Ostron Pty Ltd v Wingecarribee Shire Council - [2007] NSWLEC 467

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Ostron Pty Ltd v Wingecarribee Shire Council [2007] NSWLEC 467

PARTIES:
APPLICANT
Ostron Pty Ltd
RESPONDENT
Wingecarribee Shire Council

FILE NUMBER(S): 10704 of 2006

CORAM: Hussey C

KEY ISSUES: Development Application :- seniors living development - height, bulk, scale, contribution to locality, drainage, public interest

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
State Environmental Planning Policy - Seniors Living
Wingecarribee Local Environmental Plan 1989

CASES CITED: GPC No 5 (Wombarra) Pty Ltd v Wollongong City Council [2003] NSWLEC 268;
Marina Bay Developments Pty Ltd v Pittwater Council [2007] NSWLEC 41

DATES OF HEARING: 23, 28, 30 and 31 May 2007

DATE OF JUDGMENT:
31 July 2007

LEGAL REPRESENTATIVES:
APPLICANT
Mr J Webster SC
SOLICITORS
Home Wilkinson Lowry
APPLICANT
Mr D Wilson
SOLICITORS
Bilinsky & Co

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

31 July 2007

10704 of 2006 Ostron Pty Limited v Wingecarribee Shire Council
JUDGMENT

Background

1 This appeal was lodged against councils refusal of a development application for a seniors living development at 22-24 Church Road, Moss Vale. An initial application for a 80 unit development on the site was lodged under the provisions of SEPP 5 and this was refused by council.

2 The application before the Court was subsequently reduced to 52 dwellings as shown in Attachment ‘A’ and comprising:

3 For the appeal a number of issues were identified which can be summarised as follows:

· Whether the development contributes to the quality and identity of the character of the area, particularly the impact of the bulk upon the residential character of the streets and privacy impacts.
· Compliance with the height controls, requiring single storey buildings in the rear 25% of the site (cl 38).
· Traffic and parking.
· Access to services.
· Stormwater disposal.
· Public interest.

The site

4 The site is described as Lot 12 DP789318 and it has a total area of 18,160 sq m. It is situated on the north-eastern corner of Church Road and Victor Crescent, with dimensions of 64.5m frontage to Church Road (western frontage), 198.17m to Victor Crescent (northern frontage), 224.08m along the southern boundary and 151.48m to the east.

5 A dwelling house is currently erected on the site. There are a number of mature trees along the eastern boundary and spread over the allotment.

6 The site is effectively contained within a low-density residential neighbourhood bounded Argyle Street and King Road. The dwellings within this neighbourhood are predominantly single storey, situated on larger allotments, mainly in excess of 2000 sq m, in a landscaped setting.

7 To the east of the site is low-lying vacant land that is within an Environmental Protection Zone and used for grazing.

Planning Controls

8 Wingecarribee Local Environmental Plan 1989 (WLEP). Under this LEP, the site is within the Zone No 2 (a) -Residential sub-zone E1.

9 State Environmental Planning Policy - Seniors Living (SEPPSL). SEPPSL is the prevailing planning control in this matter. The aims of the policy are to encourage the provision of housing (including residential care facilities) that will:

(a) increase the supply and diversity of residences that meet the needs of seniors or people with a disability; and
(b) make efficient use of existing infrastructure and services, and
(c) be of good design.

10 These aims are to be achieved by:

(a) setting aside local planning controls that will prevent the development of housing for seniors or people with a disability that meets the development criteria and standards specified in this Policy, and
(b) setting out design principles that should be followed to achieve built form that responds to the characteristics of its site and form, and
(c) ensuring that applicants provide support services for seniors or people with a disability for developments on land adjoining land zone primarily for urban purposes.

11 Clause 30 requires the consent authority to be satisfied that the proposed development demonstrates adequate regard has been given to the principles set out in Division 2.

