Jubilee Properties v Warringah Council

[2015] NSWLEC 1042

Land and Environment Court

New South Wales

Medium Neutral Citation:	Jubilee Properties v Warringah Council [2015] NSWLEC 1042
Hearing dates:	11-13 February 2015
Decision date:	13 February 2015
Jurisdiction:	Class 1
Before:	Morris C
Decision:	Appeal dismissed
Catchwords:	Development application: objection to development standard for height,
Legislation Cited:	Environmental Planning and Assessment Act; Warringah Local Environmental Plan 2011; 26 State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development; Standard Instrument—Principal Local Environmental Plan
Cases Cited:	Wehbe v Pittwater Council [2007] NSWLEC 827; Project Venture Developments v Pittwater Council [2005] NSWLEC 191; Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21
Texts Cited:	Warringah Development Control Plan 2011; Residential Flat Design Code; Dee Why Town Centre Master Plan 2013
Category:	Principal judgment
Parties:	Jubilee Properties (Applicant) Warringah Council (1st Respondent) Sydney East Joint Regional Planning Panel (2nd Respondent)
Representation:	Counsel: Mr I Hemmings SC (Applicant) Ms H Irish (2nd Respondent) Solicitors: Ms Rebecca Fleming Norton Rose Fulbright(Applicant) Mr A Gough Storey & Gough (1st Respondent) Ms D Holm (2nd Respondent)
File Number(s):	10395 of 2014

Judgment

1. Jubilee Properties lodged Development Application No 2013/1168 with Warringah Council seeking consent for demolition works and construction of a mixed use retail/commercial and residential development at Nos 697-701 Pittwater Road, Dee Why. A Voluntary Planning Agreement accompanies the application. Because the capital investment value of the project exceeds $20million, the Sydney East Joint Regional Planning Panel (JRPP) exercised the function of consent authority for the application. The JRPP refused consent, contrary to the recommendation of the council, and Jubilee is appealing that decision.

2. The case was run by the JRPP with the council advising the Court that it supports the nature and scale of the development and finds the floor space ratio (FSR) and height consistent with the Dee Why Town Centre Masterplan.

The site and locality

3. The site comprises 3 adjoining allotments on the northern side of Pittwater Road, adjoining St David Park and to the south of the intersection with St David Avenue. It is an irregular shaped parcel with a total area of 1,777sqm and frontages of 35.965m and 14.575m to Pittwater Road and St David Avenue respectively.

4. Vacant retail and commercial buildings stand on the site which is within the Dee Why Town Centre. Development along Pittwater Road is typically built to the boundary and comprises ground floor retail/commercial areas with residential above, ranging in height from 1 to 5 storeys.

5. St David Park is a small triangular shaped park that contains a toilet block, seating and a heritage listed tree. Warringah Council Chambers, library and associated public carpark are located on the opposite side of St David Avenue. St David’s Church adjoins the site to the west with Dee Why Police Station at the corner of Fisher Road and St David Avenue. Development further from the site includes a range of commercial, retail and residential development with the Salvation Army’s heritage listed ‘Pacific Lodge Aged Care Facility’ to the north west.

6. The Dee Why Town Centre is undergoing redevelopment with taller mixed use developments having been constructed replacing the original one and two storey buildings.

Background and the proposal

7. The site currently has the benefit of a development consent (DA 2011/0887) for a 9 storey mixed use development (the 2011 consent). That development comprises 85 residential apartments and 4 retail/commercial units with a height of 28m to the top of the penthouse roof slab.

8. The subject application was lodged on 30 September 2013 and has been amended since that time. The proposal now proposes the construction of a part 14/part 15 storey mixed use development comprising two basement levels of carparking associated with the residential tenancies; ground floor retail shops (flexible space suited for up to 4 tenancies) and a street front area of 124sqm identified as ‘council facility’; first floor gymnasium and further parking areas for visitors and retail/commercial tenancies; Level 2 Council facility of 270sqm including an area of 58sqm described as ‘skyline’, loading dock, garbage store and residential units with a further 7 levels of units above. There would be a total of 129 residential apartments and approximately 270sqm of retail space and 260sqm of commercial floor space. Parking for 175 cars, being 5 spaces less than required under the council’s parking controls, is provided.

9. Vehicular access to the site would be from a driveway off St David Avenue adjacent to the western boundary of the site. The plans indicate provision for a future vehicle link to sites to the southwest however that area is indicated as a landscaped area on other plans. The applicant has entered into an arrangement with the owner of the adjoining land to provide that access when that site is redeveloped. The council require the creation of a right-of-way in favour of all land to the southwest to link to Fisher Road as a condition of any consent granted.

10. The purpose of the ‘skyline’ is to provide for a linkage within the building to a proposed pedestrian bridge the council plan to construct across Pittwater Road. The plans incorporate provision for a pedestrian access point off the adjoining park with lift access to the skyline on level 2. That area would facilitate access to the proposed bridge.

11. The two council areas, the skyline and a public toilet facility on the ground level, accessible from the park form part of the works that have been included in the Voluntary Planning Agreement.

