Residential Lifestyles Pty Ltd v Warringah Council
[2005] NSWLEC 250
•05/18/2005
Land and Environment Court
of New South Wales
CITATION: Residential Lifestyles Pty Ltd v Warringah Council [2005] NSWLEC 250
PARTIES: APPLICANT
Residential Lifestyles Pty LtdRESPONDENT
Warringah CouncilFILE NUMBER(S): 10887 of 2004
CORAM: Nott C
KEY ISSUES: Development Application :- proposed three-storey medical centre - meaning of "consistent with" - whether consistent with the general principles of development control in the LEP - numerical requirements in the principles (eg as to the number of car spaces) do not prohibit the development - whether consistent with desired future character - dispensation from the two-storey development standard in the C1 Locality Statement
LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 97
Warringah Local Environmental Plan 2000CASES CITED: Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185;
Drake v Minister for Planning [2003] NSWLEC 270 at [88] ;
Gillespies v Warringah Council [2002] NSWLEC 224 at [63] to [79], (2002) 124 LGERA 147 at 163-167DATES OF HEARING: 16 and 17 December 2004
DATE OF JUDGMENT:
05/18/2005LEGAL REPRESENTATIVES: RESPONDENT
APPLICANT
Ms J Jagôt, barrister
SOLICITORS
Hones Lawyers
Mr N Howie, solicitor
SOLICITORS
Wilshire Webb
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Nott C
18 May 2005
10887 of 2004: Residential Lifestyles Pty Ltd v Warringah Council
JUDGMENT
1. Introduction
1. Commissioner: This is an appeal against the council’s refusal of a development application for the demolition of an existing single-storey dwelling and garage and for the erection of a medical centre at 16 Starkey Street, Forestville. The subject land has a frontage to Starkey Street of 20.115 m and to Violet Lane of 40.235 m, and the total area of the site is 809.4 sq m.
2. The proposed medical centre is designed to accommodate three dentists and two doctors. The slightly excavated proposed ground floor of the building will comprise a carpark for 14 cars, pedestrian entry, and stairway and lift to the two floors above the carpark. The dental practice is proposed on the first floor, which will comprise three surgeries and ancillary rooms including four small offices, a sterilisation room, a small laboratory, disabled toilet, laundry and WCs, staff room, a room for files next to a reception area, a waiting room and play area. The gross leasable floor area of the dental practice on the first floor is 285.4 sq m (ex D, par 3.1). The proposed second floor, having a gross leasable floor area of 162.2 sq m, will contain consulting rooms for two medical practitioners and associated rooms. The total gross leasable floor area is 447.6 sq m; or simply, a gross floor area (as defined by the local environmental plan) of 535.6 sq m.
3. The proposed building complies with a development standard relating to the maximum height of 8.5 metres (measured from the topmost point of the building vertically to the natural ground level) but it does not comply with another development standard limiting the number of storeys to two. At the hearing, there were also issues (detailed below) as to whether the proposed development was consistent with the desired future character of the locality and with certain general principles of development control.
4. The proposal can be seen in more detail in the amended architectural plans (exhibit G), the landscape plan (ex J) and the stormwater drainage plan (ex K).
2. Issues in more detail
5. The statement of issues dated 16 September 2004 (excluding items that were not pressed at the hearing) reads:
2. INCONSISTENCY WITH DESIRED FUTURE CHARACTER.1. GENERAL CONSIDERATIONS – Section 79C
The proposed development is an overdevelopment of the site particularly given the building bulk and scale, the height of the proposed development, the lack of adequate landscaping and lack of pedestrian access to the site.
The proposed development is inconsistent with the Desired Future Character described in the Locality Statement for the C1 Middle Harbour Suburbs Locality (Clause 12(3)(b) of Warringah Local Environmental Plan 2000 (WLEP) given that:(a) the bulk and scale of the proposed development is not in keeping with the visual pattern and predominant scale of the existing detached houses in the locality.
(b) the indigenous tree canopy is not protected or enhanced by the removal of significant trees from the site, particularly those that form a canopy along the length of Violet Lane.
3. OVERDEVELOPMENT
The proposed development is an overdevelopment of the site given that:Height
(a) The proposed building does not comply with the Built Form Standards with regard to Building Height for the C1 Locality (cl 12(2)(b) of WLEP 2000) in that the proposed development presents as a three-storey dwelling which is exacerbated by the podium parking across the ground-floor level.Landscaping
(b) …(c) The proposed development does not provide adequate landscaped open-space as required by cl 63 of WLEP 2000 in that it does not conserve significant features of the site (in that it does not retain the canopy of trees addressing Violet Lane) and it does not provide landscaping at the front of the site that enhances the streetscape or the desired future character of the locality, or at the rear of the site.
Bulk
(d) The proposed development does not have a visual bulk and architectural scale consistent with structures on adjoining or nearby land and would potentially visually dominate the street and the surrounding spaces. In particular the proposed development has larger areas of continuous wall planes, and does not provide landscape planting that adequately addresses the street frontage and pedestrian flow. (Clause 66—Building Bulk WLEP 2000).(e) The bulk of the building is exacerbated by provision of a visually dominating parking podium across the whole ground-floor level, creating a three-storey building of a form uncharacteristic of the area and inconsistent with general principles in cll 71 and 75 of WLEP 2000.
Carparking
(f) The proposed development does not provide adequate off-street car parking as required by cl 74 of WLEP 2000 and schedule 17 of WLEP 2000.Pedestrian access(g) The proposed development does not provide carparking that is of an appropriate design as required by cl 75 of WLEP 2000.