12 The design requirements are contained in Part 3 of SEPPSL and initially require the applicant to undertake a detailed site analysis. The associated design principles in Division 2 deal with a number of matters, including neighbourhood amenity and streetscape in clause 31, as follows:

31 The proposed development should:

(a) recognise the desirable elements of the location’s current character (or, in the case of precincts undergoing a transition, where described in local planning controls, the desired future character) so that new buildings contribute to the quality and identity of the area, and
(b) retain, complement and sensitively harmonise with any heritage conservation areas in the vicinity and any relevant heritage items that are identified in the local environmental plan, and
(c) maintain reasonable neighbourhood amenity and appropriate residential character by:
(i) providing building setbacks to reduce bulk and overshadowing, and
(ii) using building form and siting that relates to the site’s land form, and
(iii) adopting building heights at the street frontage that are compatible in scale with adjacent development, and
(iv) considering, where buildings are located on the boundary, the impact of the boundary walls on neighbours, and
(d) be designed so that the front building of the development is set back in sympathy with, but not necessarily the same as, the existing building line, and
(e) embody planting that is in sympathy with, but not necessarily the same as, other planting in the streetscape, and
(f) retain, wherever reasonable, major existing trees, and
(g) be designed so that no building is constructed in a riparian zone.

13 Clause 33 deals with solar access and design for climate. Clause 36 contains controls for accessibility and clause 37 the controls for waste management.

14 Clause 38 contains a number of development standards of which, the following is relevant:

(4) Height in zones where residential flat buildings are not permitted.

(a) the height of all buildings in the proposed development must be 8 metres or less, and
(b) a building that is adjacent to a boundary of the site (being the site, not only of that particular development, but also of any other associated development to which this Policy applies) must be not more than 2 storeys in height, and
Note: The purpose of this paragraph is to avoid an abrupt change in the scale of development in the streetscape.
(c) a building located in the rear 25% area of the site must not exceed 1 storey in height.

15 Seniors Living Policy; Urban design guidelines for infill development. Clause 29 of SEPPSL requires the consent authority to take these guidelines into consideration when assessing applications for infill development. The guidelines include consideration of:

· When assessing neighbourhood character, the wide range of contributing elements such as topography and landform, the type and function of streets, and trees and vegetation in both streets and gardens should be considered.

· The relationship of buildings to the street, their scale and massing, the regular rhythm of spaces between them and what are atypical buildings.

· Optimise internal amenity and minimise impacts on neighbours, by providing a variety of massing and scale of built form within the development.

· Respond to the streetscape with sympathetic design, which reduces the visual bulk of the development by breaking up the building massing and articulating building facades, allowing breaks in rows of attached dwellings and setting back at levels behind the front building façade.

· Design the relationship between buildings and open space to be consistent with the existing patterns in the block and protect neighbours amenity by carefully designing the bulk and scale of the new development to relate to the existing residential character.

· Reduce the impact of unrelieved walls on narrow side and rear setbacks by limiting the length of the walls built to these setbacks.

16 Housing for seniors or people with a disability - A guide for councils and applicants. These guidelines are to assist in the preparation of SEPPSL applications and their subsequent assessment. SEPPSL housing is to respond to the special needs by providing local opportunities for the development of a well designed range of housing types including:

Infill self-care housing and serviced self care housing that is well-located in existing areas that allow seniors to:

- stay in the area they know with good access to transport, local facilities and activities,

- ‘age in place’, because the housing is capable of being modified for varying levels of disability.

The Evidence

17 The parties agreed to Ms D Laidlaw being the Court appointed expert for planning and her reports are Ex.3 and 10. Mr C Hallam was appointed as the Court appointed expert for traffic and parking issues and his report is exhibit 11.

18 A joint planning and landscape report was prepared by Ms Laidlaw, Ms C Webb (landscape designer) and Mr S Buchanan ( consulting town planner) and this is Exhibit D.

19 A considerable number of objections were lodged against the proposal and the oral objections presented at the view have been considered in conjunction with the written objections contained within councils’ bundle of documents. The objections include:

· Dissatisfaction with the bulk, scale and setbacks of the proposal on this site and its incompatibility and unsatisfactory impacts on the surrounding neighbourhood and streetscape,
· Loss of privacy to the existing dwellings along the eastern boundary,
· Loss of mature trees causing a negative effect on the character of the area
· Increased traffic safety risks arising from additional traffic using the existing road pavements and intersections with Argyle Street.

