The Owners Strata Plan No. 855 v Gosford City Council
[2011] NSWLEC 9
•11 February 2011
Land and Environment Court
New South Wales
- Amendment notes
Medium Neutral Citation: The Owners Strata Plan No. 855 v Gosford City Council [2011] NSWLEC 9 Hearing dates: 16/8/2010, 17/8/2010,18/8/2010,19/8/2010, 25/8/2010, 9/9/2010 Decision date: 11 February 2011 Before: Craig J Decision: 1. Stand over the proceedings to Friday 18 February 2011.
2. Direct the parties to bring in short minutes of order reflecting my determination to allow the appeal and grant development consent to the applicant's development application attaching to such short minutes conditions of consent framed consistently with these reasons.
3. Order that the Council pay 15 percent of the applicant's costs of these proceedings, such costs to be as agreed or assessed.
Catchwords: DEVELOPMENT APPLICATION:- appeal following refusal of development consent - residential flat building - existing use - compatibility with existing and likely future character - Gosford Planning Scheme Ordinance - Gosford Development Control Plan No. 159 (Character) Amendment One - different but not incompatible character - bulk and scale - compatible with surrounding development - appeal upheld
COSTS:- appeal following refusal of development consent - permissibility founded upon existing use - existing residential flat building erected in 1955 - contended by Council that no lawful consent granted for erection of existing building - contention abandoned on final day of hearing - evidence available to Council suggesting that contention unlikely to succeed - costs amendedLegislation Cited: Draft Gosford Local Environmental Plan 2009
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Gosford Development Control Plan No. 159 (Character) Amendment One
Gosford Planning Scheme Ordinance
Local Government Act 1919 (now repealed)
Strata Schemes (Freehold Development) Act 1973
State Environmental Planning Policy No. 71 - Coastal Protection
State Environmental Planning Policy No. 65Cases Cited: The Owners - Strata Plan No. 855 v Gosford City Council [2010] NSWLEC 106 Category: Principal judgment Parties: The Owners Strata Plan No. 855 (Applicant)
Gosford City Council (Respondent)Representation: Counsel:
P C Tomasetti SC (Applicant)
T F Robertson SC (Respondent)
Solicitors:
Low, Doherty & Stratford (Applicant)
P J Donnellan & Co (Respondent)
File Number(s): 10230 of 2010
Judgment
HIS HONOUR : For the past 55 years a residential flat building has stood on land known as 120 Avoca Drive, Avoca Beach (the Site ). The land title to the Site is held under the provisions of the Strata Schemes (Freehold Development) Act 1973.
The applicants, who are the Owners of Strata Plan 855, seek to demolish the existing building and redevelop the land by the erection of a new residential flat building. Their application so to do was refused by Gosford City Council (the Council ). By reason of that refusal, an appeal has been brought to the Court pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act ).
The Site
Avoca Drive in the vicinity of the Site runs in an approximate north/south direction. It is parallel to Avoca Beach. To the east of Avoca Drive is a row of residential development that has frontage to Avoca Beach. The Site is located with a frontage to the western side of Avoca Drive.
Along with other lands on the western side of the road, the Site rises steeply from Avoca Drive. At street level it is at a height of about 6m above Australian Height Datum ( AHD ) while at its rear or western boundary it is at a height of about 23.5m AHD. Slopes within the Site vary from about 43 percent to about 68 percent. It has a frontage of almost 61m to Avoca Drive with a depth on one side of about 23.4m and a depth on the other of about 38m.
The Site has been the subject of close geotechnical examination. This examination reveals that there have been a number of superficial soil landslips indicating that, by reason of its steepness, the Site is potentially unstable. Significant slip scarps were obvious at the rear or towards the western boundary of the Site when viewed from properties elevated above it and having a common boundary on the west.
The southern and upper sections of the Site appear to be heavily wooded with vegetation including both native and exotic species. Included among the native species are Casuarina glauca (Swamp she-oak), Eucalyptus pilularis (Black butt), Angophora floribunda (Rough-barked apple) and Glochidion ferdinandi (Cheese tree). These trees have been described in a report from the Council's Tree Assessment Officer as "young mature trees". Inspection of the Site revealed that much of the vegetated area is heavily overgrown with lantana. The Tree Assessment Officer made no adverse comment upon the loss of trees and other vegetation from the Site in the event that the proposed development proceeds.
Existing development
Erected on the north eastern section of the Site is an architecturally undistinguished two story red brick residential flat building standing on an elevated podium. It contains 6 residential units and was, as earlier indicated, completed in about 1955. Cracking and displacement of walls in the building manifests its structural inadequacy to withstand movement of the steeply sloping site. By reason of its state of repair and lack of any architectural detailing, the building presents poorly to Avoca Drive.
The podium or platform upon which the existing building stands takes the form of a concrete slab retained by a concrete and brick wall some 4m high extending to the eastern or road boundary of the Site. This retaining wall is nearly 30m in length on the street alignment. There are external stairs at both the northern and southern end of the building.
