Lexington Homes Pty Ltd v City of Parramatta Council

[2016] NSWLEC 1303

Land and Environment Court

New South Wales

Medium Neutral Citation:	Lexington Homes Pty Ltd v City of Parramatta Council [2016] NSWLEC 1303
Hearing dates:	6-7 June 2016
Date of orders:	21 July 2016
Decision date:	21 July 2016
Jurisdiction:	Class 1
Before:	Fakes C
Decision:	Appeal dismissed
Catchwords:	DEVELOPMENT APPLICATION: Seniors living; further amended plans; urban design; character; landscaping
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Environmental Planning and Assessment Regulation 2000 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004
Cases Cited:	Architects Marshall v Lake Macquarie City Council [2005] NSWLEC 78 GPC No 5 (Wombarra) Pty Ltd v Wollongong City Council [2003] NSWLEC 268 Lexington Homes Pty Ltd v Parramatta City Council [2015] NSWLEC 1503 State Projects Pty Ltd v Hurstville City Council [2015] NSWLEC 1443 Super Studio v Waverley [2004] NSWLEC 91
Category:	Principal judgment
Parties:	Lexington Homes Pty Ltd (Applicant) City of Parramatta Council (Respondent)
Representation:	Applicant: Mr G McKee (Solicitor) Respondent: Mr S Nash (Barrister)   Solicitors: Applicant: McKees Legal Solutions Respondent: Sparke Helmore Lawyers
File Number(s):	2016/ 159160

Judgment

1. COMMISSIONER:   The applicant appeals Parramatta City Council’s deemed refusal of a development application (DA 874/2015) to demolish existing structures on two lots, consolidate the lots, and construct an in-fill, self-care residential development comprising eight units at 5-7 Grandview Parade, Epping (the site). The proposed development is made under State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP Seniors).

2. The appeal is made pursuant to s 97(1)(b) of the Environmental Planning and Assessment Act 1979 (EPA Act).

The proposal

3. The application for a development in accordance with State Environmental Planning Policy (Housing for Seniors and People with a Disability) (SEPP Seniors Living) seeks to:

• Consolidate 5 and 7 Grandview Parade, Epping (the site) into one lot.

• Demolish the existing dwellings and structures on the site and remove 29 trees.

• Construct 8 x infill self-care dwellings comprising 6 x two storey and 2 x one storey dwellings (6 x 3 bedroom and 2 x 4 bedroom). Units 1-4 are located along the northern boundary of the site, units 5-8 are along the southern boundary. Units 1 and 8 face the street. Units 4 and 5 at the rear are single storey; all other units are two storey. The two rows of units are separated by a central spine which incorporates private and retained landscaped terraces, an area of communal open space and access via paths and stairs.

• Construct a basement car park for 16 vehicles. Access to each unit is via stairs from the basement car parking spaces provide for each unit. A lift located between units 5 and 6 provides an alternate means of access to all units, albeit by a series of ramps and pathways.

• Construct an on-site detention system.

Relevant background

4. In March 2015, the applicant lodged a development application seeking consent for the demolition of structures, lot consolidation and the construction of a ten unit in-fill, self-care residential development on the site. Council refused consent and the matter proceeded to Court. On 6 November 2015, Brown ASC dismissed the appeal and refused development consent (Lexington Homes Pty Ltd v Parramatta City Council [2015] NSWLEC 1503).

5. In December 2015 the applicant lodged DA 874/2015 (the DA). The respondent’s Statement of Facts and Contentions (SFC), filed with the Court on 5 May 2016, lists the internal referrals and describes the progress of the matter.

6. In February 2016 the applicant submitted amended plans to council; the council wrote to the applicant requesting the withdrawal of the DA.

7. The applicant filed the Class 1 Application with the Court on 23 February 2016. The file note on the Court’s file states that at the Registrar’s Directions Hearing on 22 March 2016, the parties agreed that there was no utility in having the matter listed for a conciliation conference under s 34 of the Land and Environment Court Act 1979 (Court Act).

8. The amended plans were renotified.

9. On 29 March 2016, the applicant filed a Notice of Motion to rely upon amended plans (Issue B); the Registrar granted leave on 13 April 2016 and the usual orders/timetable made for joint conferencing of relevant experts, and the filing of evidence and other documents.

10. Relevant to the hearing dates set down for 6-7 June, the parties’ Urban Design experts, Mr Peter Smith for the applicant and Mr Brett Newbold for the council, both of whom are architects, prepared a joint report on 30 May (Exhibit 3). The report addresses the urban design issues raised in council’s SFC. As a consequence of the very detailed analysis of the plans in the light of the contentions raised by council, the urban designers identified a number of design changes that, in their opinion, would resolve many of those concerns. The changes address elements of the front setback, central courtyard, internal layout and overall building form and architectural detailing.

11. In response to this feedback, on 2 June 2016 the applicant prepared further amended plans (Issue C). These were forwarded to the council, and it appears from a letter to the council from the applicant’s solicitor (Exhibit E) listing the changes to the plans, that council recommended the applicant discontinue the proceedings. The applicant advised that discontinuance was not an option as the amendments were minor, and were likely to resolve the proceedings.

12. In response to the amended plans, council prepared an Amended Statement of Facts and Contentions (Exhibit 6). While some particulars were deleted, others were inserted.

13. The hearing commenced on site and a number of local residents made oral submissions (discussed elsewhere in this judgment).

14. Upon return to Court, the applicant sought leave to rely on further amended plans – Issue C. While the amendments were opposed by council it was agreed that the urban designers be questioned and the changes to the plans highlighted. This was necessary as the Issue C plans do not show the changes in the usual way. This process proceeded as a form of voir dire and took most of the first day.

15. In oral evidence, the urban designers provided clarification of their agreed position and remaining points of difference. Further improvements were identified and some discussion of possible conditions ensued.

