Platino Properties v Willoughby City Council

[2005] NSWLEC 327

Land and Environment Court

of New South Wales

CITATION:

Platino Properties v Willoughby City Council [2005] NSWLEC 327

PARTIES:

Applicant:
Platino Properties Pty Ltd

Respondent:
Willoughby City Council

FILE NUMBER(S):

10903 of 2004

CORAM:

Roseth SC

KEY ISSUES:

Development Application :- SEPP 1 objection toheight
aesthetic criticism

DATES OF HEARING:

08/09/2004, 09/09/2004, 25/11/2005, 03/12/2004, 31/03/2005, 16/06/2005

 
DATE OF JUDGMENT: 

06/16/2005

LEGAL REPRESENTATIVES:

Applicant:
Mr G Green, solictor of Pike Pike & Fenwick

Respondent:
Ms G Furness, barrister

JUDGMENT:

- 13 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

16 June 2005

10903 of 2004 Platino Properties Pty Ltd v Willoughby City Council

JUDGMENT

The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. The conditions are not reproduced as part of this decision but are available for inspection at the Council. A copy the Court’s Orders and conditions may be obtained from the Court’s registry on payment of a fee. For details of the fee payable and process for obtaining a copy of the Orders and conditions see the Court’s web site at

1 Senior Commissioner: This is an appeal against the deemed refusal by Willoughby City Council (the council) of a development application to demolish the existing buildings and erect a new four-storey commercial and residential building on lot 1 DP 608404 and lots 1 and 2 DP 218090, known as 56, 58 and 58A Frenchs Road, Willoughby.

The site

2 The site is on the south side of Frenchs Road, close to Willoughby Road. It is an amalgamation of three allotments and has an area of 1,304m2 and a frontage of 30m. It slopes from east to west, ie towards Willoughby Road. The existing buildings on the site are single-storey and in commercial use.

3 The surrounding development is a mixture of commercial and residential, including single dwellings and blocks of flats. To the east are two commercial buildings with a traditional shop front and a parapet. To the west is a three-storey building, the ground floor of which is two storeys below Frenchs Road. Across the road are a block of flats and some houses.

The proposal and its history

4 The applicant proposes to demolish the existing buildings on the site and to construct a four-storey building containing commercial and residential use on the ground floor and residential use on the upper floors. The fourth floor is an attic floor, ie it is within the roof. A basement carpark provides space for 38 cars.

5 The applicant lodged the development application in March 2004. Following notification, the council received 10 objections. At the time of hearing the council had not determined the application.

Relevant planning controls

6 The Willoughby Local Environmental Plan 1995 (LEP 95) zones the site General Business A.

7 State Environmental Planning Policy 65 – Design Quality of Residential Flat Development (SEPP 65) establishes design principles for apartment buildings. It is complemented by the detailed guidelines of the publication Residential Flat Design Code.

8 State Environmental Planning Policy 1 – Application of Development Standards (SEPP1) under which the applicant has objected to the maximum building height of 9m in cl 37 of LEP 95.

9 Development Control Plan 2 – Transport Requirements for Development (DCP 2) establishes parking requirements for various land uses.

10 Development Control Plan 22 – Residential Development in Business Zones (DCP 20) applies to the application.

The issues

11 The council’s Amended Statement of Issues contains 19 issues. These were reduced and simplified during the proceedings. The following emerged as the real issues:

· Is the parking provision adequate?

· Are the height, bulk and scale excessive?

· Is the internal amenity acceptable?

· Is the commercial space adequate and does the application show sufficient detail about it?

· Are the criticisms of an aesthetic nature fatal to the application?

Objectors’ evidence

12 The written objections were concerned with additional traffic, excessive height and bulk, noise, view loss and overlooking. None of the experts suggested that the impact on nearby properties was unacceptable. The Court heard only one objector, namely Mr B Vance, who is the owner of the property at 60 Frenchs Road. Mr Vance told the Court that his objection was on two grounds. First, the proposal was too big for the site and its context. This matter is the major issue in the case and is discussed below. Second, development of the site should wait until it is possible to amalgamate a larger number of sites for a single proposal. As the planning controls do not include a requirement for amalgamation, the Court (and the council) must look at the proposal before it, whether or not it includes amalgamation. The possibility that at some time in the future a proposal for a larger site may be made is not relevant.

Parking

13 I deal with this issue first, since a finding that the parking provision is inadequate would require another level of parking and would be fatal to the application.