(h) Adequate provision is not provided or possible on the current design of the proposed development for the provision of safe and appropriate pedestrian access, in the form of a footpath, adjacent to Violet Lane on the northern boundary of the proposed development site. Given the design and proposed use of the development, safe and appropriate pedestrian access should be provided. (Section 79C EPA Act and cl 69 WLEP). …
3. Evidence and ultimate finding
6. Evidence for the applicant was given by town planner Mr L Winnacott, tree-care consultant Mr P Castor, and traffic engineer Mr C Hallam.
7. For the council, evidence was given by consultant town planner Mr N Juradowitch, and I also considered the council’s bundle of document.
8. There was helpful evidence from two Court-appointed experts: Mr J Rudd, traffic engineer; and Mr D Draper, arboriculturist.
9. In reviewing the evidence and submissions, I have used my notes as well as the audiotapes of the court hearing, and I have been aided by an inspection with the expert witnesses of the subject site and locality.
10. This is clearly a borderline case. However, for the reasons given below, I have accepted that the preconditions to the granting of consent have been met, even though in some respects the proposed development extends to the limit the type of development that might be considered as being consistent with the desired future character of the C1 locality and with the general principles of development control of LEP 2000 (referred to below). In addition, factors in favour of the proposed development include:
- There were no submissions against the proposal from adjoining owners or from other members of the public received by the council.
- The subject land is well located immediately opposite the C1 locality, which allows for more dense development.
- The proposed modern dental practice in the medical centre would be owned by Dr May, whose present practice is in cramped premises a short distance from the subject site.
- The proposed development would be likely to cater for the health needs of the local population and to be in the public interest.
- There is a regular bus service stopping immediately in front of the subject land.
11. Having considered the matter generally under s 79C(1) of the Environmental Planning and Assessment Act 1979, I propose to grant development consent, subject to the quite detailed conditions that have been jointly formulated by the parties.
4. LEP 2000
12. Having regard to the issues raised by the council, it is necessary to consider many provisions of Warringah Local Environmental Plan 2000 (“LEP 2000”). As set out in cl 3 of LEP 2000, the purposes of the plan include:
- (b) to describe the desired characters of the localities that make up Warringah and relate the controls on development to the achievement of the desired characters of those places, and
(c) to establish limits to the exercise of discretion with regard to the control of development.
13. Part 2 of LEP 2000 is headed “Control of development” and includes clauses 7 to 33. The more relevant clauses are 10, 12, 15, 18 and 20, set out below:
10 What development is prohibited?
The following development is prohibited:(a) development identified as being prohibited within a Locality Statement, and
(b) signs of the type listed in Schedule 4 (Prohibited signs).
12 What matters are considered before consent is granted?(1) Before granting consent for development the consent authority must be satisfied that the development is consistent with:
(a) any relevant general principles of development control in Part 4, and
(b) any relevant State environmental planning policy described in Schedule 5 (State policies).
(2) Before granting consent for development, the consent authority must be satisfied that the development will comply with:
(a) the relevant requirements made by Parts 2 and 3, and
(b) development standards for the development set out in the Locality Statement for the locality in which the development will be carried out.
(3) In addition, before granting consent for development classified as:(a) Category One, the consent authority must consider the desired future character described in the relevant Locality Statement, or
but nothing in a description of desired future character creates a prohibition on the carrying out of development . [Underlining added.]
(b) Category Two or Three, the consent authority must be satisfied that the development is consistent with the desired future character described in the relevant Locality Statement,
15 Does Category Three development involve extra procedures?
(1) Consent may be granted to development classified as Category Three only if the consent authority has considered a statement of environmental effects that includes the items listed in Schedule 15.(2) The consent authority must not grant consent to an application that includes development classified as Category Three unless the consent authority has considered the findings and recommendations of an independent public hearing into the application, including reasons for its recommendations. …
18 How will the built form of development be controlled?
(1) Built form will be controlled in accordance with the general principles of development control, the desired future character of the locality and the development standards set out in the Locality Statement.
(2) Strict compliance with development standards, however, does not guarantee that the development is consistent with either the general principles of development control or the desired future character of the locality.
(3) Nothing in this plan requires development to comply strictly with a quantitative requirement made in any general principle of development control. [Underlining added.]
20 Can development be approved if it does not comply with a development standard?
(1) Notwithstanding clause 12 (2) (b), consent may be granted to proposed development even if the development does not comply with one or more development standards, provided the resulting development is consistent with the general principles of development control, the desired future character of the locality and any relevant State environmental planning policy.
(2) …
(3) Where consent is granted for development that does not comply with one or more development standards, the Council is to ensure that the circumstances of the case and reasons for granting consent are included in a public register of such consents.
14. The words that I have underlined in cl 12(3), as well as the whole of cl 18(3) above, were added by Warringah Local Environmental Plan 2000 (Amendment No. 12), published in the Government Gazette of 3 December 2004. The relevant aims of this amending LEP were to declare that a description in LEP 2000 of the desired future character of a locality does not prohibit any development, and to provide that it is not necessary for development to comply strictly with any quantitative requirement (such as a requirement relating to the area or height) in a general principle of development control in Part 4.
15. Part 3 of LEP 2000 relates to reserved land and is not relevant for the present appeal. Part 4 is most relevant and is entitled “General principles of development control”. Part 4 includes the following provisions of clauses 66, 71, 74 and 75:
66 Building bulk
Buildings are to have a visual bulk and an architectural scale consistent with structures on adjoining or nearby land and are not to visually dominate the street or surrounding spaces, unless the applicable Locality Statement provides otherwise.
In particular:
• side and rear setbacks are to be progressively increased as wall height increases,
• large areas of continuous wall planes are to be avoided by varying building setbacks and using appropriate techniques to provide visual relief, and
• appropriate landscape plantings are to be provided to reduce the visual bulk of new buildings and works.
