Terrigal Grosvenor Lodge v Wingecarribee Shire Council

[2008] NSWLEC 1162

Land and Environment Court

of New South Wales

CITATION:	Terrigal Grosvenor Lodge v Wingecarribee Shire Council [2008] NSWLEC 1162
PARTIES:	APPLICANT Terrigal Grosvenor Lodge Pty Limited RESPONDENT Wingecarribee Shire Council
FILE NUMBER(S):	10985 of 2007
CORAM:	Brown C
KEY ISSUES:	Development Application :- demolition of some existing structures and the erection of a seniors living development - SEPP 1 objection to the one storey requirement - character and streetscape - heritage - traffic safety - amenity impacts
LEGISLATION CITED:	State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No 1
CASES CITED:	Winter Group Architects Pty Ltd v Ku-ring-gai Council [2005] NSWLEC 546 Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46 Galandon Pty Ltd v Narrabri Shire Council 1983 51 LGRA Campbelltown Golf Club Ltd v Winton and Anor CA40056/96 [1998] NSWSC 257 Inghams Holdings Pty Ltd v Kiera Holdings Pty Ltd 90 LGERA 68
DATES OF HEARING:	4, 5/02/08, 20/03/08,14/04/08, written submissions 23/04/08, 30/05/08, 2/06/08, 4/06/08
DATE OF JUDGMENT:	11 June 2008
LEGAL REPRESENTATIVES:	APPLICANT Mr P Tomasetti SC SOLICTORS D G Balog & Associates RESPONDENT Mr D Wilson, barrister SOLICITORS B Bilinsky & Co

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

11 June 2008

10985 of 2007 Terrigal Grosvenor Lodge Pty Limited v Wingecarribee Shire Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Wingecarribee Shire Council (the council) of Development Application LUA 06/1428 for the demolition of some existing structures and the erection of a seniors living development at the corner of Moss Vale Road and Links Road, Bowral (the site).

The site and surrounding area

2 The site is Lots 14 and 15 in DP 581687, Lots 1 and 4 in DP 231893 and Lots 5 and 6 in DP 531807. It has a frontage to Moss Vale Road around 110 m, a frontage to Links Road around 326 m and a total area of 3.45 ha. A restaurant previously operated at Lot 14 and a motel currently operates from Lot 15. A freestanding two-storey Federation residence called "Karrara" is located on Lots 1 and 4 with a long access driveway from Moss Vale Road. Access is also available from Links Road. A freestanding residence called "Uplands" is located on Lots 5 and 6 with access from Links Road. The site has a large amount of existing vegetation.

3 The Bowral Golf Course occupies the land to the east of the site and extends to the north and a considerable distance along the Links Road. The Eymard Retirement Village adjoins the full length of the northern boundary of the site. The development directly opposite the site on Links Road consists of rural/residential development. This form of development extends to the north along links Road but at a generally lower density beyond the site.

The proposal

4 The proposal provides for the demolition of the existing restaurant building and motel and the construction of 53 self-contained dwellings. The self-contained dwellings provide for a number of different floor plans however all dwellings will be either single storey or double storey and with three bedrooms. The dwellings are located in four distinct precincts, the Ivywood Precinct, the Karrara Precinct, the Brentwood Precinct and the Uplands Precinct. Each precinct has a separate access to and from Links Road.

5 Alterations and additions are proposed to Karrara to allow it to be used as a community building in conjunction with the proposed development. The existing long access driveway and curtilage from Moss Vale Road is to retained and re-landscaped. Uplands is to be used as a residence as part of the seniors living development. The council has not identified Karrara and Uplands as heritage items although it was generally agreed that Karrara had particular heritage characteristics that is worthy of protection.

Relevant planning controls

6 The site is zoned Residential 2(a) under Wingecarribee Local Environmental Plan 1989 (LEP 1989). The proposed development is permissible by way of cl 4(1)(a) of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (the Seniors SEPP) being "land zoned primarily for urban purposes". Where there is any inconsistency between the Seniors SEPP and any environmental planning instrument, cl 5(3) provides that the provisions of the Seniors SEPP shall prevail to the extent of the inconsistency.

