Sandran v Campbelltown Council

[2004] NSWLEC 376

Land and Environment Court

of New South Wales

CITATION:	Sandran v Campbelltown Council [2004] NSWLEC 376
PARTIES:	APPLICANT Sandran Pty Limited RESPONDENT Campbelltown City Council
FILE NUMBER(S):	11272 of 2003
CORAM:	Brown C
KEY ISSUES:	Development Application :- demolition of existing building erection of 2 x 6 storey apartment buildings consistency with DCP requirements design impact of adjoining development
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No. 65 Campbelltown (Urban Area) Local Environmental Plan 2002
CASES CITED:	Zhang v Canterbury City Council (2001) 115 LGERA 373
DATES OF HEARING:	01,02/07/04
DATE OF JUDGMENT:	07/16/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr J Bingham, solicitor SOLICITORS Deacons RESPONDENT Mr A Seton, solicitor SOLICITORS Marsdens

JUDGMENT:

- 16 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Commissioner G T Brown

16 July 2004

11272 of 2003 Sandran Pty Limited v Campbelltown City Council

JUDGMENT

Introduction

1 This is an appeal against the refusal by Campbelltown City Council (the council) of Development Application F878/20023 for the demolition of an existing building and the erection of two residential apartment buildings and a retail building at 63 Queen Street, Campbelltown (the subject site).

2 I record that a view of the subject site and surrounding area was undertaken on the morning of the first day of the hearing with representatives from both parties.

3 For the reasons set out in this judgment I have concluded that the appeal should be dismissed and the development application refused.

Subject site

4 The subject site comprises lot 4 in DP 292967. It is L-shaped with a 15.37 m frontage to Queen Street, a 23.965 m frontage to Langdon Ave and an overall length of some 90 m. The total area is 3281 sq m.

5 The subject site is located towards the northern end of the Campbelltown town centre and is currently occupied by a vacant two-storey commercial building. This building occupies the south western portion of the site and is accessed from Langdon Ave.

6 Adjoining the subject site to the north-west is a commuter car park of 225 ground level car parking spaces. Development to the south-east comprises a series of single storey retail/commercial developments with frontages to Queen Street. The Campbelltown Police Station adjoins the subject site to the south-west.

The proposal

7 The proposal involves the demolition of the existing commercial building and the erection of 2 x 6 storey residential apartment buildings comprising 6 x 1 bedroom, 53 x 2 bedroom and one studio unit. The apartment buildings are to be located above a common two level basement car parking providing 73 car parking spaces, storage areas, plant and waste storage rooms. A single level commercial building is to be erected adjoining the Queen Street frontage with a floor area of 135 sq m.

Relevant planning controls

8 The subject site is zoned Local Comprehensive Centre Zone 10(a) under the provisions of Campbelltown (Urban Area) Local Environmental Plan 2002 (the LEP). Shops and residential flat buildings are developments that may be carried out with consent. Clause 28(2) provides objectives for the zone and requires that consent must not be granted unless the consent authority is of the opinion that the development would be consistent with one or more of the objectives of the zone.

9 State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65) applies to the proposed development. Clause 30 requires consideration to be given to the design quality principles in Part 2 (cl 30(2)(b)) and the publication Residential Flat Design Code (cl 30(2)(c)).

10 Development Control Plan No. 85 - Business and Comprehensive Centre Zones (DCP 85) applies to the proposed development. The plan divides the Regional Comprehensive Centre into 8 functional areas. The subject site is located within the North Queen Street area. DCP 85 also identifies land use precincts with the subject site located within the Business Precinct. The objectives of the Business Precinct are located at cl 21(1). Essential requirements for the Business Precinct are located at cl 23(2).

11 Draft Campbelltown (Sustainable City) Development Control Plan (the draft DCP) applies to the subject site. The draft plan provides detailed controls for building form and character by specifying standards for matters such as height, setbacks, landscaping, solar access and streetscape. The draft DCP was exhibited from mid-August to mid-October and attracted a large number of submissions. At its meeting on 14 October 2003, the council resolved, in part, to amend the draft DCP "to ensure that no residential apartments over two storeys in height are allowed in the City of Campbelltown other than within a limited section of the Queen Street CBD". The amendment referred to in this resolution has not been prepared nor re-exhibited.