71 Parking facilities (visual impact)Parking facilities (including garages) are to be sited and designed so as not to dominate the street frontage or other public spaces.
In particular:
• garage doors and carports are to be behind the front facades of housing where the topography of the site allows, and
• parking is to be located within buildings or on-site and not on streets, and
• laneways are to be used to provide rear access to carparking areas where possible, and
• car parking is to be provided underground or in semi basements for apartment buildings and other large developments, and
• parking is to be located so that views of the street from front windows are not obscured, and
• where garages and carports face the street, the garage or carport opening is not to exceed 6 metres or 50% of the width of the building, whichever is the less.Note. Individual Locality Statements may provide more detailed guidance regarding the location and design of carparking facilities.
74 Provision of carparkingAdequate off-street carparking is to be provided to serve a development having regard to:
• the land use, and
• the hours of operation, and
• the availability of public transport, and
• the availability of alternative carparking, and
• the need for parking facilities for courier vehicles, delivery/service vehicles and bicycles.[For medical centres, schedule 17 specifies 4 spaces per 100 sq m GFA—which I consider at pars 47ff below.]Unless the applicable Locality Statement provides otherwise:
(a) if Schedule 17 (Carparking provision) specifies the minimum number of on-site parking spaces required in relation to a particular land use, or sets out a means of calculating that minimum number of spaces—that minimum number of spaces must be provided…
75 Design of carparking areasCarparking, other than for individual dwellings, is to:
• not be readily apparent from public spaces, and
• provide safe and convenient pedestrian and traffic movement, and
• include adequate provision for manoeuvring and convenient access to individual spaces, and
• where possible, enable vehicles to enter and leave the site in a forward direction, and
• be landscaped to shade parked vehicles, screen them from public view, assist in micro-climate management and create attractive and pleasant spaces, and
• provide on-site detention of stormwater, and
• make reasonable provision for the carparking needs of people with physical disabilities. …
16. Clause 69 deals with accessibility to public or semi-public buildings but not to other buildings. That clause was referred to in issue 3(h) of the statement of issues (par 5 above). However, it is not clear to me that the proposed building is a “semi-public building”, such as a shopping mall would be. Nevertheless, I have still considered the issue under the general provisions of s 79C(1) of the Environmental Planning and Assessment Act 1979.
17. One of the tools that most local environmental plans employ is the creation of zones of permissible and prohibited uses; and development standards are usually prescribed in respect of the uses within those zones. LEP 2000 is an exception in that there are no zones but rather detailed Locality Statements for different localities throughout the council area. Each Locality Statement has a description of the desired future character of the locality, a list of permissible uses (divided into three categories) and prohibited uses, and a specification of development standards relating to the built form.
18. The subject land is in Locality C1 Middle Harbour Suburbs, and the proposed development, being a medical centre with five health-care professionals, is permissible with consent as Category Three development. The dictionary of LEP 2000 defines “medical centre” to mean—
- “a building or place used for the purpose of providing professional health services (such as preventative care, diagnosis, medical or surgical treatment, or counselling) to out-patients only, but does not include a health consulting room.
19. The proposed development is not “health consulting rooms”, which by definition is a building used by no more than three legally qualified medical practitioners or by not more than three dentists. Health consulting rooms are Category Two development.
20. Relevant provisions of the desired future character described in the C1 Locality Statement are:
DESIRED FUTURE CHARACTER
The Middle Harbour Suburbs locality will remain characterised by detached-style housing in landscaped settings interspersed by a range of complementary and compatible uses. …
The relationship of the locality to the surrounding bushland will be reinforced by protecting and enhancing the spread of indigenous tree canopy and preserving the natural landscape, including rock outcrops, remnant bushland and natural watercourses. The use of materials that blend with the colours and textures of the natural landscape will be encouraged.…Future development will maintain the visual pattern and predominant scale of existing detached houses in the locality. The streets will be characterised by landscaped front gardens and consistent front building setbacks.
21. In applying the first paragraph of the above description of the desired future character, it should be noted that the dictionary of LEP 2000 contains the following definition:
complementary and compatible use means an activity:
(a) that maintains and, where possible, enhances the amenity of the locality, and
(b) that does not compromise the role of any nearby local retail centre irrespective of locality, and
(c) that meets any of the following criteria:(i) the scale and intensity of the activity are such that it predominantly serves only the needs of residents of the local area…
22. The Locality Statement of LEP 2000 includes the following development standards relating to the built form:
Building height
Buildings are neither to exceed 2 storeys nor 8.5 metres. …To measure the height of a building:Buildings must comply with both the maximum height measured in storeys and the maximum height measured in metres.
• the maximum height in metres is the distance measured vertically between the topmost point of the building (not being a vent or chimney or the like) and natural ground level below, and
• a storey is the space between two floors, or the space between any floor and its ceiling or roof above, and
• foundation spaces, garages, workshops, store rooms and the like which do not project more than 1 metre above natural ground level (at any point) are not counted as storeys, and
• the number of storeys is the maximum number of storeys which may be intersected by the same vertical line, not being a line which passes through any wall of the building. Buildings are not to exceed 2 storeys in height except where on significantly sloping land and if the additional storey:
• does not exceed the 8.5 metre height standard, and
• is designed and located to minimise the bulk of the building, and
• has minimal visual impact when viewed from the downslope sides of the land.
Front building setback
Development is to maintain a minimum front building setback.
The front building setback area is to be landscaped and generally free of any structures, carparking or site facilities other than driveways, letterboxes and fences.To measure the front building setback:
• The minimum front building setback from a boundary having frontage to a public street is to be equal to the average setback of the adjoining dwellings.Consent may be given for development to be carried out within the minimum front setback area:
• on corner allotments provided the development is compatible with development in the vicinity, or
• on allotments constrained by the location and use of existing buildings or the topography, if it is for the provision of carparking.Rear building setback
The minimum rear building setback is 6 metres.
