Moore v Kiama Council - [2009] NSWLEC 1362

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Moore v Kiama Council [2009] NSWLEC 1362

PARTIES:
APPLICANT
G Moore
R$ESPONDENT
Kiama Council

FILE NUMBER(S): 10279 of 2009

CORAM: Moore SC

KEY ISSUES: DEVELOPMENT APPLICATION - SECTION 97 APPEAL :-
SEPP 1 objection
Building height

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

CASES CITED: Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46
Zhang v Canterbury City Council ]2001] NSWCA 167; (2001) 115 LGERA 373

DATES OF HEARING: 6 and 7 October 2009

DATE OF JUDGMENT:
2 November 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr J Doyle, barrister
INSTRUCTED BY
Maguire & McInerney
RESPONDENT
Mr P Moggach, solicitor
Kearns & Garside

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC

2 November 2009

09/10279 G Moore v Kiama Council
JUDGMENT

1 SENIOR COMMISSIONER: Gerringong is a seaside town located a little to the south of Kiama. The Gerringong own centre is one that has, over the past 10 years or so, been undergoing significant transformation. In 1995, Kiama Council (the council) had consultants to conduct a Gerringong charette to assist inform of the council about future planning directions for Gerringong and, in particular, its town centre. The charette produced an extensive report and one element of it, called the Gerringong Town Centre Option A plan (the Option A plan) was, with the exception of a small area on the eastern fringe of the town centre, adopted by the council.

2 As part of this planning process, in 1998, the council adopted a Gerringong Development Control Plan – DCP 14 (the Gerringong DCP).

3 A critical element shaping the nature of the Gerringong town centre is what are to be the uses for the former Gerringong Public School site located on the corner of Fern and Belinda Streets. The public school site is now bisected by Noble Street creating two separate sites. These were considered in the Gerringong charette as the School Site East and the School Site West. These designations were carried forward into the Gerringong DCP.

4 The School Site West is bounded by Fern Street, Belinda Street and Noble Street and extends to the north to the Gerringong town hall building. The town hall building is not shown on the Option A plan. As will be discussed in more detail later, the building anticipated by the Gerringong charette along the Belinda Street frontage of the School Site West, between Fern and Noble Streets, is not likely to occur at any relevant timescale for these proceedings (if ever).

The site

5 The School Site East (the site) is the subject of this appeal. The applicant proposes to build a mixed commercial and residential development with internal connecting pedestrian plazas on the site. The proposal involves three mixed commercial and residential buildings (Buildings A, B and C) and a smaller purely commercial element (Building D) fronting the central plaza. Underground parking is to be provided – accessed from Belinda Street.

The hearing process

6 This matter commenced as a conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979. That conciliation conference commenced with a site inspection that was followed by discussions in the Gerringong town hall. A number of minor amendments to the plans to deal with privacy concerns raised by neighbours to the north-east (relating to overlooking from the central public plaza) were agreed to by the parties. However, no agreement could be reached about the matters of concern held by the council about the bulk and height of the streetscape presentation of the building proposed for the corner of Belinda and Noble Streets, particularly along the Belinda Street frontage and into Noble Street. This is the building known as Building A.

7 Other modification options for the overall design to address other concerns of the council were also discussed and the applicant agreed to present further plans, informally, as part of a continuation of the conciliation process. The revised plans were unacceptable to the council although the issues were significantly resolved – reduced to being a concern of the height and presentation of Building A.

8 As a consequence, as I was of the view that no agreement was likely to be reached, I terminated the conciliation conference. At this point, the parties invited me to proceed to dispose of the matter. I determined that a further hearing was required and that the applicant thus had the opportunity to consider whether he wished to rely, formally amended plans. The parties agreed that the matters that had been the subject of the discussions during the conciliation phase should be carried forward as information available to me and to the parties during the course of the dispositive phase.

9 The applicant subsequently made an application to rely on amended plans and that was agreed to by the council. The orders granting that leave also included, by consent, an order for the applicant to meet costs of the council in a fashion consistent with the requirements of s 97B of the Environmental Planning and Assessment Act 1979 (the Act). At that time, directions were given to prepare the matter for a further hearing with the parties expert planners, Ms Gordon for the applicant and Mr Williams for the council, proceeding directly to join conference and joint report rather than preparing separate statements of evidence prior to such joint conferencing process.

10 When the matter reconvened at Kiama Court on 6 October, I was advised that the issues which now divided the parties, effectively, related solely to the height and presentation of Building A (as earlier noted).

11 During the course of this hearing, two letters of objection to the amended plans were tendered by Mr Moggach, solicitor for the council. In order to appreciate the amendments to the plans in the context of information concerning the commercially-zoned allotment (within the Gerringong Town Square lands) facing Belinda Street between Fern Street and Noble Street together with the further letters of objection, the parties agreed that we should adjourn for a further site inspection.

12 During the course of that second site inspection, I had the opportunity of hearing evidence given by Mr Camelleri and Mr Wright, two of the resident objectors. I also had the opportunity to look at their properties from the site and to look over the fence and into the rear yard of the property of a third objector, Mrs Richardson. Issues raised by the objectors are noted below.

13 During the course of this site inspection, I walked north from the site to another vacant site, 13 Noble Street, where the council has recently granted a development consent. I also walked south along Fern Street, some 300 m or so from Belinda Street, to a point on the western footpath close to the brow of the hill to the south and looked back towards the site around the corner of the Anchor Motel (the Motel) building (on the southern side of Belinda Street) and across the form of the development on the south-eastern corner of Fern and Belinda Street.