20 It is apparent from the evidence that the main issues concern the suitability of the design to contribute to the quality and identity of the area and the associated matter of compliance with the height control provisions in cl 38 of SEPPSL.

21 This application was submitted under the provisions of SEPPSL for ‘ self contained dwellings’, which are defined as:

‘a dwelling or part of the building (other than a hostel), whether attached to another dwelling or not, housing seniors or people with a disability, where private facilities for significant cooking, sleeping and washing are included in a dwelling or part of the building, but where clothes washing facilities or other facilities for use in connection with the dwelling or part of the building may be provided on a shared basis.’

22 As such, the development is permitted with consent and cl 30 of SEPP SL requires the consent authority to be satisfied that the proposed development demonstrates that adequate regard has been given to the principles set out in Division 2. This approach confirmed in Marina BayDevelopments Pty Ltd v Pittwater Council [2007] NSWLEC 41, where Lloyd J said:

6 In the context of the present case, it can be seen that these provisions require the consent authority to go through a process which has a number of stages. The first stage, required by cl 31 (a), is the recognition of the desirable elements of the locations current character (or, in the case of precincts undergoing transition, where described in the local planning controls, the desired future character), "so that" the consent authority can then proceed to the second stage. The second stage, also required by cl 31 (a), is to make an assessment of whether the new buildings "contribute to" the quality and identity of the area - that is, whether they contribute to the quality and identity of the desirable elements of the location which have been identified in the first stage. The third stage is to determine whether the proposed development satisfies the remaining sub-cll (b) to (g) of cl 31. The fourth stage is required by cl 30 - the consent authority must determine whether it is satisfied that adequate regard has been given to these principles and if not, then the development application must be refused. Finally, once the process of satisfying cll 30 and 31 has been completed, only then does the consent authority turn to the development standards and other criteria in Pt 7 of the Policy (including cl 79)… 10 The commissioner does, however, make findings that the proposal would "fit in" with the neighbourhood and with each nearby dwelling; that it would be “compatible" with the streetscape; that the Church Point and Bayview locality would "remain" low-density residential area; that would "reflect" the predominant scale and setbacks of existing development; that would "integrate" with the natural landscape and topography; that its bulk and scale would be "compatible" with the streetscape; and that it would "fit in" with the existing and desired future character of the area 11 These findings are those which are clearly required by cl 31 (c), which states that the development should "maintain" reasonable amenity and appropriate residential character in various ways prescribed by that subclause. The various ways prescribed by cl 31 ( c) use language which is consistent with the concept of "maintaining" reasonable neighbourhood amenity and appropriate residential character, by the use of words "compatible" and "in sympathy" with referred to in cl 31 (d).

23 His Honour Justice Lloyd also referred to the aforementioned descriptors being consistent with the language of the planning principles set out in the case of GPC No 5 (Wombarra) Pty Ltd v Wollongong City Council [2003] NSWLEC 268.

Location character, development contribution

24 Accordingly, the first design principle in clause 31 (a) requires recognition of the desirable elements of the location’s current character (or the desired future character for a transitional precinct), so an assessment of the developments contribution to the ‘quality and identity of the area’, can be made.

25 Ms Laidlaw followed this approach by firstly identifying the ‘locality’ of the site as being that part of the residential land to the north east of Moss Vale, and generally north of Kings Road and the railway line, and east of Argyle Street. She then says that:

"Within this area, I have observed that the majority of dwelling houses are single storey, set in generous gardens, with landscape (low trees and shrubs for the most part, but in places more significant vegetation) forming a dominant and defining element of the streetscape character. The residential buildings generally seem to date from perhaps the late 1970s/1980s and they are almost universally of ‘traditional’ character, with walls predominantly of face brick and tiled, hipped and gabled roofs.

There are some two-storey homes dotted around the area, but these are very much in the minority.

To the immediate north and south of the site are two subdivisions, comprising single storey homes arranged around two cul-de-sacs (Victor Crescent to the north and Coromandel Place, to the south). To the west, across Church Road, are more single storey dwellings, arranged undulating topography. To the east is undeveloped, non urban/grazing land zoned 7 (b) Environmental Protection.

