Torada Pty Ltd v Pittwater Council

[2005] NSWLEC 376

Land and Environment Court

of New South Wales

CITATION:

Torada Pty Ltd v Pittwater Council [2005] NSWLEC 376

PARTIES:

APPLICANT
Torada Pty Ltd

RESPONDENT
Pittwater Council

FILE NUMBER(S):

10065 of 2005

CORAM:

Tuor C.

KEY ISSUES:

Development Application :- "shop top housing"
Impact of height and setback and
achievement of desired future character in locality.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Pittwater Local Environmental Plan 1993
State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings

DATES OF HEARING:

05/07/2005

 
DATE OF JUDGMENT: 

07/12/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr G McKee, solicitor
SOLICITORS
McKees Legal Solutions

RESPONDENT
Ms J Jagot , barrister
SOLICITORS
Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

12 July 2005

10065 of 2005 Torada Pty Ltd v Pittwater Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Pittwater Council (the council) of a development application (DA No: N0310/04) under the Environmental Planning and Assessment Act (EPA Act) to demolish the existing buildings and construct a “shop top housing” development at 24 Waratah Street, Mona Vale (the site).

2 For the reasons set out in this judgment, I have concluded that the proposal in its current form does not warrant approval. However, if the application were amended, generally as suggested by Mr Baker, the Court appointed urban design expert, it would be acceptable.

The site and its context

3 The site is located on the corner of Waratah Street and Akuna Lane in the Mona Vale commercial centre. It is rectangular in shape with an area of 968.5sqm and falls approximately 2m from Waratah Street to the north east and 1m from Akuna Lane to the south east. The site has a depth of 20m and length of 48.5m. It contains a single story brick building, at grade parking and perimeter landscaping.

4 The commercial centre within which the site is located contains a mix of uses. To the northwest of the site across Akuna Lane is an open car park for the Woolworths supermarket. A two storey commercial development with a publicly accessible pedestrian pathway is located immediately to the north east. To the south east is an open car park for a two storey commercial building fronting Bungan Street. The Mona Vale Public School is located on the opposite side of Waratah Street to the west.

The history of the proposal

5 The development application was lodged on 29 April 2004. It was notified and council received three objections. Council refused the application on 10 December 2004. The appeal was lodged and council received amended plans which were renotified with one letter of objection. Further amended plans were prepared in response to the comments of Mr Baker. These plans are the subject of the appeal.

The Proposal

6 The proposal is for:

· demolition of all existing structures on the site

· two levels of basement parking containing 47 spaces

· two ground floor commercial tenancies

· 16 apartments on three floors

7 The maximum height of the proposal to the top of the lift motor room 12.8m and to the top of the uppermost floor is 11.7m.

Planning Framework

8 The site is zoned 3(a) General Business “A” under Pittwater Local Environmental Plan 1993 (LEP 1993). Under cl 21O(2), the proposal is permissible with consent. The proposal includes commercial use on the ground floor. Retail is separately defined under LEP 1993 and therefore would not form part of the approval. However, a change from commercial to retail would not require consent as it is exempt development if under 1500sqm. This is an important consideration as the car parking requirements for retail are greater than those for commercial and the level of the commercial ground floor and its relationship to the street was an issue in the case. LEP 1993 does not contain any development standards applicable to the application.

9 Pittwater 21 Draft Local Environmental Plan (Draft LEP) is a relevant consideration under s79C of the EPA Act. The parties agreed that the draft LEP was neither imminent nor certain and that there were no changes to the controls of relevance to the proposal.

10 Development Control Plan-Pittwater 21 (DCP 21) came into force on 1 February 2004. DCP 21 is a locality based DCP. The site is located in the Mona Vale Locality. Section A4.9 describes the context and the desired character for the Mona Vale Locality. Relevantly this states:

Future development will maintain a distinct height limit below the tree canopy, and reflect the predominant scale and setbacks of existing development. Buildings will be designed to address the street, integrate with the public domain, and be at a ‘human scale’. Contemporary buildings will utilise facade modulation and/or incorporate shade element, such as pergolas, verandahs and the like. Building colours and materials will harmonise with the natural environment and not dominate it.