The building itself has two storeys above the podium and is about 25m in length. The roof ridge line is about 11m above the level of Avoca Drive. Access to the upper level units is gained via the external concrete stairs located at either end of the building.
To the south of the building is an area that has been cleared and on which a rotary clothesline is located. It is used by occupants of the building for the drying of washed clothing and is an area which, by reason of its elevation on the Site and proximity to the eastern boundary, is within clear view of the street.
On the south eastern section of the Site and adjoining Avoca Drive, an area has been cleared and levelled by excavation into the Site so as to provide parking for six motor vehicles. A concrete slab has been constructed to accommodate car parking with the excavated area retained by a low wall at the western end of the slab.
By reason of its form, size and state of repair, the existing building stands in marked contrast to almost all other buildings in the general locality of this south-eastern section of the town of Avoca Beach. While there is great disparity in building style, almost all buildings in this locality would appear to be of relatively modern design and to have been erected within the last 20 years, with perhaps the majority of those erected more recently.
The majority of lots in this locality would appear to have a road frontage of about 15m. Given the steep slope rising from the western side of Avoca Drive, the majority of new residential buildings on that side of the road take a stepped form, often with short, steep driveways leading to a garage or service level that acts as a podium above which 3 to 5 levels of accommodation can be observed. Many of these buildings are substantial in size. Some were identified as residential flat buildings but the majority were identified as single dwellings. Given the variety of form and size of these "modern" buildings in the locality, neither form nor size readily enabled a distinction to be drawn between a residential flat building and some of the more substantial single dwelling houses.
Proposed development
The applicant proposes to demolish the existing residential flat building and to clear vegetation from the Site other than two trees presently growing near the western boundary of the Site. The applicant's development application further proposes the erection of a new residential flat building of three levels over a podium beneath which would be an enclosed car park providing parking for 12 motor vehicles.
The new building is intended to contain six residential units each of three bedrooms. To the rear or west of the upper two units it is intended to provide a lap pool within walled courtyard areas. The roof is broken into various sections, the highest section of which slopes down from west to east and which, at its western end, is at 22.066m AHD and at its lower end is 21.2 AHD or about 16m above the level of Avoca Drive, albeit set back some 9 metres from the property boundary.
The podium will extend for approximately 50m across the Site. It is set back about 3.5m from the boundary at the southern end of the Site and about 6.5m at the northern end. The first residential level is set in from the podium edge so as to provide terraces for the two apartments at that level. Each of the second and third levels are then stepped back from the level below thereby affording balcony or terrace space for those apartments.
Planning controls
The Site is zoned Residential 2(a) under the Gosford Planning Scheme Ordinance (the PSO). In respect of land so zoned, development for the purpose of a residential flat building is prohibited. Notwithstanding this prohibition, the applicant's development application is founded upon the claim that the present use of the Site and the building presently erected on it is an "existing use" within the meaning of s 106 of the Act. This has the consequence that, by operation of s 108 of the Act and cl 44 of the Environmental Planning and Assessment Regulation 2000, the development proposed is permissible with consent.
Both in its statement of facts and contentions and during the first three days of the hearing, the Council contended that the development proposed by the Applicant was prohibited and that the existing use provisions of the Act and Regulation did not avail the applicant in rendering the development permissible. The basis upon which the Council sought to deny the entitlement to rely upon the existing use provisions varied from time to time. However, on the fourth day of hearing, the Council conceded that use of the entire site for residential flat development was permissible with consent on the basis that the existing use provisions of the legislation applied. It will be necessary to say something further about the Council's changing position on existing use when dealing with a submission made by the applicant concerning costs.
The other planning document upon which the parties focused in the course of the hearing is Gosford Development Control Plan No. 159 (Character) Amendment One ( DCP 159 ). Clause 1.5(d) of DCP 159 requires that development applications demonstrate consistency or compatibility with applicable statements of "desired character". Schedule 2 to the DCP contains character statements for various suburbs within the Gosford City local government area. Avoca Beach is divided into 13 different character areas within that Schedule. The subject land is located within the character area known as "Avoca 7: Medium Density Hillsides" (incorrectly described in the statement of facts and contentions as being within "Avoca 7: Wooded Hillsides" - there being no area so described in the DCP).
The existing character of the Avoca 7: Medium Density Hillside Area is described as being -
"(m)edium-density redevelopment of former cottage allotments, either singly or as larger sites, for apartments and townhouses."
The opening paragraph describing the desired character for the same Avoca 7 area is as follows -
"these areas should remain medium-density residential hillsides where improved standards of amenity and urban design quality are achieved by new multi-unit developments that are surrounded by leafy hillside gardens, providing distinctive backdrops to "Gosford City's town centres, main roads or the railway."
At first blush the desire to retain "medium-density residential hillsides" in the area where the subject site is located is not readily reconciled with the prohibition contained in the PSO against residential flat buildings.
A draft local environment plan known as Draft Gosford Local Environmental Plan 2009 (the DLEP ) has been publicly exhibited but has not yet been made by the Minister. Under the provisions of the DLEP the Site is proposed to be zoned R2-Low Density Residential. Residential flat buildings remain prohibited in respect of land so zoned.
