Voorderhake v Campbelltown Council

[2004] NSWLEC 521

Land and Environment Court

of New South Wales

CITATION:	Voorderhake v Campbelltown Council [2004] NSWLEC 521
PARTIES:	APPLICANT Dick Voorderhake RESPONDENT Campbelltown City Council
FILE NUMBER(S):	10168 of 2004
CORAM:	Brown C
KEY ISSUES:	Development Application :- demolition of the existing shopping centre construction of buildings of 4 5 and 7 storey heights to contain 117 residential units with 14 retail units and 10 professional suites consistency with planning controls height bulkand scale visual impact
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Campbelltown (Urban Area) Local Environmental Plan 2002
CASES CITED:
DATES OF HEARING:	6, 7/09/04
DATE OF JUDGMENT:	09/22/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr J Robson, barrister SOLICITORS Pike, Pike and Fenwick RESPONDENT Mr D Wilson, barrister SOLICITORS Marsdens

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Commissioner G T Brown

22 September 2004

10168 of 2004 Dick Voorderhake v Campbelltown City Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Campbelltown City Council (the council) of Development Application F980/2003 for the demolition of an existing shopping centre and the construction of a mixed retail/commercial/residential development and associated car parking on the site known as the Bradbury Shopping Centre, 69 Jacaranda Ave, Bradbury (the subject site).

The subject site

2 The subject site is Lot 100 in DP 618391. It is irregular in shape with its main and western frontage of approximately 90 m to The Parkway. The total site area is 13,191 sq m. Two battle axe styled access ways provide access to the shopping centre from Jacaranda Ave. The northern access provides vehicular and pedestrian access while the southern access is limited to pedestrian access only. The subject site slopes approximately 3 m from its eastern boundary to the western boundary and contains no significant vegetation beyond some mature vegetation along The Parkway.

3 The existing improvements consist of a single level shopping centre with at grade car parking. The existing shopping centre comprises low scale single storey structures with pitched roof forms around a central courtyard. It contains 14 separate tenancies with an approximate floor area of 1900 sq m. Car parking for 43 vehicles is located between the shops and The Parkway.

4 Adjoining the existing shopping centre are other commercial uses including a hotel, the Bradbury Community Centre, Sherwood Hills Baptist Church and School, Sherwood Hills Christian School, commercial offices, a veterinary surgery, a gym, Bradbury Primary School and Bradbury Pre-School Kindergarten. The area surrounding the commercial uses consists of modest single dwelling houses predominantly of one storey construction. Fishers Ghost Park is located on the opposite side of The Parkway and follows the path of Fishers Ghost Creek.

The proposal

5 The proposed development seeks the demolition of the existing shopping centre and the construction of buildings of 4-storey, 5-storey and 7-storey heights to contain 117 residential units with a gross floor area of 10,513 sq m, 14 retail units with a gross floor area of 2200 sq m and 10 professional suites with a gross floor area of 952 sq m. The retail units are located on the ground floor and the professional suites on the floor above together with some residential accommodation. The basement car parking provides 135 retail car parking spaces, 179 residential and professional suites car parking spaces and 2 loading bays.

Relevant planning controls

6 The subject site is zoned Local Comprehensive Centre Zone 10(c) under the provisions of Campbelltown (Urban Area) Local Environmental Plan 2002 (the LEP). Shops and residential flat buildings are developments that may be carried out with consent. Clause 30(2) provides objectives for the zone and requires that consent must not be granted unless the consent authority is of the opinion that the development would be consistent with one or more of the objectives of the zone.

7 State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65) applies to the proposed development. Clause 30 requires consideration to be given to the design quality principles in Part 2 (cl 30(2)(b)) and the publication Residential Flat Design Code (cl 30(2)(c)).

8 Development Control Plan No. 85 - Business and Comprehensive Centre Zones (DCP 85) applies to the proposed development. The plan identifies 12 Local Comprehensive Centres. The subject site is identified as the Bradbury Local Centre (Sheet 16). DCP 85 also identifies land use precincts within each of the 12 Local Comprehensive Centres. The subject site located within a Business/Retail Precinct. The objectives of the Business/Retail Precinct are located at cl 23(1). Essential requirements for the Business/ Retail Precinct are located at cl 23(2). Building design requirements are located at cl 29 and height requirements at cl 32.

