Sorin Dascalu v Botany Bay City Council

[2005] NSWLEC 12

Land and Environment Court

of New South Wales

CITATION:

Sorin Dascalu v Botany Bay City Council [2005] NSWLEC 12

PARTIES:

Applicant:
Sorin Dascalu & Associates Pty Ltd and Napoca Pty Ltd

Respondent:
Botany Bay City Council

FILE NUMBER(S):

10844 of 2004

CORAM:

Roseth SC

KEY ISSUES:

Development Application :- commercial development
consoldation of sites
urban design vision of DCP
planning principle: separate development of sites identified for consolidation

DATES OF HEARING:

29/11/2004 and 30/11/2004

 
DATE OF JUDGMENT: 

01/18/2005

LEGAL REPRESENTATIVES:

Applicant:
Ms S Duggan, barrister
Spiegel & Assciates, solicitors

Respondent:
Mr T O'Connor, solicitor
Houston Dearn O'Connor, solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

18 January 2005

10844 of 2004 Sorin Dascalu & Associates Pty Ltd and Napoca Pty Ltd v Botany Bay City Council

JUDGMENT

1 Senior Commissioner: This is an appeal against the refusal of a development application to erect a six-storey and a single-storey commercial building on lot 2 DP 806271 and lot 1 DP 79907, known as 244 Coward Street and 35 John Street, Mascot.

The site

2 The site comprises two allotments. The smaller allotment is 9m wide, has frontages to Coward and Bourke Streets, and area of about 300m2. The larger allotment is 11m wide, has frontages to John and Coward Streets and an area of about 500m2. The total area of the amalgamated site is 809m2. There is a fall of about 4m from Coward to John Street. The site is a remnant parcel that the State Rail Authority (SRA) sold in 2002. It is vacant, and I understand that there has never been a building on it.

3 The adjoining site to the west is 248-250 Coward Street. The Mascot railway station is diagonally across in Bourke Street. The locality is in transition, council having recently increased the Floor Space Ratio (FSR) from 1:1 to 2.5:1. New development in the surrounding area reflects the permissible uses in the land use table, ie commercial, retail and warehousing. A little further from the railway station is new residential development.

The proposal and its history

4 The applicant proposes to erect a six-storey office building above parking on the 11m wide portion of the site. On the 9m wide portion of the site the applicant proposes a single-storey pavilion-like building for either commercial or retail use. This portion also accommodates the service access with the entry off Coward Street and exit to Bourke Street. The access to the carpark for the six-storey building is from John Street. The parking area has space for nine cars; however the applicant proposes to use stackers, so as to be able to park cars at three levels, ie 27 cars.

5 The pavilion is set back 7.7m from Coward Street and 1m from Bourke Street. The six-storey building is set back 3m from John Street. Both buildings have zero setbacks to the common boundary with 248-250 Coward Street. The Floor Space Ratio (FSR) is in the order of 2.25:1, or about 10% less than the maximum permissible.

6 The council adopted a Development Control Plan for the Mascot Station Precinct on 19 December 2001, to be effective from 2 July 2002. The applicant purchased the site from the SRA in 2002, ie after the adoption of the DCP. In September 2003 it submitted the development application to the council. Following notification, the council did not receive any submissions. Following a planning report recommending refusal, the council refused the application under delegated authority in June 2004. The applicant lodged the appeal in July 2004.

Relevant planning instruments and policies

7 The Botany Local Environmental Plan 1995 (LEP 95) zones the site Mixed Uses Commercial 10(b), a zone in which commercial, retail and warehousing are permissible in buildings up to a FSR of 2.5:1.

8 The Mascot Station Precinct Development Control Plan (the DCP) was first made in 2001 and last amended in June 2004. The site is in a locality identified in the DCP as Sub-precinct 6. The DCP identifies the subject site and its western neighbour, 248-250 Coward Street as a single development site. The DCP requires a minimum landscaped setback of 6m to boundary streets, and 3m to all other streets, side and rear boundaries. This, as well as other controls and statements in the DCP suggest that the urban design vision is to achieve substantial buildings in a landscaped setting.

The issues

9 The council submitted a Statement of Issues containing ten issues, of which it pressed nine. These were discussed during the hearing. The following emerged as the main issues:

· Should the proposal be allowed despite its failure to be consolidated with 248-250 Coward Street?

· Is the parking adequate?

· Is the service access acceptable?

· Are the urban design criticisms by the council’s experts (ie lack of landscaped setting, inconsistency with gateway concept, blank walls on boundaries) valid?