The locality is clearly well-established (ie not ‘ transitional’) in terms of its character. The zoning as 2 (a) zoning incorporates objectives which indicate the existing character is consistent with the desired future character. These objectives include:

(a) To maintain and provide for areas with low-density residential character,
(b) To ensure that any development will not have an adverse effect on the landscape or scenic quality of the area or the amenity enjoyed by residents located within the area.”

26 In her second stage of assessment, Ms Laidlaw says that the proposed development deviates from the existing and desired future character in that:

· The proposed two-storey buildings constitute a dominant element of the built form, particularly as presented to Victor Crescent, to the Coromandel Place properties, and to a lesser extent, the Environmental Protection zone land to the east (in this case the two-storey buildings are set behind a row of single storey detached dwellings)… ;
· The buildings are of much larger scale than individual residences within the locality, and the development is of a significantly greater density, with the built form constituting a relatively dominant element (ie compared to landscape).

27 Ms Laidlaw concluded that this proposal should be refused and identified the following points, which support her assessment that the development would present as too obviously different and incompatible in character to satisfy the provisions of the cl 31 sub-clauses:

· the length of the proposed two-storey buildings, ranging between 34, 42 and (in the case of block 2) 63 metres (measured at first floor level) is excessive;
· the form of building as clear ‘double storey’ with two floors of essentially the same floor plan, as contrasted with, for example two-storey forms that reduce the impact at first floor by setting in from the level below, or disguising the first floor within the roof form;
· the length of unbroken facades on some elevations;
· in the case of building 2, the extent to which the impact of the length and form of the building is compounded by the elevation of the ground floor plan by up to 1.8 metres above natural ground level on the northern side (slightly more so, if measured at the northernmost extent of the balcony);
· the lack of landscaping at a height and density that would be effective in screening or at least softening the impact of development along the southern boundary, where the buildings will rise to a height of 8.5 metres above the boundary level and the proposed planting is to a maximum height of 5 metres.
· Around the northern and western boundaries, the planting is hedge style, interspersed with a species to 11 metres at maturity - the equivalent of around the ridge line height of building 2, and its greatest height above ground level. Generally, however it is evident that while landscape is a dominant element in the streetscape at present, the bulk of the proposed buildings, compared to the depth of the planting available in the foreground, will lead to a reversal of roles, with the built form being dominant.

28 As I noted previously, a considerable number of objections were lodged against the proposal and there is a high degree of consistency of the objectors’ recognition of the locations desirable character elements, with those identified by Ms Laidlaw. Some of the descriptive elements and opinions of the objectors as to the ability of the proposal to contribute to the quality and identity of the area are:

29 Having considered the evidence and undertaken a view, I am satisfied that this proposed development is located within the existing, well-defined locality described by Ms Laidlaw. As such, it is a highly attractive residential area where the obvious elements are single storey dwellings set in relatively large landscaped grounds, that are predominantly in excess of 2000 sq m. Consequently, this has resulted in larger dwelling houses that have relatively generous separation between buildings, which allows the residents a high degree of privacy and amenity, particularly in terms of access to private open space and garden areas.

30 I am also satisfied that the local planning controls seek to maintain this very low density character and identity (i.e. minimum lot sizes of 2000 sq m), which is reinforced by private covenants on the nearby land in Victor Crescent, where development is also restricted to lots with a minimum area of 2000sq m and housing is to be single storey.

31 Accordingly, I agree with Ms Laidlaw that the proposal would represent a significant change from the current character of this locality. Even though the proposal generally meets the numerical controls for bulk and height (these being secondary considerations), nevertheless the orientation of the lot imposes significant constraints on the proposed developments ability to achieve reasonable compatibility and ‘fit in’ with the existing development and consequently make a positive contribution to the quality and identity of this area.

32 These constraints occur in part because of the exposed, elongated orientation of the land, with a narrower frontage of 64.5m to Church Street and a 198.17m frontage to Victor Crescent. As the land is elevated above Victor Crescent, it is visually prominent from Church Street and to all users of Victor Crescent.

