Stirrat and Moffat v Blue Mountains City Council

[2011] NSWLEC 1157

Land and Environment Court

New South Wales

Medium Neutral Citation:	Stirrat & Moffat v Blue Mountains City Council [2011] NSWLEC 1157
Hearing dates:	28, 29 April 2011
Decision date:	17 June 2011
Jurisdiction:	Class 1
Before:	Hussey C
Decision:	Appeal dismissed
Catchwords:	Development application; multi - unit housing, excessive building footprint , inconsistent with the desired future character of the area.
Legislation Cited:	EP& A Act 1979. Blue Mountains LEP 2005 SEPP (Infrastructure) 2007 SEPP No 65 - Design Quality of Residential Flat Development
Cases Cited:	Veloshin v Randwick Council [2007] NSWLEC 428. Ali v Liverpool City Council [2009] NSWLEC 1327
Category:	Principal judgment
Parties:	Stirrat & Moffat (Applicant) Blue Mountains City Council (Respondent)
Representation:	Applicant; Mr A Pickles (Bar) Respondent: Mr A Seton Marsdens Law Group
File Number(s):	10044 of 2011

Judgment

Background

1. This appeal was lodged against council's deemed refusal of an application for the erection of a multi - dwelling development, comprising 19 x one and two - bedroom units at 8 Great Western Highway (GWH) Leura. The units are contained within a single 4 - storey building and the proposal includes basement parking for 19 resident vehicles and 3 visitor car spaces.

1. The building configuration comprises 2 sections (See Attachment A) joined by a recessed common lobby/core area (generally 6m wide) and comprises:

• Ground floor containing 2 x 1 bedroom units and 3 x 2 bedroom units and a storeroom for garbage bins.
• First and second floors containing 7 x 2 bedroom units.
• Third floor containing a common rooftop terrace for entertaining.

1. In refusing the application, council identified a number of issues, which are summarised as follows:

• The acceptability of the proposal in terms of the building width and depth, relative to the specified 'design considerations'.
• Building height.
• Building form and scale.
• Character.
• Precedent

The site

1. The site is described as Lot 44 in DP 1052149, which has an area of 2277.24 sq m. It has a physical frontage of 51m to a slip road off the GWH. But there is a single vacant Lot 93 DP 1052149 with an area of 400.1sq m located between the site and the road boundary. This land is owned by the RTA and reserved for road widening. During the course of the appeal Lot 93 was dedicated.

1. The site falls from its frontage about 4m to the rear, where it adjoins the Great Western Railway corridor. There is a row of mature trees located towards this rear boundary. Further to the north of the site is the overpass for the GWH and a significant medium density development the "Spires Development" is located on the south western corner of the slip road and Leura Mall. This forms the main entry into the Leura commercial centre.

Planning controls

1. The following controls apply and are to be considered:

.1 State Environmental Planning Policy (Infrastructure) 2007

.2 State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development.

.3 Sydney Regional Environmental Plan No 20 Hawkesbury Nepean River

.4 Drinking Water Catchments Regional Environmental Plan No 1.

1. The primary controls are contained in the Blue Mountains LEP 2005 (BLEP2005); under which the land is within the Village - Tourist zone - and the development is permissible with consent. Clause 20 contains the objectives for this zone, of which the following are relevant:

(c) To ensure that development contributes to a strengthening of the landscape character and visual setting along significant tourist routes.

(d) To retain and enhance the established traditional streetscape character and heritage values, including mature vegetation and gardens, that contribute to the attraction of the area for residents and visitors.

1. Clause 13 of the LEP provides:

13 General locality management

(1) Consent shall not be granted to the carrying out of any development on land to which this plan applies unless:

(a) the development complies with the zone objectives within Division 2 (Zone objectives) that apply to the land and that are relevant to the development, and

(b) the development proposed to be carried out is permissible within the zone applying to the land in accordance with Division 3 (Permissibility of land use)...

1. Also relevant are the provisions of cl 14 dealing with locality management within the Village Tourist zone, which provides that consent shall not be granted to development unless the development proposed to be carried out has been assessed in accordance with the provisions that apply to the land, as specified for the relevant village within Schedule 1, and complies with those provisions .

1. Accordingly, the land is within the " Leura Precinct VT - LE01 - Leura Gateway Precinct " and the Schedule 1 provisions state:

2) Consent shall not be granted to development within the Leura Precinct VT-LE01 unless the development proposed to be carried out:

(a) complies, to the satisfaction of the consent authority, with the precinct objectives in achieving the precinct vision statement within this Division, and

(b) complies with the building envelope within this Division, and

(c) is consistent, to the satisfaction of the consent authority, with the design considerations within this Division.