The issues

9 The council filed an Amended Statement of Issues containing 14 individual issues with particulars. Following the submission of further plans or the agreement on additional conditions the issues of car parking (Issue 9), personal safety (Issue 10) and the adequacy of the Traffic Impact Statement (Issue 14) were not pressed by the council. Issues 12 and 13 were deleted from the Amended Statement of Issues. The remaining issues can be conveniently grouped into following main areas:

1) whether the proposed development is inconsistent with the DCP (Issues 5 and 6),

2) whether the proposed development, by way of its design will have an unreasonable and unacceptable impact on the character of the area and the streetscape by way of height, scaling and massing of the proposed buildings (Issues 1,2, 3 and 4) and,

3) whether the proposed development adequately addresses domestic waste disposal (Issues 7 and 8).

10 The public interest (Issue 11) is addressed as part of the consideration of the active issues.

Inconsistency with the DCP
The evidence

11 Mr Andrew Smith, a town planner provided evidence for the applicant. He states that the Business/Retail precinct makes no mention of the appropriateness or otherwise of high-density residential development. It does not automatically follow that because high-density residential development is mentioned in another precinct that is excluded from the subject site. The existing area of retail/commercial is slightly increased with the proposed development and the critical mass of the centre is maintained and enhanced and will continue to serve the local community.

12 Mr Smith further states that the Campbelltown Centres hierarchy relates to the floor space size of retail centres and offices in the retail and business hierarchy. The proposal makes little or no change to the retail floor space and adds a minor amount of small office suites. The decision not to contain a specific floor space ratio control or height control is and must have been a deliberate one on behalf of the council to not constrain development either in terms of surrounding zoning or to achieve a designated effect.

13 Mr Warwick Stimson, a town planner employed by the council provided evidence on this issue. He states that the proposed development contains a high-density residential component far in excess of its retail and commercial component in terms of floor space, bulk and mass and is therefore inconsistent with the objectives of the Business/Retail precinct. He states that the proposed development has more in common with the Residential/Business precinct than the. Business/Retail precinct.

Findings

14 Clause 30(2) of the LEP provides objectives for the 10(c) zone. These are:

(a) provide conveniently located land for a range of shops, commercial premises and professional services that are of a domestic scale and compatible with residential development to serve the needs of local neighbourhoods;

(b) provide opportunities for local employment;

(c) accommodate a range of activities required in the locality which are less appropriate on land in the residential zone; and

(d) encourage a variety of forms of high-density housing, including accommodation for older people and people with disabilities in locations, which are accessible to public transport, employment, retail, commercial and service facilities.

15 This clause also requires that consent must not be granted unless the consent authority is of the opinion that the development would be consistent with one or more of the objectives of the zone. This test is not particularly onerous given the range of matters covered by the objectives and the need to satisfy only one objective. Consequently I accept that cl 30(2) provides no barrier to the further consideration of the application.

16 Clause 3 of the DCP provides aims for the plan. Clause 3(i) aims to "ensure that the scale of the neighbourhood and general business zones and local and district centres is not out of character with adjoining residential uses".

17 Clause 18(1) of the DCP restates the zone objectives from cl 30(2) of the LEP. Clause 18(2) states that the "zone objectives can be achieved by addressing the objectives for the precinct in which the development is permitted".

18 Clause 23(1) of the DCP provides objectives of the Business/Retail precinct. These are:

(a) to allow for a range of retail and commercial development, with the emphasis on retail;

(b) to provide retailing, commercial uses and services required by people living and working in, while visiting the area; and

(c) to encourage a range and mix of commercial and ancillary uses that are complimentary and which enliven and diversify the centre.

19 Clause 23(2) of the DCP provides the essential requirements for the Business/Retail precinct. These are:

( a) buildings for retail and commercial uses must complement existing development in the centre, particularly adjoining development;

(b) buildings must address both the primary street frontage and any corner frontage, backstreet or lane; and

(c) wherever possible, to street level of the building should accommodate uses, which can be directly accessed from the street.

20 On the question of whether the proposed development is inconsistent with the provisions of the DCP, I agree with Mr Stimson.