33 The proposal then incorporates the following components fronting Victor Crescent (as shown in the sketch at Attachment A):

· Block 1 (3 units); single storey unit with a frontage of 26.5 m;
· Block 2 (10 units); 2-storey apartment building with a frontage of 63 m and separation distance of 2 m from Block 1,
· Block 3 (8 units); two-storey apartment building with a length of 42 m, offset from Victor Crescent and separated from Block 2 by approximately 17 m (average).

34 From most observation points to the north and west of the site, particularly along Victor Crescent, I consider this proposal will read predominantly as a large, continuous, masonry structure with minimal separation between the various unit blocks. The combined length of Blocks 1 and 2 is in the order of 90 m, which I agree with Ms Laidlaw is excessive and obviously incompatible with the existing character. In my assessment it is completely unrepresentative of any building elements in the locality and as such, will not contribute positively to the desirable elements of the locality.

35 Likewise, the buildings adjacent to the southern boundary comprise:

· Block 4 (3 units); single storey with a length of 34m,

· Block 5 (6 units); 2-storey apartment building with length of 34m, separated from Block 4 by 5.5m, with a length of 34m and attached to the community centre,

· Community centre; single storey and attached to Block 5,

· Block 6 (6 units); 2-storey apartment building with a length of 34m and attached to the community centre,

36 In my assessment, this row of buildings will also read as a long, continual masonary structure, particularly the Block 5/community centre/Block 6 combination, with an apparent combined length of approximately 75m. The scale of such building components is a foreign element in this locality that would be in stark contrast to the adjoining low density dwellings. I agree with the objectors that it is more representative of institutional buildings, in other predominantly commercial zones and does not contribute to the quality of the area.

37 Accordingly, I am satisfied to rely on Ms Laidlaws following opinion that:

Notwithstanding, my fundamental concerns remain: on the whole, the development fails to interpret and reflect the established character of this locality. The blocks are generally too long and the footprints are generally too big (particularly the two-storey blocks, and especially, Block 2), and the dominance of two storey elements is still too evident. Block 2 also fails to present ‘ building heights and street frontage of the compatible in scale with adjacent development’ (Clause 31 (c) (iii) SEPP SL) and this diversion from the existing character is emphasised by the length of this building, at 63.5m. The development as a whole does not ‘ recognise the desirable elements of locations current character’ or ‘ maintain regional neighbourhood amenity and appropriate residential character’ as promoted by Clause 31

38 On the basis of this opinion, I do not consider the proposal adequately responds to the provisions of cl 31 (a) and ( c) and this is a significant negative aspect of the proposal, contributing to its refusal.

Landscaping

39 Notwithstanding this, I have considered Mr Buchanan’s opinion that the built form should not be considered as a ‘stand alone’ issue and that due weight should be given to the proposals compliance with the overall requirements of SEPPSL and the contribution made by sympathetic landscaping, as required by cl 31(e).

40 During the hearing, the landscaping issue was ventilated in terms of the many objections about the removal of existing mature trees on this large lot and the proposed replacement landscaping. I accept that many of the mature pine trees are in decline and that a reasonable replacement program can be implemented along the Church Road frontage and southern boundary.

41 However, the proposed treatment along the Church Road and Victor Crescent frontage is to utilise the existing street trees, plant a new boundary hedge of Pittosporum - to be maintained at 2.5 – 3m, and then provide supplementary Tulip Trees to screen the western and northern elevation of the building structures. This landscaping treatment is designed to screen the buildings in the longer term and I note that it is likely to take more than 10 years to reach reasonable maturity to achieve this. Nevertheless, I still consider that significant elements of the proposed building, particularly Block 2, will be readily discernible and will impose an undesirable element in the existing streetscape, which currently comprises a mix of vegetation and building elements, rather than a “compound effect” as proposed.

42 I agree with Ms Laidlaws’ opinion that the proposed landscaping/building relationship and character does not satisfy cl 31 (e).