The issues

12 The council filed a Statement of Issues containing 12 separate issues. Of these issues, cross ventilation (Issue 5), traffic and vehicular movements (Issues 7, 8 and 9) and the adequacy of information (Issue 12) were not pressed. The remaining issues can be conveniently grouped into the following main areas:

1) whether the proposed development is consistent with the type of the development envisaged by the LEP and DCP 85 (Issues 1 and 10),
2) whether the design of the proposed development is acceptable, considering the proposed setbacks, the variation to the minimum lot width, the adequacy of the communal open space areas, the development of adjoining lands and the management of waste (Issues 2, 3, 4 and 11) and
3) whether the proposed development adequately considers the development on adjoining land (Issue 6).
Consistency with the LEP and DCP 85

13 Mr James Lovell, a town planner, provided evidence for the applicant. He maintains that is not necessary or appropriate for the development to include further business or commercial development beyond that proposed in the application. He notes that residential flat buildings are identified as permissible uses in the zone without any commercial or business component. The subject site is well suited to accommodate residential development because of its proximity to railway infrastructure and services. In any event, the proposed development incorporates a retail component at the Queen Street frontage, consistent with the nature of other existing uses in this street.

14 Mr Lovell notes that while the purpose of a DCP is to provide further and more detailed controls than those in the LEP, the content of a DCP cannot conflict with or derogate from the LEP. Further, and in addition to the fact that the LEP allows residential flat buildings without any business or commercial component, the LEP specifies that the development must be consistent with one or more of the objectives of the zone. In this regard, objective (f) specifically contemplates high-density housing.

15 Mr Scott Phillips, the Manager Development Services with the council provided evidence on this issue. He states that the proposed development would be inconsistent with the objectives and essential requirements for the Business Precinct as it contains a high-density residential component far in excess of its retail and commercial component. The DCP is a contemporary planning guide for the future development of the major commercial and retail area for the City of Campbelltown and a development in the form proposed would considerably erode the provisions of the DCP.

16 Clause 28(2) requires that consent must not be granted unless the development is consistent with one or more of the objectives of the 10(a) zone. The objectives are

( a) to provide land for the City of Campbelltown and the Macarthur region's largest centre of commerce, and
(b) to encourage employment and economic growth, and
(c) to accommodate tertiary education and hospital facilities for the City of Campbelltown and the Macarthur region, and
(d) to accommodate a wide range of cultural, entertainment and the like facilities, and
(e) to permit limited industrial uses that are compatible with the proper operation of a major regional centre, and
(f) to encourage a variety of forms of high-density housing, including accommodation for older people and people with disabilities in locations which are accessible to public transport, employment, retail, commercial and services facilities.

17 I accept Mr Lovell's evidence that the proposed development is consistent with objective (f), so cl 28(2) presents no barrier to the approval of the development application.

18 DCP 85 applies to land beyond the 10(a) zone however cl 7 (5) states that development within the 10(a) zone "must meet the functional area objectives and requirements which are provided in clauses 42 to 49 of this plan".

19 Clause 21(1) identifies the objectives of the Business Precinct. These are:

( a) to encourage the development of business uses; and
(b) to encourage the use of land for the decentralisation of government offices.

20 Clause 21(2) identifies the essential requirements for the Business Precinct. These are:

(a) any buildings erected in this precinct must be designed primarily to accommodate businesses;
(b) the main function of any activity within this precinct is to be commercial rather than retail orientated; and
(c) any retail functions that are not ancillary to other businesses located within this precinct are to be limited to the ground floor of the buildings only and are to consist only of retail functions which service the needs of occupants of adjoining business premises, such as chemists shop, hairdressers shop, newsagents shop, refreshment rooms, sandwich shops and the like.

21 Clause 43(1) addresses the North Queen Street Functional Area and identifies its purpose as:

(a) to facilitate the development of businesses fronting Queen Street that provide a service, including the specialised retail development such as dry cleaners, restaurants, professional, health and medical services and motor orientated uses;
(b) to provide opportunities for, and encourage a range of low key, mixed use, residential and commercial development; and
(c) to maintain the existing community services provided in the area.

22 Clause 43(2) identifies essential requirements for development of land within the North Queen Street Functional Area. These are:

(a) the density and scale development must reflect that of existing buildings and development of land adjacent to the proposed development;
(b) development along Queen Street must consist of specialised retail and motor orientated uses; and
(c) business development must respect the amenity of any adjoining residential or sensitive development by providing adequate setbacks, landscaping and noise prevention measures.

23 Based on the provisions in the LEP and DCP 85 I agree with the conclusions of Mr Phillips. Mr Lovell relies largely on the zone objective for his support of the development application. To do so is to ignore the detailed land use precincts provided in DCP 85 and misunderstand the relationship between the LEP and DCP 85. I see no inconsistency between the LEP and DCP 85 in the manner suggested by Mr Lovell. DCP 85 appropriately provides more detailed planning considerations for the land uses identified in the LEP. While an objective of the 10(a) zone is to encourage a variety of forms of high-density housing, is also important to remember that the 10(a) zone also provides for different land uses including a University/TAFE, a hospital and residential as well as the Campbelltown commercial centre. The zone objectives appropriately address the range of land uses identified in the 10(a) zone.