14 Effectively, the sole issue that the council now raises concerns the presentation of Building A at the corner of Noble and Belinda Streets. This building is three or four-storeys high [depending on interpretation issues discussed later] and has an upper level contained in a new roof form that is proposed to be mansard style in construction. The slope of this roof form is at 45° presenting that sloped presentation to the street, including that angle at each of the corners of the building (with the bulk of the remainder of roof form being a 1.5° pitch). Into each of the 45° sloped portions of the roof form are inserted two balconies to provide open space to the apartments behind. The council says that this is non-compliant with the height control in cl 50(2)(b) of the Kiama Local Environmental Plan 1996 (the LEP) – the provisions of which are set out below – and contrary to the guiding design outcomes intended for Gerringong as a result of the development of the Gerringong DCP. The relevant provisions of the LEP are in the following terms:

50 Height restrictions for buildings

(1) Except as provided by this clause, a person shall not erect a building containing more than 2 storeys.

(2) The Council may grant consent to the erection of a building containing:

(3) The Council may grant consent to 1 additional level which caters only for basement car parking (including goods delivery, loading and unloading facilities and storage facilities) on land to which subclause (2) applies, but only where the ceiling of that car parking level at no point stands higher than 1 metre above the natural ground level.

(4) In determining an application for consent in accordance with subclause (2) or (3), or both, the Council must consider:

15 The applicant has lodged an objection pursuant to State Environmental Planning Policy 1 [Development Standards] (SEPP 1) to compliance with the height control in cl 50(2)(b) of the LEP. This includes (but is not confined to) non-compliances that arise out of the higher than the two and a half storey nature of the proposed design for Building A.

16 The other changes that were made by the applicant to the plans as a result of the conciliation phase have resulted in modifications to heights and other elements of the design so that, although there may not be strict compliance with all the LEP’s numerical requirements (and approval of some minor exceedences require objections pursuant to SEPP 1 to be sustained), the council accepts that those exceedences are unobjectionable and the SEPP 1 objection should be sustained with respect to them – but not with respect to Building A.

17 In addition to the matters concerning Building A pressed by the council, a number of other issues are raised by the local objectors both as to the original proposal and the now revised proposal that is the subject of the application presently before me. These objections, primarily raised by residents of properties to the east, north-east and north of the site relate to:

· Traffic;

· Privacy;

· Noise;

· Pump out stormwater drainage; and

· Although not articulated in this form, the bulk and scale of the development as it presents to their residences.

18 In addition, the objectors also supported the general matters raised by the council concerning non-compliance with height limits by Building A.

19 There were two terms used in the LEP and the Gerringong DCP that required some consideration in these proceedings. The first of these is the LEP's definition of storey contained in cl 6 of the LEP. This definition is in the following terms:

storey means the space in a building between the floor of the Building And the floor next above or, where there is no floor above, the ceiling or roof above.

20 The second is the concept of a half storey that arises from the terms of cl 50(2)(b) of the LEP. Although the terms of cl 50(2)(b) are set out above it is appropriate to set out, to provide a complete definitional context, the relevant element defining what the concept of half a storey is to mean. The relevant part of cl 50(2)(b) is in the following terms:

……. the top ½ storey forms a loft within the roof space of a building with a pitched roof.

21 Two words, of some criticality in understanding the differences between the applicant and the council, concerning the uppermost level of Building A, are contained in this description of a half storey. They are the words “loft” and “pitch”. The application of these terms to this building is discussed later.

Issues raised by the objectors

22 I turn, now, to consider the issues that are raised by the objectors that are separate to the issue about Building A pressed by the council.

23 Two of these can, conveniently, be grouped together – that is noise and privacy issues relating to the proposed central plaza. As part of the modifications to the plans arising from the conciliation phase, the applicant agreed to an increased setback from the northern end of the plaza by an increase to the width of the proposed planter box. At this edge of the development, the height of the plaza is approximately one storey above the ground level of the backyards of Mrs Richardson and Mr Camelleri. The increased width of the planter box dimensions will ensure that ordinary view lines will not be available into these rear yards. The extent of the separation between their dwellings and the plaza will ensure that there are no privacy impacts within the dwellings. This is assisted by the nature of the fenestration observed, for Mr Camelleri, on his house together with the fact that any view line towards his house is an oblique one rather than a direct line.

24 Assisting in functional privacy protection (although the position is satisfactory on pure separation bases) is the fact that the plaza will have extensive views to the ocean and the headland at the northern end of Werri Beach – this being an attractive and eye drawing outlook. The applicant has also agreed to a condition that requires a 1 m high glass balustrade which balustrade will have the effect of providing acoustic shielding to these properties. These changes are already reflected on the amended plans before the Court.

25 In addition, during the course of the resumed hearing after the second site inspection, in response to a question to Mr Doyle, counsel for the applicant, the applicant agreed to a public positive covenant being placed on the site that would prevent live, amplified or any other form of music being played in this courtyard plaza. If there were to be any commercial utilisation of this courtyard, for example, for outdoor restaurant use as extensions of restaurants that might be located in the commercial tenancies in Building B to the west of this plaza, the industrial noise policy of the Department of Environment and Climate Change would also apply. In addition, any use of these commercial tenant sees will require a separate application to the council at which time the council will be able to consider what might be the appropriate hours of operation of any activities associated with those tenancies, whether utilising the plaza or not. In any consideration of such application, the council will also be entitled to consider what additional conditions of consent concerning noise might be appropriate to be applied in light of the nature of the consent sought. It is not appropriate for me to speculate, in these proceedings, what such hours and conditions might comprise.