43 Reference was also made to the following principles outlined in Wombarra, which I apply as follows:

The first principle is that buildings in a SEPP 5 development do not have to be single-storey to be compatible with the streetscape even where those buildings are single storey…

I that acknowledge that 2-storey buildings are generally acceptable on the subject site, but the current proposal does not incorporate and appropriate mix of single storey to double storey dwellings (of sympathetic dimensions and separation) with the surrounding building elements. Around 73% of the new units are in the 2-storey buildings, which I consider contributes to the excessive bulk of the development.

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

As I have stated previously, the elevated, corner location of the site results in a significant exposure of Blocks 1 and 2, which I do not consider are sufficiently separated or setback to be acceptable in this locality, where a predominant feature is the generous building separation of the neighbouring single storey dwellings, allowing extensive open space areas and landscaping.

The third principle is that where a site has existing characteristics that assist in reducing the dominance of the development, these characteristics should be preserved. Topography that makes development appear smaller should not be modified. It is preferable to preserve existing vegetation around a sites’ edges to destroying it and planting new vegetation.

The declining state of some of the existing vegetation, together with the proposed development layout does not assist the development in mitigating adverse elements.

The fourth principle is that a SEPP 5 development should aim to reflect the materials and building forms of other buildings industry…

I accept that this principle could be achieved in this case by way of conditioning, but consider it is a secondary consideration due to the excessive scale of the building components proposed.

Height

44 The other significant issue then concerns the proposals compliance with the height controls in cl 38. This particularly relates to the restrictions in cl 38 (4) (c), where a building located in the rear 25% of the site must not exceed 1 storey in height. The application of this control is somewhat complicated in this case because of the corner location of the site, whereby it has a front boundary to both Church Street and Victor Crescent and corresponding ‘opposite’ boundaries (i.e. two rear boundaries).

45 Consequently, the delineation of the 25% area was subject to argument in this case, as to whether the 25% area should be solely from the principal frontage of the existing allotment (Church Street), or from both streets. That is, whether a corner site should be regarded as having one or two rear boundaries.

46 Ms Laidlaw initially said :

" I would normally take the ‘ rear’ to mean that part of the site that is furthest away from the street. Where there is an existing house on the site, then I would also have regard to the way in which the building is oriented. On a corner site, I would normally take the ‘ rear’ to mean that part that, having regard to the prevailing pattern of subdivision, would be the rear in the next adjoining property. This has some logical basis when one looks to the (assumed) planning intent of the control, because that intent seems to be to reduce the impact of built form adjacent to private space/open space of adjoining properties.

These principles are of little assistance in the current case, however because:

- the site does not form part of consistent subdivision pattern, and

- it is a large site, with smaller lots (and differently oriented) subdivisions on two sides, and rural land (zoned 7 (b) Environmental Protection) on the other, and
- although the original house gains access to Church Road, that relationship was, I suspect, established before the current pattern of development established itself, and the proposed development address is to a different street, namely Victor Crescent.

For a large ‘corner’ site, such as this, I believe it is reasonable to form the view that the ‘rear’ need not be confined to one boundary, but rather, could apply to two, namely that part that is furthest away from each of two street frontages (allowing for some two storey to be retained that the south west corner of the site, which adjoins Church Road, although this is to the ‘ rear’ of the site, in terms of its frontage to Victor Crescent)."

47 On the basis that the objective of this control is to minimise impacts of the building bulk and associated amenity impacts of overshadowing and overlooking on neighbouring properties, the application of this 25% control should assist in infill developments in conventional subdivisions. Where there are corner allotments, I am satisfied that in certain circumstances it is reasonable to apply the control to two rear boundaries. These circumstances arise in the current case, because of the need to mitigate adverse impacts on the existing residential properties in Victor Crescent and also ensure the impacts are reasonable in terms of the Environmental Protection land.

48 However, a further complication in assessing this requirement and determining the restricted area was raised in the appeal, due to the various interpretations of what constitutes the ‘25% area’. Mr Buchanan determined the restricted area by taking the total area of 18168.27 sq m and deducting 4542.07 sq m (i.e. 25% of total site area) and then distributing this along the ‘rear boundary, i.e. to the Environmental Protection land. On this basis, he contended that application complied.