24 DCP 85 is clear in what is required for the Business Precinct. The requirements for the Business Precinct generally require business uses with retail in selected locations. The Business Precinct requirements are silent on residential development. At best, residential development may be acceptable, providing that any proposed building primarily accommodates businesses (cl 43(1)(a)). This is not surprising when other precincts within the 10(a) zone (i.e., Residential/Business and Residential) contemplate either partial or total residential development.

25 In relation to DCP 85 and how it should be applied to the subject site, Mr Phillips correctly states (Exhibit 7, par 66):

Clause 30 encourages incorporation of high-density housing within the Comprehensive Centre zones, subject to the relevant centre being located in close proximity to public transport and/or facilities, services and employment opportunities as identified by the Precinct maps of the DCP. In that regard, it is considered appropriate that residential development forms a component of the overall development. However, it is considered that having regard to the DCP, that a significant portion of development accommodate commercial and business land uses

26 The emphasis to be given to a DCP is addressed in Zhang v Canterbury City Council (2001) 115 LGERA 373. Spigelman CJ at par 75 on pp 386 and 387 raises three important matters. First, and although the Court has a wide ranging discretion, the discretion is not unfettered. Secondly, the provisions of a DCP are to be considered as a fundamental element in, or a focal point to, the decision-making process particularly if there are no issues relating to compliance with a local environmental plan. Thirdly, a provision of the DCP directly pertinent to the application is entitled to significant weight in the decision-making process but it is not in itself determinative.

27 In this case, I accept that significant weight should be given to the provisions in DCP 85. The LEP provides only a range of developments that can be carried out without consent, with consent or is prohibited. DCP 85 importantly provides for the orderly development of land through the specific location of these different land uses. There is no sound planning reason why DCP 85 should not be the focal point in the decision-making process, particularly in the absence of any guidance from the LEP. While the applicant raised a number of pertinent and reasonable arguments over the use of the subject side for residential development, the Court must be guided in its deliberations by the adopted planning controls for the subject site.

28 During the proceedings, the Court's attention was drawn to a development application at 88 Queen Street and 7-9 King Street, Campbelltown. The proposal involves the erection of a building containing 49 x 2 bedroom units and approximately 100 square metres of commercial floorspace. The site of this development has the same zoning and is in the same Business Precinct under DCP 85 as the subject site. It was approved by the council in April 2003. The applicant argued that this proposal was not dissimilar, in concept, to the proposed development and supported the position of Mr Lovell. While the comparison is not without some merit and no reasonable explanation was given to the Court to distinguish this application from the subject proposal, the Court must consider the application on the planning controls that relate to the subject site even though, at face value, the approval is inconsistent with the planning controls and the evidence given by Mr Phillips in these proceedings.

29 Even accepting that the proposed development incorporates retailing at the Queen Street frontage, I am not convinced that it satisfactorily addresses the objectives and essential requirements of the Business Precinct. The proposal fails to encourage the development of business uses (cl 21(1)(a)), has not been designed primarily to accommodate businesses (cl 21(2)(a)) and does not have its main function as commercial (cl 21(2)(b)).

30 In my view, the departures from the objectives and essential requirements of the Business Precinct are so significant and put at risk the orderly planning for the 10(a) zone that the proposed development should be refused for this reason alone. For completeness I will briefly address the other issues.

Building design
DCP 85 and the draft DCP

31 DCP 85 contains no numerical standards. The draft DCP contains numerical standards for a range of matters to guide development. Its purpose is to consolidate a number of existing DCP’s into a consolidated planning instrument. Clause 3.4 deals specifically with residential apartment buildings, including land within the Comprehensive Centre (or zone 10(a)). The relevant controls for the subject side provide for a minimum site area of 2500 square metres and a minimum width of 30 m (cl 3.4 (b)), a height of 6 storeys above natural ground level (cl 3.4 (c)(iii)) and a 6 m side and rear setback (cl 3.4 (g)(l)). The proposed development complies with these requirements with the exception of minimum width. Clause 5 of the draft DCP states that if there is any inconsistency between the draft DCP and another DCP, the draft DCP will prevail.