7 Part 2 of Seniors SEPP provides site related requirements, such as location and access to facilities (cl 26), bushfire prone land (cl 27) and water and sewer (cl 28). There was agreement that the proposed development satisfied these requirements.

8 Part 3 provides design requirements, including design of in-fill self-care housing (cl 31). This clause requires consideration be given to the provisions of the Seniors Living Policy: Urban Design Guideline for Infill Development published by the Department of Infrastructure, Planning and Natural Resources in March 2004. Clause 32 provides that consent must not be granted unless the proposed development demonstrates that adequate regard has been given to the principles set out in the Division 2. The relevant provisions are Neighbourhood amenity and streetscape (cl 33) and Visual and acoustic privacy (cl 34).

9 Part 4 provides development standards to be complied with. There was agreement that the proposed development satisfies the requirements relating to site size and site frontage. It was agreed that the proposed development did not satisfy the requirement that a building located in the rear 25% area of the site must not exceed one storey in height (cl 40(4)(c)). In this regard the applicant submitted an objection pursuant to State Environmental Planning Policy No 1-Development Standards (SEPP 1) to show why strict compliance with the standard was unreasonable and unnecessary in the circumstances of this case.

10 Part 7 identifies development standards that cannot be used as grounds to refuse consent. It was agreed that the proposed development satisfied all relevant development standards in Part 7. These development standards related to building height (cl 50(a)), density and scale (cl 50(b)), landscaped area (cl 50(c)), deep soil zones (cl 50(d)), solar access (cl 50(e)), private open space (cl 50(f)), and parking (cl 50(g)).

11 Development Control Plan No 16 - Rural and Residential Development Standards (DCP 16) provides additional planning requirements for the site. The site falls within Sub- Zone E1 in DCP 16. This Sub- Zone provides for a building setback of 15 m and a minimum lot area of 2000 sq m.

The issues

12 The council filed a Statement of Facts and Contention that raised the following issues:

1) whether the SEPP 1 objection to the one storey requirement in cl 40(4)(c) is well founded.
2) whether the proposed development adversely impacts on the character and streetscape of Moss Vale Road and Links Road through inadequate setbacks and fencing,
3) whether the proposed development adversely impacts on the heritage value of Karrara, particularly the access driveway from Moss Vale Road and the proximity of the proposed villas,
4) whether the proposed development will have adversely impact on the traffic safety at the intersection of Moss Vale Road and Links Road, and
5) whether the proposed development will have an adverse impact on the amenity of the existing seniors living development at Mt Eymard in relation to overlooking, overshadowing and bulk and scale. .
The evidence

13 The parties agreed to the appointment of Mr Nigel Dickson as the single expert. Mr Dickson provided a report on the planning and urban design issues in dispute. Mr Chris Millett provided traffic evidence for the council and Mr Michael Logan provided traffic evidence for the applicant.

14 The following local residents and interested parties provided evidence on site on the first morning of the hearing:

• Mr James Barrett, a Director of the Bowral Golf Course,
• Mr G Murray of 13 Links Road, and on behalf of Mr G And Ms E Brosell of 23 Links Road,
• Mr R Buckland of 25 Links Road,
• Mrs P Cruickshank of Unit 34 Mt Eymard,
• Mrs M Elliot of Unit 37 Mt Eymard,
• Mrs V Everingham of Unit 45 Mt Eymard,
• Mrs G Lees of Unit 201 Mt Eymard,
• Mr P Lynch of Unit 69 Mt Eymard,
• Mr D Williams of 37 Links Road,
• Mr D Holliday of Unit 24 Mt Eymard,
• Mr James Morrice of 7 Links Road,

15 The Court also had the benefit of the submissions received by the council when the development application was advertised. The issues raised by local residents and interested parties are addressed as part of the consideration of the issues raised by the council.