The rear building setback area is to be landscaped and free of any structures.…
The rear building setback does not apply to corner allotments.Side boundary envelope and side setback
Buildings must be sited within an envelope determined by projecting planes at 45 degrees from a height of 4 metres above natural ground level at the side boundaries.
The minimum setback from a building to a side boundary is 0.9 metre.
To measure the side boundary envelope and side setback:
• on corner allotments the side boundaries are taken to be the boundaries that do not have frontage to a public street.Fascias, gutters, downpipes, eaves up to 0.675 metre from the boundary, masonry chimneys, flues, pipes, or other services infrastructure may encroach beyond the side boundary envelope.
Screens or sunblinds, light fittings, electricity or gas meters, or other services infrastructure and structures not more than 1 metre above natural ground level such as unroofed terraces, balconies, landings, steps or ramps may encroach beyond the minimum side setback.Landscaped open spaceConsent may be granted for development that, to a minor extent, does not comply with:
• the side boundary envelope, to allow the addition of a second storey to an existing dwelling, or
• the side setback, to allow a single storey outbuilding, carport, pergola or the like.
The minimum area of landscaped open space is 40 per cent of the site area…
5. Draft LEP
23. There is also a draft LEP (ex 4) which should be given some weight. The draft LEP would delete from cl 71 the second bullet point and the last bullet point, and would amend the opening words of cl 74 to read: “Adequate off-street carparking is to be provided within the subject property boundaries having regard to:…”
24. The draft LEP would also omit the above-quoted building height provisions of the Locality Statement and insert instead:
Additionally buildings are not to exceed 7.2 metres from natural ground level to the underside of the ceiling on the uppermost floor of the building (excluding habitable areas located wholly within a roof space)…Buildings are not to exceed 8.5 metres in height, where height is the distance measured vertically between the topmost point of the building (not being a vent or chimney or the like) and the natural ground level below.
25. In addition, the draft LEP would amend the front building setback of the Locality Statement so that the requirements would then read:
The front building setback area is to be landscaped and generally free of any structures, carparking or site facilities other than driveways, letterboxes and fences.Front building setback
Development is to maintain a minimum front building setback. The minimum front building setback is 6.5 metres.
Consent may be given for development to be carried out within the minimum front setback area:
- on corner blocks or blocks with double street frontage the front building setback may be reduced to a minimum of 3.5 metres for the secondary frontage. Secondary street setback variations must consider the character of the secondary street and the predominant setbacks existing to that street; or
- on allotments constrained by the location and use of existing buildings or topography, if it is for the provision of carparking.
6. The meaning of “consistent with…”
26. What is the meaning of the underlined words in the following provisions of LEP 2000:
- consistent with…relevant general principles of development control—cl 12(1)(a),
- consistent with the desired future character—cl 12(3)(b), and
- consistent with the general principles of development control, the desired future character of the locality and any relevant State environmental planning policy”—cl 20(1)?
27. The above three provisions have to be applied in the present case, and it is apparent that the same meaning should be given to “consistent with” in each provision.
28. It was common ground that it was not necessary for a development to “comply with” or “conform to” the general principles of development control in order to be “consistent with” those principles.
29. On behalf of the applicant, Ms J Jagôt referred to cases where it was held that a development would always be consistent with the objectives of a zone if the development was merely “not antipathetic” to the objectives. However, it was submitted by Mr N Howie on behalf of the council that I should adopt the meaning of “consistent” determined by Bignold J in Gillespies v Warringah Council [2002] NSWLEC 224 at [63] to [79], (2002) 124 LGERA 147 at 163-167.
30. I respectfully prefer the well-reasoned exposition by Bignold J in Gillespies. In particular, I cite the following passages:
70. With the benefit of the survey of the decided cases on the meaning that has been given to the word “consistent” in clauses in planning instruments that require an opinion by the consent authority that a proposed development be “consistent with the zone objectives” , I would for myself, conclude that the word “consistent” appearing in cl 12(3)(b) of the LEP, assumes its ordinary and natural meaning. That meaning in my respectful opinion is not confined to the notion of the proposed development “not being antipathetic” to the desired future character of the Locality.
71. The dictionary meaning of the word “antipathetic ” (eg the Macquarie Dictionary: “having a natural antipathy, contrariety or constitutional aversion ”) indicates a far stronger, but narrower, connotation than the connotation of the word “inconsistent”. Clearly, there can be an “inconsistency” with a stated object which does not involve any element of “antipathy” to that object.
72. When Clarke JA in Coffs Harbour Environment Centre Inc [ Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185] stated at 193 that whatever be the precise ambit of provisions in a local environmental plan which prohibited all development “unless the Council was satisfied that the carrying out of the development is generally consistent with one or more of the stated objectives of the zone…the provisions do not permit an antipathetic development … ” , his Honour was simply propounding the view that he had already expressed at 192 that the construction under land zoned “Public Recreation” of a sewerage treatment plant “could not possibly be regarded as being compatible with public recreational use of the land”. His Honour had deliberately eschewed any attempt to define the ambit of the relevant planning provisions and his conclusion that they did not permit the carrying out of “antipathetic” development was nothing more than postulating an obvious and unarguable proposition that such a development could not qualify as being “generally consistent” with the zone objectives.
73. Accordingly, it is clear in my opinion that whereas something that is antipathetic to a stated object is obviously inconsistent with that object, antipathy is not a true synonym of inconsistency and the meaning of inconsistency is not to be confined to the meaning of antipathy. Inconsistency can arise without any antipathy.
