T and E Cimino Holdings Pty Limited v Pittwater Council
[2004] NSWLEC 634
•11/15/2004
Land and Environment Court
of New South Wales
CITATION: T & E Cimino Holdings Pty Limited v Pittwater Council [2004] NSWLEC 634 PARTIES: APPLICANT
RESPONDENT
T & E Cimino Holdings Pty Limited
Pittwater CouncilFILE NUMBER(S): 10026 of 2004 CORAM: Cowdroy J KEY ISSUES: Appeal :- from decision to refuse development for non-compliance with development control plan - density - solar access. LEGISLATION CITED: Development Control Plan No 21
Development Control Plan No R4 Shop Top Housing
Environmental Planning and Assessment Act 1979, s 79C
Pittwater Local Environmental Plan 1993, cl 21M, cl 21O(2)CASES CITED: Zhang v Canterbury City Council (2001) 115 LGERA 373 DATES OF HEARING: 19/10/2004; 20/10/2004 DATE OF JUDGMENT: 11/15/2004 LEGAL REPRESENTATIVES:
APPLICANT
Mr T. Howard (Barrister)SOLICITORS
Wood Marshall WilliamsRESPONDENT
SOLICITORS
Mr A. Pickles (Barrister)
Mallesons Stephen Jaques
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESCowdroy J
10026 of 200415 November 2004
T & E CIMINO HOLDINGS PTY LIMITED v PITTWATER COUNCIL
Introduction
1 This appeal relates to a development application involving the almost entire demolition of an existing building and the construction of a building comprising a three-storey shop-top housing development in the Newport commercial centre (“the centre”). At the ground level, fronting Barrenjoey Road, the proposal comprises a shop and a driveway providing access to a car park at the rear of the site. Each of the two upper levels is to contain two dwellings with lift access.
2 The site is located at 369 Barrenjoey Road, Newport, being lot 72 section 5 in deposited plan 6248. It is rectangular in shape with an area of approximately 545.8 square metres, a width of 12.2 metres and a depth of 44.5 metres. The existing two- storey former bank building on the site is presently utilised as a fruit and vegetable shop. There is no on-site car parking.
3 The centre occupies both sides of Barrenjoey Road in close proximity to Newport Beach and provides a wide range of retail and other facilities mainly for the local community.
4 I record I was assisted by Commissioner Bly in the appeal.
Statutory provisions
5 The site is situated in Zone 3(a) General Business under the Pittwater Local Environmental Plan 1993 (“the LEP”). The LEP does not contain any zone objectives.
6 Clause 21O(2) in division 3B of the LEP relevantly permits shop-top housing with development consent. Shop-top housing is defined in cl 21M of the LEP as follows:-
- shop-top housing means a dwelling, group building or residential flat building in a business zone attached to and integrated with premises used for a non residential purpose that is permitted in the relevant business zone.
7 Dwellings, group buildings and residential flat buildings are otherwise prohibited in the 3(a) General Business zone.
8 The relevantly applicable development control plans comprise Development Control Plan No R4 Shop Top Housing (“DCP R4”) and Development Control Plan No 21 (“DCP 21”). DCP 21 is the more recent of these DCPs and relevantly includes essentially the same provisions.
Public notification
9 The application was notified by way of letters to surrounding landholders and publication in the local newspaper. Four objections were received raising matters of concern said to be inappropriate which included the replacement of the existing full width shop-front with a smaller shop front and a driveway; the provision of off-street car parking and an access driveway off Barrenjoey Road; the noise impacts on neighbouring property resulting from the access driveway; and the proposed retail floor space would be less than that in the existing shop.
10 On behalf of the respondent Council expert evidence was provided by:
§ Ms D. Robertson - town planner
§ Mr T. Beardsmore - access consultant
§ Mr N. Lawson - drainage engineer
11 On behalf of the applicant expert evidence was given by:
§ Mr R. Fleming - town planner
§ Mr M. Relf - access consultant
In addition an expert report was provided by a Court appointed traffic engineer, namely Mr G. Pindar.
12 The final statement of issues included issues such as disability access, flooding, setbacks, safety and security. However, following changes to the proposal, consultations between the experts and agreement in respect of draft conditions of consent, the only issues remaining are:-
- Density
Whether the density of the proposal is inappropriate in the locality given that the proposal does not provide a minimum of 25% floor space area for commercial/retail use.