SEPP 1 objection

16 Clause 40(4)(c) provides that "a building located in the rear 25% of the site must not exceed 1 storey in height".

17 The SEPP 1 objection adopts a setback from 26 m to 32 m from the northern boundary (adjoining the Mt Eymard seniors living development) as the “rear 25% of the site”. As the development standard does not contain any specific objectives, the SEPP 1 objection identifies the underlying objectives as reducing the amenity impacts on the neighbouring Mt Eymard seniors living development by way of minimising overshadowing and overlooking, maintaining a low scale residential form in keeping with the adjoining development and ensuring the development does not dominate neighbouring development by way of scale, bulk, massing, height and density.

18 The SEPP 1 objection states that the amenity of the Mt Eymard seniors living development is maintained as there are no privacy and overshadowing impacts and the proposal does not dominate the existing residential development by providing a suitable scale, mass, height and density relevant to the existing development at Mt Eymard. The SEPP 1 objection concludes that the objection is well founded.

19 Mr Tomasetti SC, for the applicant, submitted that "the rear 25% of the site" is difficult to determine as the site is a corner lot. In his opinion, it is appropriate to adopt the northern boundary as the rear boundary for the purposes of cl 40(4)(c). In this regard the applicant provided a plan showing the extent of the encroachment of the proposed two-storey dwellings is limited to small parts of only six dwellings (excluding existing buildings), being Villas 5, 14, 23, 32, 45 and 46. The encroachment provides a maximum encroachment of some 5 m (Villa 46) and total area of encroachment of some 83 sq m of building area within "the rear 25% of the site” of some 8,635 sq m over a total site area of 34,552.4 sq m.

20 Mr Wilson, for the council submitted that "the rear 25% of the site" should include both a setback from the northern boundary and the eastern boundary (adjoining the golf course). The use of two boundaries to determine "the rear 25% of the site" has been adopted previously by the Court in Winter Group Architects Pty Ltd v Ku-ring-gai Council [2005] NSWLEC 546. The six villas that adjoin the northern boundary are two-storey in construction and conflict with the requirements of cl 40(4)(c). On this basis, he submits that the SEPP 1 objection is not well founded.

21 The appropriate manner of dealing with a SEPP 1 objection is found in the judgment of Lloyd J in Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46, at par 26, where a number of questions are asked. The first question asks whether the subject planning control is a development standard. In this regard there was no dispute that the answer to this question was yes. The second question asks what is the underlying object or purpose of the standard. The third question asks whether compliance with the development standard is consistent with the aims of SEPP 1. The aims state:

3. This policy provides flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable and unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act .

22 This question also asks does compliance with the development standard tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EPA Act. These objects state:

5.The objects of this Act are:

(i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment;
(ii) the promotion and coordination of the orderly and economic use and development of land.

23 The fourth question asks whether compliance with the development standard is unreasonable or unnecessary in the circumstances of case. The fifth, and final question asks whether the objection is well founded.

24 While the SEPP 1 objection specifically addressed the site, there was little disagreement between the parties on the underlying objectives of the development standard in cl 40(4)(c). The underlying objectives were seen to relate to the protection of the amenity of adjoining development in terms of amenity, such as overlooking and overshadowing and the physical presence of the building in terms of scale, bulk, massing, height and density.

25 As I understand, the variation to the development standard along the northern boundary was not a major part of the council’s argument on the SEPP 1 objection as the applicant had previously amended the design to provide single storey dwellings along this boundary. The variation to the single storey requirement occurs along this boundary in the second row of villas. In my view, the variations along the northern boundary are largely inconsequential when considered against the agreed underlying objectives for the development standard.

26 The major issue of dispute centred on whether the eastern boundary should also provide single storey villas. While there may be instances where it is appropriate that single storey dwellings be located on two boundaries to satisfy the underlying objectives of the development standard, I am satisfied that this is not the case with this application. The dwellings in question have a frontage to the 18th tee of the golf course. While representatives of the golf course objected to the location of the villas for a number of reasons, I am untroubled by their two storey construction in this location. Even if it was found that the eastern boundary was part of "the rear 25% of the site" (and I am not satisfied that this is necessary the case) and the two-storey villas were considered against the objectives of the development standard there can be little doubt that the underlying objectives of the development standard are still satisfied.