74. On the other hand, “compatibility” in my judgment may reasonably be regarded a synonym of “inconsistency” [this last word should have read “consistency” ] and the meanings of these words is very similar, although in Coffs Harbour Environment Centre Clarke JA at 192 rejected as “too expansive” an argument that “consistent” meant “compatible” and one of the dictionary meanings of the latter word was “mutually tolerant ” . I would respectfully agree with Clarke JA’s conclusion that that particular meaning of “compatible” was too expansive in the context of its application to the statutory provision requiring the consent authority’s opinion that the proposed development be “generally consistent” with the zone objective. However, the primary dictionary meaning of “compatible” (the Macquarie Dictionary : capable of existing together in harmony) is in my judgment, both apt and applicable to the interpretation of the word “consistent” in its context in cl 12(3)(b) of the LEP.
77. For the foregoing reasons, I am quite unable to accept the Applicant’s argument that the word “consistent” in its context in cl 12(3)(b) means “not antipathetic”. Rather I would hold that it has its ordinary and natural meaning (eg as in the Macquarie Dictionary: “1. agreeing or accordant; compatible; not self-opposed or self-contradictory; 2. consistently adhering to the same principles, course etc” ).75. In so concluding, that the ordinary and natural meaning of the word “consistent” in its statutory context is to be applied as being appropriate to the true meaning of cl 12(3)(b) I have had regard to the function and effect within the LEP of the Locality Statements…
31. In Drake v Minister for Planning [2003] NSWLEC 270 at [88] Bignold J held that a waste transfer terminal was not consistent with the objectives of the relevant zone in the Auburn Local Environmental Plan 2000. In so concluding, his Honour interpreted “consistent with” in the manner explained in Gillespies v Warringah Council (2002) 124 LGERA 147 at 163 to 166.
7. Building bulk and architectural scale
32. The general principle relating to visual bulk and architectural scale is contained in cl 66 of LEP 2000 (quoted at par 15 above). In the interpretation of this principle, the reference to “adjoining or nearby land” is not limited to land in the C1 locality (in which the subject land is situated) but includes the shopping centre on the opposite side of Violet Lane in the C3 locality.
33. It is necessary to consider the proposed development as viewed from different vantage points. I am of the opinion that the front of the proposed development as viewed from Starkey Street would have a visual bulk and architectural scale consistent with the shopping-centre structures and residential flat buildings to the north of Violet Lane in the C3 locality and with the adjoining building immediately to the south in the C1 locality. Although the proposed development will be larger and different from the form of development directly opposite the subject land in Starkey Street, the proposed development may be regarded as consistent with that development, for the reasons given below.
34. The main frontage of the proposed development (which faces east towards Starkey Street) will be seen in a landscaped setting. As shown on the landscaped plan (ex J), seven trees will be planted within the subject land across its whole width near the front boundary. Behind and below the canopy of these trees, there will be an area of dense shrubs, behind which again will be further shrubs in wide planter boxes adjoining the proposed ground-floor structure of the carpark. The planter boxes will vary in height from 0.5 m to 1 m. The landscaping in front of the planter boxes will screen the planter boxes themselves and the further landscaping within the boxes will substantially screen the enclosed area below the balcony of the first floor.
35. Looking at the proposed development from directly in front of it or from most places in Starkey Street, it will not be apparent that there is any carpark, but what will be seen are two storeys of domestic appearance above an enclosed supporting structure substantially screened by landscaping; even though strictly speaking, the proposed building has a height of three storeys as defined in the Locality Statement. Only a relatively narrow cone of view may be available from the northeast in Starkey Street past the existing corner shop and beyond the proposed landscaping to the side of the proposed building (which itself will be landscaped at least at the lower level). The total depth of the landscaping from the Starkey Street boundary to the front of the proposed building is 7.7 m. There will be limited visibility to the ground-floor entrance from Starkey Street because of the oblique, curved pathway through this landscaping.
36. The proposed front wall (which is only 6.95 m wide) of the second floor has a setback of 10.63 m from the Starkey Street frontage, and a further small section (3.25 m wide) of the second level is stepped back 13.95 m from that frontage. Consequently, as the building gets higher, there are substantial increased setbacks from the lower levels.
37. Viewed from opposite the subject land in Starkey Street, the proposed development (although technically being three storeys in height) would be consistent with a two-storey scale and bulk. This is because of the proposed development’s relatively large setback from Starkey Street; and because of the landscaping to be provided; and because the overall height of the building will be similar to the relatively new building on the adjoining land immediately to the south, which has the appearance of a two-storey house but is used for an optometrist’s practice.
38. The side and rear setbacks of the proposed development are progressively increased as wall height increases. From the rear boundary (that is, the western boundary), the setback of the proposed first floor is 6.5 m, increasing to 8.36 m for the second floor. The property on the western side of this rear boundary has an approved SEPP 5 development for older people or people with a disability. Three existing trees, together with a proposed Scribbly gum and other landscaping on the subject site, and a Lemon-scented gum near the boundary on the SEPP 5 site, will separate the two developments.
39. The fact that some structures near the subject land are single storey does not mean that the proposed developments is inconsistent with the general principle relating to building bulk in cl 66. The bulk and scale of all the existing development adjoining, surrounding and near the subject land has to be considered. The development includes the two-storey shops and office development immediately opposite the proposed development in Violet Lane as well as the larger scale developments further to the north; the surrounding development also includes the two-storey development immediately to the south of the subject site in the C1 locality. The situation would clearly be different if all surrounding development was low scale and single storey, in which case it could not be held that the proposed development would be consistent with the principle in cl 66.