11 Section C provides general controls for particular types of development and Section D includes locality specific controls. The structure of these controls is explained at A1.10. Each control relevantly includes:

Outcomes
Lists the outcomes that the development control is seeking to achieve.

…..

Controls
Outlines the controls that a proposed development should satisfy to achieve the outcomes of the development control.

Variations
Outlines the circumstances in which Council may consider a variation to a control.

12 The two main controls that were in dispute between the parties were the height control and the front setback control.

13 The height control in D9.5 includes the following outcomes:

Achieve desired future character of the locality.
Buildings and structures below the tree canopy level.
The built form does not dominate the natural setting.

14 The control specifies that “the maximum height of the building or structure shall be 11 metres”. No variation to this control is stated.

15 Height is defined in DCP 21 as follows:

Height of the building means the distant measured vertically from any point of the building to the natural ground level directly below that point;…..

16 The Outcomes for the Front building line in D9.6 include:

Achieve the desired future character of the locality.
The Bulk and scale of the built form is minimised.
Vegetation is retained and enhanced to visually reduce the built form.

17 Control specifies that the minimum front building line for land zoned Business in the Mona Vale Core Commercial Centre is:

3.5m at ground level, then 6.0m to that part of the building 8.5m and greater about natural ground level.

18 The variations provide that:

Where the outcomes of this control are achieved, Council may accept a minimum front building setback to a secondary street of half the front building line.
Where the outcomes of this control are achieved, Council may accept variations to these building line in the following circumstances:

· Considering established building lines;

· Degree of cut and fill;

· retention of trees and vegetation;

· where it is difficult to achieve acceptable levels for building;

· for narrow or irregular shaped blocks;

· where the topographic features of the site need to be preserved;

· where the depth of the property is less than 20 metres.

19 D9.7 permits nil setbacks on side and rear building lines.

20 State Environmental Planning Policy No 65 – Design Quality of Residential Flat Buildings (SEPP 65) establishes ten design principles for residential flat development. Under SEPP 65, the Residential Flat Design Code (Residential Code) must be considered.

The issues

21 The Statement of Issues before the Court contained five issues. The key issue before the Court is whether the height and setback achieve the desired future character of the locality.

The Evidence

22 Mr Baker provided a Statement of Evidence and oral evidence. I granted leave for Mr N Ingham to provide a Statement of Evidence and oral evidence in response to Mr Baker’s evidence and recommended changes. Mr M Eriksson, for the council and Mr S Pittendrigh, for the applicant, provided a joint statement on the landscape issue.

Height

23 Mr Baker’s concern in relation to height was not the non compliance of parts of the upper floor and the lift motor rooms but that, to achieve compliance with the height control, there was no direct relationship of the commercial ground level to the adjoining streets. He stated that:

A more important consideration in relation to height is the level of the ground floor in relation to the adjoining street, lane and pedestrian way. As currently configured, the Relative Level (RL) of the northeast part of the ground floor is set at RL 14.60. With access to the commercial tenancy from Akuna Lane constrained by the presence of planter boxes and the northeast apartment lobby located at the rear of the building, the critical relationships are to the pedestrian pathway abutting the northeast boundary of the site. Opposite the commercial space the pathway is at RL 14.2 and opposite the residential entry it is at RL13.85. The proposal has the ground floor at RL 14.60, so that steps up from the pathway are required to access the commercial space and no direct access is provided from the pathway to the residential lobby. Planter boxes clutter the space and disabled access is indirect.

