Seaside Property v Wyong Shire Council

[2004] NSWLEC 600

Land and Environment Court

of New South Wales

CITATION:	Seaside Property v Wyong Shire Council [2004] NSWLEC 600
PARTIES:	Applicant: Seaside Property Developments Pty Ltd Respondent: Wyong Shire Council
FILE NUMBER(S):	10828 of 2004
CORAM:	Roseth SC
KEY ISSUES:	Development Application :- planning principle: communal open space
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
CASES CITED:
DATES OF HEARING:	19/10/2004 and 20/10/2004
DATE OF JUDGMENT:	11/05/2004
LEGAL REPRESENTATIVES:	Mr Phillip Clay, barrister Mr John Cole, solicitor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

5 November 2004

10828 of 2004 Seaside Property Developments Pty Ltd v Wyong Shire Council

JUDGMENT

1 Senior Commissioner: This is an appeal against the refusal by Wyong Shire Council (the council) of a development application to erect a three-storey residential flat building over basement parking on lots 255 and 256 DP 21154, known as 32-34 Fravent Street, Toukley.

The site

2 The site comprises two allotments on the northwest corner of Fravent and Hargraves Streets. It has a frontage of 42m to Hargrave Street and 30m to Fravent Street, and an area of 1,497m2’. The development of the surrounding area is single-storey detached houses with a sprinkling of villa homes, two-storey houses and townhouses.

Planning controls

3 State Environmental Planning Policy 65 – Design Quality of Residential Flat Development (SEPP 65) establishes design principles for residential flat buildings. Detailed design guidelines are included in an accompanying document called Residential Flat Design Code.

4 Wyong Local Environmental Plan 1991 (the LEP) zones the land 2(d), a zone that the LEP describes as a high-density residential zone. The LEP contains no height limits. Development Control Plan 64 – Guidelines to Medium and High Density Residential Development (DCP 64) establishes a density for the 2(d) zone of 60m2 of site area per two-bedroom dwelling and 83m2 of site area per three-bedroom dwelling. The DCP requires setbacks from side boundaries of 3m to 6m for three-storey buildings. It requires 20m2 per dwelling of communal open space for “walk-up flats” and 10m2 per dwelling for “high-rise unit development”. It is common ground that the proposal is best described as “walk-up flats”.

5 The council has prepared and exhibited a draft local environmental plan proposing to change the zoning from 2(d) to 2(c). In a letter dated 21 May 2004 the Regional Planning Coordinator for the Central Coast of the Department of Infrastructure, Planning and Natural Resources (DIPNR) informed the council that the Minister had decided not to proceed with the making of the draft plan. In the circumstances, there is no draft LEP to which I can have regard under cl 79(c) of the Environmental Planning and Assessment Act 1979. While I accept that the council wishes to reduce the permissible density on the site to that of the 2(c) zone, this is not a matter to which I can give major weight.

The proposal and its history

6 The applicant proposes to erect a three-storey residential flat building containing 18 dwellings over basement parking with communal open space on the roof.

7 A previous proposal containing 20 dwellings was before the Court in February 2004. On 30 March 2004 Commissioner Bly dismissed the appeal on the grounds of inadequate setbacks and landscaping. Commissioner Bly’s judgment indicates that he found the proposal satisfactory on density and amenity.

8 The applicant lodged the current development application in May 2004. Following notification, the council received 26 objections. The council referred the application to the Design Review Panel, which considered it in July 2004. The Panel recommended refusal for reasons that may be summarised as follows:

· Inadequate site analysis.

· The rooftop communal open space should be deleted to lower the building height and reduce the lift overrun.

· Site coverage and basement are excessive.

9 In October 2004 the council considered a planning report by its planning staff. The council accepted the recommendation to refuse the proposal and issued a Notice of Determination to that effect on 15 October 2004. The reasons were similar to those given by the Design Review Panel, with added emphasis on the council’s view that the proposal fails to meet the design principles of SEPP 65.