21 The role of a DCP is set out in some detail by the Chief Judge in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 at pars 83 to 92 and includes a review of recent judgements on this issue. Relevantly, at par 87, His Honour states:

A development control plan is a detailed planning document which reflects a council's expectation for parts of its area, which may be a larger area or confined to an individual site. The provision of a development control plan must be consistent with the provisions of any relevant local environmental planning. However, a development control plan may operate to confine the intensity of development otherwise permitted by a local environmental planning.

22 His Honour further states, at par 87, matters relevant to consideration of development control plans. These include the matters raised in the preceding paragraph and a number of specific matters that determine the weight to given to a development control plan. These are the level of consultation with interested persons, including the effected community, any inconsistency in which the development control plan has been applied by a council, the consistency with other policy outcomes adopted at a State, regional or local level and the consistency of decision-making.

23 The emphasis to be given to a DCP is also addressed in Zhang v Canterbury City Council (2001) 115 LGERA 373. Spigelman CJ, at par 75, raises three important propositions. First, and although the Court has a wide-ranging discretion, the discretion is not unfettered. Secondly the provisions of a DCP are to be considered as a fundamental element in, or a focal point to, the decision-making process particularly, if there are no issues relating to compliance with a local environmental plan. Thirdly, a provision of the DCP directly pertinent to the application is entitled to significant weight in the decision-making process but it is not in itself determinative.

24 To understand the approach taken by the council and how it relates the relevant matters in Zhang and the matters in Stockland Development it is necessary to understand how the DCP operates.

25 The DCP provides details for the development of land within a range of zones within the Campbelltown local government area. The zones extend beyond the 10(c) zone that applies to the subject site. The 10(c) zone covers 12 Local Comprehensive Centres, including the Bradbury Local Centre. All are subject to the same objectives for the 10(c) zone although the individual centres have different land use precincts and consequently different land use objectives. The 10(c) zone objectives address the range of land use precincts but they do not necessarily relate to each of the different land use precincts identified for each of the 12 Local Comprehensive Centres. For this reason, it does not necessary follow that if a specific land use is identified as an objective for the10(c) zone it is a land use that is appropriate for a specific centre, although it cannot be said to be prohibited. Using the words in Stockland Development, the DCP confines of the intensity of development in the 12 Local Comprehensive Centres otherwise permitted by the LEP.

26 In this case, and while objective (d) of 10(c) zone seeks to "encourage a variety of forms of higher density housing", the objectives for the Business/Retail land use precinct relating to the Bradbury Local Centre do not mention residential development (although it is still a permissible use under the LEP). While it may be argued that a reference to "ancillary uses" in cl 23(1)(c) may be a reference to residential development, I am inclined to conclude that it refers to uses ancillary to the business and retail activities that are envisaged by the Business/Retail objectives.

27 A greater understanding of the DCP is obtained with a reading of the objectives for different land use precincts. As an example, the Residential/Business precinct specifically mentions residential development. Objective (a) encourages "the provision of mixed use development, with a significant residential component, in appropriate locations". Interestingly, Residential/Business precincts are identified for three Local Comprehensive Centres zoned 10(c) but not the Bradbury Local Centre. These are the Ambarvale Local Centre, the Leumeah Local Centre and the Minto Local Centre. While the Bradbury Local Centre and the three previously mentioned centres are similarly zoned, the DCP has identified that different forms of development are more appropriate for each centre.

28 In my reading of the Business/Retail precinct objectives and essential requirements, the emphasis is on providing retail and commercial activities for the local population. I do not accept that it extends to the provision of a substantial high-density housing development. While some limited form of residential development may be possible it should not be the dominant form of development. Comparing the gross floor areas for the residential, commercial and retail components of the development, there can be no argument that the residential component is by far the dominant component of the proposed development.

29 Mr Smith sought to support his position by arguing that the retail and commercial component of the centre was to be re-established in a more attractive form however I did not understand this to be an issue with the council or any of the residents who provided evidence to the Court. There was general agreement to the upgrading of the retail and commercial functions however the main issue remained the inappropriateness of the residential component of the proposed development.