27 If the proposed development is tested against the underlying objectives of the development standard, I accept that strict compliance with the development standard would be inconsistent with the aims of SEPP 1 and would tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EPA Act. Consequently, strict compliance with the development standard is unreasonable and unnecessary in this instance and it follows and that the SEPP 1 objection is well founded.

Character and streetscape

28 The impact on the character of the area and the streetscape was a significant issue raised by the residents who provided evidence on site and also in the submissions provided to the council. In general, their concerns related to the change in character along Links Road created by the density of the development, including the inadequate separation distances between villas and setbacks.

29 Mr Dickson accepted the site was suitable for a senior living development however he suggested that the design required amendment to provide for the joining of some villas to provide a reduction in the perceived density of the development and therefore allowing better provision of open space and improving the neighbourhood fit.

30 Relevantly, cl 33 of the Seniors SEPP states:

33 Neighbourhood amenity and streetscape
The proposed development should:
(a) recognise the desirable elements of the location’s current character (or, in the case of precincts undergoing a transition, where described in local planning controls, the desired future character) so that new buildings contribute to the quality and identity of the area, and
(b) retain, complement and sensitively harmonise with any heritage conservation areas in the vicinity and any relevant heritage items that are identified in a local environmental plan, and
(c) maintain reasonable neighbourhood amenity and appropriate residential character by:
(i) providing building setbacks to reduce bulk and overshadowing, and
(ii) using building form and siting that relates to the site’s land form, and
(iii) adopting building heights at the street frontage that are compatible in scale with adjacent development, and
(iv) considering, where buildings are located on the boundary, the impact of the boundary walls on neighbours, and
(d) be designed so that the front building of the development is set back in sympathy with, but not necessarily the same as, the existing building line, and
(e) embody planting that is in sympathy with, but not necessarily the same as, other planting in the streetscape, and
(f) retain, wherever reasonable, major existing trees, and
(g) be designed so that no building is constructed in a riparian zone.

31 The area surrounding the site has a mixed character. Development to be north is predominantly housing for seniors, development to the west (on the opposite side of Moss Vale Road) is more residential in nature and development (on the opposite side of Links Road) has a rural/residential character. The Links Road frontage of the development is clearly the most visually prominent interface between the development and surrounding development. The character of Links Road is made up of wide landscaped footpaths with no kerb and guttering and generally stately dwellings visible through extensively landscaped generous setbacks of around 20 m on large lots. Larger lots are located further to the east along links Road. The Bowral Golf Course occupies a large part of the northern boundary of Links Road and provides an open rural feel to the area.

32 Clause 33 addresses a number of elements that contribute to the character and streetscape of an area. In general these elements are the existing character or that anticipated by the councils planning controls, setbacks, building form and siting and landscaping.

33 The proposed development will be different when compared to the character of Links Road however this is not the test imposed by cl 33, particularly taking into account development standards that cannot be used as grounds to refuse consent, such as building height, density and scale and landscaped area.

34 I am satisfied that the proposed development is a generally acceptable in terms of streetscape and character but with some amendments. It is clearly denser than anticipated by DCP 16 although not unacceptably given that the average frontage for each dwelling along Links Road is in the order of 23 m. The building form is of general high quality and also not out of character with that found in the general area. However when viewed from Links Road, I do not accept that the proposed setbacks are in sympathy with the existing building line. The proposal provides varied setbacks to Links Road but generally in the order of 5 m. This is significantly smaller than the development directly opposite side of the site in Links Road that is also within the Residential 2(a) zone and less than the 15 m required by DCP 16.

35 In my view, a minimum setback of 10 m should be provided to the Links Rd frontage together with additional setbacks for some dwellings to create a variation in the streetscape in the manner proposed in the current proposal. The additional setback, together with the planting of the footpath area and sympathetic fencing will provide a development that addresses the requirements in cl 33. The additional setback may necessitate the loss of some villas or alternatively the approach advocated by Mr Dickson could be adopted to provide for the joining of some villas in locations on the site where it would not be readily visible.