16. Ms Hang, council’s planner and the officer who assessed the development application, opined that the changes identified by the urban designers would need further amendments to the plans and additional supporting information including new elevations and sections, a new BASIX certificate, a swept path analysis of the basement and checking to determine compliance with the Building Code of Australia (BCA). Ms Hang considered that the plans should be re-notified.

17. Mr McKee for the applicant and Mr Nash for the council made submissions on whether or not leave should be granted to rely on the amended plans.

18. In opposing leave, Mr Nash identified a number of grounds including procedural matters such as the absence of an affidavit supporting the amendments and failure to comply with the Court’s Class 1 Development Appeals Practice Note. In council’s view the amendments are not minor, are more than ‘fine-tuning’, and require further internal referrals for comments on possible consequential impacts on traffic, landscaping and parking as well as renotification. Mr Nash, in asserting that the applicant’s approach was an abuse of process, cited Brown ASC in State Projects Pty Ltd v Hurstville City Council [2015] NSWLEC 1443 at [65] – [67] to support his contention. It was suggested again that the applicant discontinue and resubmit the development application to council for further assessment. Mr Nash also noted that the applicant had ample notice of the urban design issues raised in council’s contentions and that an urban designer should have been engaged in a more timely manner.

19. In support of the further amended plans, Mr McKee presses subclauses 55(1) and (2) in the Environmental Planning and Assessment Regulation 2000 which enable a development application to be amended, with the agreement of the consent authority, at any time before the application is determined, and if it has attached to it, written particulars indicating the nature of the change. He contends that the amendments have come from the joint conferencing process and in the interests of a just, quick and cheap resolution of the matter, the Court should grant the applicant leave to rely on the Issue C plans.

20. In arguing against the need to renotify the plans, Mr McKee noted that the only significant change was the lowering of unit 7 by 218mm which would decrease overshadowing. He maintained that the other changes, such as additional landscaping in the front setback, were improvements; the proposed changes to the windows would not require a new BASIX certificate; and the basement is sufficiently wide to enable manoeuvrability.

Findings

21. In summary, the primary changes to the Issue B plans made in the Issue C plans include:

• Setting back the excavation for the basement level further from the street frontage and removing one set of stairs thereby enabling more deep soil planting in the front setback between the two rows of units;

• Increasing the size and amount of landscaped areas in the central spine, rationalising the internal access and modifying the internal northern and southern elevations; and

• Altering window treatments on the front two units and the western elevation of unit 4.

22. Despite the short notice, and noting council’s objections, I am satisfied that the amended plans address a number of council’s contentions and reflect many of the changes agreed to by the parties’ urban designers. Overall I find they achieve a better environmental outcome than the previously approved amended plans and would not require renotification to objectors. However, they will be subject to an order pursuant to s 97B of the EPA Act.

23. Therefore leave is granted for the applicant to rely upon these plans and therefore these are the plans upon which my determination is based. In my view, had the parties agreed to a s 34 conciliation involving the urban designers, many of these issues may have been resolved prior to the hearing thus saving time and costs. It would also seem to me, that urban design issues were front and centre of council’s contentions; I also note that SEPP Seniors Living requires consideration of Seniors Living Policy: Urban Design Guideline for Infill Development.

24. The evidence provided by the urban designers, whilst largely explored during the preliminary proceedings, is considered elsewhere in this judgment.

The site and its locality

25. The site is on the western side of Grandview Parade, Epping. It is zoned R2 Low Density Residential under Parramatta Local Environmental Plan 2011 (PLEP).

26. Both existing lots are generally rectangular in shape, each with a dwelling, garage and ancillary structures. They have a combined frontage of 40.23m, combined rear boundary of 60.96m and a combined area of 2,452m2. The site slopes from northwest to southeast with a fall across the site of approximately 6.2m.

27. The predominant form of development in the immediate vicinity is residential, primarily a mixture of single and two storey dwellings in architectural styles dating from the Edwardian to Inter-War period. A two-storey townhouse style development is located directly opposite the site. The street is lined with mature Brush Box trees.

28. The properties on the western side of Grandview Parade are generally elevated above street level with low retaining walls, landscaping and driveways in the front set back. The properties on the lower, eastern side of Grandview have a similar character.

29. The site is within about 60m of the nearest bus stop; two other bus stops are located within walking distance, including one located adjacent to a small group of shops on nearby Midson Road.

The issues

30. Council’s Amended Statement of Facts and Contentions outlines the particularised reasons why council contends the development should be refused.

1. Character – incompatible with the existing and desired future character of the surrounding locality which is unlikely to change: excessive paving in the front setback, excessive mass and scale of buildings in relation to nearby detached dwellings, inappropriate architectural style of facades, size and location of basement and central courtyard prevents suitable landscaping in the front setback, form and scale not in accordance with design guidelines in SEPP Seniors Living, Seniors Living Policy and Parramatta Development Control Plan 2011 (PDCP).

2. Internal site amenity – configuration and design provide unsatisfactory amenity for future residents: many concealment opportunities compromising safety and security, design of central courtyard and many level changes do not encourage social interaction, insufficient solar access to several dwellings, cathedral ceilings difficult or costly to heat, the design and configuration of the rear area of private open space would not encourage active use; form and scale inconsistent with design guidelines in SEPP Seniors Living and Seniors Living Policy.

3. Accessibility – unsatisfactory access for anyone with impaired mobility; level changes and retaining walls discourages convenient and direct access between opposing dwellings, primary access between the basement car park and dwellings is via stairs, secondary access is via a common lift which requires weather-exposed access via the central courtyard; both primary and secondary access is contrary to the design principles in SEPP Seniors Living.

4. Neighbour’s amenity – fails to demonstrate reasonable consideration of amenity for neighbouring properties: adverse visual impact due to height and proximity of buildings to the southern boundary; additional overshadowing of 3 Grandview Parade; adverse visual impacts for 9 Grandview Parade due to overall length, elevation and roofline of buildings.