26 Both Mr Camelleri and Mr Wright (who lives in the vicinity of the north-eastern corner of the site) expressed concern about the original proposals by the applicant for disposal of stormwater from the site. These proposals envisaged a large detention facility and a pump-out system to the council's stormwater drainage system in Belinda Street.

27 The amended proposal, however, now requires the applicant to obtain and use a drainage easement that would permit gravity disposal of virtually all (but not entirely all) of the stormwater via an appropriately designed gravity system to the council's stormwater drains to the north rather than a mechanical system to the south.

28 A small portion of the site cannot be so drained and a small detention facility is to be incorporated in the basement car parking area, from which this residual of the stormwater will be pumped into the gravitational disposal system. I am satisfied that this proposal resolves any reasonable noise or flooding risk concerns raised by these objectors to the proposal.

29 Although the objectors raised traffic issues, this matter was addressed in a Statement of Environmental Effects that accompanied the original development application to the council. That document satisfied the professional staff of the council that there were no traffic or parking issues requiring my consideration in these proceedings. In addition, the fact that there have been some modest adjustments to the proposal as part of the conciliation process means that there is no increase in the traffic intensity as a consequence of thee amendments to the application. Further, my requirement, for reasons discussed later, that a level be deleted from Building A will further lower the parking demands and traffic generation of the project. As a consequence, I have no traffic or parking basis upon which I could require any modification to the proposal (let alone refuse the proposal).

30 As to the issue of presentation of the development to neighbouring properties, the built elements bordering the neighbouring properties to the east, north-east and north comply with relevant height and presentation controls or, if they do not, depart from them in such a minor fashion that the council does not consider any further change to be warranted to the plans. Having examined the plans and inspected the site on two occasions, I accept this conclusion is correct.

31 In addition, as a consequence of the joint conferencing process, some additional privacy measures were agreed as desirable and were accepted by the applicant.

32 As a consequence of the amendments made to the plans during the conciliation phase, the presentations of Buildings B and C to the neighbouring residential properties were altered, in the plans now being considered, so as to ameliorate the presentation to those neighbouring properties and to comply with the requirements of the Gerringong DCP.

33 Setting aside the resident objectors’ support for the council's objections to matters relating to Building A, after considering the modifications now embodied in the plans; the discharge by gravity of the bulk of the stormwater from the site to the north rather than via mechanically assisted disposal of the south; the acceptance by the applicant of the additional privacy measures proposed by the joint expert conference; and the public positive covenant banning the playing of music in the outside plaza area, I am satisfied that there is no bases in the resident objections that I could require further modification of the proposal – let alone there being any concerns warranting refusal of the proposal.

The height of Building A

34 Building A is the mixed commercial and residential building proposed for the corner of Noble and Belinda Streets. It is proposed to comprise a commercial level at the street frontage to Belinda Street set partially below ground level along Noble Street with two storeys of residential accommodation and, on top of it, a third level of accommodation comprising four residential units within the roof form of the building. The applicant says that the residential units within the roof form comprise a loft development of a half a storey and thus this building is three and a half storeys high. As earlier noted, an objection pursuant to SEPP one has been made to compliance with the two and a half storeys limit which would otherwise apply to this building.

35 In the context of this provision, there are two matters relating to the height of Building A that are in dispute. The first is whether the uppermost level constitutes a half a storey for the purposes of my consideration and, second, however that question might be determined, Building A is either a three and a half storey building or a four-storey building – neither of which is permissible pursuant to cl 50(2)(b) of the LEP.

36 Mr Doyle accepts that the building does not comply with the height standard in cl 50(2)(b) but submits that, first, the uppermost level is a loft development of a half storey because it complies, as a matter of fact, with the requirements for this contained in the clause and, second, the three and a half storey building should be approved because the objection which has been lodged pursuant to SEPP 1 to compliance with this development standard should be sustained.

37 In this regard, I asked Mr Moggach, at the commencement of closing submissions, whether or not the council pressed its objection to the form of Building A if I were to require the removal of either the second or third floors of the building (thus lowering the height of what would be seen), but retaining the re-enforcing corner element considered desirable by the council of a rectilinear three-storey element on the corner of Noble and Belinda Streets and the retention of the remainder of the proposed roof form, whether or not it properly constitutes a half storey, as the presentation of the other elements of the building.

38 Mr Moggach indicated that the council preferred the reinforced corner design and did not object to the sustaining of an objection pursuant to SEPP 1 for such a design provided it was one level lower – that is three storeys on the corner rather than four storeys.

39 Thus, although the council and the applicant have agreed that, for any consent given to Building A, it should be constructed, whether through its proposed height or one level lower, with the rectilinear form of the corner originally proposed rather than the roof form in the plans presently before the Court, for the purposes of my assessment pursuant to the provisions of cl 50(4), I have disregarded this agreement and tested the appeal plans against this clause’s criteria rather than testing the plans that would arise from this agreed outcome.