14 The Court heard the evidence of Mr Robert Varga, a traffic engineer retained by the applicant, and Ms Robyn Pearson, a town planner with the council. Their main disagreement was on the number of spaces required. The number of spaces depends on whether or not the site is considered to be “located on a major public transport corridor”. This is because DCP 2 requires less parking on sites located on major public transport corridors than on other sites. DCP 2 defines Willoughby Road as a major public transport corridor. The dispute between the experts was whether the site should be treated, for the purpose of applying the correct parking rate, as if it were located on Willoughby Road. (I note that the discussion during the hearing centred on the word “adjacent”, while DCP 2 uses the term “located on”. However, nothing turns on this, since the site is neither adjacent to nor located on Willoughby Road.)

15 Mr Varga said that the reduced rate should be applied because the site is less than 100m from a major bus stop. Ms Pearson insisted on a literal interpretation of “adjacent” (though she must have had the term “located on” in mind). In my opinion, it is appropriate to apply to this site the parking rate for development located on major public transport corridors. There can be only one planning rationale for a reduced requirement, namely that car ownership in areas close to public transport is lower than it is generally. The criterion is not whether a property has a Willoughby Road address, but whether it is close to public transport.

16 I am strengthened in the above conclusion by the following note in DCP 2:

Council will not issue Resident Parking Permits to residents of newer multi-unit development as this does not meet the intention of the control plan to provide parking for all residents off-street and to encourage the use of public transport (emphasis added.)

17 The above suggests that council has reduced the parking requirement close to public transport in order to encourage its use and to discourage high levels of car ownership. Ms Pearson’s literal interpretation of DCP 2 and her insistence on more parking would encourage the residents of this proposal to own more cars. Her interpretation is therefore at odds with the environmental objectives of DCP 2.

18 The second issue in dispute between Mr Varga and Ms Pearson was that Ms Pearson assumed that the commercial space provided at ground floor level might eventually be used for shops. This would require seven spaces above those required if the commercial space is used as offices. In Ms Pearson’s view, the development should provide for the “worst case scenario”. She agreed, however, that the council has a Contribution Plan under which future applicants for the use of the commercial space as retail could pay a parking contribution.

19 I do not agree with Ms Pearson that it is desirable to provide parking for the worst case. Over-provision encourages residents to own additional cars, to drive more and to use public transport less. This would be a pity on this site, which is exceptionally well located to public transport.

20 Based on the reduced parking rate and commercial (rather than retail) use of the ground floor, the parking requirement for the proposal is either 31 or 33 (depending on the number of apartments). The actual provision is 38. The surplus places allow the applicant to meet two more of Ms Pearson’s criticisms and to provide a parking space for disabled drivers for the commercial space, and one for delivery vans.

21 Mr Varga and Ms Pearson disagreed also on the width of the internal ramp. Ms Pearson wanted it increased to 6m, while Mr Varga considered the ramp adequate. Given his more specialised expertise as a traffic engineer, I accept Mr Varga’s evidence on this issue.

Height, bulk and scale

22 The issue about height, bulk and scale may be expressed in the form of three questions:

· Should the building contain an attic?

· Are the setbacks from boundaries appropriate?

· Should there be communal open space in the southwest corner to comply with DCP 22? (This issue is dealt with here, though it could belong to the section on internal amenity.)

Attic

23 LEP 95 establishes a height limit of 9m for this site. It is common ground that the height of the proposal is 12m. Up to third floor level most of the building complies with the 9m-height limit and, where it does not, the extent of non-compliance is minor. The reason that the proposal is 12m high is because it contains an attic floor. In a previous case the Court has interpreted the definition of height in the LEP so as to include the height of attics even when they are wholly contained within the roof.

24 Ms Pearson considered that the 9m-height limit should be observed and the attic replaced by a flat roof. However, I understood her not to be overly concerned about the minor additional height of the third floor. Mr Michael Harrison, an architect, planner and urban designer retained by the council, had a different view. He accepted the existence of about half the attic, though he did not want to see it in the form of an attic but as a recessed fourth floor over a flat roof.

25 The applicant’s expert on urban design was Mr Rohan Dickson, an architect, planner and urban designer. He believed that the whole of the attic was appropriate. His reason was that an attic would not be highly visible from any important vantage point, including the intersection of Frenchs and Willoughby Roads. Mr Andrew Smith, the applicant’s planning expert, agreed with Mr Dickson.

26 The Court thus has before it three distinct views on the attic floor and the shape of the roof. Ms Pearson wants a flat roof over the whole building with no fourth level. Mr Harrison wants a flat roof but would accept a recessed fourth level on the northern section of the building. Mr Dickson thinks that the pitched roof over the building is acceptable and therefore the attic floor is also acceptable.

