Tranda Holdings v Wingecarribee Shire Council

[2007] NSWLEC 123

Land and Environment Court

of New South Wales

CITATION:	Tranda Holdings v Wingecarribee Shire Council [2007] NSWLEC 123
PARTIES:	APPLICANT Tranda Holdings Pty Limited RESPONDENT Wingecarribee Shire Council
FILE NUMBER(S):	11032 of 2006
CORAM:	Brown C
KEY ISSUES:	Development Application :- construction of a hotel - style and design - need for splay corner
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Wingecarribee Local Environmental Plan 1989
DATES OF HEARING:	26/02/07
DATE OF JUDGMENT:	14 March 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr M Wright, barrister SOLICITORS Robert Johns Lawyer RESPONDENT Mr B Bilinsky, solicitor SOLICITORS B Bilinsky& Co

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

14 March 2007

11032 of 2006 Tranda Holdings Pty Limited v Wingecarribee Shire Council

JUDGMENT

1 COMMISSIONER: This an appeal against the refusal by Wingecarribee Shire Council (the council) of Development Application LUA06/0903 for the construction of a hotel at the corner of Bundaroo Street and Bong Bong Street, Bowral (the site).

The site and locality

2 The site is Lot 10 in DP 805345. It has a frontage of 91.49 m to Bundaroo Street and a frontage of 27.105 m to Bong Bong Street giving a total site area of 3372 sq m. The site contains The Port O’Call Bottle Shop and a motel. The original hotel building on the site has been recently demolished.

3 The site is located at the northern end of the Bowral Town Centre. The commercial centre is characterised by a variety of single storey and two-storey commercial buildings of various ages along Bong Bong Street and some newer development behind these commercial buildings.

The proposal

4 The proposed hotel provides for a ground level area of some 450 sq m containing the licensed area, games lounge and poker machine areas. A front patio and rear courtyard also provided at this level. A single bedroom manager’s residence of some 83 sq m is provided at first floor level.

Relevant planning controls

5 The site is zoned 3(a)(Business Zone) under Wingecarribee Local Environmental Plan 1989. The proposed use is permissible with consent in this zone.

6 Development Control Plan No.46 - Bowral Sub Regional Centre Urban Design and Development Guidelines (DCP 46) applies. DCP 46 provides a number of planning precincts for the Bowral Town Centre. The site falls within Planning Precinct 2 - Secondary Commercial Areas. Clause 1.7 provides Plan Objectives. Section Three addresses In Fill Building Criteria including the current situation (cl 3.1), site analysis (cl 3.2) and in fill design principles (cl 3.3). Section Four addresses the existing character of the different planning precincts with cl 4.3 addressing Planning Precinct 2. Section Six addresses specific development controls for the planning precincts with cl 6.3 addressing Planning Precinct 2.

The issues

7 The council filed a Statement of Issues containing two separate issues. These are:

1) whether the style and design of the proposed hotel is acceptable considering the requirements of DCP 46 (Issue 1),
2) whether the proposed development needs to provide a 4m splay at the corner of Bundaroo Street and Bong Bong Street to provide adequate pedestrian storage (Issue 2).
The evidence

8 Mr Garry Dutaillis, an architect, provided evidence for the applicant and Dr Peter Kabaila, also an architect provided evidence for the council on the style and design of the proposed hotel.

9 Mr Kenneth Hollyoak, an engineer, provided evidence for the applicant and Mr Peter Nunn, also an engineer, provided evidence for the council on the pedestrian storage issue.

10 No local residents provided evidence as there were no objections when the development application was advertised

Style and design
Dutaillis evidence

11 Mr Dutaillis states that the design makes a conscientious effort to interpret existing forms and makes use of typical building elements in producing the final building form, as required by DCP 46. The tower elements on each corner of the building define the buildings overall size and while not common to the precinct, he believes that the building is unique in that all four facades are open to view. The north and west elevations have street frontages while the east elevation fronts the existing bottle shop and the south elevation provides an edge to the bottle shop access drive. The repetition of the tower element reinforces the overall building mass in relation to the siting of the proposal. The verandah element of the building serves several purposes including the emphasis of the visual planes along Bong Bong Street and the establishment of building modules through the use of columns.