The Voluntary Planning Agreement

12. Division 6, Subdivision 2 of the Environmental Planning and Assessment Act 1979 (EP&AAct) provides for Planning Agreements. Of particular relevance to the application is the provisions of Section 93F which is in the following form:

(1)  A planning agreement is a voluntary agreement or other arrangement under this Division between a planning authority (or 2 or more planning authorities) and a person (the developer):

(a)  who has sought a change to an environmental planning instrument, or

(b)  who has made, or proposes to make, a development application, or

(c)  who has entered into an agreement with, or is otherwise associated with, a person to whom paragraph (a) or (b) applies,

under which the developer is required to dedicate land free of cost, pay a monetary contribution, or provide any other material public benefit, or any combination of them, to be used for or applied towards a public purpose.

(2)  A public purpose includes (without limitation) any of the following:

(a)  the provision of (or the recoupment of the cost of providing) public amenities or public services,

(b)  the provision of (or the recoupment of the cost of providing) affordable housing,

(c)  the provision of (or the recoupment of the cost of providing) transport or other infrastructure relating to land,

(d)  the funding of recurrent expenditure relating to the provision of public amenities or public services, affordable housing or transport or other infrastructure,

(e)  the monitoring of the planning impacts of development,

(f)  the conservation or enhancement of the natural environment.

13. The council, at its meeting of 6 May, 2014, resolved to enter into a Voluntary Planning Agreement (VPA) with Jubilee Properties Pty Ltd in association with DA2013/1168. The VPA, in accordance with that resolution, provides for the following:

• A cash payment of $250,000 for capital expenditure in the Dee Why Town Centre;

• The transfer to council of 1 retail unit (area 124sqm) on the ground floor of the building together with 3 car parking spaces;

• Transfer of commercial floor space on Level 2, lift, stairs and skyline (area 291sqm);

• Provision of new public toilets within the site (37sqm);

• Demolition of the existing council toilet block in St David’s Park in return for the use of part of the Park during the construction period.

14. According to the council report, the council’s independent valuation of these contributions is $2,665,500. The Court notes that no consideration of the value of using the park during construction has been made.

The planning controls

15. The site is zoned B4 Mixed Use under Warringah Local Environmental Plan 2011 (LEP). The proposed development (shoptop housing) is permissible within consent in that zone. Clause 2.3(2) of the LEP requires the consent authority to have regard to the objectives for development in a zone when determining a development application. The objectives of the B4 zone are:

• To provide a mixture of compatible land uses.

• To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.

• To reinforce the role of Dee Why as the major centre in the sub-region by the treatment of public spaces, the scale and intensity of development, the focus of civic activity and the arrangement of land uses.

• To promote building design that creates active building fronts, contributes to the life of streets and public spaces and creates environments that are appropriate to human scale as well as being comfortable, interesting and safe.

• To promote a land use pattern that is characterised by shops, restaurants and business premises on the ground floor and housing and offices on the upper floors of buildings.

• To encourage site amalgamations to facilitate new development and to facilitate the provision of car parking below ground.

16. Part 4 of the LEP provides for Principal development standards. Clause 4.3 applies to Height of Buildings and has the following objectives:

(a) to ensure that buildings are compatible with the height and scale of surrounding and nearby development,

(b) to minimise visual impact, disruption of views, loss of privacy and loss of solar access,

(c) to minimise any adverse impact of development on the scenic quality of Warringah’s coastal and bush environments,

(d) to manage the visual impact of development when viewed from public places such as parks and reserves, roads and community facilities.

17. According to the LEP height map, the maximum height of a building on the site is not to exceed 24m. The maximum height of the proposed building is 51m so exceeds the development standard by 27m. Clause 4.6 of the LEP provides for exceptions to development standards and the applicant relies on that provision for the increased building height.

18. Part 7 of the LEP applies to certain land referred to as the Dee Why Town Centre, shown on the key sites map. That land is opposite the site on the corner of Pittwater Road and Howard Avenue and also has frontage to Oaks Avenue. Howard Avenue forms the fourth leg of the signalised intersection with Pittwater Road (2 way) and St David Avenue.

19. The objectives of Part 7 are:

(a)  to create an attractive living centre that sustains the social, economic and environmental needs of its community and visitors,

(b)  to ensure a balance between the provision of high quality housing with a mix of retail, business, employment, civic, cultural and recreational facilities,

(c)  to ensure that development is consistent with the role of Dee Why as a major centre for the sub-region,

(d)  to create a built environment that has unified and consistent building form that includes:

(i)  definition of street edges by the establishment of podiums to create walls of 3 and 4 storeys in height, and

(ii)  above podium level elements that step back to achieve adequate levels of natural sunlight and high levels of amenity to occupiers of the buildings, surrounding development and the adjacent public domain, and

(iii)  2 iconic slimline towers in the western part of the centre (Site B) and one smaller tower in the eastern part of the centre (Site A) that will largely provide for a transition in height from west to east, and

(iv)  mid-rise elements that reflect the simple clarity of design displayed by the tower and podium elements,

(e) to ensure that taller buildings that are distributed across the Dee Why Town Centre from west to east provide a coordinated, modulated and varied skyline and that the towers are spatially separated to provide useable public spaces, including a Town Square,

(f)  to achieve a pattern of development that reflects the underlying urban form in Dee Why with predominantly east-west orientated buildings and high levels of visual and physical permeability,

(g)  to achieve good sunlight penetration to public spaces and Oaks Avenue,

(h)  to ensure that development responds to the surrounding natural environment and protects the scenic qualities of Dee Why and its views and vistas,

(i)  to establish ground floor levels that are occupied by retail uses that:

(i)  are highly active, accessible to the street and create a lively ambience, and

(ii)  provide a mix of retail shops, cafes and restaurants at the edges of street, pedestrian areas and open spaces, and

