Kerr v Gosford City Council

[2004] NSWLEC 471

Land and Environment Court

of New South Wales

CITATION:	Kerr v Gosford City Council [2004] NSWLEC 471
PARTIES:	Leslie Bruce Kerr v Gosford City Council
FILE NUMBER(S):	10436 of 2004
CORAM:	Bly C
KEY ISSUES:	Development Application :- Demolition of existing dwelling - construction of residential flat development - visual impacts - sensitive site - internal and external amenity impacts - garbage disposal
LEGISLATION CITED:	Environmental Planning and Assessment Act , 1979 State Environmental Planning Policy No. 1 State Environmental Planning Policy No. 65 Gosford Planning Scheme Development Control Plan No. 100 Development Control Plan No. 159
CASES CITED:
DATES OF HEARING:	4-6/08/2004
DATE OF JUDGMENT:	08/26/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr P Rigg, solicitor SOLICITORS Deacons RESPONDENT Mr P Tomasetti, barrister SOLICITORS P J Donnellan & Company

JUDGMENT:

LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

26 August 2004

10436 of 2004 Leslie Bruce Kerr v Gosford City Council

JUDGMENT

1 This appeal relates to Development Application No. 3148/2004 which is for the demolition of an existing fire damaged dwelling and the construction of two residential flat buildings containing 36 dwellings on Lots 1 and 2 DP 509541 and Lots 11 and 12 DP 873584 being land in John Whiteway Drive, Gosford.

2 The site is a corner block having two frontages to John Whiteway Drive. It is rectangular in shape having a northern boundary of 104 m and a western boundary of 48.8 m and having an area of 5,212 sq m. It slopes from the south-east corner (approximately RL 78 AHD) to the north-west corner (approximately RL 56 AHD).

3 Situated on the outskirts of Gosford's central business district the site has views to the west and south over Brisbane Water. Surrounding development comprises a mixture of older dwellings and more modern multi-storey residential flat buildings.

4 The two proposed buildings are referred to as Buildings A and B. Building A contains 15 dwellings, comprises an approximately 60 m long four-storey street presentation to the site's predominant northern frontage. Building B contains 21 dwellings, is a more complex articulated design having frontages to the north, south and west boundaries of the site. It is stepped back across the slope of the site extending over seven levels. Level 1 is at RL 59.7 and the level 7 roof is at RL 80.8.

5 Parking is provided at level 1 in each building with access across the northern boundary at grade off John Whiteway Drive.

Statutory provisions

6 The site is zoned Residential 2(c) under the Gosford Planning Scheme ("the Planning Scheme"). Adjoining lands to the north and west across John Whiteway Drive are also included in the 2(c) zone. Adjoining lands to the east, south-east and south are included in the high density Residential 2(d) zone.

7 Clause 10(3) of the Gosford Planning Scheme Ordinance ("the Ordinance") requires that development consent must not be granted unless the objectives of the relevant zone have been taken into consideration. The objectives of the 2(c) Zone relevantly comprise:

(a) to make provision for the orderly and economic development of suitable land in appropriate locations for housing at medium to high density.

8 This objective is essentially met by the fact of the zoning of the land which facilitates medium density residential development. As for the question of whether approval of this proposal would represent orderly and economic development no issue was raised that it would not be economic development. However, it was suggested that approval in the light of non-compliances with the various provisions of the planning scheme and failure to respond to site constraints would not constitute orderly development.

9 Clause 10(4) of the Ordinance requires that development consent must not be granted unless the character of the development site and the surrounding area has been taken into consideration. In this context, character means the qualities that distinguish each area and individual properties located within that area. The matters of character and site constraints are dealt with later in this judgement.

10 Clause 28(4) of the Ordinance requires that all portions of residential flat buildings in the 2(c) zone comply with the following requirements:

a) Planes must be projected at 45° from a height of 3.5 m above natural ground level at the side and rear boundaries to a maximum height of … 12 m above natural ground level…

b) The vertical distance measured from the highest point of the floor of the topmost floor above natural ground level must not exceed … 6 metres…

11 These building height plane and building height development standards are essentially reflected in DCP 100 and to varying degrees are not complied with by the proposal. Objections pursuant to SEPP 1 were prepared by Mr Kettle as part of his evidence.