The issues

10 The council submitted a Statement of Issues containing nine issues. During the hearing, the following emerged as the main issues:

· Are the proposal’s density, bulk and scale out of character with its surroundings (ie is the proposal an overdevelopment of the site)?

· Is overlooking of the property to the north acceptable?

· Is the communal open space adequate and is its provision on the rooftop appropriate?

The evidence

11 The court heard the evidence of six objectors who lived in the vicinity of the site. They had two major concerns. First, the proposal was too big for the area. Second, the rooftop terrace would increase its already excessive impact on the surroundings.

12 The Court had appointed Mr Nigel Dickson, an architect and urban designer, as the expert in this case. Mr Dickson said that the proposal had three major shortcomings. Its excessive bulk made it inappropriate in its context; the impact on the privacy of its northern neighbour was unacceptable; and the communal open space on the roof should be at ground level. He indicated that an L-shaped building around communal open space would be a better fit for the area.

13 The applicant had commissioned two experts, Mr David Chesterman and Mr Anthony Moody, to prepare reports in response to Mr Dickson’s views. However, the council did not have adequate notice of this. To admit the reports would have required an adjournment. The applicant did not seek leave to tender the reports.

Findings
Density, bulk and scale

14 The resident objectors considered that the proposal should be two-storeys high. The Design Review Panel found the three-storey height acceptable, though it wanted the building lowered further into the ground. Mr Dickson suggested partly two storeys and partly three storeys. Commissioner Bly said in his judgment that “a three-storey building could be designed for this site without having any unreasonable impacts”.

15 Given that the site is zoned for high-density development, it would be difficult to argue that it should be only two storeys high. I accept that the three-storey height is appropriate.

16 It is more difficult to come to a conclusion on density and bulk. The proposal is nine times as dense as the surrounding development. However, in the 2(d) zone DCP 64 allows new development to be about twelve times as dense as the existing. The Design Review Panel found that the density was excessive because it considered that the site coverage was excessive. Mr Dickson considered the density to be too high in relation to the surrounding development. Commissioner Bly accepted the proposal’s density because it complied with the zoning.

17 It is clear that where a building contains nine times as many dwellings on the same area of land as the surrounding development, it will appear different from the surrounding development. The 2(d) zoning allows even higher densities, so it is an instrument for changing the character. The council now considers that the zoning was a mistake. The opinion of DIPNR and the Minister about the zoning is not known. Since the zoning exists and there is no draft instrument in existence to change it, I must be guided by it despite the abrupt change it is likely to create in Toukley’s character. It would therefore be unreasonable to refuse the application on the basis of excessive density. However, the 2(d) zone’s density is acceptable only if it is achieved in compliance with the other requirements of DCP 64.

Overlooking

18 The proposal is set back 4.5m from the north boundary at the ground and first floors and 6m at the third floor. The entire north façade consists of windows to living areas and balconies. I have counted the panes of glass facing to the north from the first and second level (excluding the ground floor where there is a fence), and they come to over fifty. Overlooking of the property to the north would be considerable.

19 The Design Review Panel recommended that the entire building be set back 6m from the north boundary, so as to provide 12m separation between the proposal and any future development on the north-adjoining lot. Mr Dickson found the overlooking unacceptable and proposed a complete re-design to an L-shaped building that would not stretch along the boundary. The issue of overlooking does not appear to have been a major aspect in the hearing before Commissioner Bly, though he concluded that the setbacks were inadequate.

20 In my opinion, the proposal’s design in relation to the neighbouring property is inappropriate. It may comply with DCP 64’s setback provisions, but it does not meet the design principles of SEPP 65, or the guidelines of the Residential Flat Design Code, which requires 12m between buildings. It presents an uncomfortable face to the existing northern neighbour. If the designers of a future development on that site take their cue from this proposal, the result will be a 9m wide corridor between two 40m long buildings. If the rest of the 2(d) zone were to be developed along similar lines, the urban character would be poor.