…
Solar Access
Whether the proposal provides inadequate and inappropriate solar access to the proposed residential units.
Site Density
13 Clause B2.6 of DCP 21 (section B, p 31) creates a 25 percent site density standard applying to shop-top housing. The density control is defined as:-
- A minimum of 25% of the floor space of any development, not including carparking shall be set aside for commercial/retail purposes.
- Achieve the desired future character of the Locality.
The density and scale of development reflects the infrastructure capability of the area…
An appropriate mix of residential and commercial development is provided, ensuring the functionality of commercial centres.
14 Clause B2.6 of DCP 21 allows variations to this floor space control as follows:-
- Where variation is sought to the minimum requirement for commercial floor space, the applicant is required to justify that the commercial viability of the center [sic] will not be affected in the short or long term and that residents can continue to be provided with a full range of services and facilities.
15 The joint report prepared by the town planners deals with the commercial floor space density proposed in the modified plans, being the plans for which the applicant now seeks approval and establishes that the density has been reduced to 11 percent of the total floor space of the building in comparison with the 25 percent required by DCP 21.
16 Ms Robertson was concerned at the magnitude of the non-compliance with such standard, stressing that the standard could, and should, be complied with. The 56 percent reduction of the minimum requirement would result in a failure to achieve the desired objective for shop-top housing. Such objective proposed an appropriate mix of residential and commercial development thereby achieving the desired future character for this locality. Ms Robertson did not accept that the size and shape of the site and the necessary infill nature of the development was justification for such a significant departure from the standard.
17 Ms Robertson was of the opinion that the retail floor space as proposed would be "token". She considered that an appropriate mix of retail and residential development would not be achieved by the proposal, since it would result in the predominance of residential floor space in a business zone, not a residential zone.
18 Ms Robertson explained that the failure to meet the standard would begin to reduce the centre's functionality despite the range of shops and businesses presently existing in the centre. Moreover approval of a development having such a significant non-compliance with the density standard would produce an adverse precedent, especially since the centre has a high proportion of sites of similar dimensions and area to the subject site.
19 Ms Robertson disagreed with Mr Fleming's suggestion that the potential for one or more of the apartments could be utilised for employment purposes in conjunction with residential living. Such a consideration was purely hypothetical.
20 Mr Fleming believed that the required outcome for the density standard would be satisfied by the development proposal. He did not accept that the non-compliance with the standard would be significant, noting that there are other nearby developments which have retail floor space substantially in excess of such standard and other developments which have less than the standard. There is no identified demand for retail and commercial floor space in the centre nor is there an overall floor space objective.
21 Mr Fleming doubted that the deficiency of retail floor space on this site in the context of the centre would be significant, especially in the context of the likely future mix and land-use pattern. He also emphasised a survey of the centre which identifies a range of retail, service and commercial land uses and which indicates the centre to constitute a viable local convenience centre.
22 Mr Fleming argued that the 25 percent floor space standard could, to some extent, be criticised as being arbitrary, particularly in the absence of an overall floor space objective for the centre. For example, the same amount of retail or commercial floor space as proposed for this development, would comply with the standard if the amount of shop-top housing were reduced.
23 Despite its similarity to other sites in the locality, it was Mr Fleming’s opinion that the site is unique. He did not accept that the proposal would set a precedent for future development in the centre.
Findings
24 The 25 percent site density standard in DCP 21 must be given consideration as required by s 79C of the Environmental Planning and Assessment Act 1979. The requirements of DCP 21 constitute a fundamental element in the decision-making process: Zhang v Canterbury City Council (2001) 115 LGERA 373.
25 The consideration of such standard requires that the outcomes or objectives of the standard be taken into account. In addition, as a result of the non-compliance with the standard, the variations provisions in cl B2.6 of DCP 21 are to be considered.
26 Variations are permissible to the minimum requirement if justification is provided which establish that the viability of the centre will not be affected in the short or long term and that residents will be provided with a full range of services and facilities. Such provision is compatible with the desired outcome, namely an appropriate mix of residential and commercial development, which ensures the functionality of, in this case, the centre.
27 The Court acknowledges Mr Fleming's criticism that the site density standard could be arbitrary in the absence of an overall floor space objective or standard for the centre. However the standard is nevertheless intended to ensure that there is an appropriate mix of residential and commercial development.