27 It is clear that Ms Pearson’s suggestion of deleting the attic floor (and Mr Harrison’s suggestion of deleting half of it) makes sense only if the pitched roof is changed to a flat roof, as indeed both of them have suggested. So long as the proposal contains a pitched roof, the attic floor makes no difference to the bulk, since it is wholly contained within the roof. Without an attic, the building would comply with the height limit with the existing roof, apart from the section of the third floor that is slightly above 9m. The dispute about the height of the building makes sense only as a dispute about whether it should have a pitched or a flat roof.

28 I return to the shape of the roof in the section on criticisms of an aesthetic nature below. At this point it is sufficient to say that the existing development near this site does not provide a justification for requiring a re-design of the building to a flat roof. The adjoining building has a traditional parapet with a skillion roof behind it. There are some non-descript modern buildings on Frenchs Road with a flat roof. There are also numerous buildings with pitched roofs, including a visually prominent building on Willoughby Road opposite Frenchs Road, which is visible from the site.

29 Once one accepts a pitched roof over the building, there is no purpose in deleting the attic floor, which provides additional accommodation without adding to height and bulk. The applicant has made an objection under SEPP 1 to the height standard. The objection lists the objectives of the standard as articulated in DCP 22. The objectives are directed at constraining bulk in order to fit into the context and limit impacts on the street and adjoining sites. The presence of an attic floor wholly contained within the roof allows the achievement of the objectives. The objection is therefore well founded and the strict application of the 9m-height limit is unnecessary.

30 It was common ground that the success of the SEPP 1 Objection on height would remove any issue concerning the permissibility of the Floor Space Ratio of the proposal.

Setbacks from boundaries

31 The proposal does not comply with the setback requirements of DCP 22. Ms Pearson said that she saw no reason for varying any of these requirements. Mr Harrison and Mr Dickson, on the other hand, agreed that the strict application of the setbacks would not be appropriate because of the nature of the buildings on adjoining properties.

32 Mr Dickson and Mr Harrison came to near-agreement about setbacks, which they illustrated on a coloured set of drawings that became MFI A in the proceedings. The only disagreement relates to a section on the building’s west, where Mr Harrison wanted the setback to extend for 16m, while Mr Dickson suggested that the setback should extend for 5m only. This evidence changed on the second day, when both Mr Dickson and Mr Smith agreed that the setback should extend for 10m. The difference between of opinion now concerns a small part of the building with a floor space of about 50m2, or about 1.5% of the total floor space. In the interest of a cleaner and simpler plan I accept the setback suggested by Mr Harrison.

Communal open space

33 DCP 22 requires 10m2 of communal open space for every apartment that has no access to open space at ground level. The current plans fall just short of this provision. The applicant indicated that it would amend the proposal to comply.

Internal amenity

34 The council criticised five aspects of internal amenity: solar access, natural light, dimensions of single aspect units, acoustic privacy and storage. Mr Dickson and Mr Harrison agreed that there should be some design changes to improve the proposal. The design changes they agreed on are listed under Issue 7 of their joint report (Exhibit 7). Subject to these changes, they agreed that solar access; natural light and the dimensions of single aspect units are acceptable. (I note that Mr Harrison thought they were “just acceptable”. I note also that Ms Pearson was more critical than Mr Harrison and did not agree that the issue of internal amenity has been resolved with the changes agreed on in Exhibit 7.)

35 The issue of acoustic privacy is resolved by conditions proposed by an acoustic expert retained by the applicant. As regards storage, Ms Pearson pointed out that DCP 22 requires at least 3m2 of storage per dwelling. The applicant indicated that it would amend the proposal to ensure that the smallest stores would be at least 3m2.

36 Although Mr Harrison and Mr Dickson (but not Ms Pearson) came to an agreement of sorts, I still have concerns about the proposal’s internal amenity and environmental performance. My first concern is that the proposal significantly fails to comply with the “rules of thumb” on page 69 of the Residential Flat Design Code. It appears from the plans that the depth of some apartments is almost twice the maximum suggested in the Code. In the climate of concern about greenhouse gas emissions that exists in 2004 it would be undesirable to construct apartments in which rooms would need artificial lighting during the day.

37 My second concern is that the proposal’s designers appear to have given no thought to water-efficient design. I am aware that in November 2004 I cannot take the proposal’s performance under BASIX into account. This is no reason, however, for the applicant not to try to achieve the best environmental performance for the building.

Commercial space

38 DCP 22 requires that one-third of the ground floor space be in commercial use. As a result of changes to the plan, that area is currently under the requirement. The applicant agreed to provide the required amount of floor space.