(iii)  are at the same level as the footpaths and provide opportunities for a generous promenade and distinctive street tree planting for shade and shelter,

(j)  to accommodate additional employment opportunities, service functions and space for business, consistent with the role of Dee Why as a major centre, by providing at least 2 levels (excluding the ground floor) of development for non-residential purposes,

(k) to ensure that signage associated with the new development is of high quality, is innovative, coordinated and minimised to avoid visual clutter and will complement the overall urban design, streetscape and architectural quality and amenity of the Dee Why Town Centre,

(l) to ensure that development within the Dee Why Town Centre is designed to take account of, and be compatible with, the hydrological conditions associated with the Dee Why Lagoon South Catchment,

(m) to ensure that development within the Dee Why Town Centre positively contributes to the visual quality and pedestrian comfort of the public domain and provides a seamless integration between public and private spaces.

20. The key sites map identifies two areas, Site A and Site B, the latter being an irregular shaped parcel at the intersection of Pittwater Road and Howard Avenue with frontage to Oaks Road. The map provides for a town square across the majority of the Howard Avenue frontage linked by a pedestrian connection to Oaks Road. The remainder of the site is identified for development in accordance with the site specific provisions contained in Part 7.

21. Site A is to the east of Site B and is also an irregular shaped parcel that is dual fronted to both Oaks Road and Howard Avenue. The map provides for the construction of a new road at the eastern end of the site.

22. Subject to the provisions of specific clauses in the LEP, the height of buildings map provides for a range of maximum building heights. On Site A, those heights vary from 25m to 78m and on Site B from 25m to 52.5m. Prescriptive provisions control building locations, podium elements, floor space, design excellence, land use and require preservation of solar access. Additional provisions relate to traffic and pedestrian movements and parking.

23. Warringah Development Control Plan 2011 (DCP) also applies to the site which is identified within Area 7 Pittwater Road of the Dee Why Mixed Use Area. The objectives of the controls are:

• Development will reinforce the Dee Why Town Centre as the focus of regional activity and will be reflected in the treatment of public spaces, the arrangement of land uses and the scale and intensity of development.

• To encourage good design and innovative architecture. 

• To ensure shops and dwellings enjoy good access to natural light. 

• To ensure that buildings have an active street frontage. 

• To create an environment that is human in scale as well as comfortable, interesting and safe. 

24. Particular prescriptive requirements detail the built form envisaged in that precinct as follows:

1. Entry to the area will be marked by a building at the southern corner of the intersection of Dee Why Parade and Pittwater Road. The scale and architectural treatment of this building will distinguish it from other buildings and define the edge of the town centre.

2. Buildings are to define the streets and public spaces and create environments that are appropriate to the human scale as well as comfortable, interesting and safe. In particular, future development is to ensure that a 4 storey podium adjoins the sidewalk and establishes a coherent parapet line along Pittwater Road. Above the parapet line additional storeys will be set back to maintain solar access to the sidewalks and ensure that the scale of buildings does not dominate public spaces. Building facades are to be articulated in such a way that they are broken into smaller elements with strong vertical proportions and spaces created between buildings at the upper levels to add interest to the skyline, reduce the mass of the building and facilitate the sharing of views and sunlight.

3. The overall height of buildings is to be such that long distance views of Long Reef Headland, the top of the escarpment to the west of Pittwater Road and the Norfolk Island Pines next to Dee Why Beach are preserved.

4. Site amalgamation will be encouraged to facilitate new development and enable all carparking to be provided below ground or behind buildings using shared driveways where possible.

5. Building layout and access are to be in accordance with the Build To Lines and Central Courts map. Shared laneways are to be established to ensure there is no vehicle access directly from Pittwater Road. The spaces behind buildings combine to form central courts with vehicle access limited to a restricted number of places.

6. Buildings are not to exceed 6 storeys north of the intersections of Fisher Road and Pacific Parade with Pittwater Road, and are not to exceed 5 storeys south of these intersections.

7. The maximum area of the floorplate of the upper floors of buildings is to be in accordance with the Build To Lines and Central Courts map as follows:

• above the topmost storey (including plant and equipment rooms, lofts etc): 30% of the area of the ground floor floorplate;

• topmost storey: 50% of the area of the ground floor floorplate; and

• second topmost storey: 70% of the area of the ground floor floorplate

8. Minimum floor to ceiling heights have been established The minimum floor to ceiling height are as follows:

• ground floor storey: 3.6 metres

• upper storeys: 2.7 metres

9. Build-to lines have been established to ensure future development defines the streets and public spaces. For the first 4 storeys of buildings, build-to lines have been set at:

• 5 metres from the kerb for the first 4 storeys; and

• 9 metres from the kerb for storeys above the fourth storey, except:

• At the southern end of the intersection of Sturdee Parade and Pittwater Road as indicated on the Build To Lines and Central Courts map as  follows, where the build-to line is the front property boundary for the first four storeys and 5 metres from the kerb for storeys above the fourth storey.

10. Car parking facilities must be provided below ground or behind buildings in shared parking areas Ground level parking must be provided with trees that will have a mature canopy coverage of 70% over the area. 

25. Exceptions provisions apply and, relevant to the case, is that any building that directly adjoins St David Avenue is to present as 3 storey for that part of the building to complement the existing scale of development along St David Avenue.

26. State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development (SEPP65) applies to the application and calls up the Residential Flat Design Code (RFDC).