12 Clause 28 also contains minimum site areas and maximum densities for residential flat buildings and these requirements are comfortably met by the proposal.

13 Also relevant are the following:

• State Environmental Planning Policy No 1 - Development Standards ("SEPP 1")
• State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings ("SEPP 65")
• Development Control Plan No 100 - Medium Density Residential ("DCP 100")
• Development Control Plan No 159 - Character ("DCP 159")

14 Although applying to adjoining lands to the south and south-east, Development Control Plan No 57 - John Whiteway Drive Precinct - Gosford ("DCP 57") does not apply to the site, but is relevant in understanding how these surrounding lands should be protected or developed. It is also relevant in determining the likely future character of the locality. More particularly, although zoned 2(d) the adjoining council owned land to the south (Lot 132 DP 755 227) is, with the exception of a relatively narrow strip fronting John Whiteway Drive, mainly designated no development in this area, significant tree cover to be retained. Also land to the south-east on either side of the ridgelines, which extend into the council owned land, is designated as non-buildable area.

Advertising and council's decision

15 The application was advertised and seven letters of objection were received. Expressed concerns relate to: excessive bulk and scale; non-compliance with council's requirements including building envelope, height and setbacks; traffic congestion in John Whiteway Drive and Georgiana Terrace; insufficient on-site carparking; excessive site excavation and geotechnical concerns; and stormwater runoff and drainage.

16 Council's SEPP 65 design review panel ("the review panel") considered the application and advised, in relation to character, that:

The buildings exceed the height limit of the 2 (c) zone and are out of scale with the desired future character of the area. The proposal should comply with all council numerical controls as a minimum.

17 In relation to built form, the review panel advised that:

The buildings exceed Council's numerical controls and are excessive in height. The proposed built form is inappropriate for a steeply sloping heavily forested site. The setback to the southern boundary is unacceptable and should instead meet the requirements of SEPP 65. The site is to be distinguished from the "quarry floor" sites associated with DCP 57.

18 The application was refused by the council for a number of reasons including: non-compliance with various statutory requirements including SEPP 65, the planning scheme and applicable development control plans; unresolved waste management aspects; various traffic aspects; out of character with the present and desired future character of the locality; and insufficient information in relation to various aspects of the proposal.

19 On behalf of the respondent council expert evidence was provided by:

• Mr R Mergan - town planner
• Mr R Dickson - architect, urban designer and landscape architect
• Mr K Ballard - Waste Management Assessment Officer.

20 Mr Mergan provided additional evidence at council's offices in the form of a presentation using council's computer model, depicting the proposal in the townscape.

21 Resident objector evidence was given on-site by:

• Mrs S Edwards - Glenview Crescent, Terrigal
• Mr F Long - 908/97-99 John Whiteway Drive, Gosford
• Mr W Murphy - 808/97-99 John Whiteway Drive, Gosford

22 Concerns expressed by these residents include: non-compliance with council requirements; destabilisation and loss of trees; garbage removal, traffic congestion and safety in John Whiteway Drive; insufficient visitor parking loss of amenity generally; and potential geotechnical problems.

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

• Mr D Kettle - consultant town planner
• Mr M Harrison - architect and urban designer.

24 Evidence was also given by Mr T Rogers, the Court appointed traffic engineer.

The issues

25 Despite the lengthy Statement of Issues the principal issue in this case is whether, taking into account the applicable statutory provisions and the nature of the site and its surroundings, the proposal would have an adverse impact on the visual qualities of the street and the locality generally. Incidental to this issue are the SEPP 1 objections dealing with the acknowledged non-compliances with the development standards in cl 28(4) of the Ordinance.

26 Other matters of concern were aspects of internal and external amenity and the management of the removal of domestic waste from the premises.

Visual impacts and the SEPP 1 objections

27 The SEPP 1 objection, which deals with the non-compliances with the building height plane requirement in cl 24(4)(a), contends that the underlying objective or purpose of this development standard can be derived from the objectives associated with the similar standard in DCP 100. These objectives, by reference to the height and length of walls refer to an appropriate residential character and visual bulk. They also relate to matters such as dwelling layout, privacy, daylight and sunlight access.

