Seaside Property Developments Pty Ltd v Wyong Shire Council

[2004] NSWLEC 117

Land and Environment Court

of New South Wales

CITATION:	Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117
PARTIES:	APPLICANT Seaside Property Developments Pty Ltd RESPONDENT Wyong Shire Council
FILE NUMBER(S):	11162 of 2003
CORAM:	Bly C
KEY ISSUES:	Development Application :- urban design - setbacks and landscaping - solar access and ventilation - common open space Planning principle: development in adjoining different zones.
LEGISLATION CITED:	Environmental Planning and Assessment Act s 97 Wyong Local Environmental Plan 1991
CASES CITED:
DATES OF HEARING:	16, 17, and 18/02/2004
DATE OF JUDGMENT:	03/30/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr P Clay, barrister SOLICITORS Maloney Lawyers RESPONDENT Mr J Cole, solicitor SOLICITORS Abbott Tout

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

11162 of 2003 Bly C 30 March 2004

Seaside Property Developments Pty Ltd
Applicant

v Wyong Shire Council
Respondent Judgment

Introduction

1. This appeal relates to development application No. 1605/03 for the demolition of two existing dwellings and the construction of a three-storey residential flat building comprising 20 units with a basement carpark at 32-34 Fravent Street, Toukley.

2. The rectangular shaped site is situated on the north-west corner of Hargraves Street and Fravent Street and has an area of 1,497 m2. It slopes from west to east towards Fravent Street with an average fall of approximately 1 m. It does not contain any significant vegetation.

Statutory provisions

3. The site is situated in the 2(b) High Density Residential Zone under Wyong Local Environmental Plan 1991 ("the LEP") in which zone a residential flat building is permissible with development consent. The relevant objective of the 2(d) zone is to allow for high-density residential development in suitable locations. In this zone the minimum site area for a residential flat building is 1,568 m2 and the site meets this requirement.

4. Draft Wyong Local Environmental Plan 1991 ("the draft LEP") which was exhibited in mid-2003 will rezone this site and the surrounding residential block from 2(d) to 2(c) Medium Density Residential. The draft LEP is supported by Council's Design Review Panel, particularly in relation to the reduction of permissible building heights and densities.

5. The relevant objective of the 2(c) zone is to cater primarily for residential flat buildings generally not exceeding a height of three storeys. Being essentially three storeys the proposal meets this objective. In the 2 (c) zone the minimum site area for a residential flat building is 3,120 m2 and the site fails to meet this requirement.

6. Council's Development Control Plan No 64 - Medium and High Density Residential Development ("DCP 64") is a relevant matter for consideration.

7. Also applicable is State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development ("SEPP 65"), which contains a number of design quality principles that should be applied to the proposed development.

Advertising and council's decision

8. The application was advertised and eight submissions were received. The matters of particular concern in the submissions include:


• The inadequacy of existing infrastructure to accommodate the proposal.
• An inappropriate form of development for elderly residents.
• Excessive building height out of character with the locality.
• The inadequate provision of private open space for the development.
• An inappropriate increase in traffic in the locality.
• The development would be out of keeping with the locality.
• Overlooking and overshadowing of adjoining properties.


9 . Following its consideration of an officer's report which recommended refusal, the council decided to refuse the application for 11 reasons which relate to design quality, vehicular access, excessive density and building height, insufficient setbacks, inappropriate waste management, inappropriate building character, insufficient landscaped area and overdevelopment of the site.

The evidence

10 . On behalf of the respondent council, expert evidence was given by:
• Mr D Quigley - town planner
• Mr M Harrison - architect and town planner.


11 . In addition a number of residents explained their concerns to the Court during the site inspection.

12 . On behalf of the applicant, expert evidence was given by:

• Mr D Chesterman - architect and town planner,
• Mr J Moody - town planner.


The issues

13 . An unusually long five page Statement of Issues effectively containing some 35 issues (although many of these overlap one another) was filed and served on the applicant. These issues were considered at an expert witness conference by Mr Harrison (assisted by Mr J Riordon), Mr Quigley and Mr Moody. Mr Chesterman was unavailable.

14 . I propose to deal with these issues under the headings of urban design and amenity impacts.

Amenity impacts

15 . The statement of issues refers to numerous adverse amenity impacts associated with this proposal both in relation to the development itself and in terms of impacts upon likely future development on the adjoining lands.