Sites A and B

27. The zoning of that land was the subject of an amendment to Warringah Local Environmental Plan 2000 (Amendment 21) and was made in 2008. Those amendments have been incorporated into the LEP in accordance with the provisions of the Standard Instrument—Principal Local Environmental Plan. The matters relevant to the application are described at [22].

28. A development consent, Stage 1 Concept Mixed Use Development (DA2007/1249) applies to Site B and authorises a shopping, commercial and residential flat development including two residential towers, one a part 14/17 and the other, a part 15/18 storey tower with the 18 storey tower being immediately opposite the proposed building across the intersection of Pittwater Road, Howard Avenue and St David Avenue. Three storey street-front buildings on Oaks Avenue and part Howard Avenue, an 8 storey commercial office building fronting Pittwater Road, 7 storey mid-rise residential buildings, publicly accessible Town Square and North-South Pedestrian Link, 1,500 car parking spaces over 5 levels, an indented bus bay on Pittwater Road and Portal vehicular access in Howard and Oaks Avenues complete the development approved under the consent.

29. A VPA also applies to the Site B consent and provides for the Town Square Works, grant of a right of way and other rights to facilitate public access to the town square for a minimum of 30 days per year for community events, pedestrian connection work, a minimum $3M monetary contribution for the provision of the Town Square and Pedestrian Connection, bus setback along Pittwater Road frontage and monetary contribution for the new link road (Church Lane).

30. According to the evidence, the consent has commenced. Despite that fact, a Planning Proposal was lodged with the council in May 2014 and seeks to vary the Concept Plan for the site and to impose a single building envelope height plane across Site B of 78m. The council has resolved to forward the Planning Proposal to the Department of Planning and Environment seeking a Gateway Determination; following Gateway Determination, the applicant is required to provide an economic assessment of the future employment potential of ‘Site B’ and the wider Dee Why Town Centre against regional planning objectives for further assessment in the post-gateway stage. The council noted the serious deficiency in the provision of car spaces that had to be addressed.

31. At the time of the hearing, no decision had been made in relation to the Planning Proposal.

The Dee Why Town Centre Masterplan

32. During 2012 and 2013, Warringah Council prepared and exhibited a Masterplan for the whole of the Dee Why Town Centre. That plan, the Dee Why Town Centre Master Plan 2013 (the Masterplan), was formally adopted by the Council on 6 August 2013. According to page 66 of the Masterplan, in order to achieve the Master Plan vision, a range of amendments to the LEP and DCP are required and would be publicly exhibited prior to any formal adoption by the council. Amendments required are to establish new maximum FSR and height of building development standards, change the key sites map, inclusion of additional objectives for the Town Centre, require that all developments display design excellence, include a broadened clause on podiums, setbacks and awnings and additional site specific setbacks for the Civic Site and include new development standards for on site car parking. Changes to the DCP are also outlined and a Building Height Principles Diagram is introduced. That diagram was referred to during the hearing as the “Heat map” and focusses the highest buildings on Sites A and B (15-18 storeys and decreases to 3-5 storeys at the edges of the Town Centre.

33. The site is identified as being within the 10-15 storey area under that diagram.

34. The Masterplan identified a number of scenarios with the site nominated as part of the ‘triangular block’ in those options. That triangular block is bound by Pittwater Road, St David Avenue and Fisher Road. The preferred scenario (Option 1) describes the triangular block as follows:

This site is a case study for amalgamation of similar sized blocks within the Dee Why Town Centre study area. This development option will provide the highest intensity of residential use proposed for this site, reinforcing the scale, mass and height of the proposed development further north on Pittwater Road.

Its prominent intersection location and an appropriate building height will provide the opportunity for a landmark gateway development, reinforcing arrival to the Dee Why strip.

High quality landscape and streetscape improvements are proposed at ground level, creating a continuity of small interconnected public spaces, extending across from the Redman Road and Pittwater Road intersection that will also interface with proposed ground level retail tenancies. As well as providing identifiable and high quality building entries and improved pedestrian movement and comfort, these areas may also allow the opportunity for water sensitive urban design measures.

Behind this, residential buildings will frame Fisher Road, creating a strong urban edge through continuity in height and building setbacks. Residential apartments will be proposed with upper level balconies that address the street and provide surveillance to the internal laneway area. with appropriate CPTED elements, this laneway is intend to provide improved pedestrian movement through a safe and high quality public space that connects to the northern civic site.

35. In that scenario, the site is identified as No 20 - Proposed Multi Unit Residential - as per current DA (DA 2011/0887, the 2011 consent). Indicative sketches are shown of the site at pages 83 and 131 of the Masterplan.

36. Other options provided for a lower scale of residential development, by limiting development to 6 storeys in the triangular block (Option 2) and a more fragmented block with more internalised activity focusing on the mid block laneway (Option 3).

37. At the time of adopting the Masterplan, the council also resolved to develop amendments to the LEP and DCP to deliver the objectives of the Masterplan. Those amendments would be incorporated into a Planning Proposal that would apply to the whole of the Dee Why Town Centre as identified in the Masterplan.

38. At its meeting of 23 September 2014, Warringah Council resolved to:

A. Forward the Planning Proposal to the Department of Planning and Environment seeking gateway Determination

B. Upon Gateway Determination publicly exhibit the Planning Proposal and the draft amendments to the Warringah Development Control Plan concurrently

C. Adopt the findings from the Dee Why Town Centre Traffic Model Update (March 2014) by GHD Australia.

D Note the submission made by Mr Robert Player.