At the time of exhibiting the DLEP, the Council also exhibited a Draft Development Control Plan ( DDCP ). That DDCP retained the Avoca 7: Medium Density Hillside classification for the purpose of identifying both existing and desired character.
Section C of the statement of facts and contentions identifies a number of statutory controls and other planning instruments bearing upon development of the subject land. They include State Environmental Planning Policy No. 71 - Coastal Protection , State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development ( SEPP 65 ) as well as a number of development control plans adopted by the Council dealing with specific aspects of development. At the hearing of the appeal, the focus of the parties and their experts was upon the planning instruments that I have described in some detail rather than simply by reference to their title. It is upon those that I will focus in these reasons.
Issues
In final submissions the issues debated between the parties fell under three heads. All were issues of merit. They were -
1. whether the character of the proposed development was appropriate when regard is had to the character of existing and likely future development in the vicinity of the Site;
2. whether the bulk and scale of the proposed development is appropriate, and
3. whether the proposed development will unreasonably impose upon amenity within neighbouring residential properties.
I record that the first day of hearing was taken up by an inspection of the Site and its environs in the company of the legal representatives of the parties and their key expert witnesses. This site inspection proved invaluable not only in understanding the nature of the Site and its topography, but also the nature of existing development on and around the Site and the impact that might be expected from the development proposed by the applicant.
At the time of the Site inspection I also heard evidence, given informally, by seven local residents whose properties generally adjoined or were in close proximity to the subject site. I took the opportunity not only of hearing their evidence, but of viewing the subject site from each of their respective properties. In the course of receiving evidence from each of these residents, observations were made by the parties experts so as to assist in understanding the evidence. A summary of the evidence received at the time of the Site inspection is contained in Exhibit S. I trust I do not do disservice to their evidence by indicating that their concerns were principally directed to the impact of excavation on the Site and the implications for stability of their own sites. They were also concerned that the height of building did not impede their views to the ocean.
I should also record that an issue initially raised by the Council was directed to the stability of the subject site and the possibility of slip not only affecting the development of the Site itself, but also the property uphill of the Site. The issue of site stability was addressed in expert evidence by Mr A Shirley on behalf of the applicant and by Mr P Fennell on behalf of the Council. Ultimately, there was agreement between the engineers that the Site could be developed in the manner proposed provided a detailed construction management plan was adopted and staged construction works undertaken in accordance with it. In particular, they agreed upon a document entitled "Concept Method Statement" detailing the works to be undertaken and their staging so as to ensure both site stability and stability for uphill properties (see Exhibit 13). Furthermore, the parties have entered into a deed so that if development consent is granted the proprietors are to provide to the Council a bank guarantee in the sum of $350,000 in favour of the Council -
"to guarantee the completion of any stage of the retaining and stabilisation works as provided for in the Concept Method Statement prepared on 24 August 2010".
I turn now to the issues addressed by the parties, being those that I have earlier identified.
Character
The determination of this issue is very much interrelated with the second issue concerning bulk and scale of the proposed development. So much was apparent both from the evidence led by the parties and from the manner in which experienced counsel briefed by the parties made their final submissions. Much was said in oral evidence about the two issues and even more written in reports and statements tendered to me. I do not intend to recite that material at length. Ultimately, much of the assessment necessary to determine both issues involves a considerable degree of subjective assessment. As I have earlier recorded, I have had the benefit of a lengthy site and locality inspection in company with the parties. I am aided by that inspection in adjudicating upon the debate that was engaged before me.
In principle, it is necessary to recognise that, almost inevitably, the character of development undertaken in reliance upon the existing use provisions of the legislation will be different from that attaching to existing development, if the latter conforms with land use controls reflecting prohibition upon development that must rely upon an existing use entitlement for permissibility. A residential flat building in a single dwelling house area will, almost inevitably, be noticed for what it is and, in character, be differentiated from the single dwelling house environment. However, that differentiation need not equate to inimical or incompatible development.
While the observation just made is expressed at a level of generality, the differentiation, in the context of the subject site, need not be as stark as it might be in other contexts. As I have earlier observed, residential development on land in the vicinity of the Site is diverse both in form and residential use. So much is acknowledged by the planning and design experts who addressed this issue, namely Mr G Smith for the applicant and Mr B Newbold for the respondent.
Residential development in this southern area of Avoca Beach takes many forms involving the use of building materials and cladding that differ from building to building. If there is a common element readily observed in buildings to the west of Avoca Drive, particularly those built in more recent times, it is that they are generally of a stepped form, adapting to the steep topography, with every attempt made to maximise expansive ocean views to the east. Although many examples of this form of development are readily observed, that form of development is exemplified by several dwellings located above the Site, of three and four storeys standing on the ridge and having uninterrupted views to the east, save for two large trees growing in the north-western section of the Site. The proposed development is one that involves stepping up the Site in recognition of its steep topography and to that extent it does not differ from development that predominates in this locality.
