Matthews v Pittwater Council

[2009] NSWLEC 1115

Land and Environment Court

of New South Wales

CITATION:

Matthews v Pittwater Council [2009] NSWLEC 1115

PARTIES:

APPLICANT
Garth Matthews

RESPONDENT
Pittwater Council

FILE NUMBER(S):

10838 of 2008

CORAM:

Hussey C

KEY ISSUES:

DEVELOPMENT APPLICATION :- Seniors Living Development, streetscape, side setbacks, impact on neighbours, parking.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004
Pittwater Local Environmental Plan 1993
Pittwater 21 Development Control Plan
Pittwater Development Control Plan 30 – Pittwater Flood Risk Management.

DATES OF HEARING:

28/11/2008 and 10/02/02009

 
DATE OF JUDGMENT: 

24 April 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mr G. Green, solicitor
of Pikes Lawyers

RESPONDENT
Ms S. Puckeridge, solicitor
of Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

24 April 2009

10838 of 2008 Garth Mathews v Pittwater Council

JUDGMENT

Background.

1 This appeal was lodged against council’s refusal of a development application for the demolition of 2 existing dwellings and construction of a 6 unit, seniors living development at 15 and 17 Heath Street, Mona Vale.

2 The issues initially identified for the appeal are summarised as follows:

• Unsatisfactory character, streetscape and design, with particular reference to site coverage and side setbacks.
• Internal amenity in terms of accessible bedrooms, solar access and car parking.
• Accessibility relative to access to public transport.
• Flooding risk.
• Amenity and privacy impacts on neighbours.

3 The determination of this application is subject to the provisions of the State Environmental Planning Policy (Housing for Seniors or People with aDisability) 2004 i.e. (SEPP). It aims to increase the supply and diversity of residences that meet the needs of seniors or people with a disability. These objectives are to be achieved by the setting aside of local planning controls that would prevent this type of development that complies with the specified controls. Notwithstanding this, reference can be made to the local controls to identify the desired future character of the area.

The site

4 The site comprises Lot 42 in DP 211667 (No 15 Heath Street) and Lot 41 (No 17 Heath Street). It has a total area of 1906 sq m and is generally rectangular in shape, with a street frontage of 31.26m.

5 Both lots contain detached dwellings and No 15 has a single carport towards the front of the dwelling. Number 17 also has a single carport at the front of the building and an in-ground pool and shed located in the rear yard.

6 The surrounding locality contains a mix of single residential dwellings, both 1 and 2 storey, 3 storey walk up apartment buildings constructed in the 1960s – 1980s and more recent dual occupancy developments. To the east of the site is a residential flat building (No 19) with carports at the rear. The driveway to the carports is adjacent to the subject property. To the west is a single storey dual occupancy (No 13A and 13B) that extends along the side boundary.

The proposal

7 This proposal involves the demolition of both dwelling houses to enable construction of a 2-storey building containing 6 x 3 - bedroom, self-contained dwellings for seniors living pursuant to the Seniors Housing SEPP.

8 The building comprises 2 town houses (TH1 & TH6) facing Heath Street, which are separated by a common driveway of variable width. Townhouses 1 –3 are located on the eastern side and have 2 – car garages. Town houses 4 –6 are located on the western side and have larger, single garages. A visitor car space is located in the front set back area adjacent to unit 6.

Planning controls

9 Pittwater LEP 1993; under which the site is zoned Residential 2(b). It is designated as Dual Occupancy – Area 3, which permits dual occupancy developments. Appropriate seniors living developments are permitted in this zone.

10 The following controls also apply to the site:

• State Environmental Planning Policy (Housing for Seniors and People with a Disability) 2004.
• SEPP 1 – Varying Development Standards.
• Pittwater 21 DCP.
• Pittwater DCP 30 – Pittwater Flood Risk Management.

11 Detailed evidence was presented by:

• Mr R Player; consulting planner for council.
• Mr G Boston; consulting planner for the applicant.
• Mr J Storer; access consultant for council.
• Mr M Relf; access consultant for the applicant.
• Mr R Nettle; traffic consultant for the applicant.
• Ms S Ribbons; council drainage engineer.
• Mr D Bewsher; consulting hydraulic engineer.

12 In addition to this, several residents presented other evidence about the impacts of the development.

Streetscape, character

.

13 This issue of streetscape presentation of the development was raised in terms of the impact of the central driveway, excessive site coverage, inadequate setbacks and unsatisfactory landscaping. However the applicant responded to these matters with amended plans, which the planners now agree do not represent excessive site coverage and “will not have an adverse impact on the mixed residential character and streetscape of Heath Street, Mona Vale, such as to warrant refusal of the development application”.