1. The relevant Precinct objectives are:

(a) To promote built forms of the highest design quality and incorporate strong "gateway" and "town entry" urban design elements.

(b) To encourage a mix of land uses that support and contribute to the tourist role of the Leura Village.

((e) To provide on-site parking:

(i) that does not dominate the street frontage, and

(ii) that is integrated with the design of surrounding garden areas.

1. The following Precinct vision statement applies:

2 Desired future character

(1) Precinct vision statement Located adjacent to the primary road and rail corridors, this precinct experiences substantial redevelopment of sites and operates as the "gateway" to the Leura Village. New development supports this gateway role by presenting urban design of the highest quality that contributes to a positive first experience of the Leura Village. This, together with a mix of land uses that support the tourist role of the village serves an enticement to passing traffic.

Development of this precinct, including the changes to the Highway interchange, assist in enhancing both pedestrian and vehicle access to the Village and enhance connectivity between north and south Leura. Whilst offering high levels of accessibility to both pedestrians and vehicles, potential conflicts between the two are minimised.

The form and scale of new development responds to that of existing buildings in the village and new buildings shall address both the highway and the Leura Mall. Signage associated with development is provided at a modest scale and does not seek to be legible from the distant approaches.

New buildings on the old Chateau Napier site respect the heritage of the previous use, but recapture the landmark status of that site.

1. In order to achieve the Precinct objectives, the following "Design considerations" apply:

(1) Landscaping, built form and finishes

(a) Development should include or be consistent with the following building design elements:

(i) buildings that are surrounded by landscaped areas,

(ii) buildings that do not exceed 18 metres in width or depth ,(emphasis added)

(iii) incorporation of prominent landmark features at the corner of Leura Mall and The Great Western Highway,

(iv) gently-pitched roofs with shady eaves and verandahs,

(v) external walls that include a proportion of painted finishes,

(vi) buildings that address the street.

(b) Driveways, parking areas and garages:

(i) should not dominate any street frontage, and

(ii) should be integrated with the design of surrounding landscaped areas

1. The provisions of the Better Living Development Control Plan (DCP) also apply.

The evidence

1. Detailed evidence was presented by:

• Ms K Castellanos; council's urban design expert.
• Mr B Mercer; council's town planner.
• Mr K Burrell; applicant's town planner.

1. For the appeal, the experts agreed that a number of the particularised contentions could be addressed simultaneously and accordingly the joint expert report is structured on this basis.

1. It is apparent to me from the evidence that the BLEP contains a number of numeric and qualitative controls that are intended guide new development so that it reinforces the visual setting along the GWH as a "gateway" to the

well-known tourist village of Leura. But there were significant differences by the party's experts in applying these controls to achieve the desired outcome. This is partly due to the mixed form of the surrounding development in this precinct and the requirement that new development is to respond to existing developments in the village.

1. Whilst the Leura Gateway Precinct includes designated areas on both sides of the GWH and the eastern and western side of Leura Mall, the main focus in this appeal was on the south - eastern side because of the established character of the existing dwellings on the northern side where little development has occurred. The exception on the northern side being the demolition of the buildings on the old Chateau Napier site, where the controls envisage the inclusion of some landmark feature in any future redevelopment.

1. Consequently, the subject south - eastern section has obvious redevelopment potential and includes the subject lot together with a vacant allotment at 2 - 6 GWH, where there is a consent to 12 units. The subject site (No 8) then adjoins this site but is considerably larger having an area of 2277 sq m. Further to the west of this are other smaller lots, which then adjoin the "Spires" development. The Spires comprises a number of separate buildings as shown in Attachment A.

1. Whilst recognising the redevelopment potential of this overall section of land, the experts have expressed disparate opinions on how the land in this part of the precinct is to be developed, so as to achieve the high design quality objectives. After further conferencing, it appears to me that the experts have identified that the primary concern is of the form and scale of the building and the secondary considerations concerns the inclusion of appropriate design elements e.g. pitched roofs, proportion of. glass areas and material finishes.

Building form and scale acceptability

1. This primary issue is dependent on the building width, depth, and height parameters. In particular, this refers to the design considerations specified in cl 13 of the BMLEP that buildings should not exceed 18m in width and depth and 12m in height. However the proposal has an overall width in the order of 41.8m and depth of 26.5m. It has a maximum height of 13.5m, in respect of the lift tower.

1. Ms Castellanos says that this represents an overall 147% increase in desired width and 47% increase in depth, which she considers unacceptable. She does not accept as appropriate the applicant's design verification that the proposal presents as the "integration of the two fragmented buildings into one main building with appropriate articulation to achieve the appearance of a segmented development without the disadvantages of excessively articulated facades to two disparate buildings with little integration and connectivity within the development".