39. There is a dispute between the parties as to the impact of part D of the council’s resolution. Mr Player, for the applicant, says that the intent is to include those matters in the amendment that he had raised in his address to the council. Those are detailed in Appendix G to his Statement of Evidence (Exhibit D) and would add further objectives, provide for an additional 3m height for roof top plant including lift overruns and roof access above the building heights as shown on the building height map, clarify what is meant by below ground car parking, assign a 4.4:1 FSR for Key Site F, exclude floor space to be dedicated to council for public and/or community purposes from the calculation of FSR and delete the word ‘minor’ from clause 7.16 that limits variation in FSR for Key Site F (the site).

40. Ms Irish, for the JRPP, submits that the council’s resolution is to note the submission and does not extend to amending the Planning Proposal. This is contrary to the manner in which the matter was forwarded to the Department of Planning and Environment as the letter sent by the Council’s Acting General Manager, who was present at the council meeting, indicates that the issues raised by Mr Player would result in changes to the plan as drafted and that those changes would form the basis of further discussions in terms of drafting the provisions.

41. The draft plan considered by the council without the amendments proposed by Mr Player identified the site as Key Site F with a FSR of 4.0:1 and maximum building height of 27m however would incorporate provisions that allow a maximum height of 49m provided the access to the overpass and a through site vehicular access to Key site K was provided together with other built form requirements.

42. At the time of the hearing, the Planning Proposal had not been considered by the LEP Review Panel.

The issues

43. The contentions in the case are

• the proposed development does not comply with the development standard for building height and the variation to that standard is not justified under clause 4.6 of the LEP;

• the Masterplan and VAP should not be given determinative weight;

• non-compliance with SEPP65 and the RFDC;

• the development is not in the public interest as it undermines a structure approach to the orderly and economic development and coordinated planning for the area.

The evidence

44. The hearing commenced on site with evidence heard from a number of objectors. The Court then proceeded to view the site from Redman Road at its intersection with Selby Avenue and from an objector’s property at the eastern end of the higher, upper portion of Redman Road (Redman Road is divided for vehicle traffic due to significant changes in level). The issues raised by the objectors are summarised as follows:

• Overdevelopment of the site, excessive height;

• Does not reflect the outcomes of the Masterplan and is contrary to those recommendations;

• Adverse view impacts, particularly when viewed from the escarpment;

• Inadequate public benefits associated with the VPA, no need for space and no guarantee the skybridge will be built as costs are unknown:

• Will be a precedent for other undesirable development;

• Site B development is to be the highest development within the centre and not a justification for more development of similar height;

• Poor design, inadequate rear setbacks, will dominate surroundings, adverse impacts to streetscape;

• Roads cannot handle increased population;

• Development is pre-emptive of the Gateway decision and the Planning Proposal has not been the subject of public consultation.

45. Expert town planning evidence was heard from Mr R Player for the applicant and Ms A McCabe for the JRPP. The council did not rely on any experts.

46. There was no agreement between the experts on any of the contentions in the case. The issue of the clause 4.6 objection is discussed separately below.

47. The experts agree that the Masterplan is a matter that should be considered under s79C(1) (e) of the EP&AAct (public interest).

48. Mr Player says the Masterplan should have determining weight in assessing the public interest. He accepts that it is not an environmental planning instrument but rather a strategic planning policy document prepared and endorsed by the council following extensive public consultation and formed the basis of the Planning Proposal endorsed by the council on 23 September 2014 and currently awaiting Gateway Determination. Amongst other things, the Masterplan proposed a precinct either side of Pittwater Road, including the site to be rezoned to permit new mixed use multi-storey developments of 10 to 15 storeys, subject to the development providing specified community public benefits within the Town Centre. The site is also within the Triangular Block which is designated as suitable for redevelopment of 10 to 15 storey mixed use building subject to site amalgamations and provision of a public pedestrian access link though the block and also the potential for a Town Centre Crossing involving upgraded pedestrian amenity and a stronger visual linkage to the Civic Precinct in the vicinity of Site B.

49. Ms McCabe disagrees and says that the Masterplan is a background planning document that has been superseded by the Planning Proposal for the Dee Why Town Centre however, as a document it lacks finality and certainty in the types of controls and should be given no weight. The Masterplan did not need to fill a policy vacuum in terms of appropriate controls for the Dee Why Town Centre, these exist in the LEP and DCP. Ms McCabe notes a significant disconnect in terms of the underlying premises of the Masterplan document and that made recommendations regarding increased height, but did not recommend increases in FSR from that available under existing controls, and the current development application.

50. Mr Player acknowledges the Planning Proposal has not reached the point of being a relevant matter for consideration of the application under S79C(1)(a)(ii) of the EP&AAct (a proposed instrument that is or has been the subject of public consultation) however he considers that, from the information provided by the Department in emails to the council, the matter will be considered by the LEP Review Panel in the near future. He says that the council’s decision to refer the Planning Proposal to the Department should be given considerable determining weight as it is clear the council is in support of the nature and scale of the proposal and has determined the application is consistent with the endorsed Masterplan. It is his opinion that the ultimate drafting of the LEP and DCP Amendments will enable a 15 storey mixed use development at the site subject to the community public benefits which are contained in the VPA offer.