Impact on heritage values of Karrara
Access driveway from Moss Vale Road

36 Mr Dickson states that despite the absence of a formal heritage listing for "Karrara", the redevelopment of the site provides an outstanding opportunity to provide a logical visual/landscape feature and integrated functional focus for the development. He accepts that some tree removal can be supported provided an appropriate landscape scheme, including additional tree plantings, is provided. I understand that Mr Dickson advocates a further opening up of the vista from Moss Vale Road to that proposed in the application by setting back of a number of villas near "Karrara" and ensuring that the private open space areas of the villas that have a boundary to the access driveway do not encroach into the view corridor from Moss Vale Road to "Karrara".

37 As I understand, the approach adopted by the applicant was to draw a sightline from the entrance on Moss Vale Road to be southern extent of "Karrara", a distance of some 140 m. The area with the view of "Karrara" was to remain free of any buildings or structures with some existing vegetation removed because of its current poor condition and additional plantings provided to enhance the vista to "Karrara".

38 I agree with Mr Dickson that despite "Karrara" not being an identified heritage item under LEP 1989, the building possesses heritage qualities that should be protected. I am however generally satisfied with the approach adopted by the applicant but subject to appropriate means of providing that the villas and their associated private open areas do not encroach into the landscaped access driveway. To achieve this there must be some form of barrier that physically stops any encroachment. The objective would be to provide a physical barrier and at the same time maintain the landscaped character of the access driveway. This could take the form a 1.2 m high open mesh fence that would be included within the landscaping proposal along the view line and which would ultimately form part of the landscaping when the landscaping becomes more mature.

Impact from proposed villas

39 Mr Dickson states that a number of the villas adjoining "Karrara" to the south (Villas 25 and 31) and east (Villas 32 and 33) unacceptably impact on the heritage significance of "Karrara" because of their close proximity to the dwelling. In response, the applicant provided three options that provided for the deletion of some villas and the creation of further open space adjoining "Karrara".

40 On this issue, I accept the general approach of Mr Dickson however not necessarily to the extent that he suggests. It must be remembered that "Karrara" is not a heritage item notwithstanding its obvious qualities. Also, the villas in question are located at the rear and side of "Karrara" and not the prominent and more significant Moss Vale Road elevation. Significant additions are also proposed to the south and east elevations of "Karrara" in conjunction with overall conversion of "Karrara" for community facilities. I support the proposition that the existing location of villas around "Karrara" could reasonably be seen to unnecessarily crowd the building however with the need for a revision of the location and makeup of villas because of an increased setback to Links Road I make no specific findings in terms of the three options provided by the applicant beyond saying that some additional open space around "Karrara" would be appropriate.

Traffic

41 The impact of the proposed development on the safety and performance of the intersection at Links Road and Moss Vale Road was an issue raised by most residents in their evidence. Mr Logan, a traffic consultant and Mr Millet, the Manager, Land Use Development Assessment for the RTA, disagreed on whether the intersection should be upgraded based on the traffic generation rates for the proposed development.

42 Mr Logan adopts the traffic generation rates from the RTA document Guide to Traffic Generating Developments of 1-2 vehicle movements per day per dwelling for housing for aged and disabled persons. Using the upper level for 53 dwellings, Mr Logan calculates that the proposed development will generate 106 vehicle movements per day. Mr Millet states that the RTA traffic generation rates are inappropriate for a modern seniors living proposal because the RTA figures are more consistent with a high dependency/hostel style seniors living proposal rather than residential proposals aimed at providing lifestyle choices for individuals aged 55 and above. In his opinion, a traffic generation rate of 4-5 vehicle movements per day per dwelling is more appropriate. Mr Millet provided three examples of where the higher trip generation rates were considered appropriate.

43 On the issue of traffic generation rates, I propose to adopt those from the RTA document Guide to Traffic Generating Developments. It is a document that is widely used and accepted by traffic engineers and while there may be examples where it may be appropriate to use other traffic generation rates, I am not convinced that the limited examples provided by Mr Millet should be preferred in this case.

44 On this basis, Mr Logan states that if the traffic generation from the existing dwelling, restaurant and motel are calculated using the Guide to Traffic Generating Developments a total of 220 vehicle movements per day is achieved. When compared to the traffic generation of 106 vehicle movements per day for the proposed development, it can be seen that there is a net reduction in traffic generation from the site and as such a lesser impact on the intersection of Moss Vale Road and Links Road. Consequently there is no need for any form of upgrading of the intersection.