It is also to be noticed that much of what appears to be dense vegetation in the locality when viewed from and along Avoca Drive is located on the subject site. Understandably, a number of the residential properties developed to the west of the Site and having frontage to Ascot Avenue do not have any significant vegetation located between the dwelling and eastern boundary of their respective allotments. Uninterrupted ocean views are obviously paramount. Such character as is given to the area by vegetation is afforded in large measure by that which is growing on the Site providing, as it does, a green base or "podium" to the existing dwellings erected above it.
The extent of vegetation on the subject site is important to be considered because a fundamental criticism directed to the proposed development is the change it will effect to the character of the area by reason of the loss of vegetation. However, it must be recognised that the Site is in private ownership and that any reasonable redevelopment of it will involve development beyond the curtilage of the existing building footprint. Given the size of the Site and its zoning, it is reasonable to contemplate that, present development aside, it could be developed for up to three single dwelling houses which, if developed consistently with the manner in which adjoining and nearby properties have been developed, would involve the loss of most, if not all, of the significant vegetation presently growing on the Site. In short, any reasonable redevelopment of the Site will, so it seems to me, almost inevitably lead to a change in character which is the consequence of development consistent with the present land use controls.
It does not seem reasonable to me that development on this Site should be constrained by a perceived need to retain its vegetation, in effect, to compensate for the absence of vegetation on surrounding residential properties. I make this observation because Mr Newbold supported his criticism of the changed character of the area by identifying the extent to which the removal of vegetation on the Site will expose those dwellings erected above or to the west of it. His criticism seemed to be that when viewed from Avoca Beach their appearance will be made more stark and less desirable.
It was accepted by the experts and confirmed by my site inspection that from many viewpoints in the vicinity of the subject site, including from the beach, the built form predominates with vegetation interspersed, generally identified as growing along or close to property boundaries. This observation, so it seems to me, is unexceptional in an area zoned for residential development, the objectives of which zone are directed to the provision of housing creating a "residential environment". The predominant built form and its heterogeneous character is well exemplified by a view of the locality from and in the vicinity of the section of Avoca Drive and Austral Avenue (see Exhibit G).
The two critical planning controls influencing the character of development in the area are the PSO and DCP 159. The objectives of the Residential 2(a) zone under the PSO are expressed as follows -
" Objectives of this zone
The objectives of Zone No. 2(a) are:
(a) to make provision for the orderly and economic development of suitable land for a variety of low density housing forms which are essentially domestic in scale and which have private gardens; and
(b) to provide for other uses, but only where they:
(i) are compatible with a low density residential environment and afford services to residents at a local level; and
(ii) are unlikely to adversely affect residential amenity or place demands on services beyond the level reasonably required for low scale housing."
It will be seen that the emphasis for the zone is upon low density "housing forms which are essentially domestic in scale".
In the context of the zone objectives and consideration of character, two subclauses of cl 10 of the PSO need to be noticed. They are as follows:
"(3) The Council must not grant consent for development on land within a zone unless it has taken into consideration the objectives of the zone and the consistency of that development with those objectives as well as the objectives of the Local Government Act 1993 relating to ecologically sustainable development."
(4) The Council must not grant consent for development unless it has taken into consideration the character of the development site and the surrounding area, where, for the purpose of this provision, character means the qualities that distinguish each area and the individual properties located within that area."
The requirement in cl 10(3) that the objectives of the zone be "taken into consideration" does not, in terms, mandate refusal if the development in contemplation is not considered to be in complete harmony with the objectives, relatively objective (a). This must necessarily be so where the power to grant development consent is founded upon the existing use provisions of the legislation rather than the provisions of the land use table of the planning instrument. Nonetheless, consideration must properly be given to the form and scale of that which is proposed in order to determine its compatibility with the expressed objectives. As was acknowledged on behalf of both parties, ultimately the determination to be made was one involving "merit" consideration and the appropriateness of the particular design upon the Site. Neither party submitted that the relevant statutory objectives directed to ecologically sustainable development were not addressed by the proposed development.
Although not expressed as such, the principle focus upon character, so far as it emerged from the requirements of the PSO, arose from cl 10(4). I say this because focus was upon identification of the character both of the development site and its environs by attempting to identify those qualities which distinguish or identify each from any other areas. While no close attention was paid to areas outside the southern section of the Avoca Beach suburb, as would be evident from my earlier description and discussion, very considerable focus was had upon the character of the Site and its vicinity. If one were to focus upon the Site itself, its existing character would be of a residential flat building, as I have earlier described it, on a site that in its southern section and upper slope contained a variety of both native and exotic vegetation including some larger trees. The character that distinguishes the area, being that character which makes it notable is, as I have earlier described, of relatively closely settled built environment stepping up the contour of steeply sloping land with vegetation interspersed among buildings and generally located along or close to allotment boundaries.
Significantly, this appreciation of the character of the area is reflected in DCP 159. At [20] I have set out the description of both the existing character and desired character of the Avoca 7: Medium Density Hillside Area within which the Site is located. I do not repeat those descriptions except to observe that they are consistent with my own observations as well as those of the experts.