Site consolidation

10 The DCP identifies a line enclosing the subject site together with its western neighbour, 248-250 Coward Street, as minimum redevelopment site boundaries. The applicant has tendered evidence that satisfies the Court that, at this time, the owners of No 248-250 are not interested in a joint development.

Relationship of subject site (hatched) to No 248-250

11 The objectives of the control requiring the consolidation of sites include the following:

To create flexible consolidation controls that will ensure that redevelopment within the precinct is not constrained by non-participants in each land consolidation grouping.

12 The DCP also includes a statement on potential alternative redevelopment patterns, ie

Notwithstanding the minimum allotment size and consolidation scheme requirements within this section, consideration will be given to an alternative site redevelopment pattern, provided each proposed or potential development nearby can achieve safe and practical vehicular access, any relevant public facility dedication will not be adversely impacted, and no nearby property is sterilised for future redevelopment as a result.

13 There is no question that the adjoining 248-250 Coward Street, if developed alone, can achieve safe and practical vehicular access. The development of the subject site will not, therefore, sterilise the future development potential of No 248-250 Coward Street. From the point of view of the development potential of No 248-250, the DCP’s requirement for the site to be consolidated with its neighbour may therefore be relaxed.

14 This is not to say, however, that separate development of the subject site will produce a desirable planning outcome either for No 248-250 or for the Mascot Station Precinct generally. The issue in this case is not whether development of the subject site will destroy the development potential of the adjoining site. It will not. The issue is whether development of the subject site produces an acceptable solution for the site itself, for No 248-250, and one that is consistent with the DCP’s objectives.

15 I return to this issue later in the judgment.

Parking

16 The proposal provides parking for 27 cars in tiers of three in conjunction with stackers that park cars at three levels.

17 The Court heard the evidence of Mr C Hallam, a traffic engineer retained by the council, and of Mr O Sannikov, a traffic engineer retained by the applicant. The experts agreed that the parking requirement should be based on the DCP, which sets the rate at one space per 60m2 of gross floor area. It is common ground between Mr Hallam and Mr Sannikov that the requirement for the upper floors is 24 spaces. The number of spaces left for the ground floor uses is therefore 3. In Mr Hallam’s opinion, the lowest acceptable number of parking spaces for the ground floor is 7, even after taking into account the site’s closeness to the railway station. In Mr Hallam’s opinion the proposal accommodates four fewer cars than would be acceptable.

18 Mr Sannikov agreed that the provision of only 3 parking spaces for the ground floor did not comply with the DCP. In his opinion, however, the DCP requirement was “excessive”. Three spaces for the ground floor, which was to be used as a café, a restaurant or a supermarket, were adequate. He noted that, even if there were another four spaces available, customers of the café or supermarket would not enter the carpark. This statement is not in the application’s favour as it highlights the inherent difficulty of the stacked parking arrangement for a semi-public carpark. I agree with Mr Sannikov that customers of the café or supermarket are not likely to use a car park where they have to operate a mechanical stacker.

19 It is not possible to resolve this issue by requiring the applicant to provide more parking and avoid the use of stackers. The site is too small to accommodate ramps that would be necessary for multiple levels of basement parking. The parking shortfall of three spaces could be resolved by reducing the floor space. To avoid the stackers, however, the floor space would have to be reduced to less than a third of its present size. I do not think that the use of stackers, or the shortfall in parking, is fatal to the application, although they are negative features. They are indications that the site is too small for what is proposed on it.

Service access

20 The proposal has a multi-purpose loading area near the Coward Street frontage, with entry from Coward Street and exit to Bourke Street. The access driveway enters the site 3.5m from the southeast corner of the site. Mr Hallam criticised the driveway access location as being too close to the intersection of Coward and Bourke Streets. He based his criticism on Figure 3.1 of the Australian Standard 2890.1:2004 (the Standard). This figure shows 6m length of kerb measured from the tangent point of the curve of an unsignallised intersection of sub-arterial, collector or local streets as prohibited location for driveways. It is common ground that almost the entire width of the proposed driveway falls into the prohibited location.

21 The intersection of Coward and Bourke Streets is signallised. For signallised intersections the Standard suggests a longer prohibited location, so that the driveways are beyond the influence of normal queue lengths at the intersections. There was no data before the Court on the normal queue length at the intersection. The Standard goes on to say (but only in relation to the need for driveways to be beyond the influence of normal queue lengths) that where this is not practicable, it may be necessary to provide

· An arrangement which confines traffic to turning left when either entering or leaving;

· A signallised driveway with signals coordinated with the intersection signals; or

· Other traffic management means of providing for safe and efficient operation of the driveway.