FSR yield and overall design

40 The maximum permitted floor space ratio (FSR) permitted for the site is 1.5:1. The present plans have an FSR of 1.32:1. In her oral evidence, Ms Gordon, the applicant’s town planner, indicated, when questioned by Mr Moggach, that the design philosophy accepted that there were constraints on the amount of floor space that could be achieved on the site as a consequence of the residential development on its eastern and northern boundaries. However she said that, in recognising those constraints and endeavouring to respect the adjacent residences whilst at the same time providing what she considered to be the significant public amenity of the central plaza, the resultant design shifted floor space to the south-western corner (that is to Building A) on the corner of Belinda and Noble Streets. Mr Doyle subsequently submitted that this was an example of orderly economic development of land and was thus consistent with the objectives contained in s 5(a)(ii) of the Environmental Planning and Assessment Act 1979.

41 Although cl 4(1)(a) of the LEP’s aims and objectives provisions describes them as being for a 10 year time horizon [from 1996, by inference] saying that an aim of the LEP is to plan for the community’s needs for the next ten years, the council has not taken any steps (of which I have evidence) that it intends to revise the cl 50(2)(b) Gerringong height limits upward.

42 To the contrary, such evidence as I have (as is discussed with respect to the streetscape to the north of the site) is that, in the comparatively recent past, the council has adhered to those limits within the Gerringong town centre. Although, as is the case with all other councils, this council is required to produce a new local environmental plan in the form of the state-wide LEP template, there is no evidence in these proceedings as to the present state of that process nor is there any evidence that would indicate that the council intends, through that process, to increase the height limits in the Gerringong town centre.

43 The Gerringong DCP was adopted by the council in 1998 and builds upon (but does not uncritically adopt the totality of) the Gerringong charette report. The DCP includes a number of specific objectives and performance criteria for the site (School Site East). The objectives of the Gerringong DCP for the site are in the following terms:

1. Protection of primary view lines to coastal features as identified in the Charrette Report.

2. To establish architectural and landscaping principles for new development.

3. The building design for development fronting Noble Street is to allow for adaptive use of ground floor residential areas for commercial purposes.

4. To protect residential amenity of adjoining properties in terms of privacy, overshadowing, solar access and views.

5. Development is to be architecturally consistent with landmark buildings, heritage items and streetscape design.

44 There are a number of performance criteria for the site. Not these are relevant in these proceedings but those that are relevant are set out below:

P3. Two storey development is permitted on sites which front Belinda Street and adjoining existing residential development. This is to be stepped down to single-storey in height adjoining existing rear yards.

P4. Two and half storey development with basement parking is permitted to areas fronting Noble Street and in the central portion of the site.

P7. The roof line of two and a half storey development is to be visually diverse in appearance and not be connected continuously between units.
P14. The development of Lot 3 (Police Station site) is to provide for a 2 storey form on the corner of Belinda and Noble Streets to reinforce the corner and provide a balanced “entry” to Noble Street.

45 One critical element for these proceedings arises from the terms of performance criterion P14 noted immediately above. With respect to this criterion, the council does not press the first element of this criterion but adopts the second part of it concerning the reinforcement of the corner of Belinda and Noble Streets. This arises because plans for the erection of a police station, on what had been a separate allotment on the corner of Noble and Belinda Streets, is no longer an option and this allotment forms part of the site in these proceedings.

46 Indeed, contrary to other elements of the provisions for the site (elements rendered, perhaps, somewhat less relevant as a consequence of the abandonment of the proposal for a police station on this corner, a concept that is specifically provided for in both its future plans of indicative layouts for this site contained in the Gerringong DCP), the council says that whether this development is approved as proposed by the applicant or if I were minded to approve it with the removal of one of the intermediate levels presently proposed for Building A, the form of the main corner element on the corner of Noble and Belinda Streets should be of the broadly rectilinear form in the original proposal. The council says that this is desirable to provide adequate reinforcement of the corner and anchoring the development of the site in its streetscape context.

47 On the second development site to the north, along Noble Street, the council has approved a development that, strictly speaking, does not comply with the provisions of cl 50(2)(b) of the LEP. This development, clearly, presents as three storeys to the street rather than as two and a half storeys (having regard to the definition of a half storey contained in the LEP quoted earlier). However, this proposal was approved as a consequence of the council sustaining an objection pursuant to SEPP 1 to compliance with that standard. The extent of the non-compliance is limited to the fact that there are small elements of vertical walls supporting the roof form of the level immediately above the second full storey.

48 It is clear, from the council documents in evidence, this applicant did two things to gain this approval. The first of them is that the applicant for that consent was obliged, as part of the council approval process, to lower the overall height that had originally been proposed for that site and, second, that the roof form proposed for this development are generally consistent with (but not identical to) the roof forms contained on page 14 of the Gerringong DCP (in which there is a diagram of what the DCP envisages would be the style of the western elevation was the streetscape presentation, to Noble Street, for developments on 13 Noble Street and on the allotment between 13 Noble Street and the site).

Is the proposed uppermost level to Building A a half storey?

49 The uppermost level of Building A is proposed to comprise four separate apartments. Each of them will be a two-bedroom dwelling and none of them has any internal connection to any of the dwellings on the level below. As earlier noted, the presentation of the roof is a mansard-style roof inclining at 45° surmounted by the predominant roofing element, for each of the sections of the roof, which predominant elements are pitched at 1.5°. Each of the two balconies for each of the four apartments has a partial roof over that provides, with its support, partial enlosure for each of the eight balconies at this level

50 The Gerringong DCP contains two images which assist in understanding what is envisaged by the DCP as a design which adopts and complies with the concept of a loft style half storey contained in cl 50(2)(b) of the LEP. These images make it clear that what is intended is something akin to a dormer window extension in the roof space of a dwelling with a roof of continuous pitch to a ridgeline.