5. Town planning – non- compliance with the relevant design considerations in SEPP Seniors Living- compatibility with character, no comprehensive site analysis, design quality guidelines, solar access to areas of private open space, crime prevention through good design and analysis, pedestrian safety and amenity, landscape area, deep soil at the rear of the site.

6. Inadequate information – inaccuracies in the Statement of Environmental Effects for number of bedrooms and no consideration of PDCP: no updated BCA report, access report, solar access, shadow diagrams, stormwater, deep soil landscaping.

7. Public interest – having regard to the objectors’ submissions and the contentions raised by council, the development is not in the public interest.

The assessment framework

Parramatta Local Environmental Plan 2011

31. The site is zoned R2 Low Density Residential under PLEP 2011. Clause 2.3(2) requires the consent authority to have regard to the zone objectives when determining a development application for land in that zone. The zone relevant objective is:

• To provide for the housing needs of the community within a low density residential environment.

32. Seniors housing is permitted with consent in the R2 zone. Multi-dwelling housing is not otherwise permitted in the R2 zone.

State Environmental Planning Policy (Housing for Seniors and People with a Disability)

33. The development is proposed under State Environmental Planning Policy (Housing for Seniors and People with a Disability) (SEPP Seniors Living). The relevant aims of the Policy in cl. 2(1) are to:

(a)   increase the supply and diversity of residences that meet the needs of seniors or people with a disability, and

(b)   make efficient use of existing infrastructure and services, and

(c)   be of good design.

34. Clause 25(5) requires compatibility with surrounding land uses.

35. SEPP Seniors Living Part 3 – Design requirements applies. The following clauses are relevant.

30 Site Analysis

(1)   a consent authority must not consent to a development application pursuant to this Chapter unless it is satisfied that the applicant has taken into account a site analysis prepared by the applicant in accordance with this clause.

(2), (3) and (4) – outline the information to be provided by plans, written statements and other documentation.

31 Design of in-fill self-care housing

In determining a development application made pursuant to this Chapter to carry out development for the purpose of in-fill self-care housing, a consent authority must take into consideration (in addition to any other matters that are required to be, or may be, taken into consideration) the provisions of the Seniors Living Policy: Urban Design Guideline for Infill Development published by the Department of Infrastructure, Planning and natural Resources in March 2004.

32 Design of residential development

A consent authority must not consent to a development application made pursuant to this Chapter unless the consent authority is satisfied that the proposed development demonstrates that adequate regard has been given to the principles set out in Division 2.

Division 2 – Design Principles [in particular]

33 Neighbourhood amenity and streetscape [summarised]

…recognise the desirable elements of the location’s current character (precincts undergoing transition…); maintain reasonable neighbourhood amenity and appropriate residential character; be designed so that the front building of the development is set back in sympathy with, but not necessarily the same as, the existing building line; embody planting that is in sympathy with the streetscape…

36. Other Design Principles to be considered include: visual and acoustic amenity; solar access and design for climate; stormwater; crime prevention; accessibility; and waste management.

37. Part 4 sets the development standards to be complied with including: lot size > 1000m2; site frontage > 20m; building height < 8m; not more than 2 storeys along a side boundary; 1 storey for any building located in the rear 25% of the site.

38. Part 7, Division 4 provides the development standards that cannot be used as grounds to refuse consent for self-contained dwellings. These include: a building height of < 8m; FSR of 0.5:1 or less; minimum landscaped area of 30% of the site; deep soil zones not less than 15% of the area – two thirds of which should preferably be located at the rear of the site and each area forming part of the zone should have a minimum dimension of 3m; solar access of a minimum 3 hours direct sunlight between 9.00 am and 3.00 pm in mid-winter to living rooms and private open space for at least 70% of the dwellings; private open space of 15m2 with a minimum dimension of 3m x 3m; and 0.5 parking spaces for each bedroom.

Seniors Living Policy: Urban Design Guideline for Infill Development

39. Council presses the following statements in the Seniors Living Policy: Urban Design Guideline for Infill Development (Senior Living Policy).

….it is important to emphasise that all developments should adopt a contextual approach. That is, the design should respond to both neighbourhood and streetscape character, and the opportunities and constraints offered by the specific site.

New development under the Seniors Living Policy should achieve a high standard of urban design….Consent authorities are also required to take these guidelines into consideration when assessing applications for infill development under this policy. The onus then also falls upon applicants to be familiar with these guidelines, and to use them to ensure that new development provides a high level of amenity for both new and existing residents.

There are five sections in the document, each corresponding to a key issue when designing development under the Seniors Living Policy:

- Improving neighbourhood fit

- Improving site planning and design

- Reducing impacts on streetscape

- Reducing impacts on neighbouring properties

- Improving internal site amenity

Each issue is concerned with a different scale and level of detail, and they are all interrelated; consideration of any one must be balanced with consideration of all of the others. Site planning and design is a critical concern which relates closely to the success of other aspects of the development.

40. Each section of the Policy considers the key issues to be taken into account, objectives, design principles and better practice, relevant SEPP controls and rules of thumb (suggested additional controls as guidance for good design).

Parramatta Development Control Plan 2011

41. Council presses relevant parts of Part 3 – Development Principles in PDCP 2011 including: Part 3.1- building envelope tables and setbacks; Part 3.2.1 -building form and massing; facades and articulation; roof design; streetscape; landscaping; private and communal open space; visual and acoustic privacy; acoustic amenity; solar access and cross-ventilation; safety and security; parking and vehicular access; and accessibility and connectivity.