32 Mr Phillips explains the relationship between the proposed development and the draft DCP in the following manner (Exhibit 7, par 80);

Schedule 1 of the Draft Plan provides maps that illustrate Councils intended massing of residential apartment buildings in various parts of the City. The sheet labelled Campbelltown identifies the development of the subject site to have a maximum height of 6 storeys. Whilst the proposed development meets the height requirements of the Draft Plan, it is not envisaged that all development within the precinct should be developed to that extent. Should the size and/or shape of the land result in constraints to the maximum height permissible under the Draft Plan, a development of a lesser height would be appropriate.

33 While accepting that the draft DCP could not be seen to be imminent or certain, Mr Phillips stated that the draft DCP is taken to be a strong indication by council of the future intention of urban planning in the local government area. Mr Phillips further stated that prospective developers were referred to the draft DCP for the preparation of development applications. In his opinion, the resolution of the council of 14 October 2003 to limit residential development to 2 storeys does not include the subject site.

34 Despite the inconclusive status of the draft DCP, the evidence of Mr Phillips indicates that it is still an important guide to the future development of the subject site and the surrounding area although it is not overly helpful in a number of areas. Clause 3.4(c)(iii) refers to maps in Schedule 1 that designate areas with specific maximum height levels. Schedule 1 refers to "Residential Apartment Buildings in Residential Zones" although the maps include areas not located within residential zones, such as the subject site. Without a reference to DCP 85, the impression gained by reading cl 3.4 and referring to Schedule 1 is that a residential apartment building may be constructed to a maximum height of 6 storeys. I am also unable to find any provision in the draft DCP that supports Mr Phillips assertion that the height limit specified in Schedule 1 should be reduced because of site constraints. For reasons set out later in the judgment, I do not accept that the departure from the minimum width requirement overly impacts on the development of the subject site.

35 Notwithstanding cl 5 of the draft DCP, if any inconsistency exists between DCP 85 and the draft DCP, preference, at this stage, should be given to the requirements in DCP 85, as it is an adopted DCP. I note however that there is nothing within the draft DCP that attempts to amend the specific land use precincts found in DCP 85.

Setbacks

36 On the issue of building design Mr Robin Bradley, an architect and urban designer, provided evidence for the council and Mr Rohan Dickson, also an architect and urban design provided evidence for the applicant.

37 There was no dispute that the proposed development generally satisfies the setback requirements in the draft DCP. Mr Bradley, however maintained that a setback of 9 m should be provided, as this was consistent with the 18 m building separation requirement in the Residential Flat Design Code. Mr Dickson provided a sketch to show how the adjoining properties could be redeveloped and maintain a 18 m building separation. I am not however convinced that this sketch should be given any significant weight because of the many uncertainties associated with the redevelopment of these properties.

38 Clause 30(2)(c) of SEPP 65 requires "consideration" to be given to the Residential Flat Design Code. Mr Phillips indicates that the draft DCP complements the provisions of a number of environmental planning instruments, including SEPP 65 and the Residential Flat Design Code. Although the differences between the setback in the draft DCP and the Residential Flat Design Code are not insignificant, I presume that the council has given the necessary consideration required by SEPP 65 in establishing the setbacks in the draft DCP. For this reason, I accept that the setbacks are satisfactory.

Minimum lot width

39 The subject site has a minimum width at the Langdon Rd frontage of around 23 m and an average width of around 25 m. This does not satisfy the minimum 30 m width requirement in the draft DCP. In my view, the departure is not that significant that it would overly impact on the design of buildings for the site. This is a conclusion also accepted by Mr Bradley.

Communal open space

40 As I understand, there was no issue with the quantity of communal open space. The issue raised by Mr Bradley is that the principal area of communal open space is provided in the form of two rooftop gardens. In his opinion, these areas are not likely to be used regularly as they require access by lift or stairs. Additionally, the areas could get very hot in summer and the subject to winds in winter. With limited shade and shelter available, Mr Bradley considers the areas to be inadequate and ill suited to the needs of future residents.

41 These concerns were rejected by Mr Dickson who maintained that the rooftop areas were suitable for communal open space. Any concerns over shade and shelter can be easily overcome with appropriate structures. Mr Dickson also relies on the Residential Flat Design Code where rooftop communal open space is seen as appropriate.

42 On this issue, I accept the evidence of Mr Dickson. Appropriate structures could be placed on the rooftop areas to provide adequate protection in summer and winter without impacting on the overall appearance of the buildings. I am also not convinced that the rooftop location would overly restrict the use by future residents.

Waste management

43 Mr Andrew Wild, a waste management consultant provided evidence for the applicant. He states that the waste management, recycling and kerbside collection systems are generally appropriate for the proposed development. Some constraints are imposed by the site but can be readily overcome by a range of management measures to ensure effective waste and recycling management. These should be agreed between the applicant and the council and set out in a Waste Management Plan.