The southwest part of the ground floor is currently set at RL 15.20. Here the critical relationships are to Waratah Street, where the level at the property boundary opposite the commercial space is RL 16.28 and opposite the residential entry is RL 15.97. The significant level differences require a flight of steps and disabled chair lift at the commercial entry. No direct access is provided from Waratah Street to the residential lobby. The consequences of setting the ground floor level about a meter below footpath level is evident in the Waratah Street elevation (Architectural Drawing DA09), where the residential entry is completely obscured and the commercial space is largely visually inaccessible

24 Mr Baker recommended changes to the ground floor level and to the planter boxes to improve this relationship. These included raising the ground floor level of the southwestern part of the building to achieve level access to Waratah Street. Mr Baker recognised that this would raise the upper floor level by approximately one metre and “significantly increase the degree of non compliance with the DCP height limit….. Accordingly, the topmost floor of the southwestern half of the building, containing units 13 and 14, should be eliminated”. Further, he stated that the reduction in units from 16 to 14 would reduce the number of parking spaces required and allow the footprint of the basement parking levels to be reduced and deep soil zones introduced. This would eliminate the need for planter boxes and further improve the relationship of the ground floor to the street.

25 Mr Ingham stated that if the use of the floor were for retail he would consider its relationship with the street to be more critical but as only approval for commercial use was sought this relationship was acceptable. In his opinion commercial uses can operate without a street presence and that the market is “self selecting” of its locational needs. He said that:

It is not unusual for commercial premises to not be precisely at the level of the adjoining public footpath. Indeed many commercial premises are one floor above the footpath or up to one floor below the footpath.
In addition commercial premises do not need to visual exposure that retail establishments need. Many commercial premises are provided with their front door internally to a development rather than being at the street frontage. Visual accessibility is not a critical issue for commercial premises.

26 Mr Ingham stated that the consent could be conditioned to prevent retail use of the ground floor.

27 In relation to the northeastern part of the building, Mr Ingham considered that the proposed level was appropriate as the pedestrian laneway is in private ownership and direct access off it may not be available in the long term. Therefore direct access from Akuna Lane needed to be provided and this necessitated the levels proposed.

28 In relation to the southwestern part of the building, Mr Ingham considered that there was minimal change in level between the commercial tenancy off Akuna Lane, which is the primary pedestrian street and therefore “more attention has been given to the relationship between Akuna Lane and the commercial tenancies than to Waratah Street”. Mr Ingham considered that the residential lobby and the commercial tenancy below Waratah Street was acceptable as the proposed disabled chair lift would ensure access.

29 Mr McKee’s submission, on behalf of the applicant, was that there was no control in the DCP that required direct access to ground floor commercial space and that Mr Baker’s recommendation, which would result in the loss of two residential units was therefore unreasonable.

30 I do not accept this submission. The structure of the DCP requires new development to achieve the desired future character of the locality. For Mona Vale the desired character states that Buildings will be designed to address the street, integrate with the public domain… While the commercial tenancies and retail lobbies are accessible they do not achieve this requirement, particularly on the Waratah Street frontage, where there is a metre change in level between the street and the access to the commercial floor level and the residential lobby. This combined with the planter boxes and the landscaping result in there being a very poor relationship between the ground floor uses and the street. For the residential lobby this creates less than ideal pedestrian access and a lobby which is setback into the corner of the building below ground level with poor visibility and consequent safety implications.

31 I do not accept Mr Ingham’s proposition that the floor is only to be used for commercial purposes. While retail and commercial are separately defined in LEP 1993, the parties agreed that the consent could not be conditioned to prevent retail uses (below 1500sqm) as these were exempt development. This also has implications for the level of parking provided as more spaces are required for retail than for commercial uses. The potential for the ground floor to be used for retail therefore needs to be considered.

32 Both commercial and even some retail uses are not dependent upon direct access and visibility from the street. However, if these uses are located on the ground floor it is desirable that they utilise this position to maximise their exposure. Commercial uses such as real estate agents benefit from street exposure and if located on the ground level should exploit this position.

33 The relationship of ground floor uses is also important to the street as it provides activity and interest for pedestrians and as stated by Mr Baker:

Conventional urban design wisdom says that active retail uses should be located at grade and at or in close proximity to street edges to maximise both the energy of public life in commercial centres and the commercial viability of such uses.

34 The relationship of the ground floor to the street is particularly important for a prominent corner site. Both experts recognised that Akuna Lane had high pedestrian usage with connections into the commercial retail precinct.

