McNamee v Baulkham Hills Shire Council

[2005] NSWLEC 625

Land and Environment Court

of New South Wales

CITATION:

McNamee v Baulkham Hills Shire Council [2005] NSWLEC 625

PARTIES:

APPLICANT
Peter McNamee

RESPONDENT
Baulkham Hills Shire Council

FILE NUMBER(S):

11137 of 2000

CORAM:

Bly C

KEY ISSUES:

Appeal :- Height - bulk - scale - amenity and character - building separation - building design - density - carparking

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Baulkham Hills Local Environmental Plan 1991
Development Control Plan No. 6 - Apartment Buildings
Development Control Plan No. 12 - Parking

DATES OF HEARING:

22-23/09/2005

 
DATE OF JUDGMENT: 

11/08/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr A Pickles, barrister
Instructed by: Mr B Goldsmith of BTGoldsmith Planning

RESPONDENT
Mr N Howie, solicitor
Instructed by: Wilshire Webb

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

8 November 2005

11137 of 2000 Peter McNamee v
Baulkham Hill Shire Council


JUDGMENT

Introduction

1 In a judgement dated 28 January 2004, Roseth SC, upheld an appeal and granted conditional development consent for the erection of two residential flat buildings containing a total of 34 dwellings at No. 9 Garthowen Crescent and Nos. 286A, 288 and 290 Old Northern Road, Castle Hill ("the consent"). The building having a frontage to Garthowen Crescent is referred to as Building A and the building having frontage to Old Northern Road is referred to as Building B.

2 The applicant now seeks to amend that consent under s 96AA of the Environmental Planning and Assessment Act 1979 as follows:

(a) The deletion of Condition 1 and its replacement with an amended condition that refers to amended plans that:
• Delete basement level 2.
• Increase the size of basement level 1 and provide five pairs of stacked car parking spaces.
• Delete four dwellings and reconfigure 29 dwellings.
• Increase overall building height by approximately 400 mm as a result of increasing internal ceiling heights to 2.8 m.
• Decrease certain building setbacks.
(b) The deletion and replacement of Condition 42 in relation to the tree planting plan.
(c) The deletion and replacement of Conditions 67 and 68 in relation to access to the site during site clearing and construction works.

The site

3 The site has an area of 3985 sq m with a frontage of 85 m to Old Northern Road and a frontage of 27 m to Garthowen Crescent. Its side/western boundary adjoins a public walkway.

4 The site is located just to the east of the Castle Hill Town Centre. The surrounding area generally comprises detached dwellings, dual occupancy development and town houses.

5 Having considered all of the evidence, including the site inspection, I have concluded that the following are the relevant issues that arise in the context of the proposed changes to the development.

• Whether the development as amended would be substantially the same as that referred to in the consent.
• Whether the revised car parking arrangement would be satisfactory, taking into account the number of car parking spaces provided, their location and arrangement
• Whether the now proposed built form in terms of height, bulk and setbacks would be in character with the surrounding built environment especially in relation to its streetscape presentation and taking into account the existing and likely future character of the area.
• Whether the site works, especially the associated vehicles using Garthowen Crescent would adversely affect the amenity of the surrounding residential area.
• Whether the revised landscaping arrangement particularly in relation to the provision of trees would be satisfactory.

6 The issues relating to site works and landscaping have now been resolved with the agreement as to revised Conditions 42, 67 and 68. I am satisfied that these conditions appropriately deal with these matters.

Statutory provisions

7 Relevant to the original development application as determined by Roseth SC, the zoning of the subject land was Residential 2(a) under Baulkham Hills Local Environmental Plan 1991 ("the LEP") and in this zone apartment buildings are permissible with development consent. The LEP has since been amended and the site is now zoned Residential 2(a2). In this zone apartment buildings are prohibited. However this does not prevent the amendment of the consent.

8 It was argued on behalf of the respondent that the objectives of the 2(a2) zone were relevantly applicable to this amendment application. In the circumstances however it is my view that whilst these objectives can be given some weight because they provide an indication of the likely future character of the surrounding area they should not be given determinative weight. The fact that the original application was appropriately dealt with under the savings provisions in the LEP lends weight to this conclusion.

9 The objectives of the 2(a2) zone said by the respondent to be relevant are:

(b) to ensure that building form (including alterations and additions) is in character with the surrounding built environment and does not detract from the amenity enjoyed by nearby residents or the existing quality of the environment.
(c) to ensure that any development carried out:
(i) is compatible with adjoining structures in terms of elevations to the street and building height.
(ii) has regard to the privacy of existing and future residents.

10 Also applicable at the time of the original development application is Development Control Plan No 6 - Apartment Buildings ("the DCP"). Clause 1.2 of DCP 6 provides that:

This Development Control Plan applies to land where, under the provisions of Baulkham Hills Local Environmental Plan 1991 , apartment building development is a permissible use.