44 Mr Phillips raised two main concerns. Firstly, the transfer of recycling material from the apartments to the collection room in the basement. In his view, greater levels of recycling could be achieved if opportunities were provided on each level for the collection of recycling material rather than relying on residents to transfer the recycling directly from the apartment to the basement collection room. Secondly, the transfer of waste bins from the storage room and efficiency of kerbside collection. In his assessment, the amount of footpath area could not accommodate the number of bins required by the proposed development. This problem is compounded by the councils waste collection contractor having exclusive rights to the collection of residential waste and only in the form of 240 litre bins.

45 In my view, neither of the concerns raised by Mr Phillips could justify the refusal of the development application. DCP 85 contains no specific requirements for waste management. The draft DCP simply requires the submission of a Waste Management Plan and adherence to that plan (cl 14(a) and (b)). Mr Wild and Mr Phillips differed over whether their respective opinions satisfied the Resource NSW document entitled Better Practice Guide for Waste Management in Multi Unit Drawings although it is fair to say that this document is not intended to address the details raised by the council in this issue.

46 While the process suggested by Mr Phillips is more convenient and could lead to increased participation in recycling the management of recycling, I accept that the provision of individual recycling bins within the apartments and communal bins in the basement area is an acceptable means of dealing with this issue.

47 On the second of Mr Phillips concerns, the applicant proposed as part of the Waste Management Plan, that on collection days an employee would move the 240 litre bins from the basement storage to the footpath and return the bins after they had been collected. Other duties would include the arranging of the bins on the footpath to minimise inconvenience to the general public and waste collector during the time of the collection. Mr Phillips suggested that this process relied on the reliability of the employee and there could be no guarantee that this process would operate efficiently. I accept that there is always the possibility that this may occur however it is not a sufficient reason to reject this approach.

48 Despite the evidence of Mr Phillips, I am not convinced that the problem of waste disposal rests solely with the applicant. It would seem that if the council determines that high-density residential development is appropriate for an area then some responsibility rests with the council to ensure that appropriate measures are put in place to effectively and efficiently remove waste from these forms of development. This may require a change from the current 240 litre bins collection system. It must be remembered that the applicant has no control over the manner in which the councils waste collection contractor operates. The suggestion that the breach of the minimum lot width requirement has an impact on the removal of waste on the subject site should be rejected as the evidence indicates that even a development that satisfies the minimum lot width requirement would have similar problems to those expressed by Mr Phillips.

Development of adjoining land

49 Mr Phillips stated that the preferred strategy for developing the subject site would be as part of a master planning exercise with adjoining sites. This process was initiated by the council but was overtaken by the applicant's appeal.

50 Master planning or site amalgamation plans are not uncommon in redeveloping areas however they are usually identified in an LEP or DCP to formalise the process. In the absence of any specific controls to require consultation and preparation of master plans it would be inappropriate to delay the consideration of a development application for this reason. In this particular case, the need for a master planning exercise is less compelling because the land between the subject site and railway way satisfies the minimum requirements for development in the draft DCP. The land between the subject site and Queen Street consists of a number of small allotments but if amalgamated would also satisfy the minimum requirements for development in the draft DCP.

Impact of adjoining development

51 Mr Phillips argued that the proposed development does not take into consideration development of adjoining land. Specifically, the property at 53 Queen Street is occupied by a veterinary surgery. As part of the veterinary practice, the rear yard is used for the kennelling of dogs waiting or having received treatment at the veterinary surgery. The kennelling facility generally has a minimum of 1-2 dogs but at peak times (such as Xmas) up to 27 dogs use this area. The owner and occupier of the veterinary surgery, Dr Driver expressed concerned that the dogs will cause a noise nuisance to future residents of the proposed development and that as a result of these complaints, the operation of the veterinary surgery could be restricted.

52 A rail noise and vibration report was provided and amendments made to the proposed development to accommodate these impacts. A condition of consent was proposed to address potential noise impacts from the veterinary surgery however, I agree with the council that any potential noise impacts must form part of the assessment of the development application rather than be the subject of a condition after an approval is granted.

Orders

53 For the foregoing reasons, the Orders of the Court are:

1) The appeal is dismissed.
2) Development Application F878/20023 for the demolition of an existing building and the erection of two residential apartment buildings and a retail building at 63 Queen Street, Campbelltown, is refused.
3) The exhibits are returned.

_______________
G T Brown
Commissioner of the Court