1. Ms says that the effective joining together of the 2 distinct buildings exacerbates the issues of bulk and scale. In particular, the individual vertical proportions of each building would be translated into a "single, long and poorly articulated faade", which is contrary to council's goal of a simpler faade that relates to the approved adjoining development in scale and proportions due to the excessively long street elevation. In her opinion, this is not consistent with desired 'gateway' to Leura, which is characterised by its "fine grain, small scale architecture".

1. Mr Mellor also considers the proposal is of excessive width and depth relative to the designated 18m controls. Accordingly, he says that the front elevation when viewed from the GWH will appear as one lengthy building, which is inconsistent with the predominant building character of the Leura village.

1. Against this, Mr Burrell acknowledges that whilst the proposal does not comply with the 18m width and depth controls, nevertheless these are not development standards and therefore some discretion can be exercised in assessing the merits of the application. On merit he supports the application on the basis that:

• There are no buildings within close proximity to the site and the proposal nevertheless generally complies with the DCP for multi - dwelling housing.
• There is only a "technical non - compliance" because the site is relatively large by comparison to nearby properties. As the building comprises 3 distinct components, when viewed from the main viewing places, it will read as "possessing three distinct elements joined with a minor subordinate element in the middle of the building. The three distinctive elements would individually generally comply with the dimension control."
• The highly articulated expression of the proposal ensures that the bulk of the development is in scale with the existing and desired future character. It is consistent with the precinct objectives as it is a form of development that "promotes built forms of the highest design quality and incorporates strong 'gateway' and 'town entry' urban design elements."

1. Apart from this, the experts also gave consideration to the secondary design elements appropriate for the precinct based on the references to existing desirable elements in the vicinity. They agreed on the following design points that should be featured in any development in this precinct:

• Proportion of wall to window that is more solid to void.
• External materials, finishes and colours such as brick, timber, rendered surfaces, tile and tin roofs (proportion and percentage of materials used in combination yet to be agreed on).
• Strong landscape setting.
• Balconies and shady verandahs.
• Pitched roofs in keeping with the locality.

1. Further consideration was also given to the internal amenity of some of the units in terms of the resultant amenity.

Conclusion

1. As I have noted, the vastly different expert opinions on the application of the controls creates some difficulties in determining whether this proposal adequately satisfies the controls. But I am satisfied that the threshold issue concern concerns the bulk and scale of the proposed building, particularly the designated building footprint control of 18m x 18m. Whilst there is a marginal non - compliance with the height control in the vicinity of the lift tower, I accept that this could be acceptable in an otherwise complying development.

1. Accordingly, the BMLEP contains a number of steps to assess the suitability of the proposal. Clause 13 requires development to strengthen (or presumably reinforce) the visual setting along the highway. Clause 14 then provides a restriction on development unless it is assessed in accordance with Schedule 1, which consequently also restricts development unless it complies with the building envelope and the footprint design control.

1. The building envelope criteria to achieve the precinct objectives includes in Division 2 (3) the building envelope control that buildings shall not exceed a maximum height of 12m. Associated with this, the design considerations id cl 4 provides that:

"buildings that do not exceed 18 metres in width or depth ..."

1. Insofar as there was disagreement about the status of the 18m x 18m building footprint as to whether it is a development standard being contained within the LEP, I do not consider the associated wording prescribes this. Whilst cl 10 requires compliance with the building envelope, cl 13 contains the 18m x 18m footprint but it is presented as a "design consideration". On the basis it is a consideration matter, I do not consider it would have the same weight as a development standard. This finding is consistent with that of Mr Burrell, although I note that he presented a SEPP 1 objection on a precautionary basis.

1. Notwithstanding this, I consider the references to the 18m x 18m building footprint require serious consideration as a benchmark for the scale and form of buildings desired in this precinct.

1. On the basis that the proposed building has an effective footprint in the order of 41.8m x 26.5m, I agree with Ms Castellanos and Mr Mercer that this is a significant non - compliance with the footprint control. Even though there is some articulation of the overall building with setbacks at the 'connecting' lobby area, nevertheless this lobby area has a width of approximately 6m, which in my opinion only provides minimal separation between the 2 buildings. However this ground floor lobby area is in-filled at levels 2 and 3 with bedrooms and part of the roof terrace, thereby reinforcing its presentation as a continuous building.

1. As the zone relevant zone objectives refer to strengthening the visual setting along the highway, the streetscape presentation is a critical issue. By reference to the plans, including the photomontage in exhibit D, I agree with the council witnesses that the building would appear as an extraordinarily long, continuous building, which would be inconsistent with the objectives.