51 It is equally clear, in my view, from these images, what the DCP contemplates as a half storey development form on this site. However, this proposal bears there is absolutely no resemblance to what the development here proposes for the site. I am, therefore, satisfied that that which the applicant proposes for the uppermost level of Building A is not a half storey for the purposes of this clause of the LEP. Consistent with taking the DCP as my starting or focal point in consideration of this issue, as required by the Court of Appeal in Zhang v Canterbury City Council ]2001] NSWCA 167; (2001) 115 LGERA 373, there is no appropriate reason, other than seeking to increase the yield from this element of the site, that would provide any basis for setting aside the obvious intention of the LEP (reinforced by the DCP in this regard).

52 However, that is not entirely fatal to the applicant’s proposal for accommodation within this roof form in light of the concession, made on instructions, by Mr Moggach, as earlier noted, that if the height of the form of the element of Building A on the corner of Noble and Belinda Streets were lowered by the removal of one of the intermediate levels, the council considers that the design, modified as discussed earlier in order to reinforce the corner, should be permitted in this rectilinear form notwithstanding the fact that, as the council has submitted and I have concluded, the uppermost level is not, in fact, a half storey.

53 Indeed, as a consequence, the council proposes that it is appropriate that the SEPP 1 objection, to the extent that it deals with non-compliance with the height control in cl 50(2)(b) merely on the basis that the uppermost level of Building A is not a half storey should be sustained but that it should not be sustained to the extent of permitting a fourth storey for this building.

54 Before closing submissions, Mr Moggach obtained, at my request, instructions as to what would be the council's position concerning roof form matters for Building A if I reached the conclusion that Building A was acceptable if one of the intermediate levels were to be deleted. He was instructed that the council's position was that the presentation to Noble and Belinda Streets would be acceptable with the uppermost level having the mansard-style presentation of the northern and eastern ends of the uppermost level away from the corner of these streets but having the rectilinear design as originally proposed for the corner of these streets. The council considers a three level building with rectilinear building form for the corner of Belinda and Noble Streets is an entirely appropriate design to ensure a reinforcing element for the corner in compliance with performance criterion P14 for the School Site East in the Gerringong DCP.

55 The consequence of this is that, when regard is had to the council's agreement to the designs of Buildings B and C together with the other measures relating to stormwater drainage modifications and the Central Plaza, the applicant must, necessarily, be granted a development consent as a consequence of these proceedings. The sole element, therefore, that I am required to determine is whether or not one level should be deleted from Building A.

The SEPP 1 objection

56 The classic formulation frequently cited in development appeals as setting out the five questions to be considered in determining whether an objection pursuant to SEPP 1 should be sustained were set out by Lloyd J in Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46. He did so in the following terms:

· First, is the planning control in question a development standard?

· Second, what is the underlying object or purpose of the standard?

· Third, is compliance with the development standard consistent with the aims of the Policy, and in particular does compliance with the development standard tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act?

· Fourth, is compliance with the development standard unreasonable or unnecessary in the circumstances of the case?

· Fifth, is the objection well founded?

57 There is no dispute that the provision of cl 50(2)(b) requiring compliance with a maximum development height of two and a half storeys for the Gerringong central business district is a development standard. It is agreed by Mr Williams and Ms Gordon and, indeed, it is self-evident from the terms of cl 50(2)(b). As a consequence, the first of the Winten questions is uncontroversially able to be answered.

58 As to the second of the Winten questions, although not explicitly setting out objectives that are intended to be met by the standard, as Ms Gordon noted, the provisions of cl 50(4) provide three tests against which the height of any proposal is to be considered as part of the assessment process.

59 Whilst these tests are not expressed in a form that makes their satisfaction mandatory, nonetheless, the context of the clause makes the answers to each of the powerfully persuasive as part of the assessment process. I consider that it is reasonable to assume that the objective of the height limit is to achieve sufficient satisfaction of the objectives contained in clause as part of a merit assessment of any proposal to enable it to be rendered acceptable. This, I have concluded, is the appropriate way to describe the objectives of the development standard in the LEP (and, indeed, the applicable more detailed assessment needed pursuant to the Gerringong DCP).

60 As to the third of the Winten questions, the applicant, through the evidence of Ms Gordon and the submissions of Mr Doyle, asked me to conclude that the height of Building A was consistent with the aims of SEPP one and with the orderly economic development of the land because it transferred floor space, within the maximum permitted floor space ratio, away from areas where its incorporation would adversely impact on neighbouring residential properties to the corner of Noble and Belinda Streets where its impact would be benign.

61 In addition, Ms Gordon advanced and Mr Doyle submitted that I should adopt the proposition that there is a significant public benefit to be obtained by the creation of the central plaza, accessible at grade from both Belinda and Noble streets, in the centre of the site. This public benefit, it was put, is such that this also provides a basis why it would be unreasonable to require compliance with the two and a half storey height limit as a greater development yield could potentially be obtained if this central plaza was not provided.

62 In the course of her oral evidence, Ms Gordon acknowledged that the constraints on the site caused by the residential zoning on its eastern and northern boundaries and the existence of residences already erected to the north and north-east meant that the site could not achieve a 1.5:1 FSR whilst complying with the LEP's height limit. This constituted a necessary acceptance by her of the conventional planning proposition that an FSR limit is precisely that, a limit. The limit may act as a target within which a proponent may seek to maximise the yield from a site but it is certainly not an entitlement automatically to be achieved.