11 Clearly DCP 6 does not now apply to the subject site because apartment building development is not a permissible use. Despite this I am of the opinion that its provisions can be taken into account.

12 The relevant objectives for setbacks in s 5.3 of DCP 6 are:

(i) to provide setbacks that compliment the setting and contribute to the streetscape and character of the street while allowing flexibility in siting of buildings.
(ii) to ensure that space in front of the building is sufficient to permit landscaping that will compliment the building form and enhance the landscape character of the street.
(v) to ensure placement of buildings takes into account the retention and protection of existing trees.

13 Section 5.3 contains numerical setback standards as follows:

Setback
Front (one street frontage)	10 m
Front (two street frontages) Primary Frontage Secondary Frontage	10 m 6 m
Side	6 m
Rear	8 m

14 Also applicable is cl 4.1 of Development Control Plan No 12 - Parking ("DCP 12") that relevantly requires the provision of 67 car parking spaces including visitor parking. Stacked parking is not permitted.

15 The application was advertised and 14 letters of objection were received. A subsequent conciliation conference resulted in a number of changes to the proposal. Despite these changes the application was refused for reasons relating to:

• The proposal is substantially different to the approved development.
• The proposal is unsatisfactory in relation to height, bulk and scale, amenity and character and is contrary to the associated objectives of the LEP.
• The proposal is unsatisfactory in relation to setbacks, building separation, building design, density and car parking and does not comply with the associated objectives and standards in DCP 6.
• Overall the changes would result in the proposal being an overdevelopment of the site.
  

The evidence

16 Mr S Kennedy an architect gave evidence as the Court-appointed expert in relation to urban design and architecture. Expert town planning evidence was given on behalf of the respondent by Miss D Tillott and on behalf of the applicant by Mr B Goldsmith.

17 The hearing began on-site when the Court heard from a number of resident objectors who elaborated on their written concerns.

Substantially the same development

18 Section 96AA of the Environmental Planning and Assessment Act 1979 provides for the modification of development consents granted by the Court. The modification of such consents is constrained by subs (1)(a), which relevantly requires the consent authority to be satisfied that the consent as modified is substantially the same development as the development for which the consent was originally granted.

19 Miss Tillott did not accept that the development as modified would be substantially the same, taking into account the cumulative impact of all of the proposed changes including the deletion of a whole level of basement, which is the critical element. Mr Goldsmith disagreed, arguing that taking into account the proposed changes the character of the amended proposal would have the same essence as the approved development. The quantum of changes involved here was not determinative.

20 In determining whether the modified proposal would be substantially the same development as that for which consent was originally granted it is necessary to consider whether the essence of the proposal will remain the same. In doing this consideration can be given to qualitative and quantitative changes, including design, configuration and appearance.

21 The changes to the proposal are described in par 2 above and mainly involve:

• The deletion of one basement and the increase in the size of the remaining basement,
• Changes to the vehicular parking arrangement,
• The deletion of four dwellings and reconfiguration of others,
• An increase in building height and reduction of some building setbacks.
  

22 In addition and according to Mr Kennedy, beneficial qualitative changes include the architectural presentation of the buildings and the amenity of the dwellings. He acknowledged a minor increase in bulk and scale but that overall the appearance of the revised proposal would be very similar to the approved development.

23 In my opinion the proposal's essential character will be unchanged. It will continue to comprise two multi-storey apartment buildings above basement car parking with access off Garthowen Crescent. Although some of the changes may be significant, particularly the changes to the basements, they do not change the essence of the development as initially proposed and in the circumstances I am able to find, as a matter of fact, that the proposal remains substantially the same.

24 Whilst the proposal may have some external amenity impacts and impacts on the character of the area and the streetscape these are merit considerations and should be assessed separately.

Car parking

25 According to Miss Tillott whilst 69 car parking spaces are shown on the plans only 64 of these can be counted because five of these spaces are inappropriately incorporated in a tandem parking arrangement. Hence, in accordance with the requirements of DCP 12 there is a deficiency of three spaces. She was also concerned that the five rear stacked spaces could be used for storage rather than car parking and with the spaces being located near the entry to the basement vehicular congestion and inconvenience would arise.

26 Mr Goldsmith said that the five tandem parking spaces can be taken into account. He explained that the Roads and Traffic Authority Guidelines for medium-high density developments would require between 45 - 49 spaces including visitors. On this basis, and taking into account that there are to be provided 69 car parking spaces for 34 dwellings the parking provision is more than satisfactory.

27 In my view the car parking provision for this development is satisfactory there being almost enough to provide two parking spaces for each of the 30 dwellings in this development. Clearly, the five pairs of tandem parking spaces will be able to be allocated to five particular dwellings. Notwithstanding the requirements of DCP 12, I find this arrangement to be satisfactory. I am also not concerned at the possibility of there being vehicular congestion associated with cars utilising these five stacked spaces near the entrance to the basement, because of the likely low numbers of vehicle movements.