14 In this regard, I note that the prevailing control is the SEPP and associated Seniors Living Policy (Policy), which have precedence over the local controls in the DCP. The policy states that infill development needs to achieve an harmonious fit with the existing streetscape character or desired future character. The associated design objectives are:

• To minimise impacts on the existing streetscape and enhance its desirable characteristics.
• To ensure that new development, including the built form, front and side setbacks, trees, planting and front fences, is designed and scaled appropriately in relation to the existing streetscape.
• To minimise dominance of driveways and car park entries in the streetscape.
• To provide a high level activation and passive surveillance to the street.

15 It is apparent from the view that this part of Heath Street contains a mixed form of developments. This includes a number of single dwelling houses, the adjoining residential flat building at No 19 and the single level dual occupancy adjoining at No 13A and 13B. The proposed development is of a contemporary design with considerable articulation, incorporating increased side boundary setbacks at the upper level. The front setbacks include ramps suitable for persons with a disability and attractive landscaped courtyards and front set back areas.

16 The amended development on the 1906 sq m site results in an FSR of 0.58:1, a site coverage of 58% and a remaining landscaped area of 42%. The SEPP contains a list of standards that cannot be used to refuse consent for self-contained dwellings. This includes an FSR of 0.5:1 or less and a minimum landscaped area of 30%.

17 Insofar as the development has an FSR of 0.58:1, nevertheless the overall development provides reasonable landscaped areas, resulting in the agreement by the planners the development is not of excessive bulk and scale in its context. However in the assessment of the streetscape impact, there was some disagreement regarding the initial proposals western side boundary setback of 1m (and variable), particularly adjacent to TH6.

18 Nevertheless Mr Boston supported the initial proposal on the basis the building articulation and upper level setbacks and complimentary landscaping. But, Mr Player initially expressed concerns about the adequacy of this proposed 1m western side boundary setback. He preferred that this be increased to a minimum of 2m and preferably 2.5m to achieve a good development.

19 The western side setback of the proposal impacts on both the streetscape and amenity of the neighbouring dual occupancy. This setback area also incorporates landscape screening and is required to allow for an overland flow path for drainage. Accordingly, the width of the set back effects these requirements.

20 In response to these concerns, this western side setback has subsequently been increased to 2m for most of the ground floor elevation, except for approximately 8.5m adjacent to the living room of TH5. Also, some design amendments have been undertaken to the building layout.

21 Consequently, I am satisfied from the evidence and view that the amended design is of an attractive contemporary nature, which is compatible with the character of the area. I rely on the agreement of the planners that this development does not represent excessive site coverage. Furthermore, I am satisfied that the 2m side setback, with appropriate landscaping will enhance the existing streetscape, notwithstanding Mr Player’s preference for a further increase to 2.5m, which I consider would have marginal, if any streetscape benefit.

22 In this regard, I also accept the applicant’s submission that the landscaped and curved alignment of the at-grade central driveway is consistent with the streetscape and preferable, rather than an alternative down ramp to basement parking, for a seniors living development in this location.

Side boundary impacts

23 As I have previously noted, there is a separate concern about the amenity impacts of this western elevation, particularly the loss of privacy, solar access and overbearing outlook for No 13A & 13B Heath Street. This objection remains despite the amendment to incorporate a predominant minimum side boundary setback of 2m at ground level, except the 8.5m wall section of TH5 and further upper level variable setbacks. This is in the order of 5 m for the front TH6 and reduces to approximately 2.5m for part of the rear TH4.

24 The Policy provides that the design objectives to minimise impacts on neighbours as follows:

• to minimise impacts on the privacy and amenity of existing neighbouring dwellings,
• to minimise overshadowing of existing dwellings and private open space by new dwellings,
• to retain neighbours’ views and outlook to existing mature planting and tree canopy,
• to reduce the apparent bulk of development and its impact on neighbouring properties,
• to provide adequate building separation.

25 The associated rules of thumb state that where side setbacks are less than 1.2m, then a maximum of 50% of the development should be built to this alignment. Also, the length of unrelieved walls along narrow side or rear setbacks should not exceed 8m and neighbouring living rooms should receive a minimum of 3 hours direct sunlight in mid-winter.