35 The controls in the DCP 21 do not specifically require the ground level of a building to relate to street level. However, as Mr Baker stated it is a fundamental planning principle that is inherent in the DCP controls which relate to Accessibility and Safety and Security. Due to site constraints it is not always able to be achieved however, as demonstrated by Mr Baker, this is not the case on this site and the only constraint to its attainment is the need to remain below the height control.

36 I accept that direct access of the private pedestrian lane cannot be relied on in the long term, but the proposed amendments do not preclude direct access being obtained off Akuna Lane as well as the pedestrian lane.

37 The council was not able to provide any information about why the height control in DCP 21 was set at 11m. The same control had been in Residential DCP-R4 (previous DCP) and Mr McKee considered that it envisaged ground floor commercial and three residential floors with 2.4 floor to ceiling heights. This form of development would be within the 11m height limit but with the 2.7m floor to ceiling heights recommended under the Residential Code the height limit could not now be achieved by a four storey building if all floors were measured from natural ground level.

38 It is simple mathematics that if four floors within the height limit are to be achieved this would necessitate a form of development that requires excavation below natural ground level. The definition of height includes all structures and would cover lift motor and plant rooms. A four storey building would also not be able to contain these elements within the height limit.

39 While the height control does not refer to the number of storeys it is important to understand the physical form of development that is likely to result from an application of the controls. Particularly as one of the outcomes of the control is that development achieve the future character of the locality to maintain a distinct height limit below the tree canopy, and reflect the predominant scale and setbacks of existing development.

40 The experts agreed that the height of existing development was predominantly two to three storeys. I received no evidence on the numerical height of these buildings but they are clearly below 11m. There are two buildings which have more storeys but both were approved under earlier planning regimes. The most recent example was approved under the previous DCP and is currently under construction. It is at the corner of Bungan and Pittwater Road, is four storeys with a minor exceedence of the height limit achieved by the ground floor being set below street level.

41 Mr Ingham considered that the emerging character of the area would be of four storey buildings. He recognised that to achieve this it would necessitate variations to the height control or ground floors being below street level. Mr Baker considered that to be consistent with the height control and its objectives, a three storey form of development was envisaged by the DCP. This would be consistent with the predominant existing character and be below the tree canopy as required by the future character statement.

42 I accept Mr Baker’s opinion. A four storey development can only be achieved if set below natural ground level. In most situations this would result in a building being at least partly below street level and, for the reasons outlined previously, this is not a desirable outcome for a commercial core. Lift motor and plant rooms would also exceed the height limit and the development would generally be above the tree canopy. This is clearly the case with the proposed development especially when viewed from the south east across the adjoining car park.

43 Overall, I accept Mr Baker’s recommendations about altering the ground floor level. This would result in an increase in the height of the south western part of the building which would further exceed the height limit and not achieve the objectives of the control. I therefore also accept Mr Baker’s recommendation that Units 13 and14 be deleted which would achieve compliance with the numerical control. The lift motor rooms would still exceed the height limit but on the basis that these are minor elements and designed as an integral part of the building the outcomes of the control would still be achieved.

Setback

44 Mr Baker and Mr Ingham held different opinions about the proposed setback of the building from Waratah Street and Akuna Lane. Mr Ingham considered that the setbacks as proposed were acceptable as the building generally complied or exceeded the setback requirements. Those parts of the building which did not comply were balconies or façade elements and these added interest to the building design.

45 Mr Baker’s considered the setbacks on Waratah Street to be particularly important due to its open and tree lined character. Buildings are generally setback a greater distance than the proposed development and in his opinion “council could have reasonably required a greater setback”.

46 In Mr Baker’s opinion the rationale for the setback on Akuna Lane is to provide soft landscaping and amenity for the residential floors. He noted that other buildings in Akuna Lane had shops fronting the street with no landscaping. Both he and Mr Ingham considered there to be a conflict between commercial exposure of the building and the requirement in DCP 21 for landscape screening. Although they recognised the benefits of landscaping for the residential levels above street level.

47 The front setback controls in DCP 21 require the building and its balconies to be setback a minimum of 3.5m up to a height of 8.5m and 6m above that height. Although not explicit, the control applies to both street frontages but permits a variation for a secondary street frontage of half the control.