63 In this context, the fact that the applicant proposes a significant area of accessible public space on the site which public space will provide attractive views to the ocean to the north and north-east and the headland at the northern end of Werri Beach is a feature, whilst of some public utility, that has needed to be modified somewhat to remove impacts that it would otherwise cause to the visual and acoustic privacy of neighbouring properties to the north.

64 Equally important, however, this open space also provides considerable commercial advantages for the commercial tenancies adjacent to it proposed for Buildings A, B and D. This private commercial advantage is a significant element of this design. Although there may be some public benefit from this open space, it has certainly not been provided for purely altruistic reasons as is obvious from the plans that this open space renders possible a much wider range of uses of the adjacent commercial tenancies. I do not consider that this open space should be divorced from the commercial potentiality that it affords the overall development so as to be regarded as entirely or even dominantly providing a public benefit that should permit some compensating development advantage to the applicant elsewhere on the site, in this instance, as sought, of an additional level on Building A.

65 As the applicant will already obtain significant potential commercial benefits from the design proposed, even if complying generally with the height limit and with the significant exceedence to which the council has indicated it would be appropriate to permit by the addition of a third storey for Building A, I do not consider that compliance with the height limit would be contrary to the objectives of SEPP 1 or the relevant objectives of the Act. There is, therefore, no inconsistency with the matters to be considered under the third Winten question.

66 Determination of whether it is unnecessary or unreasonable to require compliance with this development standard requires an assessment against each of the cl 50(4) tests.

67 It is therefore appropriate that I now turn to make a merit assessment against each of the three questions required to be considered by cl 50(4). I note that the three matters in cl 50(4) are cumulative and not in the alternative.

68 The first of the matters raised by cl 50(4) is whether the building will be in scale with the streetscape. It is in the following terms:

(a) whether the building will be in scale with adjacent and nearby buildings, when viewed within such streetscape as may exist or be permitted by this plan,

69 It is in this context that it is appropriate to consider the setting of this project and the context of Building A within the project in the immediate streetscape.

70 Although, in a broader sense, the streetscape within which Building A would be viewed also includes those elements of Fern Street, on its western side, facing the public open space, I do not consider that it is appropriate to have regard to this streetscape in this assessment as these buildings are too far removed from the site and are separated by Fern Street – the main thoroughfare in Gerringong.

71 The conclusions which I have reached are based on what I do consider is the appropriate Belinda Street streetscape – being the streetscape of the present buildings in Belinda Street from the corner of Fern Street to the eastern end of the Motel together with proposed Building C on the site.

72 This is to be coupled with the buildings in Noble Street which I consider are relevant – in a present and future sense – as providing the relevant streetscape. This is defined, in my view, by the gentle crest of the ridge in Noble Street a little further to the north.

73 Therefore the present and future Noble Street buildings to be considered are the Gerringong town hall and the building adjacent to it to the north (owned by the applicant) on the western side of Noble Street.

74 As there are presently no relevant buildings on the eastern side of Noble Street, those likely to be the appropriate future streetscape for this portion of Noble Street are Building B on the site together with such development as will occur on the vacant allotment between the site and the approved building on 13 Noble Street and that approved building on 13 Noble Street.

75 For the purposes of this streetscape assessment, to take the position at the highest for the applicant, I have assumed that the development for which consent might be given on this vacant allotment would be no less in scale than that to be permitted for Building B forming part of this proposal (to which the council has taken the position that this development is acceptable notwithstanding the fact that it requires the sustaining of an SEPP 1 objection to compliance with height limit development standard for its approval).

76 In taking this position, I also note that the council has taken a similar position concerning the non-compliance with the strict development standards for the building proposed for 13 Noble Street where the Council has, itself, agreed to an SEPP 1 objection to strict compliance with the two and a half storey development standard.

77 In defining the relevant area of streetscape for the purpose of this assessment pursuant to cl 50(4), I have also not had regard to the present or future streetscape further to the north in Noble Street beyond the buildings nominated on each side of the street. I have proceeded on this basis because I consider that the crest of the hill and those elements on Noble Street close to the top of the hill at or slightly beyond this, along Noble Street, are those which define the visual catchment within which Building A will be perceived.

78 Similarly, I do not consider that any built form in Belinda Street to the west of Fern Street is relevant and it is, self-evidently in my view, inappropriate to have any regard to buildings in the residentially zoned lands beyond the eastern boundary of the site on either side of Bolinda Street.

79 Although the council and the applicant have agreed that, whatever consent is to be given to Building A, it should be constructed with the rectilinear form of the corner originally proposed rather than that in the plans presently before the Court, for the purposes of my assessment pursuant to the provisions of cl 50(4), I have disregarded this agreement and tested the appeal plans against this criterion rather than the plans that would arise from this agreed outcome.

80 Directly opposite the site, as earlier discussed, is the town square which has, on its northern boundary, the old Gerringong town Hall. These have ridges lower than that proposed for Building A although they are further upslope than it. The town hall is near if not at the top of the ridge as the ridge runs across the site in a south-easterly to north-westerly direction and then continues, through the town hall and the adjacent building to the north owned by the applicant, thence across Fern Street.