28 In arguing that compliance with the development standard is unnecessary or unreasonable in the circumstances of the case and dealing with the matter of appropriate residential character and visual bulk the objection refers to the following matters:

• Building B complies with council's 6 m setback requirement.
• The height and length of walls are of an appropriate character and visual bulk for development in this zone.
• There is a wide nature strip alongside Building A.
• A significant amount of treed open space at the rear of the site is to be retained.
• The site layout will maximise ground level outdoor areas for landscaping and the enhancement of trees and shrubs.

29 The objection also argues that a hypothetical complying development of comparable size to Building A would need to be set further to the south into the hillside resulting in increased cut and vegetation destruction and a reduction in the area that could be retained and landscaped. Similarly Building B would need to be redesigned or relocated. It is contended that it would be feasible to design a complying development but such a design would, by comparison with that which is proposed, have disadvantages including: a lower density of development; a reduction in the area of land able to be set aside for open space; and an increase in the amount of cut into the site.

30 The second SEPP 1 objection, which deals with the non-compliances with the 6 m building height limit in cl 24(4)(b) also relies on the objectives (see above) relating to similar standards in DCP 100 to understand the underlying purpose of the development standard.

31 In arguing that compliance with the development standard is unnecessary or unreasonable in the circumstances of the case and dealing with the matter of appropriate residential character and visual bulk the objection deals with the following matters:

• The exceedances of the 6 m building height standard are due to the topography of the land and the need to provide basement levels of parking.
• The need to maintain as much as possible of the ground level of the site in its natural state and provide an area with a high degree of amenity at the rear.
• The need to minimise cut and fill.
• The height of the development will complement the scale of the nearby "Hillside" apartment development.
• The proposal responds well to the site's topography and streetscape.

32 It is unfortunate that there are no stated objectives for the development standards in cl 28(4) of the Ordinance. Hence it is necessary to undertake the more difficult task of establishing what the underlying objectives of these development standards are. Whilst they appear to relate to matters such as privacy and solar access, I accept that for the purposes of analysing visual impacts resulting from the non-compliances they relevantly have the underlying objective of seeking to achieve an appropriate residential character and visual bulk.

33 Despite the fact that the 2(c) zone applies to lands having various physical characteristics, including characteristics different to those of this site, the development standards remain the same, and hence the underlying objective must also be the same. However in applying the underlying objective it is necessary to decide what is an appropriate residential character and visual bulk for this particular site in its context. In doing this one can, in determining whether strict compliance with the development standards are unreasonable or unnecessary as required by SEPP 1, consider the desired future character of the site even though this character might be different to that for other sites in the 2(c) zone.

34 Mr Mergan explained that there are no specific character statements for this locality in DCP 159. However the desired future character of the area can be gleaned from the development standards themselves, particularly the three-storey restriction (the 6 m height limit in cl 24(4)(b) of the Ordinance).

35 But that approach does little to assist in dealing with the question of whether or not a non-complying development would be satisfactory.

36 Rather more helpfully Mr Mergan next referred to the need to maintain the character of the area by protecting the heavy tree canopy along the ridgeline and along John Whiteway Drive. Similarly, Mr Dickson said that the landscape should dominate any new development and buildings should be fragmented and restricted to a height that is below the tree canopy. Moreover the hill behind the site should remain the prominent feature and buildings should not interrupt the existing ridgeline. Mr Harrison accepted that it was an appropriate strategy to protect existing vegetated hilltops and ridgelines around Gosford.

37 I have no difficulty in accepting what these experts have said about the desired future character of the site and its immediate environs especially as these matters are consistent with DCP 57. Relevantly this character can be incorporated into the underlying objective of the development standards.

38 Just behind the site to the south-east there is a hill (a little over RL 82) at the intersection of three ridgelines. This is the most elevated point in this locality and together with the ridge line extending through the adjoining council land to the south comprises the backdrop to the site. The hill, the ridgelines and the site contain many significant trees of high importance.

39 There is little doubt that the site is visually prominent, being part of the heavily vegetated backdrop to the Gosford central business district. The site, especially the numerous significant trees on it, can be seen from many different locations in and around the central business district including from the Pacific Highway at East Gosford.