48 Whether Akuna Lane or Waratah Street is the primary or secondary street frontage is not clear. Both Mr Ingham and Mr Baker agreed that Akuna Lane was the main pedestrian street. Mr Ingham considered Waratah Street be the primary street for car access. An outcome of the control is to achieve the desired future character of the locality. This requires development to reflect the predominant scale and setbacks of existing development. In Waratah Street the buildings are setback and it has a “tree lined open character”. Whereas the character of setbacks in Akuna Lane is buildings to the frontage with no landscaping which suits its retail pedestrian nature.

49 I note that to retain the two existing trees, which is an outcome sought to be achieved by the setback control, the landscape experts agreed that a setback of 7m from Waratah Street would be required. On the basis that council’s standard is 3.5 the landscape experts agreed that “A seven metre setback is thought to be unreasonable hence removal of trees and replacement is agreed”.

50 I accept Mr Baker’s opinion that the setback to the Waratah Street frontage is of primary importance and consider the Akuna Lane to be the secondary street where variations to the control are permitted. However, a variation of half the control would serve little purpose as the resultant setback would not provide sufficient space for landscaping with trees that would provide amenity to the residential floors nor would it reflect the established setback of other buildings in the street. Although a secondary street I find that the setback as proposed on Akuna Lane is appropriate and that it does not need to be increased.

51 On Waratah Street the ground floor is set back the required 3.5m. The upper two floors encroach some 600mm with balcony elements and screening. This is to achieve “a more interesting façade treatment and greater depth to the façade”. While there is a logic to increasing the setback on Waratah Street, this would need to be more than the 3.5m minimum requirement in DCP 21 for it to have any real impact. The proposed encroachment within the setback area of the upper levels does not meet the variations in the DCP. However, with the removal of units 13 and 14 and the planter boxes I find the setback is acceptable and meets the outcomes of the control.

Other changes

52 Mr Baker recommended that the bedrooms facing the north east boundary should be set back 4.5m, due to the proximity of the adjoining building and its potential to be redeveloped and to better meet the requirements in the Residential Code. Mr Ingham stated that the Residential Code requirement of a 6m setback applies above 12m and that acceptable privacy could be achieved through screening. This approach is consistent with the C1.5 in DCP 21, which relates to visual privacy and states that screening devices are an appropriate mechanism to achieve visual privacy. While a greater separation would be desirable it is acceptable within the context of a commercial precinct and recognising the use of the rooms as bedrooms.

53 Mr Baker recommended the deletion of the balconies to bedroom 2 in units 9 and 10 and bedroom 1 in unit 15. I accept this recommendation as it will improve the amenity of these rooms which utilise a light well as their source of light and air. It will also reduce the bulk and expanse of the blank wall facing south east.

Directions

54 For the above reasons, I find that, as currently proposed the proposal does not achieve the desired future character for the Mona Vale Locality outlined in DCP 21. I accept that the proposal is capable of being approved if the following changes recommended by Mr G Baker are made. If the Applicant agrees to amending the application in accordance with the changes the Directions of the Court are:

1. The applicant is to serve amended plans by 26 July 2005 which incorporate the amendments in Schedule A.

2. The Court Appointed Expert and council are to provide comments on the plans and amended conditions to the applicant by 2 August 2005.

3. The agreed plans and amended conditions are to filed by 9 August 2005.

4. Liberty to restore with two days notice is granted.

5. Costs are reserved

__________________
Annelise Tuor
Commissioner of the Court


Schedule A


1. The ground floor is to be amended and units 13 and 14 deleted as set out in the recommendations on page 9 and 10 of Mr Baker’s Statement of Evidence (Exhibit 5).

2. The number of car parking spaces is to be reduced to reflect the deletion of units 13 and 14 and other changes to enable the basement floors to be set back from Waratah Street and the pedestrian laneway to provide deep soil planting as set out in pages 12 and 13 of Exhibit 5.

3. The balconies to bedroom 2 in units 9 and 10 and bedroom 1 in unit 15 and their boundary walls are to be deleted as set out in page 13 of Exhibit 5.