26 In assessing the impacts of the proposal on Nos 13A and 13B, I firstly note that there are no specific setbacks in the Policy. Taking into account the setback of TH5, it appears to me that the amended proposal comfortably complies with the minimum side setback ‘rules’, notwithstanding a departure from the DCP controls. Also, the amendments have incorporated a reasonable degree of articulation along this boundary, together with careful inclusion of building elements and materials near the living areas to minimise amenity impacts.

27 This includes some full-length windows on the western elevation of TH6, the top of which can be seen over the proposed 2m high boundary fence, through intervening landscaping, which would tend to reduce the bulk. This western elevation also incorporates a variety of external louvres over the windows to provide privacy and solar control.

28 Whilst the neighbours consider the length and height of the sidewalls are excessive and overbearing, I am satisfied that the modified design is a satisfactory response to the site constraints, which allow a reasonable amount of development along the side boundaries. The length of development is consistent with the elongated dual occupancy development at No 13A and 13B and the main living areas in the new development have been designed and screened to minimise impacts on the neighbouring properties.

29 This includes the main outdoor terraces for TH6 and TH 4 being oriented towards the front and rear boundaries, which should reduce amenity impacts. I have also taken into account the planners agreement that the proposal does not result in any undue shadowing of the neighbouring properties, noting that there is a living room (No 13A) along the side boundary. Insofar as objections were made that the lengthening of the sidewall at TH6 would obliterate breezes and exacerbate solar impacts, I do not consider these are of such magnitude to warrant rejection of the proposal.

30 With regard to the 1-1.2 m setback for TH5, this is mainly adjacent to the service rooms of No 13A. In this location, the upper level is setback 3.5m and again the building envelope is compliant with that allowed and I do not consider unreasonable amenity impacts should arise. In any case, it is probable that a single 2-storey dwelling could alternatively be built under the DCP controls, with similar impacts.

31 Accordingly, I am satisfied that this development is an attractive design, which contains design elements that minimise impacts on neighbours. As such it reasonably satisfies the Policy guidelines, in my assessment.

32 I do however note the neighbours concerns about the proposed landscaping along the western boundary and their request that any landscaping be limited to a maximum height of 4m and not protrude over the boundary fence, so as to minimise amenity impacts. This request seems reasonable and the landscape plan should be revised to ensure the maximum height of appropriate species is 4m, with canopy contained within the property (i.e. replace the designated palms) and the plantings do not impede the overland stormwater function of the side boundary.

33 I have also considered the various objections from the property owners in No 19 Heath Street concerning impacts of the proposal. However taking into account the driveway inside No 19 along the common boundary, I am satisfied that the separation distance, together with the proposed landscaping, should result in a satisfactory environmental outcome adjacent to this boundary, relative to a seniors living development.

Drainage

34 As noted previously, an overland flow path is required through the property because of the low-lying level of the site and flooding risks. Ms Ribbons and Mr Busher, who agree that the proposed building levels are satisfactory in terms of flood risks, have assessed this matter. Furthermore, that the proposed overland flowpath along the western boundary can be successfully implemented, to achieve acceptable flood protection risks. I rely on the engineer’s agreement in this regard and conditions of consent can cover this.

Internal amenity

35 This matter initially concerned the location of bedrooms, various internal detailing and location of the garbage storage bins. However, the amended plans provide for a master bedroom and bathroom on the ground floor, which results in adequate amenity and compliance with the requirement of the Policy in respect of any disabled access requirements. Other detailing matters concerning door widths/access have been undertaken and I understand there are no objections remaining in this regard by the respective experts.

36 Some concerns were expressed about the location of the garbage storage areas. Initially the SEPP required the provision of an accessible outside location. But this requirement has subsequently been relaxed and the proposal incorporates spaces within the garages. Whilst there may be some inconvenience associated with this location, nevertheless the garages are well set-out to facilitate an orderly transfer of garbage by the residents. I do not consider this aspect requires further amendment.

Parking

37 Another issue relates to the suitability and convenience of the central driveway proposal. As some of the units contain a 2-car garage, concerns were expressed about the adequacy of the separation between the units to permit safe access, particularly reversing manoeuvres. Mr Nettle provided a swept-path analysis, concluding that the development will provide a safe environment for pedestrians and motorists and there is sufficient area for convenient manoeuvring, assessed the proposed turning paths.

38 Whilst there may be some occasional restrictions for parking a second vehicle in a garage, this is a compact seniors living development, where the driveway is relatively short and the occupants will be able to familiarise themselves with the access arrangements. In any case, the site visibility is good and on this basis, I accept Mr Nettle’s opinion that the access arrangements are satisfactory.