81 Although the applicant points to the fact that the southern side of the Motel on the opposite side of Belinda Street to Building A presens as a four-storey building when viewed from the south (as was clearly the position when we walked to the south along Fern Street toward the top of the next hill further to the south on the outskirts of Gerringong), I do not consider that this provides any assistance to the applicant with respect to this provision. This is because the provision specifically refers to the appearances of buildings when viewed from streets to which they have a frontage. As the Motel is on the low side of Belinda Street, on land sloping away from Belinda Street to the south, the four-storey element of the Motel is not able to be perceived from Belinda Street and, as a consequence, the Motel does not present such an aspect in the Belinda Street streetscape.

82 The appearance of the Motel, from its Belinda Street frontage, is that of a three-storey building which is, in itself, modestly below the level of the road at this frontage.

83 The development next to the Motel, to the corner with Fern Street and opposite that portion of the town square that may, at some distant and indeterminate time in the future, have a low scale public building on it (a timeframe, as earlier noted, that does not necessitate any regard being had of such a potential development for the purposes of these proceedings), is two storeys and is in a series of distinctive colours with separated roof forms that break the bulk of these structures in the streetscape. Whilst, when viewed from further down the hill in Fern Street proceeding southward, the rear of these structures are higher as a consequence of the fall of the land, that is not relevant in my consideration of this issue as that height does not impact the streetscape that is relevant for consideration of this provision.

84 However, the flow of the building heights from the crest of the hill down on Noble Street and to the developments on the southern side of Noble Street would be significantly interrupted if the additional height of Building A at four storeys were to be permitted. Indeed, to some extent, the fact that the council has agreed that a three-storey building can be permitted is contrary to the original intention for this corner when a separate police station site was envisaged. Be that as it may, the four-storey presentation of Building A would be, because of its vertical height from ground level to the extension of its ridgeline at the Noble Street and Belinda Street corner, quite discordant and out of scale with the buildings in its streetscape on either frontage. I am satisfied that the flow of the heights of the surrounding development cannot comfortably accommodate Building A in its present form with the slightest semblance of compliance with this provision.

85 I turn, next, the second of the tests in cl 50(4). It is in the following terms:

(b) whether the proposed development will have any significant adverse impact on the environment or the amenity of residents or businesses on adjoining or nearby land

86 There is no dispute between the parties nor any disagreement between the planning experts that the proposed Building A completely satisfied this test and I see nothing from the plans that would cause me to question this agreement.

87 The third matter that is called up for consideration by clause 50(4) is the question of whether or not Building A will be perceived to be four storeys in height from specified viewing locations. The provision is in the following terms:

(c) whether the building will take on the appearance of a 4 storey building when viewed from any road to which it has a frontage.

88 In this context, the streets from which the building may be viewed and to which it has a frontage are clearly only Belinda and Noble Streets.

89 It seems to me that, to understand how this building will be perceived from Noble and Belinda Streets, it is necessary to consider a variety of viewing points. They are, to give a sufficiently clear understanding to answer this question, in my opinion, the following locations:

· Belinda Street on the southern side at the corner of Fern Street;

· Noble Street at the top of the crest to the north in the vicinity of the rear of the town Hall;

· the corner of Belinda and Noble Streets in the public open space on the north-western element of this intersection;

· from the footpath location on this intersection on its north eastern corner; and

· opposite the site outside the Motel.

90 All of these locations, on my recollection, were visited during the course of the first or second site views.

91 Whilst there are, obviously, a range of other locations within Belinda Street, including, possibly some distance further to the west along Belinda Street after having crossed Fern Street, I have not attempted to undertake any analysis from these points for two reasons. The first, perhaps the more important in a procedural sense, is that other locations further to the east and west along Belinda Street were not visited by me in company with the parties – I therefore consider that it would be inappropriate to draw conclusions that might be available from first principles without having undertaken such an accompanied inspection from those points; and, second, perhaps less important in my determination, I am satisfied that the five locations noted give a sufficiently broad basis to undertake the assessment required by this provision.

92 From the first viewing point, approaching from the corner of Belinda and Fern Streets, as one turns around the south-eastern corner into Belinda Street, as was done during the course of the second site inspection (and as would, generally, be done if approaching by vehicle from the south), part of the view of Building A would be obscured by the trees along the Belinda Street frontage of the public open space. However, on foot, virtually the entirety, if not the entirety, of the Building A element on the corner would be visible. This viewing location is sufficiently setback from the building that all four levels would be able to be seen. In addition, the balcony awnings on both the southern and western faces of the uppermost level would be seen. Because of the length of the building on its western face, a four storey aspect would increasingly come into view as one walked or drove along Belinda Street to the east until one reached a point where the parapet of Building A obscured the covered balcony roof forms. I am satisfied that the building would take on the appearance of a four-storey building from these vantage points in Belinda Street.

93 From the crest on Noble Street in the vicinity of the rear of the town hall, I am satisfied that, although the uppermost level within the roof structure is likely to be clearly visible from this location, whether on the eastern or western side of the street, a combination of the slightly higher viewing point from which this perspective is taken coupled with the fact that the lowest level of Building A, at its northern end, is set somewhat below (but not entirely below) ground level at its northern end, Building A will not take on the appearance of a four-storey building from this location but will appear as a three-storey building with some degree of undercroft.

94 Although, to some extent, this conclusion is tempered by the fact that this appearance will also depend, to some extent, on the nature of the activities taking place in commercial space on the ground floor and whether or not there is external promotional or advertising material, I am satisfied that, on a very fine balance, it would be reasonable not to draw a conclusion adverse to the applicant from this viewing point. That said, I do not consider that provides any assistance to the applicant either.