1. Reference then to the plans in Exhibit K shows the pattern of existing and approved development, together with existing lots sizes adjacent to the section of the highway. This confirms a relatively consistent pattern of smaller building footprints with potentially more regular landscaping separation. The smaller buildings then present with more vertical elements rather than the opposing horizontal form of the elongated proposal. Accordingly, the elongated form of the proposal, in my assessment, would be intrusive in the streetscape, rather than reinforcing the desired character of smaller buildings with footprints in the order of 18m x 18m and predominant vertical building form elements.

1. The pattern of smaller building footprints separated by substantial landscaping areas exists within the Spires development, which effectively form a 'book - end' for the development along the slip road. Whilst the buildings in this development may not otherwise comply with the current controls, nevertheless they do have a predominant smaller footprint and exhibit a more vertical form rather that the substantial horizontal form of the proposed larger building, which is situated about midway along the slip road. In my assessment this would not respond satisfactorily to the existing or proposed buildings. In this regard, I note that the precinct vision statement requires new buildings to respond to existing buildings in the village, where the more vertical building form predominates over horizontal form and I therefore do not consider the proposal satisfies this requirement.

1. In summary then, I consider the references in the BLEP controls require considerable weight to be given to the specified 18m x 18m building footprint. Whilst acknowledging that it is not a development standard and some discretion can be exercised, my conclusion is that the proposed building is of excessive scale and form in the context and does not satisfy the provisions of Schedule 1 of the LEP and the application therefore fails.

1. Insofar as there was some debate about the origin, status and applicability of the 18m x 18m building footprint design consideration, including reference to the provisions of the Residential Flat Design Code , I think considerable weight should be given to its application based on the findings in the In Veloshin, Roseth SC said:

29 Statements of this kind appear in the vast majority of merit appeals that come before the Court. The terms excessive height, bulk and scale and overdevelopment are probably the most frequently used phrases in councils' Statements of Contention. While bulk and scale tend to be used interchangeably, strictly speaking, bulk refers to the mass of a building and scale is properly used only when referring to the relative size of two or more things. When scale is used to mean apparent size, it is better to use those words. When scale is used to denote the character of an area, it is better to use that word. All the above are highly subjective terms, since a building that one person perceives as too big, another person finds appropriately sized. This is the reason why in almost all disputes about height and bulk the Court receives evidence from an expert who thinks that these attributes are excessive and one who thinks that they are appropriate.

30 The debate about height and bulk can be meaningful only against the background of local planning controls, such as maximum height, floor space ratio, site coverage and setbacks. While these controls are usually also based on subjective judgment, they have been through a statutory process involving exhibition and the consideration of public comment. They therefore express the subjective preferences of a local community and should be given greater weight than the subjective preferences of individuals.

31 Some planning instruments and policies include objectives for controls, others do not. Whether such objectives are expressly stated or not, the controls are usually aimed at, on the one hand, constraining the adverse impact on neighbours and surrounding areas and, on the other, achieving a certain urban character. The desired character may be the continuation of the existing or, in areas where redevelopment is envisaged, the creation of a new character.

32 Because of the frequency with which height, bulk and character are matters in contention, it is useful to establish planning principles to guide how they may be assessed.

1. The Senior Commissioner then presented a Planning Principle, which identified a number of questions for consideration of bulk and scale issues. Applying this principle, it is apparent that the incorporation of the footprint control within the BLEP has presumably involved community participation and I assume it therefore represents the preference of the local community. On this basis it should be accorded significant weight.

1. When the questions of ' How does the proposal's bulk and scale relate to the height and bulk desired under the relevant controls? ' and ' Is the proposal consistent with the bulk and character intended by the planning controls?', I do not accept the opinion of Mr Burrell that the proposed considerably larger building footprint and elongated design is a satisfactory response to the BLEP controls.

1. In reaching this conclusion I have considered the evidence on alternative design options for the site, particularly the diagrams shown in exhibit 13 and I am satisfied there are other more appropriate design options to achieve the desired future character expectations in the BLEP. In these circumstances, I do not consider minor amendments would achieve this. Therefore I do not think it appropriate to adopt the "orange light approach" referred to in.

1. Whilst the experts discussed other detailing matters for inclusion in the design and areas of questionable solar amenity on some of the units, I do not consider it necessary to deal with these in detail, considering the failure of the application on the threshold building width, depth, scale and form issue.

Court orders

1. The Court orders that;

1 The appeal is dismissed.

2 Development consent to DA No X/988/2010 for the erection of a multi - unit development comprising 19 units at No 8 Great Western Highway, Leura is refused.

3 The exhibits may be returned except 1, 7, 8, A and D.

R Hussey

Attachment A

Decision last updated: 22 June 2011