In the course of his evidence, Mr Newbold indicated that he was the author of DCP 159. He acknowledged that his reference to medium density and multi-unit developments in describing both the existing character and desired character of the area involved the use of those expressions in a town planning sense, meaning that he could contemplate residential flat buildings notwithstanding the prohibition on that form of development in the PSO. He endeavoured to rationalise the two controls by indicating that his description both of the present and likely future character was a recognition that some of the newer residential buildings within the area were a form of multi-unit housing and that sites, such as the subject site, upon which redevelopment could be contemplated, appeared to have the benefit of existing use entitlements, likely resulting in the redevelopment for some form of multi-unit housing or residential flat building.
It is against this background, together with the more generally expressed design quality principles contained in Pt 2 of SEPP 65 and the Residential Flat Design Code incorporated into SEPP 65, that the proposed development needs to be considered. As I have earlier indicated, the building proposed for the Site takes a stepped form, appropriately acknowledging the topography upon which it is to be located. While it is different in design to other buildings in the locality, it does no more than reflect the diversity of design and style that characterises the area.
Furthermore, it proposes an area of deep soil planting above the proposed building on the north-western section of the Site to be planted by a number of small trees having a capacity to reach a mature height of between 8m and 15m and a medium tree with a mature height of 15m. Boundary landscaping is also proposed together with street tree planting along Avoca Drive, all of which will maintain the characteristic development that I have earlier described. Indeed, landscaping proposed in the north-western section of the Site is far more extensive than that identified on the immediately adjoining properties to the west. Side boundary landscaping is able to be achieved at a density that appears to be greater than that evident on properties for several blocks to the south of the Site.
Further, the building has been designed in a manner that seeks to emphasise four elements, each of which is compatible in its presentation to the street with the form and general building dimension observed in the vicinity of the Site.
In short, I am of the opinion that the character of the proposed development does not adversely compromise the existing character of the area, nor would it appear to compromise the likely future character of the area as that latter character is expressed in DCP 159. Its character will be different by reason of its size, but not inconsistent with the general character of the area taking account of the existing residential flat building as reflecting part of that existing character.
Bulk and scale
Although the experts address this issue under the rubric of "bulk and scale", Mr Newbold conceded that he did not regard the building proposed by this development application to be "a bulky building". Mr Smith agreed with this proposition. Furthermore, Mr Newbold indicated that he was not concerned about the overall height of the proposed building. His concern was with the scale of the building. He describes this excessive scale as being manifest by the height of the podium, its length, the continuity of the built form across the Site and the absence of dispersed landscaping so as to provide a visual break in the building width as it presents to Avoca Drive.
For his part, Mr Smith did not accept these criticisms. He recognised that the building will, by reason of its length along Avoca Drive, differ from most other buildings in the locality, although he identifies other buildings of a scale not dissimilar to that of the building proposed for the Site. In particular, he identifies buildings located a little further to the south of the subject site as having dimensions that do not differ markedly from the proposed building albeit that their orientation to the street may differ. He emphasised the heterogeneous nature of the built form when viewed from Avoca Drive and concluded that the proposed building would present as a different but not discordant element when viewed from any public place.
On balance, I prefer the assessment made by Mr Smith. In this regard I take account of the acknowledgement by Mr Newbold that he did not regard the building itself as appearing to be bulky and that it was not to be criticised by reason of its overall height. While the length of the podium as it presents to Avoca Drive is, in plan, in excess of 50m, that longitudinal dimension is visually interrupted by planter boxes running both parallel and normal to the face of the podium, as well as by access stairs and ramp that break the appearance of the overall length. In addition, tree planting in accordance with the tendered landscape plan (Exhibit Z) is to be provided within the Site.
The height of the podium is a product of two factors. First, it reflects the fact that the Site rises from the edge of the formed pavement of Avoca Drive. Secondly, it is, according to the geotechnical evidence of Mr Shirley, dictated by the need to retain slope stability by minimising excavation at the toe of the slope but at the same time maintaining a facility for car parking obscured from public view with appropriate access gradient from Avoca Drive. The appearance of the wall supporting the podium slab is relieved by the elements that I have described pertaining to the podium itself, that is those structural elements attached to it providing for planters together with the break afforded by access stairs and ramp. Its impact is further alleviated as a result of the concession given by the Council that the area between the edge of the road pavement of Avoca Drive and the property boundary is able to be landscaped, including by the planting of trees capable of achieving a height between 10m and 15m. Landscape treatment of that kind allowing landscaping within the road reserve is common place on the western side of Avoca Drive.
In the context of the desired character for the Avoca 7: Medium Density Hillsides Locality, DCP 159 identifies the means by which this character should be achieved. It identifies the use of "strongly-articulated forms, including floor-levels that are stepped to follow natural slopes plus facades that vary in shape and height." It suggests, by way of example, that floor space be divided "into individual dwelling pavilions with a varied form or orientation" and suggests that facades that are longer than buildings on neighbouring properties be screened "by a combination of extra setbacks and balconies or verandas." It further posits two matters of relevance as being desirable. First, it suggests that roofs should be gently pitched, flanked by wide eaves and that parking is to be preferred in basements rather than wide garages accentuating building bulk or that require steep driveways.