16 . As for impacts upon the likely future medium density development of adjoining lands to the north and west it seems that the matter of greatest concern was that of overlooking. This proposed building will have extensive north facing balconies and windows and will to a lesser degree have west facing balconies and windows from which future residents will be able to overlook residential flat buildings which are likely to be constructed on those adjoining sites. In relation to this issue I have been persuaded by the evidence brought on behalf of the applicant that the proposal is not unreasonable. On the basis that this proposal and any new development of these adjoining sites meets the reasonable requirements of AMCORD, particularly in terms of separation between buildings, I would expect that any overlooking would, in the context of medium density development, be reasonable.

17 . As for the building’s appearance and presentation to the north, taking into account the varied setbacks, building modulation and the balconies I do not find this to be problematical.

18 . More generally the amenity of the residents of the proposal and future adjoining buildings would be assisted by appropriate building setbacks that are sufficient to facilitate quality landscaping of a significant scale, being responsive to the three-storey scale of buildings anticipated in the 2(c) zone. In this regard I do not accept that, taking into account the setbacks of the basement, the opportunities for deep soil planting along the northern and western boundaries of the site would be sufficient to meet this purpose.

19 . Other amenity issues include solar access to and ventilation of the units, and the provision of common open space. The majority of the units will have excellent solar and daylight access. Although six of the units will only receive some morning or afternoon solar access they will nevertheless have good daylight access. The corner units will have reasonably good ventilation but a number of the central units on the north side, because of their configuration will have limited ventilation with poorly located kitchens. On balance these matters are satisfactory although one would expect that a different design might revisit the location of the "buried" kitchens and ventilation.

20 . As for the provision of common open space I recognise that it does not comply with the area requirement in the DCP. Despite this, with appropriate landscaping, structures and facilities and bearing in mind that it can be accessed from the lift, I expect that the roof top communal open space would be satisfactory. It will have a good outlook and given its configuration and location towards the centre of the building it will be relatively private.

Urban design aspects

21 . In relation to the architectural presentation of the proposed building Mr Harrison was especially concerned about its south-east corner, which would be prominent in the streetscape. In particular its rectilinear recesses, unresolved ground floor, the "add-on" garbage storage area and overly complicated design were inappropriate. The driveway is too wide and visually inappropriately located at the south-west corner. It would have been better placed away from the edges of the building. In relation to streetscape and landscaping he was of the opinion that the setbacks are too limited to facilitate a landscaped setting that is sympathetic to the pattern of existing and future street setbacks and landscaping in the surrounding area. The partial protrusion of the basement carpark above ground level within the setback area contributes to this problem.

22 . Mr Quigley was of the opinion that the proposed development is likely to have detrimental impacts on the surrounding built environment, including the likely future character of the area as a result of its bulk and scale and "minimal" landscaping. In this context he pointed out that the relevant setback requirement in DCP 64 for Hargraves Street is 7.5 m. The actual setback of between 5 and 6 m and the projecting basements and terrace balustrades are setback 2 m. Similarly in Fravent Street the setback requirement is 5 m and this is infringed, to various degrees, by parts of the building itself, the terraces and the projecting basement and the garbage storage area. The resulting limited areas for deep soil planting will, in part, be difficult to access and will not facilitate the substantial landscaping required for a building of this scale particularly taking into account its relationship to the 2(b) zoned land opposite.

23 . Mr Chesterman was of the opinion that the proposal would not be out of scale in a 2-3 storey medium density context particularly given its position on a corner site. As for the landscaping of the site he agreed that it would be desirable for the landscape treatment at the street frontages to be less formal in character and that this could be achieved producing a satisfactory landscape setting for the building.

24 . Mr Moody was of the opinion that the setbacks from the street alignment were sufficient because the building facades were articulated had considerable relief and did not extend along the full width of both frontages. He did not accept that the raised carpark level had any adverse impact on the streetscape given the ability to provide extensive landscaping.
Urban design conclusions

25. As a matter of principle, at a zone interface as exists here, any development proposal in one zone needs to recognise and take into account the form of existing development and/or development likely to occur in an adjoining different zone. In this case residents living in the 2(b) zone must accept that a higher density and larger scale residential development can happen in the adjoining 2(c) or 2(d) zones and whilst impacts must be within reason they can nevertheless occur. Such impacts may well be greater than might be the case if adjacent development were in and complied with the requirements of the same zone. Conversely any development of this site must take into account its relationship to the 2(b) zoned lands to the east, south-east, south and south-west and the likely future character of those lands must be taken into account. Also in considering the likely future character of development on the other side of the interface it may be that the development of sites such as this may not be able to achieve the full potential otherwise indicated by applicable development standards and t he like.