The hearing and evidence

Objectors

42. The hearing commenced on site. A number of local residents made oral statements in addition to letters of objection included in council’s bundle of evidence (Exhibit 1). The issues raised by the objectors in both written and oral submissions include [summarised]:

• The proposed contemporary style is incompatible with the character of Grandview Parade which is representative of an older Epping and is not an area in transition;

• Inadequate response to the initial refusal of the development;

• Inadequate setbacks;

• Loss of canopy trees and their replacement with containerised plantings is at odds with the established landscape of the street;

• Failure to consider the design principles in SEPP Seniors Living;

• Despite the reduction in the number of units the bulk and scale are excessive and the proposal will dominate the streetscape;

• Increased traffic and on-street parking;

• Inappropriate architectural style, materials and colours;

• Overshadowing and overlooking of adjoining properties;

• Potential acoustic impacts on adjoining properties; and

• Sets an unacceptable precedent.

Urban designers

43. The Joint Urban Design Expert Report is Exhibit 3 in the proceedings. The parties’ experts, Mr Peter Smith for the applicant and Mr Brett Newbold for the council addressed the urban design issues in contentions 1-4, in council’s original Statement of Facts and Contentions filed with the Court on 3 May 2016. At [11]- [12] of their joint report, the urban designers agree that contentions 1-4 might be resolved by comprehensive amendments; in making their assessments the experts referred to SEPP Seniors Living, Seniors Living Policy, and LEC planning principle on seniors living [unspecified]. Their very detailed, considered, and comprehensive analysis of the Issue B plans informed the further amended Issue C plans.

44. The urban designers considered that the issues could be reduced to two broad topics – compatibility with the character of the location (the ‘location’ being all properties accessed from Grandview Parade), and residential amenity. Within these broad topics, the experts agreed that four elements of the proposal required further detailed consideration: front setback; central courtyard; internal layout; and building forms and architectural detailing. They state in [16] that :

Subject to satisfactory design amendments which address these four elements, a seniors living development that contains eight dwellings could be supported.

45. Mr Smith prepared a number of design amendments which were appended to the joint report, and which subsequently formed the basis of the Issue C plans.

46. It was agreed that the front setback concerns could be resolved if:

- The basement does not protrude into the setback;

- Landscaped areas are increased by relocating communal seating area and by consolidating pedestrian access via a ramp only – stairs to be deleted;

- Retaining walls on either side of the driveway and in front setback are reduced in height and or length;

- Balustrades around the stone-faced terrace in front of unit 8 are lowered and redesigned; and

- Screening by landscaping is improved by a cluster of at least four trees to be located in the middle of the front setback in order to block or screen sight lines from the street along the central courtyard.

- Landscaping changes would require a revised landscape plan including dimensions of species;

- Longitudinal sections through the central courtyard are required to confirm levels etc.

47. During the hearing, the urban designers prepared a table summarizing the particular issues and whether or not the Issue C plans addressed those issues and, if not, could the issue be addressed by conditions or further amended plans (Exhibit 10).

48. To assist the Court, the urban designers also prepared a number of agreed and disagreed conditions. These hand-written conditions were provided to the Court towards the end of the hearing but did not receive an exhibit number. I have called them Exhibit J for the purpose of this determination. Conditions 1-11 are agreed by the urban designers; conditions 12, 13 and 14, proposed by Mr Newbold are not agreed by Mr Smith.

49. Relevant to the issue of the front setback, the urban design experts generally agreed that the Issue C plans address the majority of the concerns identified by them and listed in [42] above. Where further conditions were required I note the following agreed conditions (as numbered in Exhibit J):

1.    That the front ramp between dwelling 1 and 8 is to be modified to provide a security gate and fence. The security gate and fence is to be provided at the top of the ramp adjacent to dwelling 1. [This also addresses concerns about safety and security].

2.    The ramp and retaining wall to be realigned to provide a 4m setback from the boundary at the southeast corner of the ramp. The area between the retaining wall and the boundary is to be exclusively deep soil and not contain any additional retaining walls.

3.    Relocate OSD tank from the front setback to a location under the building footprint.

50. Regarding the central courtyard, the experts agreed that this provides the principal pedestrian access to all dwellings in the development and offers opportunities to provide significant amenity for residents by way of visual interest, outdoor recreation, and social interaction. The urban designers agreed that the Issue B plans provided a central courtyard that was overcrowded with stairs, ramps, balustrades, pergolas, shallow planters and level changes – all of which had a direct bearing on the question of built form compatibility. At [31] of their joint report, the experts agreed that their concerns might be resolved if:

- The levels of the dwellings and pathways are rationalised to reduce the current ‘split’ configuration where balustrades and handrails dominate; this would also reduce the amount of paving in the central courtyard thus improving opportunities for social interaction and recreation;

- Lowering the heights of dwellings 2 to 4 would improve mid-winter sunlight to dwellings 6 and 7;

- Rationalised paving would also allow larger planters suitable for medium-sized trees along the full length of the courtyard; the resulting tree canopies would visually separate opposing building forms within the development;

- Creation of a common area of open space near the entries to dwellings 6 and 7 and including some of the private terraces allocated to those units;

- Points of concealment could be eliminated and passive surveillance improved by some internal reconfiguration of some dwellings and by relocation of the common lift to align with the courtyard façade of dwelling 5;

- Building an awning above the lift entry.

- Details of terrace fences are to be provided including any impacts of fences on solar access;

- Provision of comprehensive shadow analysis to confirm the amenity of the central courtyard.

51. By and large, in Exhibit 10, the urban designers consider that most of the issues have been resolved subject to details of balustrades, courtyard walls, and height of walls surrounding planters. They recommend that balustrades be transparent not opaque. There was some difference in opinion as to whether some units should be further lowered and the lift relocated. Their agreed conditions in Exhibit J relevant to the central courtyard are:

4.   Any courtyard fencing in the central courtyard is to be no more than 1.5m above the terrace of the associated dwelling. The fence shall be of a vertical picket style.