Kabaila evidence
Dr Kabaila states that elements of the architecture, particularly the tower elements, are out of character with the Bowral Conservation Area. He describes the tower elements as more reminiscent of prison watchtowers. Their height is emphasised by elongated rectangular openings, which also serves to isolate them from appreciation at street level. Other architectural elements, such as the floor and verandah raised on a podium level and separated from Bong Bong Street, further isolate the building from the surrounding streetscape. Dr Kabaila states that the ground floor level access could be improved by relating it more to the street through a reduction in the height of the ground floor level and removing the separating wall. The screen wall on the east elevation also has no relevance to the style of a traditional building and should be scaled down to provide less visual emphasis. Overall, the proposal should be redesigned, as it is not an adequate response to traditional architecture in the Bowral Conservation Area and not a good example of respectful interpretation of local pub architecture.

Findings

12 DCP 46 provides the principal planning requirements for the proposed development. Clause 1.7 identifies the plan objectives. The relevant objectives are:

• Maintain and enhance the existing visual character of the built form and landscape elements of Bowral Town Centre and, in particular, that part of the Bowral Conservation Area which adjoins the town centre;
• Ensure that new or in fill development is sympathetic to the existing built forms whilst allowing and encouraging high-quality contemporary architectural solutions.

13 Clause 3.1 addresses infill building design criteria. In describing the current situation, the clause states:

The local community is increasingly concerned about the loss of the friendly "country town" atmosphere. However, if the role of Bowral as the retailing and commercial centre of the sub region is to continue, then change is inevitable. New buildings will be constructed and existing buildings redeveloped.

The challenge is to accommodate these changes and to provide guidance from new development, which will be sympathetic with the existing buildings and streetscapes, and that will enhance and complete the existing urban character, whilst maintaining a high level of amenity for the community.

14 Clause 3.3.1 describes the existing building character in the following terms:

The character of buildings tends to be determined by the period in which they were constructed. The buildings of the Bowral Town Centre relate to a number of eras from the late 1800's to the present, although those buildings constructed in the first half of this century provide the dominant character. These buildings generally feature suspended awnings and articulated facades with small scale building elements such as individual window openings, engaged piers, and other applied ornament. In order that infill development achieve an appropriate character, special attention should be given to elements of the facade such as parapet style, fenestration, awning design, roof form and treatment, and shop-front design.

There are a number of out of character "modern buildings", which feature areas of unrelieved continuous strip windows and deep fascias with a generally horizontal design emphasis, which detract from the overall streetscape qualities of the town centre. These buildings are incompatible not because they are modern but because they have adopted inappropriate proportions and materials and failed to acknowledge the key visual design clues of the existing streetscape.

High quality contemporary buildings, which recognise an appropriate character, should be strongly encouraged. The recently completed Central Library and Health Centre complex is a good example of an appropriate response.

15 Clause 3.3 provides in fill design principles and identifies major design criteria that should be taken into account. These are:

• Building character
• Scale
• Building massing
• Building alignment
• Setback and orientation
• Materials, finishes and detailing

16 Clause 6.3.4 provides details on the architectural treatment and character for Precinct 2. The clause states that the architectural treatment and character shall generally follow the requirements for Precinct 1, which states:

It is essential that the design criteria outlined in Section 4 be addressed when undertaking any new work in this precinct. Typically roofs in this key central area are obscured by parapets at the second floor level. They also generally have continuous awnings to provide weather protection for pedestrians. The use of well modulated parapets with a vertical proportional emphasis, together with awnings at the street level, are essential in this precinct. Face brick or rendered brick is the preferred material for new structures. Metal ribbed sheeting is not acceptable for any part of the facade. Consideration should be given to the use of glazed awnings to provide a higher level of light at the street level and provide an improved level of presentation to the shop fronts when viewed from the street. Small-scale architectural elements are to be used in both first storey facades and shop fronts to provide an appropriate character. Monolithic construction and materials (i.e. unrelieved concrete walls, large areas of glazing etc) are not acceptable. The use of reflective glass and the use of large areas of primary colours on the exterior of buildings are also not acceptable.

17 DCP 46 provides a range of design requirements. Without seeking to diminish the significance of the individual requirements, the philosophy of the DCP 46 could be summarised as encouraging in fill development (including contemporary designs) that is sympathetic to existing built forms. Elements such as the façade, parapet style, fenestration, awning design, roof treatment and shop-front design are important considerations and should relate positively to existing buildings and streetscapes.

18 In balancing the divergent evidence of Mr Dutaillis and Dr Kabaila and with the benefit of a view of the Bowral Town Centre, I agree with Dr Kabaila that the building character is unsatisfactory considering the requirements in DCP 46, largely through the inclusion of towers on each corner of the building.

19 The use of tower elements in the design was the major difference between Mr Dutaillis and Dr Kabaila. Even though Dr Kabaila raised the design issue to a level that would normally be associated with the existence of heritage items and heritage streetscapes, I accept that his fundamental concerns over the towers are valid.