22 In this case the driveway access is only for cars entering and turning left. Despite this, Mr Hallam considered it unacceptable. Mr Sannikov took a contrary view for two reasons. The driveway would not be used frequently, and there would be no cars exiting from it. It is not possible to satisfy Mr Hallam’s concerns by requiring the applicant to relocate the driveway access further from the intersection, because the frontage of the site to Coward Street is only 9m wide. It is a matter of accepting the driveway location despite its disadvantages, or of rejecting the application because of it.

23 In a letter dated 10 December 2004, the Road and Traffic Authority (RTA) indicated that it would grant concurrence to the driveway access off Coward Street subject to certain conditions. This suggests that the RTA does not consider the driveway location a fatal flaw. I conclude therefore that the driveway location is a negative feature of the proposal, but one that is not sufficient to justify refusal.

24 I note that the proposal incorporates three vehicular access or exit points, of which two are on busy roads (Coward and Bourke Streets). If the site consolidation pattern suggested in the DCP were realised, one driveway access from John Street could serve the entire development.

Urban design
The evidence

25 The applicant submitted an architectural model, which it called a Master plan, but which is really an architectural model showing the proposal and the possible development of 248-250 Coward Street. I shall refer to it as the Model. For No 248-250, the model shows an eight-storey building on the Coward Street frontage and a single-storey building along the common boundary with the subject site.

26 The applicant’s experts were Ms D Laidlaw, a town planner, and Professor P Droege, an urban designer. The council relied on the evidence of Mrs J Thomson, a town planner, and Mr R Olsson, an urban designer.

27 Mrs Thomson’s and Mr Olsson’s major criticisms were:

· The DCP aims for substantial buildings in a landscaped setting. The proposal provides a substantial building without landscaped setting.

· The DCP aims for a gateway feature by locating a substantial building at the corner of Coward and Bourke Streets. The proposal provides a single-storey building at the corner and a substantial building at the John Street end of the site. The substantial building on 248-250 Coward Street, when that site is redeveloped, will not be on the corner.

· More than half the facades of the proposed buildings are blank. The blank facades are on the site boundary; instead of being set back 3m, as required by the DCP. The worst of these is the six-storey west wall on the common boundary with 248-250 Coward Street. This wall will remain, even after the adjoining site is redeveloped.

· The development relies on three access driveways, two of them on busy streets. If the site were developed together with 248-250 Coward Street, the combined sites could have one driveway from John Street, which is a minor street.

28 Ms Laidlaw said that the desired landscaped setting could be achieved towards Bourke Street with planters between the carpark and the street. In her opinion, the fact that a substantial building would be achieved not at the corner, but a short distance from it, would be hardly perceptible. She thought that the main advantage of the proposal was that it enabled development of a site that would otherwise remain vacant as long as the owners of the adjoining site have no interest in redevelopment.

29 Professor Droege saw no disadvantages at all in the proposal. In his opinion, the proposal achieves the following:

· It demonstrates that the site can be developed without amalgamation with its neighbour.

· It introduces diversity.

· It becomes a landmark of change.

· It provides an anchor to the station.

· It provides a better streetscape than that indicated in the DCP, as the ‘buildings in a landscaped setting’ concept, for which the DCP strives, is wrong.

· It guides good development on the adjoining site and pre-empts bad development.

30 However, Professor Droege did not think that the development indicated in the Model for 248-250 Coward Street was appropriate. Future development on No 248-250 should be built against the blank walls of the proposal, resulting in a continuous row of buildings facing the street. In addition, the blank six-storey wall of the proposal should contain windows. The windows would be filled in when No 248-250 is redeveloped.

31 In Ms Laidlaw’s and Professor Droege’s opinion, there is no justification to delay the site’s development in the hope of eventually achieving a coordinated development with No 248-250. In Mrs Thomson’s and Mr Olsson’s view, the site should remain undeveloped for however long it takes to achieve coordinated development with No 248-250. If it must be developed now, it should have considerably less building on it.

Findings

32 It was common ground that the proposal fails to place a substantial building on the corner of Coward and Bourke Streets and that it does not provide any landscaped setback to the western boundary. At least to this extent it is contrary to the DCP’s vision. The difference between the experts was whether the conflict with the DCP mattered.

33 It is clear that the inability of this proposal to place a substantial building on the corner of Bourke and Coward Streets weakens the gateway concept. The DCP envisages the intersection of Bourke and Coward Street as a “gateway feature” achieved by “urban and landscape design techniques”. A substantial building could eventually be built on No 248-250 (when that site is redeveloped) to implement the gateway feature, however, this would not be fully effective because it would be at least 9m from the intersection.