51. Mr Player says that the LEP does not reflect the council’s current strategic planning context and desired future character for development within the Dee Why Town Centre and the Masterplan is recognition of the need to undertake a comprehensive review of the statutory planning controls.

52. Ms McCabe says the Planning Proposal is not a relevant matter for consideration under S79C(1)(a)(ii) as it is not a proposed instrument that has been the subject of public consultation and is at the early stages of the process. The proposed development does not comply with the provisions of the Planning Proposal as currently drafted as the height is greater than 49m and the FSR at 5.8:1 does not constitute a minor increase above 4:1. Ms McCabe says the Planning Proposal lacks certainty and imminence and should not be given any weight in determining the application. It lacks policy certainty until such a time that it has been formally exhibited and considered by council and a final proposal referred back to the Department of Planning and Environment and considered by that department. It clearly has no imminence. Section 57 of the EP&AAct sets out a regime for community consultation in the consideration of the making of local environmental plans and provide for the possibility of a public hearing. The determination of this application pre determines to a significant degree the outcome of the public consultation process. Under s59, the Minister can decide to not proceed with a Planning Proposal.

53. The experts do not agree whether the development satisfies the design principles of SEPP65, in particular, Principles 1 – Context, 2 – Scale and 4 – Density. In addition, the Rule of Thumb for building separation, particularly above level 9 is an issue that is in dispute.

54. Ms McCabe says that in respect to the design principles, the significant change in height and density from that anticipated by the suite of controls results in a development that does not relate to either the existing or desired future character when considered in the context of the broader Dee Why Town Centre. Whilst the LEP anticipates change, the extent of variation to those controls results in an inappropriate scale and a development that does not fit the future character envisaged by the LEP controls. It fails to respond to the essential element which is the range of heights within prescribed limits.

55. The building fails to comply with the shared 12m separation along the south western boundary from levels 9 to 14 and also encroaches into the 12m separation on the north-western boundary from levels 9 to 13. The additional height results in additional shadow over and above that anticipated by either a development that complies with the controls or that was in accordance with the 2011 consent. Where areas are undergoing change and transition to increased densities and scale, it is important that development proposals do not unreasonably constrain development options for adjoining sites. Separation between higher built forms – taller, skinnier buildings – promotes view sharing between gaps in built form. The rules of thumb are more than a mechanism to address privacy, they are also a means of providing gaps or breaks in higher building forms. Non-compliance with separation requirements does not maximise opportunities for view sharing, and results in a poorer built form outcome. It is important that sites can be planned with a reasonable understanding of what may or may not occur on an adjoining site. Compliance with boundary separation and height controls is important in this context to ensure a degree of fairness.

56. Ms McCabe says that whilst it would be reasonable to expect developments of the site to the south would orient apartments in an east/west direction, it is also likely that they would orient to the north to achieve solar access and, in the absence of a set of primary controls it is appropriate to apply the Rule of Thumb in this instance. Separation between buildings is important where the scale of buildings increases, particularly when working outside a policy framework.

57. Mr Player says that the proposed development satisfies the underlying objectives for building separation and references a series of diagrams includes as Appendix O to his Statement of Evidence, Exhibit D. Those diagrams show the location of the building with the relevant building separation distances under the RFDC Rule of Thumb. He says that the zero setback to the southwestern boundary up to level 8 was requested by council staff and contain no windows or balconies. Whilst the diagrams do show minor numerical departures if it were assumed that the redevelopment of the adjoining site would be for a similar tower building with habitable rooms or balconies directly facing towards the site. However, he says that it is likely that habitable rooms and balconies on the adjoining site will be orientated the same way as they are in the proposed building; either facing over Pittwater Road (offering ocean and coastal views above a certain height) or facing north west over St David’s Church and Fisher Road.

58. Mr Player relies on the RFDS exception in the form of a “zero building separation in appropriate contexts, such as in urban areas between street wall building types (party walls)”, stating the wall on the boundary between the site and No 695 Pittwater Road is such a party wall. He says the tower element of the proposal (from levels 9 – 14), is strongly articulated with variable setbacks from that boundary and the design and orientation of apartments in the proposed building will ensure compliance with the underlying objectives in relation to visual and acoustic privacy, solar access and visual built form.

59. The development potential of No 695 is not constrained as future development on that site would also be permitted to build to the common party wall and the fragmented land holdings to the south on the site along Pittwater Road, would be constrained by a refusal to allow those developments to build to common party walls. He notes that the 2011 consent was recommended by council and approved by the JRPP with zero setbacks to that boundary and that there are many examples of traditional and recently constructed mixed-use and commercial buildings in the Dee Why Town Centre which have been constructed with zero or limited building separation to site boundaries.

The clause 4.6 objection

60. Mr Player prepared the written objection to the 24m development standard for building height (Tab M, Exhibit A). The request concludes:

• It would be unreasonable and unnecessary to require compliance with that control given (among other matters set out in this letter) Council’s intention to amend the height of buildings standard in relation to the site in response to the Dee Why Town Centre Masterplan.

• Non-compliance with that standard is justified by the urban design requirements for the site and by the significant public benefits to be delivered pursuant to the application and Planning Agreement.

• The application is in the public interest because it is consistent with the objectives of the height of buildings development standard and the objectives for development within the B4 Mixed Use zone in which the site is located.

Conclusion and findings

61. For consent to be granted, the Court must be satisfied that the written request in relation to the development standard for building height satisfactorily addresses those matters listed in clause 4.6. It is therefore, firstly, necessary to explore whether compliance with the development standard is unreasonable or unnecessary in the circumstances of the case.