28 The Court accepts Ms Robertson's contention that sites similar to the subject site are not uncommon in the centre and that if this development is approved, an adverse precedent would exist. Such developments, if approved, would render nugatory the objective of DCP 21 that there be an appropriate balance of land uses which in turn would ensure the functionality of the centre.
29 The Court accepts Ms Robertson's concerns that if the centre comprising the general business zone were to progressively change to a centre with a predominance of residential development of the proportions here proposed, its functionality and viability would decline and its character would change. Such would be contrary to the desired outcomes envisaged by the standard.
30 The Court has considered the evidence provided by the applicant relating to the extent of existing retail, service and commercial facilities in the centre to determine whether the centre would be affected by the proposal. Whilst such evidence provides an indication of the scale and nature of the centre, it provides a very little assistance to determine whether the proposal might affect the short or long-term viability of the centre. The Court considers however that this proposal would probably, by itself, have very little effect on the viability of the centre. Nevertheless the Court is concerned that a relaxation of the standard would create an undesirable precedent for the future viability of the centre.
Solar Access
31 Clause C1.4 of DCP 21 (section C, p 7) applies to shop-top housing in relation to solar access and requires an outcome which ensures that:-
Residential development is sited and designed to maximise solar access during mid winter.
32 Relevantly the particular solar access controls are:-
The main private open space of each dwelling and the main private open space of any adjoining dwellings are to receive a minimum of 3 hours of sunlight between 9am and 3pm on June 21st.
- Windows to the principal living area of the proposal, and windows to the principal living area of adjoining dwellings, are to receive a minimum of 3 hours of sunlight between 9am and 3pm on June 21st (that is, to at least 50% of the glazed area of those windows).
33 Clause C1.4 of DCP 21 permits some variations to the solar access requirements in relation to matters such as orientation, topography and vegetation or where other controls take precedence. Other than perhaps orientation, these matters do not apply in this instance. Solar access to the site, which is oriented north-west/south-east, is restricted by the adjoining buildings.
34 The following provisions relating to variations are contained in cl C1.4 of DCP 21 and apply to shop-top housing:-
Council may consider a variation for shop-top housing on sites constrained by orientation, existing or proposed development, etc provided that:
§ the outcomes of this clause are achieved
§ the principal living area and private open space for at least 70% of dwellings proposed receive a minimum 3 hours of sunlight between 9am and 3pm on 21st June, and
§ the number of single-aspect dwellings with a southerly (SW - SE) aspect are limited to 10% of the total number of dwellings proposed.
35 The applicant provided sun study diagrams which mainly comprise elevations of and cross sections through the proposed building with superimposed dashed lines representing the angle of sunlight as it strikes the building. Some representations were questioned by the Court. They were found to be erroneous, resulting in an early adjournment to enable the preparation of revised sun study diagrams. Mr Fleming and Ms Robertson utilised these diagrams to assist the Court in understanding the extent to which the proposal meets the solar access requirements prescribed by DCP 21.
36 The Court is aware of the difficulty experienced by the experts in interpreting the revised diagrams, particularly in the assessment of whether the three hour sunlight requirements for private open space and living area windows would be met by the proposal. Much interpretation of the diagrams was required resulting from the fact that the diagrams were incomplete and, in part, misleading.
37 The rectangular and somewhat elongated site has a north-west orientation towards the rear and a south-east orientation to Barrenjoey Road. The proposed building, which extends to its side boundaries, has the same orientation. The following example demonstrates the difficulties. Superimposing the 12 noon angle of sunlight when the sun is directly to the north on the long cross-section (section AA 12pm solar access, exhibit 5) which has a north-west/south-east orientation, an incorrect impression is portrayed of the extent of solar penetration into the building. By comparison, the superimposition of the 3pm angle of sunlight onto this same cross-section (section AA 3pm solar access, exhibit 5) is correct because at this time the sun is directly to the north-west.
Findings
38 The Court has reached the conclusion that the solar access requirements of DCP 21 have not been met, taking into account these matters, the evidence of the experts and the Court's own reading of the sun study diagrams.