45 Even if the traffic generation rates of 1-2 vehicle movements per day is adopted, Mr Millet states that technically the intersection would need to be upgraded however he accepted that this may not be a reasonable requirement for the proposed development.

46 Mr Logan and Mr Millet addressed the issue of the safety of the intersection and agreed that adequate sealed area was available for north moving vehicles to pass right turning vehicles into Links Road. Despite the concerns of the local residents, the intersection did not have a significant crash history and was currently considered to be safe.

47 For the reasons mentioned above, I find that no upgrading of the intersection of Moss Vale Road and Links Road is required so conditions 66(ii) and (iii) can be deleted.

Impact on the amenity of Mt Eymard

48 The existing seniors living development at Mount Eymard was inspected on the site view and a number of residents provided evidence on site. Particular attention was given to those dwellings that adjoin the site in relation to overlooking and overshadowing.

49 With the amendment of the proposed development to provide only single storey dwellings along the common boundary with Mount Eymard, I am satisfied that the issues of overlooking and overshadowing are generally not likely to be of concern to those residents whose properties adjoin the site subject to one qualification. There is a change in the level between the Mount Eymard dwellings and the site, with the site being at a higher level at certain points. I am not satisfied that sufficient detail was provided to show that there would not be any overlooking of the Mount Eymard properties even with the erection of boundary fencing and landscaping.

50 This is not a matter that is necessarily fatal to the application however further details will need to be provided to show that no overlooking will occur to the Mount Eymard properties. If there were specific locations where overlooking is still possible, measures should be put in place to address this impact.

Conditions

51 The following conditions are in dispute:

Condition 42 – this condition provides that the property owner/management will be required to enter into an agreement indemnifying the council from any liability for damages incurred as a result of the proximity of the site to the golf course. The applicant opposes the condition.

52 I agree with the submission of the applicant that the condition can be deleted on the basis that an indemnity to secure an authority under the EPA Act against liability in an action for negligence which might be bought as a result of a development consent granted by the consent authority would constitute a breach of the EPA Act (Galandon Pty Ltd v Narrabri Shire Council 1983 51 LGRA)

53 Condition 43 – this condition provides that golf ball fencing and/or evergreen vegetation screening shall be provided on the common boundary between the site and at the adjoining golf course to deflect golf balls miss-hits from the 18th tee into the proposed villas located near the eastern boundary of the proposed development.

54 The applicant opposed the condition on the basis that it was consistent with the findings in Campbelltown Golf Club Ltd v Winton and Anor CA40056/96 [1998] NSWSC 257 23 June 1998 where it was found that the golf course should adjust its activities so as not to interfere unreasonably with the peaceful enjoyment by residents of their land. The council relies on the findings in Inghams Holdings Pty Ltd v Kiera Holdings Pty Ltd 90 LGERA 68 (at 70) where it was found that there was nothing wrong in a planning authority imposing conditions to alleviate any problems of incompatibility.

55 The potential for miss-hit golf balls from the 18th tee to land amongst the villas on the eastern boundary of the site is a likely occurrence. In my view, it is appropriate for the condition to remain to address this issue for much the same reason as conditions are placed on development consents for new buildings to address noise issues from existing roads or aircraft noise. The obligation to protect the amenity (or in this case, including the safety) of the future residents rests with the applicant.

56 Condition 52 - this condition contains a range of contributions under s 94. There was agreement on the contributions with the exception of the contribution for Stormwater Drainage. The council maintained that a contribution of $123,027 is required however the applicant maintains that run off in any storm event will be an improvement over pre-development levels. As I understand, the council is not convinced that this is necessarily the case. As amended plans are to be provided, further discussion should be undertaken during this time to either reach agreement or clarify the specific issues in dispute.

Condition 53 – this condition require the payment of contributions for water supply and sewerage. The parties agree that these charges are not s 94 contributions but s 64 charges under the Water Management Act 2000 and as such can be deleted. For convenience, condition 53 has been included as a Note after the conditions.