40 Mr Mergan was concerned that the concentration of built form on the western end of the site coupled with the loss of so many significant trees and the numerous encroachments into the building height and envelope controls would result in a building that is inconsistent with an appropriate scale and character for the locality. This concentration results in the development being highly and inappropriately conspicuous when seen from the many viewpoints in the surrounding area.

41 Conversely Mr Kettle was of the opinion that proposal comprises an appropriate form of development notwithstanding the highly visible nature of the site. It would be consistent with the character of existing close-by development which has heights of between nine and eleven storeys. Because the buildings are stepped up the hillside the variations to the development standards are minor and have no consequences in terms of building bulk or character. More particularly the exceedances do not add to the bulk and scale of the building when viewed from the north, north-west and west. He also contended that the proposal would allow the maintenance of views of the existing treed ridgeline above the development, while recognising that numerous mature trees are to be removed from within the proposed building footprints. However the provision of landscaped open space contiguous with adjoining land to the south and east (which is protected from development by DCP 57) would, in the longer term, be of greater benefit. He believed that new tree plantings would be preferable to retaining existing mature trees.

42 Mr Dickson was of the opinion that the proposal, which will read as a partly seven storey building, would be out of scale with the surrounding area. It would be inconsistent with the desired future character of the area because it would not allow the landscape to dominate the built form. He also explained that, taking into account topography and existing trees on the site, significant areas of the site are capable of accommodating medium density development. Such development would facilitate the retention of significant trees and would, unlike the proposal protect the character of the hilltop and ridgeline to the south-east and south.

43 Mr Harrison believed that the proposal responds well to the site constraints including topography, vegetation and its high visibility. It represents a high level of urban design, recognising the existing man made and natural context. In accepting that the top of the hill and the ridge behind the site and indeed part of the site should be protected he contended that the proposal would achieve this by the protection and landscaping of the south-east corner of the site. Indeed this corner of the site is the best part to retain and supplement the existing vegetation. He said that the proposed stepped building form is appropriate for this sloping site and that the proposed landscaping would eventually screen the building. When viewed from a distance the development will read together with existing apartment buildings as part of a group of hillside residential flat development. In considering alternative designs for medium density development he favoured an option (Option 2), which concentrates development in the south west corner of the site in a building very much like proposed Building B although this would require the building to be one storey taller. This would facilitate the retention of existing trees over a significant area of the site. Any relocation of Building A to the south would adversely affect existing trees on the site because this would modify the site's water table.

Conclusions

44 The relevant objective of the 2(a) zone like that in the Environmental Planning and Assessment Act 1979 seeks to achieve orderly development and in this context the approach required involves a careful consideration of the applicable requirements of the planning controls and the particular circumstances of the site and its constraints.

45 It is arguable as to whether the proposal is appropriately responsive to the opportunities and constraints of the site but I have been persuaded by the evidence brought on behalf of the respondent that this has not been achieved and, taken together with the non-compliances with the planning controls I accept that the proposal's visual impacts are unsatisfactory. I particularly note and take into account the advice of the review panel that the form and scale are inappropriate.

46 Whilst the proposal meets and easily complies with a number of the applicable standards it fails to comply with what I accept, in the context of visual impacts, as being important development standards. According to the marked up floor plans for levels 4, 5, 6 and 7 and the associated cross sections for Building B (Exhibit D), significant volumes of the building fail to meet the 6 m height limit in cl 28(4)(b) and the building plane and 12 m height limit in cl 28(4)(a). These non-compliances are critical given that it is Building B that is the tallest and most conspicuous element of the proposal when viewed from the north, north-west and west. Building A also exhibits non-compliances with the building height plane and these are of less concern although the scale of this building, which results from its length and its three/four storey height, does have impacts. Together, the non-compliances with the development standards add to the bulk and scale of the development in a sufficient manner to be of great concern. This concern is not alleviated by the fact of the permissibility of taller buildings in the close-by "quarry floor" 2(d) zone.

47 The two sets of computer-generated photomontages give quite different impressions as to the visual impact of the proposal. Those prepared by the applicant generally show buildings in a landscape setting positioned below the existing tree canopy on the ridge. The montages, including trees, prepared for the respondent utilising council's computer model show, from some ground level viewpoints, a building projecting above the tree canopy. From other elevated or other "bird's eye" viewpoints it will appear below the tree canopy and less weight should be given to such views.