34 The inability to achieve a 3m wide landscaped setback (or any setback, for that matter) on the western boundary is another serious matter. The proposal places a 30m long six-storey high blank wall on the common boundary with No 248-250. The Model that the applicant presented to demonstrate that No 248-250 is capable of development shows a single-storey building against the six-storey blank wall. This will ensure that the six-storey building will never be seen in a landscaped setting. I accept, of course, that the Model shows only one of many possible forms of development on No 248-250. Other forms are possible. However, if the purpose of the Model is to demonstrate that separate development of the two sites can produce a satisfactory urban design outcome, it should show a form of development that is satisfactory. The Model demonstrates the opposite.

35 I note that the applicant’s urban design expert, Professor Droege, did not like the future development of No 248-250 indicated in the Model. In his view the buildings on No 248-250 should be built against the blank walls of the proposal. He did not indicate how this can be done and whether it can be done at all. If the applicant justifies the proposal by demonstrating how the two sites can be developed separately, the evidence of its expert should at least support the urban design quality of that demonstration.

36 The applicant suggested that the impact of the blank wall could be lessened by the imposition of some pattern on it. In my opinion, this would be a cosmetic change only and would not deal with the major problem of the wall being on the boundary.

37 I note also that Professor Droege was antipathetic to the DCP’s objective of substantial buildings in a landscaped setting. He preferred buildings on the street alignment without gaps between them. Yet, the DCP is quite clear that “the built form is to be enhanced and softened by landscaping” (p 31). I do not think that the Court is at liberty to substitute Professor Droege’s design preferences for those of the DCP.

38 To persuade the Court that this proposal is acceptable, it would be necessary to demonstrate that the separate development of this site and No 248-250 can achieve a result that has an acceptable urban design quality and is sympathetic to the vision of the DCP. The development suggested in the Model failed to do so.

Conclusions

39 Paragraph 14 sets out the questions to be asked in assessing this application, namely whether development of the subject site without No 248-250 produces an acceptable solution

· for the site itself,

· for No 248-250, and

· in relation to the DCP’s vision and objectives.

40 When the proposal is considered in relation to its own site, it has several shortcomings: ie the inability to provide sufficient parking, the reliance on stackers, and the need to have three driveway accesses. If these shortcomings existed only for the short term until No 248-250 is ready for redevelopment, they would not justify the refusal of the application. However, the proposal does not indicate how, on the redevelopment of 248-250, the shortcomings could be eliminated; for example by converting the access arrangements so that the consolidated site can function with one access from John Street. The shortcomings will remain in the long term.

41 The effect of the proposal on No 248-250 would be to place a six-storey blank wall on the common boundary. This would limit the options for redevelopment. The applicant has not demonstrated how No 248-250 might be redeveloped so as to produce a reasonable urban design outcome for the two sites.

42 The proposal fails to achieve several elements of the DCP’s urban design vision. It would not produce a substantial building at the intersection of Coward and Bourke Streets. It would create the blank wall of a six-storey building on the common boundary with No 248-250. That building would remain without a landscaped setting in the long term.

43 The narrowness of the subject site is probably the reason why the makers of the DCP indicated that it should be jointly developed with 248-250 Coward Street. Given that joint development with No 248-250 is not likely in the short term, should the proposal be approved despite its shortcomings? The planning principle I have adopted is that in such cases separate development should be allowed as long as the urban design outcomes envisaged for an area in a local environmental plan, development control plan or master plan are not permanently jeopardised.

44 The principal failure of this application is that it has not shown how separate development of the two sites can result in an acceptable urban design outcome sympathetic to the vision of the DCP. The applicant’s own urban design expert did not like the suggested form of development for the combined sites. I am aware that a refusal of the application allows the owner of No 248-250 to frustrate the development of the subject site, at least for the time being. However, I note that the subject site was sold after the adoption of the DCP, when the requirement to consolidate with 248-250 Coward Street was public knowledge. The site is, in effect, a sliver of land left over from the SRA’s requirements. In weighing up the short-term harm to the applicant against the long-term public benefit of implementing the vision of the DCP, I must give weight to the latter. The appeal is therefore dismissed.

Orders

1. The appeal is dismissed.

2. Development application to erect a six-storey and a single-storey commercial building on lot 2 DP 806271 and lot 1 DP 79907, known as 244 Coward Street and 35 John Street, Mascot is determined by refusal.

3. The exhibits are returned.

____________________
Dr John Roseth
Senior Commissioner
Land and Environment Court