third storey was not visible from the other side of the street.

16 Mr Nej agreed with the envelope in Mr Dickson’s report. His reasons were similar to those of Mr Dickson. Mr Byrnes considered that four storeys were an appropriate height for the future development of the shopping centre. In his opinion, the height, bulk and scale of the proposal were appropriate. Even if the 12m-height limit in the DCP applied to the site, the relatively small exceedence of 12m was acceptable on this site.

17 In my opinion, Mr Dickson adopted the right approach in his assessment of the application. Since he found no guidelines for the future development of the South Windsor centre, he developed building envelopes that would be compatible with the retention of the existing scale and character of the centre. Mr Nej agreed with Mr Dickson’s building envelopes. I accept Mr Dickson’s opinion that the proposal is too big in height and scale to be in harmony with the existing and the future desired character of the South Windsor Centre.

Setback from Dickson Lane

18 The proposal has a setback of 3m for the first two storeys with a further setback of 1.2m for the third storey. In his written report Mr Dickson applied the 5.5m setback required by the DCP for the first two floors, and a further setback of 3.1m for the third floor. Following the joint conference between Mr Dickson and Mr Byrnes, Mr Dickson changed his mind in relation to the rear setback and accepted the proposal’s setback of 3m for the first two storeys, though he wanted a larger setback for the third floor. The rationale for his change of mind was the existence of a two-storey block of flats on an adjoining site, which has a setback of 3m from the lane. Mr Byrnes said that increasing the setback would not materially decrease the shadow on the rear yards to the south across the lane. This opinion, however, was demonstrated to be wrong during the hearing. For example, at 2pm at mid-winter, a building following Mr Dickson’s recommended envelope would cast at least 4m less shadow on the rear yards of the buildings to the south, than would the proposal.

19 Mr Nej did not agree with Mr Dickson’s change of mind in relation to the reduced setback from the lane. In the event, during the hearing Mr Dickson reverted to his original opinion, namely that the first two floors of the proposal should have a setback of 5.5m from the lane, with the third floor setback a further 3.1m.

20 I note that in all the drawings the applicant has assumed that the setback of future development on the south side of the lane will be set back 5.5m. In my opinion, this would be inequitable. Even with a 5.5m setback on the south side, the separation between two-storey buildings would be 14.5m. While this may be acceptable in a dense inner suburb, I can see no reason for crowding residential buildings that close together in South Windsor.

21 In my opinion, the proposal’s setback from Dickson Lane is unacceptable. It results in unreasonable overshadowing of the properties to the south. If the land to the south were redeveloped, it would lead to problems of overlooking that would be hard to overcome.

The ceiling height of the first floor

22 The ceiling height of the first floor of the proposal is 2.7m, an appropriate height for a dwelling. The RFDC suggests that, in mixed-use buildings, the ceiling height of the first floor should be 3.3m so as to enable that floor to be changed to commercial use at a later stage. Mr Dickson and Mr Nej believe that the proposal should follow this guideline. The applicant submits that the planning of the first floor is such that it is highly unlikely that it would, or could, ever be converted to commercial use.

23 In my opinion, the applicant’s argument has a great deal of force. Given the layout of kitchens and bathrooms, as well as the likelihood of fragmented ownership under Strata title, conversion to a large plan office is unlikely. On the other hand, the dwellings may in the future be used as individual small professional offices. A high ceiling is not required for these. The ceiling height of the first floor is not a reason for refusal.

Whether amended drawings are appropriate?

24 On 22 May 2006 the Court received a letter from the applicant submitting that, in the case of adverse findings, the Court should publish the findings without making orders. In my opinion, this would not be appropriate for the following reasons:

· The amendments are major.

· An amended proposal would need re-advertising.

· The Court’s findings are the same as those of the Court-appointed expert. Mr Dickson. The applicant was aware of these well before the hearing. When the applicant became aware of Mr Dickson’s views, it was open to it to amend the drawings, or at least to suggest to the Court that it was willing to do so. Instead, the applicant sought leave to rely on its own expert, Mr Byrnes, whose views were quite different to Mr Dickson.

· The time for this kind of submission is at the conclusion of the hearing, not when the date of judgment is communicated to the applicant.

Conclusion

25 There are no development standards applying to the South Windsor shopping centre. To assess a proposal that has the potential to establish a new scale for the centre, it is necessary to establish, if not standards, at least guidelines for the future character and scale. The Court-appointed expert, Mr Dickson’s guidelines appear to be based on sound urban design principles. The proposal violates these guidelines. In addition, it is unacceptably close to its rear boundary and, as a result, causes unacceptable impact on the land to the south. The appeal is therefore dismissed.

Orders

1. The appeal is dismissed.

2. Development application to demolish the existing buildings and construct a mixed retail and commercial development containing four retail tenancies, two commercial tenancies and 26 dwellings with associated parking for 54 cars on lot 1 DP 128701 and lot X DP 374639, known as 510 George Street, and lot B DP 383474, known as 512 George Street, South Windsor is determined by refusal.

3. The exhibits are returned.

_________________
Dr John Roseth
Senior Commissioner