5.   Dwellings 02, 03 and 04 are to have family rooms and living space with a frontage to the central courtyard. The windows to the family room are to wrap around the corner of the entry alcove [to improve passive surveillance];

6.   The planter in front of the kitchens of dwellings 06 and 07 is to be RL 105.560. The planter in front of the living area of dwelling 07 is to be [RL] 105.200. Each planter is to be a single area not divided by retaining walls.

52. In considering internal layout, at [34] of their joint report the urban design experts agreed that relationships between dwellings and the central space have a fundamental bearing upon dwelling amenity, together with the potential to encourage social interaction between residents and provide reasonable surveillance within the development. They agreed that their concerns could be resolved by:

- Redesign of private terraces to dwellings 6 and 7;

- Swapping family rooms and bedrooms 1 or 2 in dwellings 2-4 which would improve surveillance and provide better privacy for at least one north-facing bedroom in each unit;

- Eliminate opportunities for concealment by reducing the recessed entry in dwelling 4, reconfiguration of unit 8 so that its front door may face the street, relocation of the common lift;

- Provision of corner windows to relocated living areas of units 2-4;

- Lowering ridge heights of dwellings 2-8 to improve visual impacts and solar access;

- Provision of security gates and fences;

- Screening of hallway windows in units 6 and 7.

- Provision of detailed shadow diagrams.

53. The experts agree that the Issue C plans generally resolve the internal layout concerns.

54. At [43] of their joint report, the urban designers agreed that building forms and architectural details have a direct bearing upon compatibility with character of the location and that heights of building forms have impacts in relation to amenity of proposed and neighbouring dwellings. They identify a number of problems with the Issue B plans that could be resolved by:

- Redesign of roof forms to moderate scale and achieve satisfactory built-form compatibility with the locality; in general there should be a complimentary mix of gables and skillions; in particular, the main roofs of dwellings 1 and 8 should be reconfigured as gables which run parallel to the street, eaves heights of skillion roofs that adjoin those main roofs should be lowered, and strutted roof supports should be eliminated.

- Detailed redesign of street and courtyard elevations to dwellings 1-8 would further moderate scale and contribute to satisfactory built form compatibility with existing dwellings in the locality; ‘heavy weight’ elements such as blunt eaves, cantilevered rooms and ‘thick’ hoods around windows should be eliminated; subtle variations in materials should distinguish each dwelling and contribute to visual interest; shading elements such as pergolas, awnings and verandahs should be incorporated to complement the architectural character of existing dwellings in the street;

- Improve architectural compositions of all elevations to further moderate scale;

- Lower ridge heights of dwellings 2,3,4,6,and 7 to reduce visual impacts for neighbouring backyards at 3 and 7 Grandview and to minimise overshadowing.

55. At [51] of their joint report, the experts agree that additional information and further amendments are required to fully resolve design concerns; these are:

- Semi-detached clustering of dwellings 1 and 2, 3 and 4 would allow consolidation of the narrow landscaped areas to provide a band of deep soil planting which provides a meaningful break along northern row of dwellings.

- Similarly, landscaped areas between dwellings 5-7 are narrow and should be consolidated;

- A full set of revised elevations should be provided confirming amended wall height and ridge heights and which confirm the amended building designs are architecturally well-resolved by consistent style and detailing;

- A revised palette of materials and colours to be provided;

- Additional longitudinal and lateral cross-sections to clearly illustrate finished levels, vertical alignments of structural slabs above the basement, together with soil depths that would be achieved by the planters, plus heights for ridges and exterior walls of the proposed dwellings.

56. In Exhibit 10 and in oral evidence, the urban designers note that the pitch of the roof remains at 18 degrees and should be reduced to 15 degrees as they recommended. Mr Newbold remains dissatisfied with the resolution of the roof forms. In his opinion, a complex redesign of the upper storeys and roofs is necessary and this cannot be resolved through conditions. Mr Newbold prepared a sketch plan of his proposed rationalisation and simplification of the roof forms (Exhibit 12); he also drafted additional conditions 12-14 in Exhibit J.

57. Mr Smith is generally satisfied that the agreed conditions resolve most of the issues although he agrees with Mr Newbold that a number of revised elevations and sections have not been provided. In regards to whether dwellings 1 and 2, 3 and 4 should be paired to enable consolidation of open space, Mr Smith no longer considers this necessary because the roof forms and dwellings are sufficiently articulated and each reads as a separate unit. The proposed additional gaps would not be perceived from the public domain, and daylight and natural ventilation to east facing windows would be lost.

58. The conditions agreed in Exhibit J which relate to built form and architectural details are:

7.   Roof pitches throughout the development should be no more than 15º.

8.   The external finishes are to be provided in the plans attached.

9.   The front façade of dwellings 1 and 8 are to be amended by making the following design changes:

a.    Remove struts to dwelling 8

b.    Bedroom 2 of dwellings 1 and 8 are to align with the remainder of the façade and not overhang below.

c.    The “painted blueboard” is to be replaced by weatherboard style cladding.

d.    The windows to bedroom 2 of dwellings 1 and 8 shall wrap around the corner and not contain hoods.

e.    The roof over bedroom 2, bath and study in dwelling 1 and bedroom 2 and 3 in dwelling 8 is to have a gabled roof with the ridge parallel to the street.

f.    Raise the roof over the dining room of dwelling 1 so that the ridge aligns with the parapet of bedroom 3 [see alternative below].

10.   Add a security fence in the side boundary setback between dwelling 8 and the boundary.

11.   Roller shutter in basement along grid line C.

59. In oral evidence Mr Newbold considers there are many further refinements that should be considered including relocation of parts of the upper floors, lowering of ridge and ceiling heights, modifying the roof forms, especially for unit 1, and generally making the buildings “quieter”, would make the proposal more compatible with its surroundings. Mr Smith says that while he had considered that a 300mm reduction in ridge height would be appropriate; however, in his opinion reducing the pitch of the roof will have the same effect. Mr Smith also considers that the agreed changes in roof form, the setbacks, the incorporation of a pergola, and the suggested refinements to the materials and finishes are improvements that satisfy the character test.