30 If the DCP is compared to the relevant matters in Zhang and Stockland Development, there is no reason why the DCP should not be given significant weight. I see no inconsistency with the provisions of the LEP as the DCP seeks only to address the particular characteristics of each site by selectively confining development to uses that are appropriate. This is an appropriate use of a development control plan and reflects sound strategic planning. In the words used in Zhang, the DCP is the focal point for the development of the subject site.

31 Consequently, I find that the proposed development is inconsistent with the objectives of the Business/Retail precinct as the development is predominantly residential in nature even though retail and commercial components are provided as part of the development.

32 In my opinion, the inconsistency with the objectives and essential requirements of the Business/Retail precinct are so significant that the proposed development puts at risk the orderly planning of the 10(c) zone and should be refused to for this reason alone.

Impact on the character of the area and the streetscape
The evidence

33 Mr Martin Bryant, an architect and landscape architect, provided evidence for the applicant on the urban design issues. He accepts that the proposed development would have an impact on the existing and likely future character of the streetscape of the area. This impact is derived primarily from the scale of the proposed buildings and not the massing, as suggested by the council. The impact is described as low-moderate and is not seen by Mr Bryant as being unreasonable or unacceptable as the site can visually absorb such a development.

34 Mr Bryant further states that the style of the proposed buildings and the language of the materials is suitably modest and responsive. Also, the development will be framed by a landscape of tall trees with a clear and terraced ground plane that will ensure that it is an appropriate character. While the scale of the proposed development does not match the adjoining developments the scale would not make it incompatible. There are clearly other aspects that make up the visual character of an area and in this respect the proposed building is an appropriate scale given its role in context in the centre of Bradbury.

35 Mr Stephen McMahon, a town planner, provided evidence for the council on this issue. He disagrees with the evidence of Mr Bryant and states that the development fails to address and accommodate the characteristics of the site and its neighbourhood context. The height, bulk and scale is inconsistent with the prevailing and future built form character of the area and relates poorly to the scale, form and character of non-residential buildings immediately adjoining the site. The landscaping along The Parkway frontage is also inadequate to provide an effective contribution to the character of the locality and will result in adverse visual impacts particularly with regard to the streetscape of The Parkway and the scenic quality of the adjoining Fishers Ghost Park.

36 The visual impact of the proposed development was also the substantive issue raised the residents who provided evidence to the Court, attended the view of the subject site on the first morning of the hearing and provided a large number of letters of objection and petitions opposing the development to the council.

Findings

37 The LEP and the DCP provided no numerical controls for design elements such as height or floor space ratio to assess of bulk, scale, height or massing. Rather, the planning controls rely on a qualitative assessment.

38 The LEP contains an objective for the 10(c) zone that seeks "to provide conveniently located land for a range of shops, commercial premises and professional services that are of a domestic scale and with in order to serve the needs of local neighbourhoods" (cl 30(2)(a)). This objective is repeated at cl 18(1)(a) of the DCP.

39 Clause 3(i) of the DCP has an aim that seeks to "ensure that the scale of neighbourhood and general business zones and local and district centres is not out of character with adjoining residential uses”.

40 Clause 23(2)(a)) of the Business/Retail Precinct has an essential requirement that "buildings for retail and commercial uses must complement existing development in the centre, particularly adjoining development".

41 The requirements under the heading of Building Design in the DCP state that buildings must "address surrounding public open space" (cl 29(d)) and "not be intrusive or out of scale with the centre and any surrounding residential development" (cl 29(h)). The requirements under the heading of Height in the DCP state that building heights must "reflect the status of the centre or business zone within the centres hierarchy" (cl 31(a)), "be sympathetic to the existing land form" (cl 31(c)) and "have regard to the character and visual quality of adjoining development” (cl 31(g)).

42 SEPP 65 requires consideration to be given to the design quality principles in Part 2. The relevant principles are:

Principle 2: Scale . This principle states, "good design provides an appropriate scale in terms of the bulk and height that suits the scale of the street and the surrounding buildings. Establishing an appropriate scale requires a considered response to the scale of existing development. In precincts undergoing a transition, proposed bulk and height needs to achieve the scale identified for the desired future character of the area"

Principle 3: Built Form. This principle states that "good design achieves an appropriate built form for a site and the buildings purpose, in terms of building alignments, proportions, building type and the manipulation of building elements. Appropriate built form defines the public domain, contributes to the character of streetscapes and parks, and including the views and vistas, and provides internal amenity and outlook".
Principle 4: Density. This principle states that "good design has a density appropriate for a site and its context, in terms of floor space yields (or number of units or residents). Appropriate densities are sustainable and consistent with the existing densities in the area or, in precincts undergoing a transition, are consistent with the stated desired future density. Sustainable densities respond to the regional context, availability of infrastructure, public transport, community facilities and environmental quality" .