95 From a point in the public park in the north-western quadrant of the intersection of Noble and Belinda streets, I consider that it is unlikely that any significant perspective of a four-storey building would be obtained from that point given the slope of the mansard roof and the viewing point being discussed. To the extent that any element of the western face of the uppermost level might be able to be seen, and I consider it unlikely that any significant portion of it would be seen, this would be the covering structure for the balcony. I do not consider that any view that might be had of that would be sufficiently comprehensive to cause the uppermost level to be perceived to be or, in the words of the LEP, take on the appearance of, a four-storey building.

96 The position is more favourable to the applicant when considering the view that would be had of Building A from the point immediately outside the building as the parapet will entirely obscure any view of any structure on the uppermost level.

97 From opposite the site outside the Motel, I consider that the position would be the same as from the public open space immediately fronting Belinda Street.

98 As a consequence, I am satisfied that the only location from which there will be a significant perspective where the building will take on the appearance of a four-storey building is from Belinda Street at its intersection with Fern Street, travelling east, until the building’s parapet causes this appearance to diminish sufficiently (or disappear) so that the appearance becomes that of a three-storey building. I do not consider, in assessing this perspective of the building that the extent to which the northern end of the lowest level of Building A is to be below ground level assists in lessening the four-storey appearance of the building from these points as the presentation of the corner alone makes it clear that this would be a four-storey building at that point.

99 As already noted, I have undertaken my assessment based on the roof form of Building A as proposed in the plans for which approval has been sought rather than in any form that would arise if, as the applicant has accepted, the former rectilinear element on the corner of Belinda and Noble streets were to be reinstated. It is quite apparent that a design form of the nature that would arise from such amendment would clearly take on the appearance of a four-storey structure from each of the first and third to the fifth viewing points analysed above.

100 The significant failure of Building A when tested against the first question in cl 50(4) together with the somewhat but lesser failure of the third question in cl 50(4) from a significant viewing point means that it is not unnecessary to require compliance with the height limit (at least to the extent proposed by the council).

101 Similarly, the fact that the council has undertaken an extensive consultation process through the Gerringong charette and subsequent development control plan preparation and adoption that has clearly put the design aspirations for the Gerringong town centre in a considered town planning context means that it is not unreasonable to require compliance with the LEP's height limit on the site.

102 As a consequence, the SEPP 1 objection, to the extent sought by the applicant, to compliance with the two and a half storey height limit contained in cl 50(2)(b) of the LEP is not well founded. However, given the council's concession about a third storey and the rectilinear form proposed for the corner of Belinda and Noble Streets, the SEPP 1 objection is sustained to this extent only.

Conclusion

103 Although Mr Doyle valiantly attempted to persuade me that those elements of the Gerringong charette that supported the applicant's proposed design but which were not adopted in the Gerringong DCP, I cannot accept that any weight should be given to any elements of the Gerringong charette report that were not incorporated, either explicitly or by necessary implication, into that DCP. It is appropriate for me to conclude that the Gerringong DCP reflects the outcome of proper consideration by the council of what should be adopted from the Gerringong charette report in giving effect to the recommendation of the report that a specific development control plan should be prepared for the Gerringong Town Centre.

104 As a consequence of that which is discussed earlier, the objection pursuant to SEPP 1 is not sustained to the full extent sought by the applicant. However, I am satisfied that I should accept the council's position that Building A would be acceptable if one of its intermediate levels were to be removed provided, for reasons earlier discussed, that the element of Building A on the corner of Belinda and Noble Streets reverts to rectilinear form proposed in the original plans, although one level lower, in order to reinforce this corner.

105 It therefore follows that the SEPP 1 objection will be sustained to the limited extent necessary to permit the minor exceedences in other elements of the built form and to the compliance of Building A with the two and a half storey height limit and the appeal will be upheld subject to the submission of revised plans reflecting the removal of one of the intermediate levels of Building A and the reintroduction of the rectilinear form on the corner of Belinda and Noble Streets. Settled, revised conditions of consent incorporating the requirement for a public positive noise covenant, as earlier discussed, for the central plaza area will also be required before orders can be issued. On that basis, the orders of the Court will be:

106 In order to give effect to this decision, I give the following directions:

Tim Moore

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Citations

Moore v Kiama Council [2009] NSWLEC 1362

Most Recent Citation

Moore v Kiama Council [2010] NSWLEC 1045

Cases Citing This Decision

1

Moore v Kiama Council [2010] NSWLEC 1045

Cases Cited

1

Statutory Material Cited

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Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46

CITATION:	Moore v Kiama Council [2009] NSWLEC 1362
PARTIES:	APPLICANT G Moore R$ESPONDENT Kiama Council
FILE NUMBER(S):	10279 of 2009
CORAM:	Moore SC
KEY ISSUES:	DEVELOPMENT APPLICATION - SECTION 97 APPEAL :- SEPP 1 objection Building height
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
CASES CITED:	Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46 Zhang v Canterbury City Council ]2001] NSWCA 167; (2001) 115 LGERA 373
DATES OF HEARING:	6 and 7 October 2009
DATE OF JUDGMENT:	2 November 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr J Doyle, barrister INSTRUCTED BY Maguire & McInerney RESPONDENT Mr P Moggach, solicitor Kearns & Garside