60. Similarly, Mr Newbold remains somewhat unconvinced by the accuracy of the shadow diagrams and whether units 2 and 3 will receive adequate solar access. Mr Smith is satisfied that the latest shadow diagrams demonstrate overall compliance.

61. The additional conditions pressed by Mr Newbold are:

12.   Dwelling 4 to have a full hipped roof with gutter level of RL 109.291.

13.   Dwelling 5 to have a full hipped roof with a gutter level of RL 108.625.

14.   Replace 9(f) with…In dwelling 1, amend the first floor plan to delete the space occupied by Bedroom 3 and replace the study with bedroom 3. Over the ground floor living area of dwelling 1 provide a gabled roof with ridge parallel to the street.

62. A final statement from the urban designers in Exhibit J:

Amendments resulting from design conditions are to be approved by council’s manager of development assessment prior to the issue of a construction certificate.

Planners

63. The parties’ planners, Ms Diep Hang for the council and Mr Stuart Harding for the applicant, prepared a joint expert report (Exhibit 2). They defer to the urban designers for the majority of the contentions.

64. The planners agree that the percentage of the site required by SEPP Seniors Living for deep soil and landscaped area now comply. They do not agree on whether two thirds of the deep soil area should be located in the rear setback.

65. Ms Hung maintains that the proposed development extends beyond the current and future rear building line expected of development within the R2 low density residential zone. In her opinion, locating most of the deep soil plantings in the rear setback provide a contiguous area of deep soil and vegetation to maintain the pattern of mid-block planting. Deep soil in the side and rear setbacks thus enables screen planting to provide amenity and privacy to neighbouring properties.

66. Mr Harding notes that the proposal has an area of 500m2 of deep soil, some 125m2 more than the minimum requirement. He opines that moving the deep soil from the sides of the site to the rear simply to achieve compliance is not a better planning outcome. Mr Harding’s view is that the deep soil at the rear provides the required buffer, given the nature of the adjacent development and compliance with other controls.

67. The only other area of difference is the adequacy of the shadow diagrams. This was considered by the urban designers in their oral evidence.

68. In oral evidence, Ms Hang considers that the changes identified by the urban designers indicate that further plans and details are required to ensure that the proposal is compatible with the character of its surroundings.

69. Mr Harding considered that at the last hearing (before Brown ASC) that the presentation to the street was deemed to be acceptable and what is now proposed will be a further improvement. He also notes that since the previous refusal, the floor space ratio has been reduced.

Other

70. In response to the granting of leave to rely on the Issue C plans, the council sought some rapid feedback from relevant council officers. Exhibits 7 and 8 are emails from council’s Senior Development Officer regarding stormwater and drainage, and council’s Tree and Landscape Officer in respect of the landscape and stormwater plans.

71. The stormwater concerns go to the location of the OSD, possible conflicts between proposed tree planting and perimeter stormwater pipes, and the location of drainage pipes and inlets for adjoining properties and garden drainage pits.

72. The landscape officer raises issues of the location of perimeter trees in relation to drainage pits and setbacks from buildings as well as the species choice. The landscape officer states that these issues have been raised before but have not been addressed by the applicant.

The applicant’s position

73. Mr McKee identifies the four elements deemed by the urban designers to require detailed consideration; in assigning a hierarchy, Mr McKee suggests that the first two items – front setback and central courtyard, have been resolved by the amendments. The narrow view up through the central spine is screened with centrally located deep soil planters which can accommodate taller trees. In addition Mr McKee notes Mr Newbold’s acceptance of the communal areas of open space in the central area and at the rear. In response to a criticism from council about the focus on the central spine, Mr McKee asserts that this is necessary in order to orientate most living areas and terraces to the north.

73. Mr McKee maintains that the essential question is what is the bulk and scale? He notes Brown ASC’s findings in [19] that a ‘deemed to comply’ FSR of 0.5:1 will have a character different to the existing character but would be deemed to be acceptable in terms of density and scale. The proposal now has an FSR of less than 0.5:1 and apart from the majority of the deep soil at the rear of the site; there is compliance with all key elements of the SEPP. Mr McKee maintains that the proposed development is completely consistent with the rhythm of the street and that the setbacks are appropriate.

74. Regarding the streetscape, which Mr McKee contends is the key issue. He highlights the changes to the front setback including a new street tree, increased landscaping, and the provision of a low wall. Mr McKee notes the fact that there will be two dwellings facing the street and the roof elements which have been modified. Mr McKee stresses that all of these changes ensure the proposal is compatible with the streetscape character and meet the guidelines in the Seniors Living Policy.

75. In respect of neighbour issues, Mr McKee refers to the letter (Exhibit F) written on behalf of the owners of the property to the south, the most affected property, who advise they no longer object to the proposal as long as there is substantial landscaping of an appropriate level of maturity provided along the southern boundary in order to mitigate the visual impacts of the development. He also considers the relationship with the neighbour to the north to be acceptable. In regards to a complaint from the owner of 9A Grandview Parade about visual and acoustic privacy Mr McKee notes the separation distance between the development and that property as well as the relative height of the new dividing fence which will screen the majority of dwelling 4. He submits that the rear setback of 7.5m to the wall of unit 4 is acceptable when combined with the 3m setback of the villa development to the west.

76. On the issue of internal amenity, in response to Mr Newbold’s concerns about unnecessary voids and the resultant height of units 2, 3 and 4, Mr McKee contends that these are to allow additional light into the living rooms thus providing a high level of amenity. He stresses that all except units 2 and 3 achieve the minimum hours of sunlight required by the SEPP.