As the architect's SEPP 65 statement, lodged in support of the development application, seeks to demonstrate, these elements of the desired character have been incorporated into the proposed development. It is the success with which this has been achieved that is challenged by Mr Newbold. He accepts that the proposed building exhibits strongly articulated facades; that floor levels are stepped back; that elements of the facade change along the building and although he acknowledges the attempt by the design architect to divide the appearance of the building as if it read as four pavilions, he is of the opinion that the design has not successfully achieved this objective. Clearly, his opinion, while deserving of respect, is necessarily subjective.
Mr Newbold further accepts that there is some screening by combination of setbacks, balconies and verandas along the frontage of the building and that the roofs have been gently pitched. Moreover, a series of broken roof forms have been provided in the nature of what has been described as a "reverse saw tooth roof" with the consequence that the roof contributes to the appearance of the building as a series of pavilions.
The "horizontal continuity of form" that seemed to found Mr Newbold's criticisms is sufficiently addressed in my opinion by the elements that I have just described. In addition, that continuity seems to me to be broken by the use of wide eves, consistently with DCP 159, the existence of external verandas, sunscreens and the variety of materials used in the facade of the building that assist in identifying separate elements within it. As was demonstrated by the revised photomontage that became Exhibit X, subtle changes to finishing materials and the appropriate palette of paint finishes can significantly affect the manner in which the building presents to Avoca Drive and particularly the manner in which the appearance of "horizontal continuity of form" is avoided by such means.
In summary, I am satisfied that the bulk and scale of the building is appropriate for the Site. As was observed by Mr Smith in the course of evidence, a collection of ten architects requested to provide an appropriate design for a residential building on the Site would probably yield ten different solutions. I am not required to determine the "perfect solution" if there ever be one, but rather one that is satisfactory and one that is seen to address the requirements, so far as they are prescriptive, of applicable planning documents. I have considered each of them in reaching the conclusion that I have expressed.
Neighbour amenity
Located to the rear of each of the upper two apartments in the proposed residential building, is a narrow swimming pool described as a "lap pool". Each of the pools will be approximately 14m in length and about 1.5m wide. Each is to be located in a paved courtyard area adjacent to landscape planting and accessible only from the living area in each of those two apartments.
The concern expressed on the part of the Council is that the use of those pools and their adjacent areas may be a source of noise that will unreasonably interfere with the enjoyment of residential properties located to the west of the Site. While the possibility that these areas may be a source of noise cannot be dismissed, the likelihood of unreasonable interference with neighbour amenity in this residentially zoned area is, I believe, unlikely to be a probable consequence of their construction and use. Measured horizontally they are removed by some considerable distance from the potential receivers of any noise and they are located at distances that vary between 9m and 14m below the level of the land on those adjoining properties. They are to be surrounded by walls that, on their west, extend up to nearly 4m in height above the pool level. The combined effect of these walls and separation distance, both horizontal and vertical, should provide sufficient noise attenuation such that unreasonable interference would not be expected.
In summary, I conclude that the pools may be retained in the design provided they are located in the positions shown for them in the plans tendered to me as Exhibit U, with the courtyard walls as shown on those plans.
Geotechnical investigation
As I have earlier recorded, the Site has been subjected to detailed geotechnical consideration and investigation, commensurate with that necessary to address risks associated with the intended development. As I have also recorded, there was agreement between the engineers retained by the parties that the Site was capable of being developed without undue risk of slip affecting the site itself or uphill sites within the zone of influence of works carried out upon the Site itself. However, the statement of opinion was circumscribed by the requirement that work be undertaken in relatively small stages, each of which would require the undertaking of stabilisation work either of a temporary or permanent nature, depending upon the stage being considered. This resulted in the formulation by the engineers of a revised concept method statement that was agreed between them after the hearing of evidence had concluded.
At the request of the parties, the engineers further considered questions posed to them directed to the possibility of the building being lowered, making the assumption that the general design concept was retained. In a joint report tendered to the Court the engineers acknowledged that some lowering of the building was possible albeit that any lowering of the basement floor should be less than 300mm than the present design level. It seemed to be their joint opinion that any significant lowering of the building, sufficient to achieve a height reduction of 1m, would impose significant engineering and construction costs as well as increasing slope stability risks.
Given this evidence and taking into account my conclusion that the proposed building reflects a satisfactory form of development at the height and in the location proposed by the applicant's amended plans, I do not propose to require that any lowering of the building take place.
Conditions
Following conclusion of the hearing, I was provided by the Council with a further set of conditions that I understood were acceptable to the parties in the event that I determined to grant development consent. As would be apparent from what I have written, I propose to take this course and I do so with a general understanding of the conditions that the parties contemplated. The most recent iteration of those conditions I have marked as Exhibit 16.