Communal open space on the roof

21 DCP 64 requires 360m2 of communal open space for this proposal. The proposal provides 220m2, all of it on the roof. The Design Review Panel considered the provision of all of the communal open space on the roof inappropriate. Mr Dickson had the same view. In addition, he believed that there was no justification to reduce the communal open space required by DCP 64 to 220m2. Commissioner Bly commented on the communal open space as follows:

“As for the provision of communal open space, I recognise that it does not comply with the area requirement of 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.”

22 It appears therefore that Commissioner Bly found that the area of the communal open space was adequate and that its location on the roof was appropriate. However, on reading the whole of his judgment, I am not able to conclude that the urban design aspects of the location of the communal open space, as well as its size, was a matter of dispute during the previous hearing.

23 In my opinion, a valid argument can be put for the reduced communal open space, though only in the 2(d) zone. If the building were four-storeys high (ie described in the DCP as high-rise unit development), DCP 64 would require only 180m2 of communal open space. The 2(d) zone allows four-storey buildings. Therefore, where an applicant proposes a three-storey building in the 2(d) zone, it is disadvantaged not only by the loss of a storey, but also by the larger communal open space requirement.

24 I turn to what I consider the major issue in this appeal, namely the location (rather than the size) of the communal open space. I accept Mr Dickson’s opinion that in a low-density, low-key place like Toukley, placing it all on the roof is out of character. I note that this was also the opinion of the Design Review Panel. As for the resident objectors, the rooftop open space was a major reason for objection. While DCP 64 does not specifically state that the communal open space should be at ground level, this may be because the DCP’s authors assumed that this was understood without being stated.

25 I accept that open space on the roof has some advantages for the building’s future occupants in that it provides breeze and views of the water. The disadvantages, however, are more significant. First, the use of the roof as open space incorporates a shading structure that significantly adds to the perceived height of the building and makes it appear as four-storeys high, thus negating the restraint the applicant has shown in proposing a three-storey building. Second, it requires a higher lift tower than would be the case if the roof were non-trafficable. Third, where communal open space is at ground level, at least some apartments overlook it. Residents enjoy communal open space not only when they use it but also when they look at it from their apartments.

26 However, the main reason for rejecting the provision of all communal open space on the roof is that it is unsympathetic to Toukley’s character, whether existing or future. Rooftop open space may be appropriate in Kings Cross or the CBD, but not in Toukley, even in a high-density zone of Toukley.

27 I am strengthened in the above conclusion by the objectives nominated for open space in the Residential Flat Design Code. These are:

· Landscape design

· Daylight and ventilation access to apartments

· Visual privacy

· Opportunities for recreation and social activities

· Water cycle management.

28 With the exception of the fourth, the objectives suggest that when the authors of the Code speak of open space, they mean open space on the ground.

29 I accept that the applicant interpreted Commissioner Bly’s judgment as condoning the rooftop communal open space. As I have stated, it is unclear whether the urban design aspect of the issue was fully explored in the previous hearing. Since that judgment, however, the Design Review Panel and the Court-appointed expert, Mr Dickson have recommended that the proposal be redesigned to delete the communal open space on the roof and provide it at ground level. If the Court were to disregard that advice and find that rooftop location of communal open space is acceptable in an area like Toukley, it would give rise to a planning principle, whether expressly stated or not, that it is acceptable everywhere. The true planning principle should be the reverse.

Planning principle: location of communal open space or landscaped area

30 Where a planning instrument, policy or guideline requires the provision of communal open space or landscaped area, that space should be provided principally at ground level, unless the instrument, policy or guideline states otherwise or the proposal is in a high-density urban context where buildings are built to the boundary, for example the CBD.

Conclusions

31 The proposal fails because it does not provide any communal open space at ground level, and because of its adverse impact on the privacy of the north-adjoining property, both as an existing house and as a site for redevelopment.

Orders

1. The appeal is dismissed.

2. Development application to erect a three-storey residential flat building over basement parking on lots 255 and 256 DP 21154, known as 32-34 Fravent Street, Toukley is determined by refusal.

3. The exhibits are returned.

__________________
Dr John Roseth
Senior Commissioner