77. Concerning the final item on the list – building form and architectural details Mr McKee describes these as the “icing on the cake”. In regards to the difference in opinion between the urban designers about some of the details, Mr McKee presses the Planning Principle in Architects Marshall v Lake Macquarie City Council [2005] NSWLEC 78 where the former Senior Commissioner Roseth considered the weight to be given to an expert’s opinion about the appropriateness of a building’s style, character, material or colour. He asserts that Mr Newbold’s suggestions about further improvements are opinions which are personal and which go to detail rather than the substance of the matter. Although on the matter of architectural details, Mr McKee notes the agreed materials and finishes; the deletion of window hoods, louvres and steel struts; the inclusion of a verandah/ pergola; lowering of retaining walls; balustrade changes; and agreed change in roof pitch to 15 degrees.

78. Mr McKee concludes that the proposed development should be approved.

The council’s position

80. In final submissions, Mr Nash contends that although the FSR has been reduced, the character test remains. He asserts that there has been no substantial change in the proposal that Acting Senior Commissioner Brown assessed and refused in 2015 and what is now proposed. He cites paragraphs [17] and [18] of that judgment to support his contention that the proposal is still out of character with its surroundings.

[17]   In considering how the development relates to the surrounding nearby development and the specific provisions in SEPP Seniors, I agree with the conclusions of Ms Hang, but not for all the reasons she states in her evidence. Ms Hang and Mr Harding agree that the area is not a precinct undergoing a transition, as referred to in cl 33(a). The desirable elements of the location’s character were more accurately described by Ms Hang as a one and two storey attached residential development. In my view, a more expansive description would include that the one and two storey developments are generally set in a landscaped setting, with the dwelling located near the street frontage and the rear area used for the recreational needs of the occupiers. The multi-unit housing development opposite the site is more of an aberration to this established character and should not be used in any consideration of determining the general character of the area.

[18]   I am satisfied that the proposed development will have unacceptable impacts on existing uses by way of its bulk, scale and built form on the surrounding low density residential development. The proposal does not recognise the desirable elements of the location’s current character, largely because of the amount of floor space spread across the site and the visibility of this floor space from adjoining residential properties, brought about largely by the small rear and side setbacks.

81. Mr Nash submits that Mr Newbold has maintained his position that further improvements to architectural style and built form of the development are required, in particular the lowering of ridge heights and ceiling heights and modifying the roof forms, in order for the proposed development to be compatible with the surrounding land uses. He contends that these differences between the urban designers are more than simple details and go directly to council’s primary concerns regarding the uncharacteristic built form of the proposal in its setting in Grandview Parade. Mr Nash presses Mr Newbold’s evidence in full.

82. Apart from the uncharacteristic built form, Mr Nash asserts that the applicant is relying very heavily on landscaping for which there is no definitive statement on the type and extent of landscaping that would be required; as such this reliance should be given little weight. He cites the Planning Principle in Super Studio v Waverley [2004] NSWLEC 91 at [6] where former Senior Commissioner Roseth states:

6 The second principle is that where proposed landscaping is the main safeguard against overlooking, it should be given minor weight. The effectiveness of landscaping as a privacy screen depends on continued maintenance, good climatic conditions and good luck. While it is theoretically possible for a council to compel an applicant to maintain landscaping to achieve the height and density proposed for an application, in practice this rarely happens.

83. In Returning to Brown ASC’s decision, Mr Nash contends that it is not just a matter of viewing the proposal from the street, the views from neighbouring properties and likely internal views should also be considered.

84. In regards to other planning matters, Mr Nash submits that the controls in PDCP remain relevant and SEPP Seniors Living does not overcome the need to undertake a merit assessment under s 79C of the Act. He notes the agreement that the proposal is a form of multi dwelling housing and therefore the building envelope controls in Part 3.1 PDCP are applicable; in particular the rear setback control of a minimum 15% of the site, which in this case is 9m. Mr Nash asserts that this would be more in keeping with the properties to the north and south and more deep soil could be located in the rear as suggested by the SEPP. He also reiterates council’s experts’ concerns as to the accuracy of the shadow diagrams. While the sunlight to living rooms may be compliant for 70% of the dwellings, there are still concerns about the amount and quality of sunlight to the living room of unit 1 and terrace of unit 7. Similarly, while access between units has generally improved, Mr Nash highlights the blocked access between units 7 and 8 and the absence of an updated accessibility report.

85. Overall, Mr Nash contends that the proposal still fails to respond to the character of the area and does not adequately respond to the relevant matters in the Seniors Policy or all applicable controls in PDCP and for these reasons the appeal should be dismissed.

Consideration

86. Section 79C(1) of the EPA Act requires the consent authority to take into account a range of matters relevant to the proposed development including any environmental planning policy, any development control plan, likely impacts of the development, suitability of the site, any submissions made, and the public interest.

87. It is agreed that SEPP Seniors Living effectively permits medium density forms of development in low density residential areas however, in doing so cl. 40 sets development standards to be achieved. The maximum building height for development in residential zones is 8m or less. I note that while the majority of the development complies with this limit, Driveway section 01 on Drawing DA-08 shows a portion of unit 8 above this height limit; this was not identified by any of the experts.

88. Clause 50 lists the standards that cannot be used to refuse development consent for self-contained units, including in-fill development. The proposal complies with these standards with the exception of the height exceedence identified above and the preference that two thirds of the deep soil zone be located at the rear of the site. In regards to deep soil, and notwithstanding the established character of the western side of Grandview Parade is that the majority of deep soil areas are located in the rear portion of the lots, I accept the applicant’s position that in this instance, distributing the deep soil zones throughout the site enables potentially better amelioration of the visual dominance of the built form across the site and the proposal should not be refused on the basis of the distribution of deep soil zones.

89. Overall, I am not satisfied that the Issue C plans adequately respond to the issues identified by the urban designers in their joint report; this is underlined by the number of further amendments recommended during the hearing. For example, the Issue C plans include a number of incongruous features, in particular the heavy struts on sections of the roof overhang, and which needed further consideration by the urban designers. Neither am I fully satisfied that the proposal has sufficiently responded to council’s contentions, in particular compatibility with the surrounding land use and aspects of PDCP.