However, Exhibit 16, so it seems to me, still requires revision in some of its detail. Condition 1.1 requires that development be implemented "substantially in accordance with ... supporting documents" that are listed. Included among the documents listed are the statement of environmental effects prepared in November 2008, a detailed contour survey and two arborists' reports. The content of those reports is disparate and ranges from facts that simply reflect the current state of the site to statements of intent. I am not prepared to impose a condition requiring compliance with documents expressed in such broad terms. If there are particular statements contained in those reports referable to the manner in which the proposed development should be carried out and which the parties seek to have made the source of specific obligation, then those obligations will need to be identified and expressed to be the subject of the condition.
Condition 5.14 which is to be complied with prior to issue of an occupation certificate is in the following terms -
"5.14 Any damage not shown in the dilapidation report submitted to Council before site works had commenced, will be assumed to have been caused as a result of the site works undertaken and must be rectified at the applicant's expense, prior to release of the Occupation Certificate."
Nothing contained with the draft conditions requires the preparation of "the dilapidation report" referred to in condition 5.14. Logically, such obligation would appear in section 3 of the Conditions which identifies those things to be done prior to commencement of any works. Furthermore, that which is to be the subject of the dilapidation report referred to in Condition 5.14 is not identified.
Clearly, the conditions require further consideration. Absent the Conditions in a final and satisfactory form, I am not in a position to make formal orders upholding the appeal and granting development.
Conclusion
For reasons that I have indicated, I am satisfied that it is appropriate to grant development consent to the applicant's development application for erection of a residential flat building and associated site works at 120 Avoca Drive, Avoca Beach in accordance with the architectural plans tendered as Exhibit U in these proceedings. The development as there depicted seems to me to be of a character that is not inimical to the character of the Site and development on the surrounding land. Furthermore, its design is such that it appropriately addresses the requirements of the PSO, DCP 159 and takes account of the principles identified in SEPP 65 together with its accompanying Residential Flat Design Code. While acknowledging that the building will be seen to differ from that on neighbouring land, such is the diversity of built form in the locality, I do not regard that difference to be so great as to render the proposed development incompatible with existing development in the locality. The diverse nature of that development supports my conclusion.
In the absence of final conditions in a satisfactory form, it will be necessary to defer the making of any final order allowing the appeal and granting consent until those Conditions are provided and considered.
Costs
The applicant seeks an order for payment of 50 per cent of its costs of conducting this appeal. Its application is founded upon the manner in which the question of existing use was addressed in the course of the hearing. In essence, it submits that the Council adopted an inconsistent approach to the question, putting the applicant to additional expense, only to abandon the question as a basis for denying permissibility at the conclusion of the hearing. In order to address the applicant's submission it is necessary to recite the salient facts.
The statement of facts and contentions first filed by the Council in accordance with the Court's practice requirements contended that the proposed development was prohibited by the PSO because the development proposed extended beyond those areas of the Site to which the existing use attached. The Council contended that the existing use was confined to the unit of land delineated by the footprint of the existing residential flat building together with its immediate curtilage. As the building proposed in the present development application extended beyond this area it was, according to the contention, thereby prohibited.
By reason of this contention the Council sought an order pursuant to UCPR 28.2 for separate determination of the issue as to the area of land to which the existing use attached. That application for separate determination was heard and determined by Preston CJ on 16 July 2010. His Honour rejected the application. ( The Owners - Strata Plan No. 855 v Gosford City Council [2010] NSWLEC 106). However, it is clear from the judgment that the arguments directed to existing use, founded upon the Council's contention, were articulated in the course of the hearing of that application but the issue left for determination at trial.
At the time of refusing the motion for separate determination of the existing use issue, as then articulated, the Chief Judge directed that each party file written submissions on the question of existing use, such submissions to be filed and served prior to the hearing. The Council filed its written submissions on this issue on the Friday evening preceding the Monday upon which the hearing was due to commence. By those submissions it was contended, for the first time, that no existing use attached to any part of the Site.
Expressed summarily, the argument was founded upon the timing of construction of the existing building. As of 31 December 1954, Ordinance 105, made under the provisions of the Local Government Act 1919 (now repealed), development upon the land required the grant of consent. Although a building approval for the present building had been granted on 25 August 1954, the Council contended that as building work had not commenced until after 31 December 1954, Ordinance 105 required that a new consent be obtained. It was acknowledged that had building work commenced prior to 31 December, no such further consent was required. There was no evidence of any consent having been given for the erection of the building after 31 December 1954.
As earlier indicated, the first day of hearing before me was occupied by a view of the Site and its environs at Avoca Beach. On the second day of hearing, the Council sought leave to amend its statement of contentions by adding a contention consistent with the written submissions served on the preceding Friday evening. Given that the contention, if correct, went to the power of the Court to entertain the applicant's development proposal, and thus its jurisdiction to grant the approval sought, I allowed the amendment to be made. In consequence, the applicant adduced evidence from Mr Hunter, whose family owned the subject land and were responsible for the erection of the existing building on the Site. Mr Hunter was aged eleven at the time of the building's construction, but had a recollection of the year in which building construction commenced. He produced family photographs which showed the building in the course of construction, including a photograph of his sister and parent standing on the building site during the course of construction. It is clear that following receipt of the Council's submissions concerning existing use, the applicant, through its legal representatives, devoted resources to addressing the existing use contention.