62. Secondly, there must be sufficient environmental planning grounds to justify contravening the development standard.

63. Thirdly, I must be satisfied the proposed development is in the public interest because it is consistent with the objectives of the development standard and the objectives of the R3 zone.

64. Finally, I must have regard to those matters that the Director-General must consider.

65. In accordance with the principles in Wehbe v Pittwater Council [2007] NSWLEC 827, a common way of establishing whether compliance with the development standard is unreasonable or unnecessary is to determine whether the objectives of the standards are met notwithstanding non-compliance with the standard, a similar but a lesser test to the third test in clause 4.6.

66. The objectives of the building height development standard are at [16]. The first is to ensure that buildings are compatible with the height and scale of surrounding development. The objection relies on the consent for Site B and the building heights approved under that consent which are up to 18 storeys in height, some 8m higher than proposed for the site.

67. The long held test of compatibility is described by Roseth SC in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 where he states:

22 There are many dictionary definitions of compatible. The most apposite meaning in an urban design context is capable of existing together in harmony. Compatibility is thus different from sameness. It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve.

23 It should be noted that compatibility between proposed and existing is not always desirable. There are situations where extreme differences in scale and appearance produce great urban design involving landmark buildings. There are situations where the planning controls envisage a change of character, in which case compatibility with the future character is more appropriate than with the existing. Finally, there are urban environments that are so unattractive that it is best not to reproduce them.

24 Where compatibility between a building and its surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked.

Are the proposal’s physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites.

Is the proposal’s appearance in harmony with the buildings around it and the character of the street?

25 The physical impacts, such as noise, overlooking, overshadowing and constraining development potential, can be assessed with relative objectivity. In contrast, to decide whether or not a new building appears to be in harmony with its surroundings is a more subjective task. Analysing the existing context and then testing the proposal against it can, however, reduce the degree of subjectivity.

26 For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment. In some areas, planning instruments or urban design studies have already described the urban character. In others (the majority of cases), the character needs to be defined as part of a proposal’s assessment. The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping. In special areas, such as conservation areas, architectural style and materials are also contributors to character.

27 Buildings do not have to be the same height to be compatible. Where there are significant differences in height, it is easier to achieve compatibility when the change is gradual rather than abrupt. The extent to which height differences are acceptable depends also on the consistency of height in the existing streetscape.

68. Having regard to the above, the proximity of the site to Site B and the issues raised in the objection that deal with compatibility, I am satisfied that the proposed building would be compatible with the height and scale of surrounding and nearby development in particular that to which the Part 7 provisions of the LEP apply being Sites A and B. This finding is contrary to that of the council in its initial assessment of that objective (Folio 2007, Exhibit D).

69. I cannot find that the proposed development will minimise visual impact, disruption of views, loss of privacy and solar access. In this regard, I accept the evidence of Ms McCabe who stated that the height of the building does not minimise visual impact and will disrupt views, those views being the district views, skyline views, views of the Town Centre, the ability to view the water/shore and whilst those views would not be entirely lost, they will change and cannot be said to be minimised. The proposed building will have adverse impacts on views from the escarpment and the design of the building does not minimise those impacts.

70. Similarly, a building that is 51m high will cast a significantly greater shadow than one of 24m. Mr Player relies on shadow diagrams in Appendix K to Exhibit D which compare the existing development with that approved under the 2011 consent and the proposed development. No consideration is given to the impacts associated with a 24m building compared to that as proposed. Similarly, no detail of the extent of overshadowing to the facades of buildings opposite the site or the impact to public footways has been provided. I am therefore not satisfied that the proposed building minimises loss of solar access, particularly due to the width of the building across the site because I do not consider the tower as proposed to be a slender tower. It is apparent from these details that the extent of overshadowing of the public domain and properties opposite the site will be significantly increased. This is consistent with the council’s initial assessment of the issue in its report to the JRPP (Folio 2008, Exhibit C3).

71. There is no contention that the proposal will have any impact on the scenic quality of Warringah’s coastal and bush environments however the Court notes that the council has found the objective is not met (Folio 2008 Exhibit C3.

72. The issue of privacy has been addressed by Mr Player and, apart from the non-compliance with the Rule of Thumb for separation distance, the development has been designed to minimise visual privacy impacts.

73. The assessment of how the visual impact of the development is managed when viewed from public places is also reliant on a comparison with the development approved under the 2011 consent. This is not the correct test. For the objectives to be met, the development itself must satisfy this objective. The site immediately adjoins a park and is opposite the main civic precinct so the proposed development will be highly visible from those places. It is also highly visible when travelling along Pittwater Road and when approaching the intersection of St David and Howard Avenues. The council’s original assessment of this objective similarly concluded that the objective was not met and overall, the variation to the development standard could not be supported. (Folio 2009, Exhibit C3).

74. The tests in clause 4.6 are cumulative. There must be sufficient environmental planning grounds that justify contravening the development standard. 