40. The parties disagreed as to whether the bulk of the proposed development was acceptable as seen from Violet Lane. In my opinion, this lane may be regarded as a secondary frontage for the proposed development and a smaller setback for the proposed ground floor than has been provided to Starkey Street will be acceptable at this corner location.
41. Nevertheless, in accordance with the last bullet point of cl 66 of LEP 2000, “appropriate landscape plantings are to be provided to reduce a visual bulk” of the proposed building as seen from the lane. The landscaping is to be provided in accordance with the landscaped plan (ex J) and detailed conditions of consent in annexure A to this judgment. The proposed setback ground floor varies: facing Violet Lane near the corner of Starkey Street, the setback is 2.2 metres, and at this location on the subject site, two existing trees will be retained; and a further tree is to be retained near the lane boundary in the wider front setback from Starkey Street. Moving westward along Violet Lane, the ground-floor structure will still be about 2.2 m from the lane; however, the front part of two carparking spaces will project out beyond the main line of the northern façade of the ground floor, and Gymea lilies (growing to a height of 1.5 metres) are proposed in the relatively narrow space between the front of the car spaces and the lane. If there had been a series of three or four more car spaces with a similar setback, I think that this would have been unacceptable. However, immediately to the west of these two carparking spaces, the setback of the ground floor from the lane increases to 4.3 m for a further distance westward of 4.8 metres. This significant indent of the built form allows for a pathway from the lane to the stairway or lift of the proposed development and for landscaping containing a White cedar with a mature height of 6-8 m. Because of the adjusted floor level of the carpark, now proposed at RL 125.7, it was the opinion of both the arborist landscape experts for the parties that there would be adequate provision for the roots of this tree on the land in the indented section of the proposed building and that the roots could extend under the carpark slab. Immediately to the west of the side footpath entrance, the setback to the ground-floor wall is 3.6 m for a length along the lane of about 5.5 m, which will be landscaped: first, a planter with Gymea lilies will extend from the ground floor wall towards the lane by 1.2 metres containing Gymea lilies underneath the overhanging first-floor balcony (a drip-watering system for the landscaping generally is required by a condition of consent); secondly, in front of a planter bed, uncovered by any structure above it, there will be sufficient ground area for another White cedar tree to be planted. Moving further to the west is the 6-m wide entrance to the carpark. Finally, for the last 7.6 m along the lane frontage, between the carpark entrance and the north-western corner of the subject land, the setback is 2.2 m, which contains an existing Tasmanian blue gum near the corner, and a new tree is proposed to be planted centrally in this setback area; ground-cover shrubs and Lilly pillies are also proposed.
42. At the first floor facing Violet Lane, the setback to the northern wall near the eastern part of the proposed building is 3.7 m, to which an open balcony has been added with the balustrade 2.2 m from the lane. There is then the central indented section in relation to the ground floor, described above. And the western part of the proposed building has a setback of the northern wall from the lane of 3.3 metres, and an open balcony has been added with the balustrade set back 2.2 m from the lane.
43. At the second-floor level, the setback of the majority of the length of this upper storey of the northern elevation from the lane is 4.3 m; and the remaining part of the northern elevation (for the last 4 m along the facade at the eastern end of the building) has a large setback of 7.5 m to the lane.
44. It is my view that acceptable visual relief is provided to the length of walling at the first and second-floor levels by the two small side roofs above the first floor of the western half of the building, by the cental windows and by different roof forms in the eastern third of the north elevation.
45. From the southern side boundary, the proposed development at the ground and first floors is set back approximately 2 m. The ground-floor carpark is partly excavated being about 300 mm below the existing ground levels at the southern facade or, on average, about 400 mm below the existing ground levels at the southern side boundary. The length of the southern facade is broken by a recessed balcony, which is indented by 2 m for a length of 4.27 m along the façade. The uppermost level is set back a considerable distance of 5.77 m from the southern boundary, and the length of the wall at this level is broken by two slightly indented parts and windows. There was no objection to the proposed development from the adjoining property owners. Moreover, as viewed between buildings from further to the south in Violet Avenue only the rear part of the proposed building would be seen, the height of which would appear similar to the optometrist’s building at 18 Starkey Street.
46. I am inclined to accept the evidence that favours the view that the proposed development will have a bulk and scale consistent with structures on adjoining and nearby land, and will not dominate the street or surrounding spaces.
8. Number of carparking spaces
47. The evidence of the court-appointed traffic engineer, Mr Rudd, was that schedule 17 referred to in the general principle in cl 74 of LEP 2000 would require the proposed development to provide 22 on-site parking spaces. However, traffic engineer Mr C Hallam was of the opinion that LEP 2000 incorrectly based the parking provision on an error in the RTA’s Guide to Traffic Generating Developments; and that according to surveys, 14 spaces would be adequate. Mr Rudd agreed that using survey data, the parking demand for the proposed development would be less. Mr Rudd considered that the demand would be 17 spaces, 14 of which could be provided on the site, and he was of the opinion that there was sufficient capacity on the streets within the immediate vicinity of the site to accommodate the overflow of three vehicles during the peak period and that this would be acceptable.
48. The three-member panel who conducted the independent public hearing on 6 December 2004 for the purpose of cl 15 of LEP 2000 were prepared to accept the opinion of Mr Hallam, but they considered they had no discretion to vary the number of spaces required. The panel were apparently not aware that on 3 December 2004 LEP 2000 was amended by inserting cl 18(3), so that there is no longer any requirement to comply strictly with a quantitative requirement in any general principle of development control (par 14 above).
49. I accept the panel’s view that 14 carparking spaces are adequate to serve the development and that the proposed development will be consistent with the general principle set out in the first paragraph of cl 74. I note also that there is a regular bus service with a stop immediately in front of the subject land in Starkey Street.