39 A separate concern raised by Mr Storer is that the visitor car parking space is inadequate because of its reduced length of 5.5m and restricted reversing area. Insofar as the stated car space dimension is 3.2 m x 6 m in the SEPP, there was some uncertainty as to whether this is to be taken as a development standard, in respect of visitor car parking spaces, rather than only applying to private car accommodation.

40 Accordingly, the applicant decided to adopt a cautious approach and lodge a SEPP 1 objection and I accept this approach is reasonable in the circumstances that appropriate visitor car parking arrangements be provided in seniors living developments. The applicant’s main contention is the proposed 5.4m (modified to 5.5m actually) is acceptable given the discretion allowed under the provisions of cl 3.7.2 of AS 4299 – Adaptable Housing.

41 This objection is based on the proposition that cl 56 (a) of the SEPP represents a development standard. In the absence of any explicit objectives, the underlying objective is taken to “ensure that a car parking space (not being car parking for employees) is of sufficient dimension to enable people with disabilities to access and egress a vehicle”.

42 The objection states that the proposal is to vary the ‘standard’ by providing an alternate dimension for the visitor car parking space, which complies with AS 4299. This allows a reduction in the length of the space from 6m to 5.4m when there is a level area at the same grade as the parking space of at least 600mm as is the circumstances in this particular case. The 600mm additional space will be wholly accommodated within the alignment of the adjacent pedestrian pathway.

43 Consequently, the objection is that the requirement for strict compliance with numerical 6m length is unreasonable and unnecessary in this case.

44 Apart from this, Mr Relf provided a further statement regarding the visitor space and said that in his opinion cl 36(b) of the Seniors Living Policy is applicable and the general provisions of As 2890.1 are applicable, which prescribes a minimum length of 5.4m. He says that the proposed visitor space is well located at the front of development affording it a high level of visibility. As it is somewhat wider at 3.5m, this will assist in any access and manoeuvring. Also, that:

“the shared access central driveway for this small development of six (6) dwellings provides a design with clear sight lines and ample passing areas to enable satisfactory access and pedestrian safety to satisfy clause 36(b) of the Seniors Living Policy.”

45 In the circumstances of this matter, I am satisfied to rely on evidence of Mr Relf and accept the proposed visitor car space is satisfactory because it is wider than prescribed thereby allowing reasonable access and manoeuvrability, there is good visibility and the traffic environment is of low intensity. Therefore the SEPP 1 objection should be allowed.

External access

46 The satisfaction of the SEPP controls also requires compliance with access to external transport facilities. In this case, there is a bus stop in Barrenjoey Road, just south of Bassett Street. As the access route to it has limited accessibility, the applicant proposes upgrading works identified by Mr Relf and agreed to by Mr Storer. These works involve improved street crossings and upgrading of the path paving and are included in the conditions of consent. I rely on the access experts opinion that these conditions satisfactorily address this matter.

Conclusions

47 Having considered the evidence, the submissions and undertaken a view, I consider this application merits conditional consent. The proposal involves an attractive contemporary design, which includes a convenient internal layout that demonstrates comfortable compliance with the relevant design guidelines for a seniors living development.

48 Insofar as it results in a changed form of development to that currently existing on the site, it nevertheless is consistent with the aims of the SEPP to encourage well-designed dwellings for seniors and disabled persons, in my assessment. Whilst I accept that this changed form of development will impact on the neighbouring dual occupancy development at No 13A and 13B, I am also satisfied that the development along the western side has been designed to minimise external impacts on neighbours, as stated in the Policy.

49 In this regard, I have considered Mr Boston’s support for the proposal, together with Mr Player’s opinion that the western side set back be further increased to 2.5m, which he considered would result in a “good development” as compared to an “acceptable development” based on the predominant 2m side set back. It seems to me that this further setback would be of little, if any material benefit to the amenity of No 13A and 13B considering the relationship of the respective outdoor recreation areas and service area.

50 Whilst the form of the development varies to that allowed under the DCP, the prevailing control is the SEPP and this proposal is consistent with its provisions and therefore the consent is granted.

51 The Court orders that:

1 The appeal is upheld.
2 Development consent is granted to DA No N003/07 for the demolition of the dwelling houses at 15 and 17 Heath Street, Mona Vale and the construction of a seniors living development comprising 6 self contained dwellings and associated car parking pursuant to the provisions of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 and strata subdivision subject to the conditions in Annexure A.
3 The exhibits be returned except AA, BA and 5A.

_________________________
R Hussey
Commissioner of the Court
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