49 This approach was challenged by Ms Laidlaw. Her alternate interpretation is that one measures off 25% of the site length, along the adopted ‘ long’ dimensions. This alternative was acknowledged by Mr Buchanan, and on application imposed a greater restriction, resulting in non-compliance of part of Block 3 and Block 7, relative to the eastern boundary. A SEPP 1 objection was lodged in support of the non-compliance, which was not supported by Ms Laidlaw.

50 According to Ms Laidlaw’s evidence there are essentially four different interpretations for application of the height controls for this corner lot, as follows:

East Boundary only	East and south boundary
25% of total area allocated to rear boundary	Complies	SEPP 1 provided Non compliance Block 7 to south boundary
25% based on site length, allocated to rear boundary	SEPP 1 provided Non compliance – Block 3&7	No SEPP 1 Non compliance, Blocks 3, 5, 6, 7

51 In my assessment of these competing positions, I am satisfied that the development standard should be applied to both rear boundaries i.e. the east and south boundaries, so that the objective of the control to minimise impacts on neighbouring properties is considered. Accordingly, no SEPP1 was lodged in respect of the 25% determination based on site length, allocated to these rear boundaries. Even though there is a likely compliance with Blocks 3, 5, 6 and 7,this option cannot be assessed and is therefore a deficiency in the application, when the development standard is applied in this matter.

52 If however, the alternative application of the 25% total area allocated to the rear boundaries applies, which I consider is the appropriate application in this matter, then Block 7 is non compliant. The SEPP 1objection partly covers this and supports the SEPP 1 because:

· The requirement of clause 38 (4) ( c ) of SEPPSL to mitigate the potential impact on the neighbours back yards by providing a scale of development which maintains backyard to backyard relationship has been satisfied because there are no “residential” backyards which adjoin the rear boundary of the site.

· The shadows cast by proposed Block 7 do not result in any significant adverse impact on the amenity of the adjoining owner to the rear for the backyards of the residences at No. 7 and No. 8 Coromandel Place.

· Proposed Blocks 3 and 7 are located so they will not intrude into the visual amenity enjoyed by the neighbouring residents.

53 Insofar as I consider it appropriate that the height development standard should be applied to both rear boundaries, and the SEPP 1 does not cover this option, nevertheless I do not consider the alternate SEPP 1 warrants support. If this application of the development standard is correct, there is still non-compliance with part of Block 7,and this contributes to the excessive bulk and scale of the building, which leads to adverse visual amenity and potential over-looking issues. Notwithstanding the proposals incorporation of fixed louvres on the upstairs balconies, these are an uncommon building component in this locality, which I do not consider represents a good-quality design in the subject context. Whilst I rely on Ms Laidlaw’s opinion that the SEPP 1objection should not be allowed, nevertheless this is not determinive because the application otherwise fails on the grounds of non-compliance with the provisions of clause 31(a) and (c).

Traffic

54 This issue was addressed by Mr Hallam, on the basis of traffic generation and distribution from the development and the capacity of the adjoining road and intersection system to cope within reasonable levels of safety and environmental capacity.

55 He concludes that the incremental change arising from the proposed development could be accommodated within the existing road system, subject to some upgrading works at the intersection with Argyle Street. Other conditions of consent could be imposed to require minor amendments to the internal road system to facilitate satisfactory garbage collection arrangements. On the basis of the evidence presented to the Court, I accept that conditions of consent could be imposed on an appropriate development and that the proposal does not warrant refusal on the basis of this issue.

Drainage

56 Insofar as this issue was initially raised, I understand that the amendments to the drainage systems are satisfactory for conditional approval, which would also include conditions requiring the acquisition of drainage easements. I do not consider the application would warrant refusal on the basis of the drainage issue, unless appropriate drainage easements could not be obtained.

Conclusions

57 Having considered the evidence, the submissions and undertaken a view, I do not consider this application merits consent. An appropriate development of this nature is permitted under the provisions of SEPPSL, however such development must initially demonstrate reasonable compliance with the provisions cl 31.

58 For the reasons stated, I consider this proposal incorporates excessive 2-storey building elements, which are not compatible with the fundamental character of single story dwellings on spacious, landscaped allotments, in this well-defined locality. Of the proposed 52 units, 73% are incorporated within the 2-storey structures, which are uncharacteristic of this locality.