48 Whilst it is possible if one accepts the applicant's photomontages that much of the proposal will appear below the top of the existing tree canopy along the ridgeline this cannot be said in relation to the ridgeline itself. For example, the topmost roof of Building B although lower than the top of the hill, will be significantly higher and thus interrupt the ridgeline on adjacent land directly to the south. This, together with the fact that many of the trees on the site are to be removed is a critical consideration. The prominence of the hill and the landscape setting will be significantly affected. The impacts would be significantly greater if one accepts the respondent's photomontages.

49 Existing street trees can be taken into account in conjunction with proposed on-site landscaping in determining whether or not the visual impact of a particular development would be satisfactory but I do not accept that they would so benefit the proposal is to make it acceptable. I am also concerned at the extent of the character altering removal of significant vegetation along the street frontage. These matters are particularly problematical in the light of what I have agreed to be the likely future character of this area.

50 I accept that the aesthetic aspects of the architecture of this proposal are good however the proposal would so affect the vegetated hilltop and ridgeline by allowing built forms with an apparent height of up to six storeys to inappropriately dominate the landscape. I accept that the development will dominate the hillside and is likely to break the ridgeline to an unsatisfactory extent. Because of the high visibility of the site from many locations a far more sensitive approach is required.

51 The site comprises four separate lots and it was submitted that these could be separately developed. Whilst this is true I cannot assume that a separate complying development on each of these lots would comprise a better or worse outcome than is presently proposed and would give this submission no weight.

52 There was argument about whether alternate designs would produce better or worse outcomes for this site but my principal task is to decide whether this proposal is satisfactory and worthy of approval. I have nevertheless not been persuaded that redistribution of the building across the site, something along the lines suggested by Mr Dickson would not be possible, despite water-table concerns. This would have the benefit of breaking up the building's presentation and allowing for the provision of landscaping to soften its appearance and better allowing it to blend into the hillside. Such an approach would probably prevent the provision of the proposed area of open space in the south-east corner of the site. Whilst being a good idea to reinforce the adjoining vegetated area protected by DCP 57 this does not overcome the concerns about the visual impacts of the proposal.

53 By comparison with the proposal, there is no doubt that a development with a greater density and higher site coverage and less landscaping could comply with the requirements of the Ordinance and DCP 100. However, there is a need to balance the fact of the zoning of the land for medium density development and the various standards applicable to the site with the site's constraints. In this regard I agree with Mr Dickson when he argued that the environmental objectives relevant to this site may mean that it is not possible to achieve a development that utilises to the maximum all of the applicable standards. Hence I give no particular weight to the fact that the proposal is below these standards and note that this is an instance that affirms the principal that maximum standards cannot necessarily be considered to be entitlements.

54 In the circumstances and having decided that the character and visual bulk of the proposal would not be appropriate I am not satisfied that the underlying objectives of the development standards in cl 24(4) have been met or that compliance with these standards would be unreasonable or unnecessary. Hence the SEPP 1 objections should not be supported. Similarly the proposal's failure to appropriately respond to the provisions of the planning controls and the site's constraints means that it has not, as required by cl 10(4) of the Ordinance, properly considered the character of the site and the surrounding area and as a result does not constitute appropriate and orderly development.

55 This case provides yet another example of the difficulty in determining the underlying objectives of development standards in the absence of specifically identified objectives in the applicable environmental planning instrument. Consent authorities are to be encouraged for their own benefit and for the benefit of applicants preparing development applications to give careful consideration to the need to include such objectives when introducing development standards or when amending or reviewing their local environmental plans or in this instance the planning scheme.

56 Finally, in the light of my decision that the application should not be approved, it is not necessary for me to deal with the issues of internal and external amenity and waste removal other than to observe that having considered the evidence in relation to these matters and subject to appropriate conditions they would not have been determinative of the application.

57 It is therefore the decision of the Court that:

1. The appeal is dismissed.
2. Development Application No. 3148/2004 for the demolition of an existing dwelling and the construction of two residential flat buildings containing 36 dwellings on Lots 1 and 2 DP 509541 and Lots 11 and 12 DP 873584 being land in John Whiteway Drive, Gosford, is determined by the refusal of development consent.
3. Exhibit D is retained.

___________________
T A Bly
Commissioner of the Court
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