39 The two town planners gave concurrent evidence in relation to solar access and provided their opinions relating to the percentage of sunlight falling on the lounge and dining rooms (principal living areas), and the terraces (main private open spaces) associated with each of the four proposed dwellings. In this regard, they were, for the most part, in agreement. Utilising this evidence and applying the solar access standards of DCP 21 the Court draws the conclusions set out hereunder.
40 The north-west facing terraces of units 1 and 2 adjacent to the lounge rooms will have more than three hours of sunlight over more than 50 percent of the terrace surfaces, thus complying with the standard. However, the lounge room windows will only receive approximately 1.5 hours of sunshine over 50 percent of their area, thus exhibiting a significant non-compliance with the standard.
41 The central terrace of unit 3 will not receive any sunlight to its surface. Such deficiency constitutes a significant non-compliance with the standard. However the lounge room windows facing onto the terrace will receive three hours of sunlight over approximately 50 percent of their area, thus complying with the standard.
42 The central terrace of unit 4 will not receive any sunlight to its surface. Such deficiency constitutes a significant non-compliance with the standard. The lounge room windows facing onto the terrace will receive perhaps 1.5 hours of sunlight over approximately 50 percent of their area, representing a further significant non-compliance with the standard.
43 Units 3 and 4 will receive sunlight over the bedroom windows and unit 3 will receive sunlight over the hall windows adjacent to the terrace. These areas are not part of the solar access requirements in DCP 21.
44 In summary, all four of the proposed dwellings do not comply with the solar access requirements of DCP 21.
45 Considering the permissible variations identified in cl C1.4 of DCP 21 the Court notes that the proposal development does not comprise any single southerly aspect dwellings. Additionally the principal living area and private open space of at least 70 percent of the proposed residences do not receive a minimum of three hours of sunlight between 9 am and 3pm.
46 The Court observes that the proposed south-east facing terraces overlooking Barrenjoey Road and the small terraces associated with the bedrooms in units 3 and 4 will add to the amenity of these residences, as will the sunlight on the bedroom windows. However the Court finds that these considerations are insufficient to compensate for the deficiencies in compliance with the solar access requirements of DCP 21.
47 The Court also finds that the site is constrained in relation to orientation and by reason of the adjoining existing development. However the Court accepts the evidence of Ms Robertson that a different design could, despite these constraints, be formulated for this site. Such a design could provide a level of solar access that responds to the requirements of DCP 21.
48 The Court is not persuaded that the site constraints are such that the desired outcome of maximising solar access during mid-winter cannot be achieved. Nor is the Court persuaded that the provision of additional terraces is sufficient to satisfy the requirements of DCP 21.
Summary of findings
49 The Court concludes that because of the failure of the proposal to observe the site density and solar access requirements of DCP 21 the proposal should not be approved in its present form.
Costs
50 The sun study diagrams provided by the applicant were incomplete and, in part misleading. The diagrams were not been prepared in accordance with the Court's requirements for such plans as required by cl 26 of Practice Direction No 17 - Pre-Hearing Practice Direction (“the Practice Direction”). The requirements stipulate that such plans show, inter alia, horizontal and vertical impacts.
51 The diagrams were also discovered to be wrong on the first day of the hearing, which necessitated an adjournment to allow the preparation of amended diagrams. This delay resulted in the matter extending unnecessarily into a second day. The Court is of the opinion that the hearing would have otherwise been completed on the first day.
52 The Court expects that shadow diagrams will be prepared in accordance with the Practice Direction. Had the Practice Direction been observed, the diagrams would have been complete and the identified errors are unlikely to have occurred. Moreover if the requirements of the Practice Direction had been observed, it is likely that the misleading representations would not have occurred. Had properly prepared and accurate shadow diagrams been provided the experts would have been able to quickly and more readily reach conclusions regarding whether the proposal met the requirements of DCP 21.
53 In circumstances where an applicant promptly responds to errors or deficiencies in its application, costs are unlikely to be awarded. However because this has not occurred, the Court finds that it is fair and reasonable to award the respondent its costs in relation to the second day of the hearing.
Orders
54 The Court makes the following orders:
1. The appeal is dismissed;
2. Development application No 705/02 for a shop-top housing development comprising retail premises and four dwellings at 358 Barrenjoey Road, Newport is determined by the refusal of development consent;
3. The applicant pay the respondent its costs of the second day of the hearing;
4. The exhibits be returned except exhibit A.
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