Directions

57 The following Directions were provided to the parties on 30 April 2008:

The applicant is to provide amended plans that provide for:
• a minimum setback of 10 m to Links Rd frontage together with additional setbacks for some dwellings to create a variation in the streetscape,
• an amended landscaping plan that provides landscaping on the footpath area,
• fencing details along Links Road and the access driveway to Karrara,
• documentation to show that there will be no overlooking between the site and the dwellings in at Mount Eymard. The documentation should provide cross sections at relevant locations showing the relative levels of each property, proposed landscaping and fencing.
• the parties are further discuss the need for a s 94 contribution for Stormwater Drainage. If no agreement is reached the Court will decide whether the contribution is appropriate based on the submissions made by the parties.


The applicant is to file and serve the amended plans by close of business on 9 May 2008.

The respondent is to file and serve draft conditions of consent and any comments on the amended plans by close of business on 16 May 2008.

Leave is granted for either party to restore the matter on 24 hours notice if there is disagreement on compliance with these Directions.

If leave is not sought to restore the matter, Final Orders will be made in Chambers after 16 May 2008.
The amendments

58 In accordance with the Directions the applicant filed amended architectural plans (Exhibit R), an amended landscape plan (Exhibit S), amended fencing details (Exhibit T), and a stormwater assessment (Exhibit U) on 12 May 2008. The respondent filed the amended conditions on 30 May 2008, the applicant provided further submissions on 2 June 2008 and the respondent provided further submissions on 4 June 2008.

59 The amended architectural plans provide the required setback to Links Road by reducing the number of villas by one to 52 (but maintaining the detached configuration of the self-contained dwellings as provided in the original proposal), through the adjustment of setbacks between the villas and the reduction in the number of car parking spaces. The amended landscape plan and fencing details acceptable. The following matters not addressed previously, are still in contention:

Impact on Karrara

60 I am generally satisfied with the reconfiguration of the dwellings except in the area adjoining the rear of Karrara. While accepting that the impact on the rear of Karrara is less important than the Moss Vale Road frontage, the rear of the building nonetheless provides an access point to the building from within the development. The proposed villas effectively surround Karrara and this has not changed with the proposed amendment. The impact on Karrara at the rear was a matter addressed by the applicant when options showing the removal of Villa 31 and 32 (Option A) or the removal of Villa 32 (Option B) were provided (Exhibit Q). The Directions suggested that there were a number of options to deal with that the increase setback and as the applicant has chosen to maintain the individual configurations for the dwellings, it is appropriate that Option B be adopted to minimise the visual presence of the proposed dwellings on Karrara. This amendment can be made as a condition of consent (see condition 1).

Condition 52

61 This condition requires the payment of a s 94 contribution towards the construction of stormwater drainage. The applicant maintains that a contribution cannot be justified as the accompanying stormwater assessment report relies on on-site detention and dispersal within the site primarily through detention tanks, recycling by the individual dwellings and landscape irrigation.

62 The stormwater report outlines in detail the proposed treatment of stormwater and models the stormwater flows from the pre-and post-development scenarios in various storm events using two computer models (DRAINS program and MUSIC program). The modelling confirms that the stormwater run-off from the site will be reduced by the proposed development compared to the existing development on the site.

63 The council states that the stormwater report has been considered by the council however it must be accompanied by a report so that the numerical charter and calculations can be interpreted. A Catchment Plan for the DRAINS program and a schematic model for the MUSIC program should be provided.

64 On this condition, I am satisfied that the stormwater report satisfactorily addresses the issue of stormwater flows from the site and on the basis of the post-development stormwater flows being less than the predevelopment stormwater flows, it would be unreasonable to impose a contribution towards stormwater drainage external to the site.

Orders

65 The orders of Court are:

1) The appeal is upheld.
2) Development Application LUA 06/1428 for the demolition of some existing structures and the erection of a seniors living development at the corner of Moss Vale Road and Links Road, Bowral is approved subject to the conditions in Annexure A.
3) The exhibits are returned with the exception of exhibits Q, R, S, T and U.
_____________
G T Brown
Commissioner of the Court