9. Design of the carparking
50. I now proceed to consider the general principles of development control in cll 71 and 75 of LEP 2000 (quoted at par 15 above).
51. The proposal may be regarded as a medium-scale non-residential development, in respect of which case basement carparking is not necessarily required. The first bullet point of cl 71 deals with the garage doors and carports relating only to “housing”.
52. The second bullet point of cl 71 is currently important, because it gives the option of locating parking spaces “within buildings or on-site”. This bullet point is proposed to be deleted by the draft LEP (par 23 above).
53. In respect of the third bullet point, a laneway (Violet Lane) is used to provide access to the carpark near the rear of the site.
54. The fourth bullet point of cl 71 (“carparking is to be provided underground or in semi basements for apartment buildings and other large developments”) does not appear to apply to the proposed development. Clause 71 applies not only to the C1 locality but to the whole council area, including localities where more dense development, having a larger scale and height than the proposed development, is encouraged or permitted.
55. The expression “apartment building” is not defined by LEP 2000. A common understanding of that expression is a building divided into apartments containing suites of rooms or at least three dwellings but frequently many more than three dwellings, with the building usually having a common entrance and hallway. Typically, there are apartments of each other, in a multi-storey building. An “apartment building” does not normally include housing such as dual occupancies, town houses or villa homes. Apartments and apartment-style housing are referred to in cll 55, 64, 65 and 71 of LEP 2000. As I mentioned, the proposal may be regarded as a medium-scale non-residential development.
56. The proposed development complies with the second-last bullet point of cl 71.
57. The last bullet point of cl 71 could perhaps be limited parking associated with housing (like the first bullet point). It is also questionable whether the proposed parking facility is a “garage or carport”. The proposed parking facility is more aptly described simply as a carpark. However, if I am wrong in those views, the proposed development does not have to comply strictly with the numerical requirements of the last bullet point (cl 18(3)). Moreover, the draft LEP (par 23 above) would delete all the requirements of this sixth bullet point and not impose any similar requirements.
58. The overriding consideration in cl 71 is that the parking facility should not “dominate the street frontage or other public places”. Because of the single-storey nature of the proposed parking facility (partly excavated below existing ground levels) with landscaped setbacks from Starkey Street and Violet Lane, the proposed development is consistent with this overriding requirement of cl 71.
59. In accordance with cl 75, “carparking…is to not be readily apparent from public spaces”. Part of the proposed carparking will be apparent, but most of the parking spaces will not be seen from public places, as the parking spaces will be located either wholly within the single-storey parking structure and mostly not visible; or, in respect of those parking spaces (and any cars parked on them) that partly protrude from under the building, the parking will be mostly screened by landscaping from view. Having regard to the matters discussed in relation to cl 71, and to the consideration of the carpark, setbacks and landscaping in pars 34, 35, 41 and 45 above, I am of the opinion that the proposed development will be consistent with the principle that the proposed carparking should not be readily apparent from public spaces.
60. An aspect of the proposed development that is not ideal is that there is no pathway on the southern side of Violet Lane either within the road reserve or on the subject land itself, leading from the proposed pedestrian entrance at Violet Lane proceeding along the northern boundary of the subject land to the footpath in Starkey Street. Issue 3(h) refers to this (par 5 above), and it was the subject of criticism by the panel who conducted the independent public hearing. It is not possible to put a footpath within the road reserve on the southern side of the lane, because the carriageway would then be too restricted. If necessary, a pathway could be constructed immediately inside the northern boundary of the subject land proceeding east to the footpath in Starkey Street, but this new footpath would result in the removal of two and possibly three existing trees and the removal of the proposed strip of landscaping separating parking spaces 13 and 14 from the lane. However, it was the applicant’s case (not disputed by the council) that there is a footpath on the northern side of Violet Lane, so that a person walking from the shopping centre could turn right from Starkey Street and walk westward along that footpath in the lane for about 20 m and then cross over to the proposed side entrance. For a person coming out of that entrance from the adjoining stairs or lift, there would be good visibility to any cars travelling in the lane because of the low agapanthus plants proposed on either side of the entrance-path; the person could then cross the lane to the public pathway on the northern side. For a person in a wheelchair, it seems an appropriate, convenient and safe way of entering the proposed building would be along the wider footpath in Starkey Street to the main entrance at the Starkey Street frontage; the disabled person would then have to proceed through part of the carpark to the lift. Other patients could also use this main entrance. This main entrance would not have the same pleasant amenity as could be the case if upon passing through a ground floor entrance the person was already within the vestibule or waiting room of the dental practice; but this is not a sufficient reason in my opinion to refuse the application. While from safety point of view it might be better to separate, if possible, the main entrance altogether from the carparking, only part of the carpark has to be traversed, and the risk to patients would be no greater than if patients were to park elsewhere in the carpark and then have two walk from their cars to the lift or stairs. Although in a smaller development a better design could be provided, there was little evidence from a safety point of view against approving the development with the present arrangements.
61. Based on the expert traffic-engineering evidence and the conditions of development consent that will be imposed, I am satisfied that—
(1) adequate provision has been made for manoeuvring and for safe and convenient vehicular access to the individual spaces,
(2) the width of the car spaces and the location of columns is appropriate on the amended plans (ex G),
(3) each vehicle will be able to enter and leave the site in a forward direction,
(4) on-site detention of stormwater will occur in accordance with the stormwater concept plan (ex K), and
(5) a 3.5-m wide car space for a disabled person is conveniently located next to the lift.
62. Having considered the abovementioned clauses, as well as the other provisions of Part 4 of LEP 2000, I am of the opinion that the proposed development, carried out in accordance with the conditions of consent, will be consistent with the general principles of development control.
10. “Consistent with…the desired future character”?