26. Taking into account the draft LEP, I accept that the 2(c) zone now provides an indication of the likely future character of the block in which this site is located. In this context it is to be noted that the proposal does not meet the applicable site area and density standards but, being a three-storey building, essentially meets the maximum height requirement. However, acknowledging the fact that the site is presently in the 2(d) zone and that the proposal meets the applicable site area, density and height requirements of that zone I do not accept that the density and height of the proposal are excessive.

27 . The likely future character of the 2(b) zoned lands opposite the site can be gleaned from relevant objective of the zone which is to cater for a wide range of housing types essentially domestic in scale and character and generally not exceeding a height of two storeys. As for the existing character of the relevant locality, opposite the site to the south generally and including the south side of Hargraves Street the predominant form of development is single storey detached dwelling houses. Opposite the site on the east side of Fravent Street is a single and two storeyed townhouse/villa style development in an open landscaped setting which I accept provides an indication of the form of development which is likely to occur in the 2(b) zone. Notwithstanding the form and scale of development that might otherwise be permitted or encouraged in the 2(c) or 2(d) zones, any design for a proposed new development, whilst it need not be subservient it must nevertheless take into account and be sensitive to this existing and likely future character and development on these close-by lands.

28 . I accept the evidence of Mr Chesterman that the proposal comprises a lively and interesting building with an appropriate seaside character and find no fundamental problem with its appearance and style. In relation to the bulk and scale of the development in the streetscape and its relationship to adjacent lands, I am satisfied that a three-storey building could be designed for this site without having any unreasonable impacts. This is consistent with my conclusion that, despite the breach of the 9 m maximum height requirement, that the objectives of the 2(c) and 2(d) zones in relation to height are met by this proposal.

29 . However I have concluded that some aspects of the proposal are unsatisfactory and indeed are fatal to the application. The building setbacks from the street alignments are of particular concern mainly because they are of insufficient width to provide a reasonable and appropriate landscape setting for this building, taking into account its relative height and its juxtaposition with existing development in the 2(b) zone existing and its likely future character.

30 . The landscape plan shows heavy or intense planting along relatively narrow strips around the perimeter of the site. In some circumstances this form of landscaping can be acceptable but in this case it is not and I agree with the submission that the so-called hedge solution is inappropriate and out of context. I have concluded that the landscape setting for this development fails to be responsive to its surroundings and would not be adequate in terms of the likely future character of the area and is therefore unsatisfactory. The unsatisfactory landscaping scheme has, in part, resulted from the inadequate setbacks and the basement carpark which projects above ground level and is, as a consequence, unavailable for landscaping of an appropriate kind. I am also inclined towards Mr Harrison's concerns in relation to the driveway and the garbage storage area particularly in terms of how they affect landscaping opportunities and the presentation of the building.

31 . Council's landscape policy guidelines which are adopted by reference in DCP 65 require a high standard of landscape design so as to manage the visual impact and reduce the impact of any developmental activity in the streetscape. In the circumstances I have not been persuaded that this requirement has been met by the proposal.

32 . It is to be recognised that building setback requirements are not landscape controls and there are no requirements in the LEP for landscaping in the setback areas. Also it cannot be expected that the entirety of setback areas be made available for deep soil planting for landscaping generally. However building setback areas provide an important basis in achieving an appropriate landscape character and to assist in relation to internal amenity and privacy. It would be wrong to suggest that such areas are not, particularly in terms of streetscape the principal areas where landscaping will be provided so as to provide an appropriate setting for new development. In this case the inadequate setbacks effectively produce an unsatisfactory landscape design.

33 . Finally, it was suggested, on behalf of the applicant that weight should be given to the fact that this development has been amended substantially as a result of concerns expressed by the council and resident objectors. As a matter of principle it is not appropriate to give weight to such changes irrespective of their extent. Instead the particular proposal for which consent is sought should and has been dealt with on its own merits. It was also suggested that weight could be given to the existence of other medium density developments in the locality. However I am satisfied that these developments are not located in sufficiently close proximity to this site to exert any influence on the issues which are of critical concern.

34 . Despite my conclusions that this proposal is generally satisfactory in terms of its amenity and does not represent an overdevelopment of the site in terms of density the application nevertheless warrants refusal for reasons of setbacks and landscaping.

Orders
1. The appeal is dismissed.

2. Development application No. 1605/03 for the demolition of two existing buildings and the construction of a three-storey residential flat building at 32-34 Fravent Street, Toukley, is determined by the refusal of development consent.

3. Exhibit A is retained.

______________
T A Bly
Commissioner of the Court
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