In support of its contention, the Council had filed a bundle of documents directed to that issue. Included among those documents was evidence of a Council approval to subdivide the Site in January 1957. Clearly, the present building was then standing upon the land. This was at a time when the present building was of recent construction and presumably a time when the Council was familiar with its recently acquired planning powers under Ordinance 105. Had the building construction not commenced prior to 31 December 1954, thereby requiring a consent under the Ordinance for its construction, that fact is likely to have been appreciated and been the subject of some record, if not action, when the Council determined to approve the subdivision. The fact that no observation of unlawfulness is noted in any record that the Council was able to produce, supports an inference that construction of the present building had been undertaken conformably with the planning legislation as it then was.
At the commencement of the third day of hearing, counsel for the Council, Mr T F Robertson SC, indicated that his client would no longer contend, as an alternative submission, that the existing use of the land was confined to the existing building and its curtilage. He indicated that if a lawful existing use of the land and building as a residential flat building was established, then such existing use applied to the whole of the land. He indicated that planning documents were still being sought in order to address an argument as to the lawfulness of the existing use.
It was not until the commencement of the fourth day of hearing that Mr Robertson conceded that the Site in its entirety did enjoy an existing use for the purpose of a residential flat building, within the meaning of the current planning legislation. In short, he indicated for the first time, that the Council would no longer press the issue that the proposed development was not permissible. I should also observe that this was the hearing day upon which final submissions were due to commence, with the consequence that the applicant is likely to have prepared for its submissions on the basis that it had to address the existing use issue.
Mr Tomasetti SC, who appeared for the applicant, acknowledged the position that pertains in relation to costs in Class 1 proceedings. However, his submission was that the making of an order for partial payment of costs was, in the circumstances, "fair and reasonable" (LECR 3.7). In the face of the ultimate abandonment of the issue by the Council, he points to the following facts and circumstances to justify the making of an order.
(i) the fact that the Council first sought to agitate the issue for separate determination, thereby occasioning the applicant costs in order to address the application;
(ii) the need to prepare written submissions in accordance with the Chief Judge's direction addressed to the issue of existing use, an exercise that ultimately became unnecessary;
(iii) the changed position on the part of the Council, signalled on the eve of the hearing, denying the existence of any existing use entitlement thereby necessitating further work in an endeavour to meet the changed position;
(iv) the fact that the records produced by the Council itself both as to the initial building and subsequent subdivision approvals ought to have been indications to the Council that the existing building was created lawfully;
(v) until the eve of the hearing it had never been asserted on behalf of the Council that the existing building had been erected without a consent required for it; and
(vi) the applicant had prepared for the hearing and busied itself in the course of the hearing to address the existing use issue, only to have the issue abandoned as a basis of permissibility by the Council.
In my opinion, there is substance in the submissions which Mr Tomasetti advances. The existing use issue, so far as it went to permissibility, was discrete from the merit issues that I have earlier addressed. Although Mr Robertson submitted that it was only after Mr Hunter had given the evidence that he did and was tested upon it that the Council was persuaded to abandon the issue, I do not accept that submission as justifying the course that the Council took. Its own evidence strongly suggested that no unlawfulness attached to the erection of the existing building. Furthermore, if the question that excited its interest was as to when construction of the building physically commenced on site, it would have been a simple matter at a very early point in the proceedings to require the applicant to produce such evidence as it was able in response to that question. Clearly, evidence was available to address that question without the need to subject the applicant to the cost of establishing it in the manner in which it was required to do, involving preparation of submissions and calling of evidence at the hearing.
For these reasons, I conclude that it is fair and reasonable in the circumstances to require the Council to pay a proportion of the applicant's costs of these proceedings. However, I do not accept that the percentage should be as high as that requested by Mr Tomasetti. Consideration of the evidence concerning merit issues clearly occupied time both in Court, including the site inspection for one day, and in preparing for the hearing and final submissions. Making the assessment as best I can and taking a somewhat global view, I believe that 15 percent of the applicant's costs would be a fair and reasonable reflection of those costs that ought to be paid by the Council.
Accordingly, the orders that I make are as follows:
1. Stand over the proceedings to Friday 18 February 2011.
2. Direct the parties to bring in short minutes of order reflecting my determination to allow the appeal and grant development consent to the applicant's development application attaching to such short minutes conditions of consent framed consistently with these reasons.
3. Order that the Council pay 15 percent of the applicant's costs of these proceedings, such costs to be as agreed or assessed.
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Amendments
02 March 2011 - typographical error
Amended paragraphs: 69
25 February 2011 - system import error - c in "facade" restored.
Amended paragraphs: 52
Decision last updated: 02 March 2011
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