63. The experts agreed that the “locality” referred to in the desired future character statement for the C1 locality means the C1 locality itself, and I concur with that interpretation. The relevant description of the desired future character is quoted at par 20 above.
64. The town-planning experts agreed that there are many new, large houses being built in the C1 locality that are replacing earlier modest post-war cottages. The prevailing bulk and scale is changing from modest single-storey dwellings to much larger, mainly two-storey dwellings, which over time is creating a new bulk and scale of detached dwellings. But the experts disagreed as to the appropriateness of the bulk and scale of the proposed building in relation to the built form in the C1 locality.
65. I have already described in some detail in relation to cl 66 aspects of the proposed development that are relevant to a consideration of the first two paragraphs of the description of the desired future character of locality.
66. The proposed landscaped development that will replace an old house and garage on the subject land and will maintain if not enhance the amenity of the locality. The role of the adjoining shopping centre will not be compromised, but the proposed development will be a compatible use. On the evidence of Dr May the scale and intensity of the proposed development is likely to predominantly serve the needs of the residents of the local area. Consequently, the proposed development meets the defined criteria of a “complementary and compatible use” (par 21 above).
67. Some of the many detached houses in the C1 locality and are shown in the photographs of Mr Winnacott (ex F).
68. Because of the particular location of the subject land, across a lane from the denser C3 locality, on a corner lot and on the very edge of the C1 locality, I am of the opinion that the proposed development will not be inconsistent with the maintenance of the visual pattern and predominant scale of existing detached houses in the C1 locality. This opinion is not in conflict with the interpretation in par 63. The situation might be different if, for example, a similarly-sized three-storey medical centre (but with ground-floor parking accessed from its front entrance) were proposed on a relatively level rectangular lot having a frontage 20 m and side boundaries of 40 m, located in the centre of a level block immediately adjoined on each side boundary by one-storey or two-storey houses—such a proposed three-storey development would probably have an overall discordant scale and appearance, inconsistent with the maintenance of the desired future character of the C1 locality.
69. In relation to the third paragraph of the desired future character statement, I accept the evidence of the court-appointed arboriculturist Mr Draper. Briefly, he said that of the 18 trees within the subject site, 6 are to be removed. However the enhancement of the indigenous tree canopy can be accomplished by the planting of 14 new trees with heights at maturity between 8-12 m. The further planting of Lilly pillies, which grow to 4 m at maturity, will also enhance the indigenous tree canopy.
70. Accordingly, the proposed development will be consistent with the desired future character of the C1 locality.
11. Built-form development standards
71. I come now to consider the development standards of the built form in the Locality Statement, in particular relating to building height (par 22 above).
72. The proposal is under 8.5 metres in height but it exceeds the two-storey limit. The proposed building has two habitable storeys, but because the carpark projects more than one metre above natural ground level the carpark is also counted as a storey. In respect of the proposed height controls in the draft of LEP, the development would comply except in respect of the 7.2 m ceiling height control, in respect of which there would be a non-compliance of between 0.8 m and 1 m, as scaled from the plans.
73. No issue was raised as to the total amount of landscaped area being 39.66 percent of the site (plan DA08, part of ex G.), which is fractionally less than the 40 percent required by the development standard in the Locality Statement (quoted at the end of par 22 above).
74. Both town-planning experts agreed that the extent of landscaping to the eastern, southern and western boundaries of the site would be satisfactory. But the experts disagreed as to the distribution of the total landscaping; with Mr Juradowitch taking the view that the width of the landscaping along the northern boundary (Violet Lane) was inadequate. In my opinion the landscaping along the northern boundary, which is to Violet Lane, will be acceptable.
75. Development consent may be granted under cl 20(1) of LEP 2000 notwithstanding noncompliance with any development standard in the Locality Statement. I have already held that the resulting development is consistent with the general principles and with the desired future character of the locality; and that the proposed development is not inconsistent with any State environmental planning policy.
76. As a matter of discretion it is appropriate to grant consent because of the reduced size of the second floor as compared with the first floor and because of the increased setbacks of the uppermost level from the public roads, as described earlier.
77. I think the situation would be different had the upper level not been curtailed in size. But if it had projected east to the front of the first-floor facade and had extended across the whole width of the lower level, such a building would have gone beyond the bounds of being consistent with the desired future character and a dispensation from the two-storey development standard would not and indeed could not have been granted.
78. It was submitted on behalf of the council that the proposed development should not have to rely upon landscaping in order to be acceptable. However, the intent of LEP 2000 is that landscaping should be an important part of the development—see cl 66 9 (3rd point), cl 75 (5th point), the three paragraphs of the desired future character statement (quoted at par 20 above), and the development standard relating to the front building setback in the Locality Statement.
79. As indicated earlier, I have considered the report of the panel who conducted the independent public hearing. While, as a matter of law, the opinions expressed by the panel were open to them (except in respect of the discretion to vary the carparking numbers), contrary factual findings also as a matter of law may be made. I note as well that there were some changes made to the issue F plans (ex G) after the second hearing of the panel on 3 December 2004. It was not submitted by either party that it was necessary to resubmit the issue F plans to the panel before the Court was entitled to grant consent. For the reasons discussed in this judgment, I have taken the view that it is appropriate to grant consent, subject to the detailed conditions of consent.
12. Orders
80. Accordingly, the orders of the Court are:
- 1. The appeal is upheld.
2. Development consent is granted to DA 2002/0871 for the demolition of the existing dwelling and garage and for the erection of a medical centre at 16 Starkey Street, Forestville, subject to the conditions in Annexure A hereto.
3. The exhibits, other than exhibits G, H, J and K, may be returned.
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A J Nott,
Commissioner of the Court
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