39 Ms Pearson suggested that the applicant should indicate the layout and use of the commercial space and whether it will be used as shops or offices. In my opinion, this is not necessary. It is unlikely that at this early stage the applicant knows how and by whom the commercial space will be used. If it submits information based on guesswork only in order to fulfil a council requirement, no good purpose will be served.

Criticisms of an aesthetic nature

40 As mentioned above, the experts disagreed about the appropriate shape of the roof. Ms Pearson and Mr Harrison opted for a flat roof, while Mr Dickson and Mr Smith supported the pitched roof as proposed. This was not the only aesthetic criticism levelled at the proposal. For example, Mr Dickson and Mr Harrison agreed that “the vertical elements of the lower two floors of the street frontage should be emphasised by deep column reveals”.

41 Mr Harrison was, however, not satisfied by cosmetic changes alone. He suggested that, even with the adoption of changes to which Mr Dickson has agreed, the application was unacceptable because its design quality was not good enough. In his opinion, the designers had wrongly adopted a “muddled historical style”. The design character/style should be “contemporary to reflect modern indoor/outdoor living”. The building’s street façade was born out of a mistaken belief that it should reflect the traditional architecture of the adjoining building. Instead of trying to mimic past styles, it should be unashamedly contemporary.

42 This criticism goes well beyond the more usual planning objections to a building’s bulk and physical impact. It raises the important question whether planning control should extend to influencing the aesthetic appearance of buildings? Should it be concerned with architectural style? Such questions have long been debated in the wider community. At one extreme is the view that aesthetic control is always wrong and that no building should ever be assessed on its appearance. At the other is the imposition of restrictive aesthetic controls that lead to mediocrity and stifle innovation and the occasional flash of genius.

43 For the Court the question can be formulated in this way: what weight should be given to an expert’s opinion about the appropriateness of a building’s style, character, material or colour, as distinct from its height, bulk and density? The question does not admit of an unequivocal answer. Expert opinion on architectural character tends to be subjective. What one highly regarded professional likes, another, similarly highly regarded, dislikes.

44 Architects Marshall v Lake Macquarie City Council [2005] NSWLEC78 contains a planning principle relating to the weight that should be given to expert opinion on architectural design. The principle states that that weight should be tested against two main criteria, ie:

· whether the opinion is mandated by a design code, such as the Residential Flat Design Code or the Burra Charter, or alternatively reflects the subjective preferences of a local community expressed in a local policy, such as a development control plan, and/or

· whether the opinion is a widely accepted professional view, or at least a view held by a sizable group of professionals, rather than one individual opinion.

45 I apply the above tests to Mr Harrison’s criticism relating to the pitched roof and the muddled historical style of the proposal. It seems to me that his is only one professional opinion out of many. Mr Dickson’s is another such opinion, and it would not be appropriate for the Court to choose between them. The council’s planning instruments and policies do not mandate Mr Harrison’s view. In my opinion, the design approach of this proposal is acceptable. It is one of several possible approaches, but it is a valid one.

Summary of findings

46 The following summarises the findings of the Court:

· The number of parking spaces provided is adequate.

· Three of the parking spaces provided should be converted into a space for disabled and one for delivery vans.

· The SEPP 1 Objection to the height standard of 9m is well founded.

· The pitched roof and the attic floor are acceptable.

· The setback on the west boundary should be in accordance with Mr Harrison’s evidence (marked red on MFI A).

· The proposal should provide 10m2 of communal open space per upper floor apartment at ground level.

· The proposal should incorporate the design changes listed in Issue 7 of Exhibit 7.

· The proposal should designate one-third of the ground floor area for commercial use.

· The proposal should comply with the rules of thumb on page 69 of the Residential Flat Design Code.

· The applicant should consider the feasibility of including a water tank in the project.

47 The above findings were read out in Court on 25 November 2004. The applicant agreed to prepare amended drawings that reflect the findings. The drawings were re-advertised resulting in a further five submissions from objectors, none of whom wished to give oral evidence. The Court considered the objections at a mention on 16 June 2005. It was common ground that the objections did not raise any new matter (ie any matter that the Court had not previously taken into consideration). The council accepted the Court’s findings and did not object to approval being granted subject to conditions on which the parties agreed. As a result I make the formal orders granting consent to the application.

Orders

1. The appeal is upheld.

2. Development application to demolish the existing buildings and erect a new four-storey commercial and residential building on lot 1 DP 608404 and lots 1 and 2 DP 218090, known as 56, 58 and 58A Frenchs Road, Willoughby is determined by the granting of consent subject to the conditions in Annexure A.

3. The exhibits are returned except Exhibits 9 and J.

________________________
Dr John Roseth
Senior Commissioner