59 In particular, I consider that the location and scale of Block 2, having a 2-storey presentation, with a very prominent frontage of some 63m to Victor Crescent is not in sympathy with surrounding streetscape and would not maintain reasonable compatibility with this neighbourhood. Likewise, I consider the combined bulk and scale of Blocks 6, 7 and the community building present unacceptable lengths of building facades, which do not satisfy cl 31 (a) and (c).

60 These conclusions are supported by reference to the provisions of the Seniors Living Policy – urban design guidelines. Insofar as there was some argument about the applicability of these guidelines, I am satisfied the proposal can be categorised as ‘In-fill self-care housing’, according to the following provisions of cl 14 of SEPPSL:

“seniors housing on the land zoned primarily for urban purposes that consists of 2 or more self-contained dwellings where none of the following services are provided on site as part of the development: meals, cleaning services, personal care, nursing care.”

61 Accordingly, this proposal incorporates excessive massing of 2-storey building elements, which do not maintain a satisfactory relationship with the existing, well-established streetscape. I also consider the proposed building layout incorporates excessive lengths of unrelieved walls, particularly Block 2 and Blocks 5/ 6 and community centre, which are more characteristic of institutional buildings in commercial type zones and unsympathetic to this locality unsympathetic to this locality and therefore do not contribute to the quality and identity of the area.

62 These guidelines also require consideration of the provision of quality usable private and communal open spaces for all residents and for dwellings to maximise solar access to living areas and private open spaces. It seems to me that the elongated shape of this allotment, results in a design theme with the principal internal pathway between the two sets of building axes. As the alignment of this internal pathway is over the basement carpark, minimal area is provided for substantive internal vegetation. Also, the proposal incorporates substantive paved areas, with minimal lawn areas, which are uncharacteristic of the neighbouring properties. Accordingly, I do not consider this development provides high-quality usable private communal open spaces for all residents and this is a negative feature of the proposal, contributing to its refusal.

63 In summary then, I am satisfied to rely on the detailed assessment of Ms Laidlaw that this proposal represents an over development of the site by the inclusion of excessive two-storey elements without appropriate separation, which are exposed to the public domain due to the orientation of the allotment, and are uncharacteristic of this particular locality. As such, they do not satisfy the provisions of cl 31of SEPPSL, so as to make a positive contribution to the overall character of the area.

1 The appeal is dismissed.

2 The SEPP 1 objection to the building height development standard in cl 38 (4) (c) of SEPPSL is disallowed.

3 Development application No LUA 06/0555 for a Seniors Living development comprising 52 units at 22-24 Church Road, Moss Vale is refused.
4 The exhibits may be returned except 4, 10, 12, A and C.

___________________

R Hussey

Commissioner of the Court

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Citations

Ostron Pty Ltd v Wingecarribee Shire Council [2007] NSWLEC 467

Cases Citing This Decision

0

Cases Cited

2

Statutory Material Cited

3

Marina Bay Developments Pty Limited v Pittwater Council [2007] NSWLEC 41

GPC No 5 (Wombarra) Pty Ltd v Wollongong City Council [2003] NSWLEC 268

CITATION:	Ostron Pty Ltd v Wingecarribee Shire Council [2007] NSWLEC 467
PARTIES:	APPLICANT Ostron Pty Ltd RESPONDENT Wingecarribee Shire Council
FILE NUMBER(S):	10704 of 2006
CORAM:	Hussey C
KEY ISSUES:	Development Application :- seniors living development - height, bulk, scale, contribution to locality, drainage, public interest
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy - Seniors Living Wingecarribee Local Environmental Plan 1989
CASES CITED:	GPC No 5 (Wombarra) Pty Ltd v Wollongong City Council [2003] NSWLEC 268; Marina Bay Developments Pty Ltd v Pittwater Council [2007] NSWLEC 41
DATES OF HEARING:	23, 28, 30 and 31 May 2007
DATE OF JUDGMENT:	31 July 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr J Webster SC SOLICITORS Home Wilkinson Lowry APPLICANT Mr D Wilson SOLICITORS Bilinsky & Co