75. The applicant’s written objection appears to rely primarily on the Masterplan, the council’s resolution to forward the Planning Proposal to the Department and the public benefits associated with the VPA to justify the exceedance of building height in terms of whether there are sufficient environmental planning grounds to justify contravening the development standard, although no specific section of the written objection addresses this clause. Nor does Mr Player’s further review of the clause 4.6 request in his statement of evidence (Exhibit D). However, when cross examined, Mr Player says that the environmental planning grounds are the site context and how the proposal would fit in an urban design context. The most important element in considering height and scale is relevant to the site context, and as the site is a marker site, harmony with the DFC would be influenced by current planning controls including Sites A and B. It is appropriate to go beyond current controls and also consider the endorsed Masterplan, which, in the public interest reflects what council sees as appropriate built form for the Town Centre. The Masterplan envisages 15 storey development on the site with other community facilities included as a public benefit.

76. Ms McCabe agrees that the DFC is a matter to be considered as part of the assessment of sufficient environmental planning grounds however, she does not take into account the Masterplan, Planning Proposal or VPA in that assessment. She says that the LEP, the height development standard and the DCP are relevant. The context of the site, its current physical context and character that would be development under the controls in the LEP and DCP inform that character, the assessment being much narrower and different from an assessment under s79C of the EP&AAct. The DFC is a combination of the current policy framework, the LEP and DCP incorporate a range of heights that inform the built form outcomes, small and large buildings. She accepts that the site can support a building in excess of the 24m development standard but cautions the need to ensure that the DFC is not made on the run but should be integrated into a policy framework. The Masterplan is not the DFC, it is the guide to future planning controls and until it’s in a document that can be measured and tested it’s not a guide to what the DFC of the Dee Why Town Centre is.

77. At this stage, whilst Ms McCabe concedes there will be a different DFC to that established by the current controls, it is not possible to understand what that character will look like until it is put in a policy framework. Once that character is expressed in a transparent document, Ms McCabe says that the site can support a building of a height in excess of 24m, and for that reason she says that strict compliance with the standard may be unreasonable however, she remains concerned as to the extent of non-compliance and the lack of an adopted policy framework where the degree of change is outside the existing framework. She considers that there is a tipping point and, that with the proposed building height of 51m, that point is reached and there no justification to vary the standard, as this approach would suggest that the control would be abandoned or ignored and replaced with the preliminary controls under the Masterplan. Such an approach relies on other decisions – yet to be made – to justify the contravention of the standard.

78. From the evidence available, there is no doubt that the council has commenced a path that will ultimately lead to a change in the character of the Dee Why Town Centre. Having regard to the evidence in the case, I am not satisfied that these changes would constitute sufficient environmental planning grounds to justify the contravention of the development standard. I agree with Ms McCabe that the LEP and DCP are the documents against which the DFC is to be measured. That includes the height controls that apply to sites A and B. It also includes the Area 7 Pittwater Road provisions of the DCP. I do not consider the proposal is consistent with that character.

79. I would place some weight on the Planning Proposal however that weight would be limited to the base controls contained in the draft LEP when I have regard to an assessment of the DFC. Those controls limit height to 27m and FSR to either 4.0:1 or 4.4:1. For the purpose of assessing the provisions of clause 4.6, I place no weight on any bonus provision that may be applied through a Planning Agreement. Consideration of environmental planning grounds must be limited to tangible controls that can be consistently applied across a locality. It does not extend to other extenuating circumstances that may give rise to other decisions in relation to built form.

80. For these reasons, and, based on my determination of the failure to meet the objectives of the development standard, I am not satisfied that there are sufficient environmental planning grounds to permit a building with a height of 51m.

81. The third test is that the proposed development is in the public interest because it is consistent with the objectives of the development standard and the objectives of the R3 zone. This is a higher test than the first. The development must be consistent with the objective of the development standard and the zone objectives. Pearlman CJ in Schaffer Corporation vHawkesbury City Council (1992) 77 LGRA 21 considered the issue of consistency and said:

The guiding principle, then, is that a development will be generally consistent with the objectives, if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that it is compatible.

82. I have discussed the objectives of the standard above and find that the proposal is consistent with the first but can in no way be considered consistent with the objective of the second or fourth. To be consistent, it would need to be much closer in scale to the building heights envisaged in the current planning controls. This became particularly apparent when viewing the site from the ridgeline to the north. This would ensure that visual impacts of the development, disruption of views and loss of solar access were minimised and managed when viewed from public places. The form of development proposed would be antipathetic to the objective.

83. Having regard to the zone objectives, I am satisfied the proposed development would provide a mixture of compatible land uses, integrate suitable business, office, residential, retail development in an accessible location and reinforce the role of Dee Why as a major centre. The building design creates active building fronts and would contribute to the life of streets and public spaces and incorporates shops and business premises on the ground floor and housing and offices on the upper floors. It involves the amalgamation of three adjoining sites and incorporates car parking below ground. For that reason, it would be consistent with the objectives of the B4 zone.

84. For the reasons stated above, I do not find that the written request justifies contravention of the development standard and accordingly, do not need to go to those matters the Director General would consider in the exercise of concurrence as consent cannot be granted.

85. I agree with Mr Player’s evidence that the VPA offer is not a mechanism by which a building height variation can be supported in this case, however, it would be a matter for consideration as part of the public interest under s79C of the EP&AAct. It is not necessary for me to undertake such a merit assessment of the case because of my findings in relation to the building height development standard.

86. The Orders of the Court are:

1. The appeal is dismissed;

2. Development Application No 2013/1168 for demolition works and construction of a mixed use retail/commercial and residential development at Nos 697-701 Pittwater Road, Dee Why is refused consent;

3. The exhibits, other than exhibits A, E, C2 and J1, are returned.

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Sue Morris

Commissioner of the Court

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Decision last updated: 13 March 2015