Character, streetscape and setbacks

28 Setbacks are a relevant consideration in relation to streetscape and character. As described above the site has frontages to both Garthowen Crescent and Old Northern Road and in my view for the purposes of DCP 6 both of these can be considered to be primary frontages and subject to the 10 m setback requirement. The side boundaries are subject to a 6 m setback requirement.

29 There were no concerns in relation to Building A that has a setback of 10.4 m to Garthowen Crescent. However Building B is to be moved closer to Old Northern Road as follows:

• The basement will be wider and generally setback 6 m, a reduction of 1.5 m.
• Above ground level the building, previously having setbacks ranging between 9 and 10 m will have setbacks ranging between 8 and 9 m.
  

30 In relation to these reduced setbacks Miss Tillott was concerned that in conjunction with the increase in height and length the visual impact of Building B when viewed from Old Northern Road will be increased. In addition the landscaping will be reduced, compounding the impact. In response Mr Goldsmith explained that the opportunities for soft landscaping would be largely unchanged taking into account the already approved ground level terraces. Overall the landscaping outcome would be almost indistinguishable from that already approved. They both agreed that the total amount of landscaping complies with DCP 6.

31 Mr Kennedy accepted that as a result of the decreases in setbacks and the increases in height and length there would be some increase in prominence of the building especially along Old Northern Road but did not accept that this would produce a significantly different impact by comparison with the approved building. In dealing more particularly with the objectives of the 2(a2) zone he pointed to the conclusion of Roseth SC at par 23:

I conclude therefore that an acceptable proposal may contain apartment buildings facing Old Northern Road that are of substantial bulk.

32 Before reaching this conclusion Roseth SC observed at par 22:

Old Northern Road is a busy and noisy arterial Road, not a residential street. The streetscape is less consistent in scale and character. Many properties have high walls along the boundary to protect them from traffic noise. Although there are no large buildings there now, large buildings are more easily absorbed into the visual scene than in Garthowen Crescent

33 Mr Kennedy also said that:

Overall, I consider the buildings to be better designed in terms of their architectural qualities than the approved scheme. That is, the planning, massing, fenestration, movement patterns and internal layouts appear in majority to be superior to those of the earlier scheme.
Strictly speaking a bigger building should have a bigger impact however from an urban design perspective and considering the highly articulated form of this development, I do not believe that changes will have a significant difference.

34 In relation to landscaping, character and streetscape, for the reasons given by Mr Kennedy and Mr Goldsmith and taking into account the conclusions reached by Roseth SC I find the proposed changes to be acceptable. Taking into account the objectives and standards of DCP 6, I also find that on its merits the amended proposal is worthy of approval. I particularly agree with Mr Kennedy that the architectural qualities of the amended proposal at least compensate for the reduced setbacks and increased building size. The proposed landscape setting will be appropriate and complimentary despite the extended basement, including the "box store" being closer to the boundaries. Also, the relationship of the amended proposal to the approved two-storey town house development to the east will be little different and particularly in the context of streetscape is of no great concern. In these circumstances I am satisfied that the amended proposal meets the objectives of the 2(a2) zone in relation to character and streetscape.

35 Mr Kennedy also pointed out, and I agree with him, that the amenity of the dwellings themselves will be improved by being slightly larger with high ceilings and better solar access. Whilst this is significant and of benefit to the occupants it makes no difference to the conclusions I have reached in relation to character and streetscape. It does however reinforce the acceptability of the proposal.

Side setbacks

36 Both Buildings A and B will now, in part, infringe the 6 m side boundary set back in DCP 6 from the pedestrian walkway to the west. In this context the infringements only involve relatively small corners of the basement, terraces and the buildings, whereas the vast majority of the buildings more than comply. Similarly, on the east side, relatively small parts of Building B infringe the 6 m requirement by 800 mm. Miss Tillott was concerned that these infringements would reduce landscaping opportunities and increase apparent building bulk. Conversely Mr Goldsmith and Mr Kennedy believed the changes would make little difference to building bulk and to landscaping opportunities.

37 In relation to the setback requirements, and bearing in mind that they do not strictly apply, I agree with the conclusions reached by the applicant’s experts. I particularly agree that the landscaping outcome will be largely unaffected by the changes.

38 Finally, I do not believe that these changes will have any consequential adverse impacts of any significance particularly in terms of overlooking or privacy.

39 The orders of the Court are therefore:

1. The appeal is upheld
2. The development consent granted by the Court (11137 of 2000) on 28 January 2004 for the erection of two residential flat buildings containing 34 dwellings at No. 9 Garthowen Crescent and Nos. 286A, 288 and 290 Old Northern Road, Castle Hill, is amended in accordance with Annexure A hereto.
3. Exhibits 12, A, C and L are retained.
4. No order as to costs.


_______________________
T A Bly
Commissioner of the Court
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