20 There are number of unsympathetic buildings in the Bowral Town Centre but there is also a substantial number of older buildings that display consistent form and character. The latter are the buildings that DCP 46 seeks to use as a cue for new development. As described in DCP 46, this form and character includes a general consistency of parapets, awnings and articulated facades with small scale building elements. DCP 46 states that well modulated parapets with a vertical proportional emphasis, together with awnings at the street level are "essential" in Precinct 2. Corner sites provide a continuation of this form and character but often with a grander scale to accentuate the corner. The form and character could be described as relatively subtle in architectural terms.

21 I am not satisfied that the tower elements of the proposal are characteristic of the Bowral Town Centre and should be promoted as a sympathetic building element in this context. While the towers define the corners of the building as suggested by Mr Dutaillis, they do so in an overly obtrusive and visually dominant manner, particularly the two towers on Bong Bong Street that are higher than the first floor component of the building. Under any assessment they could not be described as subtle in architectural terms.

22 In saying this, I acknowledge that some tower structures exist in Bowral Town Centre although both are of relatively new construction and are found in only two locations. The free standing frame tower associated with the Woolworths development in Bong Bong Street has no physical link to the supermarket development and its sole purpose is to emphasise the corner. It is a contrived element in the streetscape and should not be used as an example to be followed for future development in the Bowral Town Centre.

23 The other tower structures are part of the Central Library and Health Centre facilities in Bendooley Street and are not located within any of the planning precincts identified in DCP 46. The buildings are however identified in cl 3.3.1 as being "high quality contemporary buildings which recognise an appropriate character". The tower elements in these buildings, in my view, are better integrated into the design and do not dominate the appearance of the building in the way the towers dominate the proposed hotel. The buildings are also setback some distance from Bendooley Street and are largely screened by other buildings and vegetation. Again, I am not satisfied that the existence of tower elements in these buildings provides any warrant for the design of the proposed hotel.

24 Even though the site is within Planning Precinct 2 - Secondary Commercial Areas, cl 6.3.4 requires the architectural treatment and character to generally follow that of Precinct 1 - Primary Commercial Area. For the site, it is a particularly appropriate response because of the prominent location of the site on the entry to the Bowral Town Centre from the north.

25 While generally supporting the evidence of Dr Kabaila on the tower element of the design, I do not necessarily accept that an appropriate design should follow other corner sites in the Bowral Town Centre where the facade height is increased to formalise the corner location. These corner sites generally form part of a row of shops that provide some consistency in terms of height, parapet design and awnings. It would seem that as the site calls for a stand alone building, a different design philosophy may be appropriate but adopting the architectural treatment and character elements set out in DCP 46 for Precinct 2.

26 I also do not accept Dr Kabaila’s concerns over floor levels, the location of the first floor managers accommodation and the eastern enclosure as matters that would, individually or collectively, warrant the refusal or amendment of the development application.

27 Overall, I find the design is inconsistent with the relevant objectives in cl 1.7 of DCP 46 in that the design does not " maintain and enhance the existing visual character of the built form…. of the Bowral Town Centre". The design is also not "sympathetic to the existing built form" of the Bowral Town Centre. Consequently, the appeal must fail but for completeness I will address the other issue.

Footpath pedestrian storage

28 Mr Hollyoak and Mr Nunn differed on whether a 4m splay at the corner of Bundaroo Street and Bong Bong Street was required to accommodate pedestrian storage on the footpath.

29 Mr Hollyoak accepts that Development Control Plan No.41 – Development & Subdivision Standards and Planning Guidelines (DCP 41) requires a 4m splay although he notes that there is no explanation in DCP 41 why it is required. Mr Hollyoak addresses whether adequate visibility is provided for pedestrians and vehicles and whether adequate footpath capacity and width is available without the need for a splay. He relies on pedestrian surveys carried out on the corner of Bundaroo Street and Bong Bong Street, Australian Standard AS 2890 : 1, Australian Standard AS 1428 : 1, the Roads and Traffic Authority document Sharing the Main Street Practitioners Guide and Austroads Guidance to conclude that the splay is not required.

30 As the evidence of Mr Hollyoak was unchallenged and in the absence of any technical evidence that would suggest that his conclusions are incorrect, I accept that a 4m splay is not required at the corner of Bundaroo Street and Bong Bong Street.

Orders

31 The Orders of the Court are:

1) The appeal is dismissed.
2) Development Application LUA06/0903 for the construction of a hotel at the corner of Bundaroo Street and Bong Bong Street, Bowral is refused.
3) The exhibits are returned.
_____________
G T Brown
Commissioner of the Court