90. As the design changes were effectively done “on the run” I am not satisfied that conditional approval can be granted. In my view, the agreed additional changes recommended by the urban designers, which I consider should be implemented as a bare minimum, will require a full suite of plans as some of the recommended design amendments will have consequences for other essential aspects of the proposal and other consequences may be unforseen without further detailed drawings. In essence, these would be Issue D plans. There is insufficient certainty to impose the urban designers’ suggestions as formal conditions, including as deferred commencement conditions. Given the number of times these plans have already been amended, and after many hours of thought, I am reluctant to prolong the uncertainty by agreeing to an “amber light” approach.

91. For example in regards to drainage and stormwater, the OSD will have to be relocated and new calculations and details may be required to accommodate drainage from the planter boxes. Where will this be located? During the hearing, feedback from council’s engineering and landscape officers in response to the Issue C plans identified other potential conflicts between stormwater pipes and landscaping and pipes from adjoining properties. Similarly, the recommendations to reduce the pitch of the roof from 18º to 15º, to change the roof form and to set back certain elements, all of which prima facie seem appropriate, may have implications for the internal layouts of rooms.

92. In regards to the feedback from council’s landscape officer, no contentions were raised about the species choice or the location of the trees. It would seem to me that small to medium deciduous trees, possibly other than Sapium, can provide better amenity than natives if winter sun is required. Similarly requiring a setback of 3.5m to the outside wall of a structure would seem to preclude tree planting from many developments and would therefore seem counter-productive. However, the comments in regards to drainage are reasonable and consistent with other observations made in this judgment.

93. In principle I am satisfied that the further agreed amendments which simplify the street frontage, remove excessive paving, incorporate more deep soil landscaping and modify the architectural detailing of units 1 and 8, are such that the impact on the streetscape is acceptable and should not be a reason for refusal. In regards to Mr Newbold’s additional suggestions for further modifications of roof forms, I find that the minimum agreed modifications would probably suffice.

94. However, notwithstanding a ‘cannot refuse’ FSR, I find that the massing of the dwellings across the site, six of which are two storey, and the limited separation distances between them will have unacceptable visual amenity impacts on the surrounding low density residential development and on the internal visual amenity of future residents.

95. Section 1 of the Seniors Living Policy directs a user of the policy to council controls that may identify elements that contribute to character. While I note that the urban designers considered the urban design aspects of the SEPP and the associated Policy, they do not appear to have had regard to PDCP.

96. As considered during the hearing, the proposal is a form of multi-dwelling housing. Part 3.3.3 PDCP considers visual and acoustic privacy. Control C4 which applies to this form of housing provides controls of between 3m and 12m between various habitable/non-habitable rooms and areas of private open space. While the urban designers appeared to accept the internal separation is satisfactory by relying on the enhanced landscaping suggested by them, I am not satisfied that this can be relied upon absent more detailed landscape/ architectural plans which demonstrate that there is sufficient volume of drained soil for sustained success. Further, the surrounding character is one of detached dwellings with clear separation between them. While full compliance with the separation controls would be unreasonable, given the intent of the SEPP, some further separation of the units, without encroaching onto any of the current setbacks or compromising areas of private open space, would assist in reducing the visual impact of the massing of built form, both from within the development and from the adjoining properties. In essence, this is consistent with the second planning principle proposed by former Senior Commissioner Roseth in GPC No 5 (Wombarra) Pty Ltd v Wollongong City Council [2003] NSWLEC 268. The planning principles in that judgment consider the issue of compatibility between a SEPP 5 (the SEPP replaced by SEPP Seniors Living) development and the surrounding low density residential zone. At [16] he states:

16 The second principle is that where the size of a SEPP 5 development is much greater than the other buildings in the street, it should be visually broken up so that it does not appear as one building. Sections of a building, or separate buildings should be separated by generous breaks and landscaping.

97. However, if the further amended plans demonstrate that the proposed landscaping is sustainable and that modifications to the roof form result in better internal and external visual amenity, further separation may not be required for all or any of the units.

98. In regards to the submissions made by residents, traffic and on-street parking issues were not raised by council. Subject to confirmation by a swept path analysis, the proposed level of parking complies with the SEPP. The further changes recommended by the urban designers should address the concerns about architectural details, character and visual impact.

99. Overall, I consider that the site is suitable for a Seniors Living development and is generally in the public interest.

Conclusions and Orders

100. It is clear from the zone objectives that a Seniors Living development is permissible and could be accommodated on the site and with some further amendments, should be capable of approval. While I accept, as did Brown ASC, that applications lodged under SEPP Seniors Living will have a different appearance to the low density residential character of the area, the SEPP and the Policy consistently refer to ‘good design’, the need to provide ‘high level amenity’ and the need to respect the privacy and amenity enjoyed by existing neighbouring properties. As Grandview Parade is not an area undergoing transition a more sympathetic contextual approach, as encouraged by the Policy, is required. Although the Issue C plans appear to have achieved a better outcome than the Issue B plans, they have not gone far enough.

101. For the reasons provided, the Orders of the Court are:

1. The applicant is granted leave to rely on amended plans (Issue C).

2. Pursuant to s 97B of the Environmental Planning and Assessment Act 1979 the applicant is to pay the respondent’s costs thrown away as a result of amending the development application as agreed or assessed.

3. The appeal is dismissed.

4. Development Application DA 874/2015 to demolish existing structures on two lots, consolidate the lots, and construct an in-fill, self-care residential development comprising eight units at 5-7 Grandview Parade Epping is refused.

5. The exhibits are returned.

________________________

Judy Fakes

Commissioner of the Court

**********

Decision last updated: 21 July 2016