43 The council planning controls provide a range of qualitative requirements for the development of the subject site. They require the proposed development to be “of a domestic scale”, "compatible with the residential development ", "not out of character", "complement existing development" and "not be intrusive". SEPP 65 requires similar requirements. SEPP 65 also imposes a consideration of the " the desired future character of the area". Without diminishing the importance of the individual requirements, in general the Court is required to consider how the proposed development relates to the surrounding development, including any changes to the planning controls that may affect the character in the future.

44 The developments adjoining the subject site, and within the 10(c) zone comprise mainly single and two-storey buildings. They present as unobtrusive and unassuming in scale and form and generally sit within a relatively open setting with some landscaping or grassed areas. Car parking areas can be really visible, although the area in general is relatively understated and consistent with a lower order retail centre designed to serve the needs of the local population.

45 The residential area that surrounds the 10(c) zone is predominantly made up of landscaped modest single storey dwelling houses. The Residential 2(b) zoning of this residential area restricts all residential development to a maximum of two-storeys (Development Control Plan No.-79, p14). There was no evidence to suggest that this requirement or the other requirements for development in this zone was likely to change.

46 With the benefit of the site view, I agree with conclusions of Mr McMahon.

47 Incoming to this conclusion, I accept much of Mr Bryants evidence on the particular architectural themes of the building and the attempts to provide buildings with some interest. I did not understand the council to seriously challenge this aspect of the proposal. I do however agree with the council and the numerous resident objectors that the proposed development is simply in the wrong location.

48 Mr Bryants positive assessment of the proposal draws heavily on the limited visual catchment and the position of the subject site at the low point of the ridgeline surrounding Bradbury. I do not accept his proposition that as the proposal is not highly visible from a large number of sensitive viewers it cannot have a significant impact to the visual quality of the area. The shopping centre is a focal point for the local community as it provides a range of day-to-day goods. It is likely to be visited by members of the community that reside outside the visual catchment and even outside the wider area defined by the ridgeline surrounding Bradbury.

49 The Parkway is a higher order road and carries traffic beyond the immediate area. The proposed development would be clearly visible by residents using this road. I have little doubt that the height, form and massing of the proposed development, when compared to the development on surrounding areas, will be sufficient to attract considerable attention to any person who passes or visits the site. To suggest that the proposed development would only be prominent in its immediate surroundings, i.e., within 200 metres of the site, and should only be considered in this context ignores the reality of its use and location and cannot be supported.

50 In my opinion, and even if the proposed development was only visible from the immediate catchment it still would be unacceptable. The height, and bulk and scale are so incompatible with the surrounding development that its affect even on the immediate catchment can only be described as overbearing and dominating. Mr Bryant's statement that the proposed development, when considered in the immediate context, would be distinctive but not out of character in the built environment considerably underestimates the prominence of the proposed development.

51 I also do not accept that the design, including its materials and articulation, the positioning of specific buildings on certain parts of the site and the proposed landscaping overcomes its imposing presence in the streetscape and the area in general. Even accepting that the higher buildings are located further from the street frontages, the overall height will still be noticeable from the adjoining streets when compared with the height of existing buildings in the locality. This is exacerbated by the elevated nature of the subject site. While landscaping is to be provided along the alignment with The Parkway, its screening effect would be negligible. The area available for landscaping is limited even though this area was increased with the submission of further amended plans at the hearing. In my view, landscaping, in this instance, is unsuitable for screening buildings that are clearly excessive in height, bulk and scale for the area. Clearly, the problems of prominence flow directly from the extent of built form.

52 The concern expressed by Mr McMahon that the proposed development visually overwhelms the public domain and erodes the landscaped character and amenity of Fishers Ghost Park also has merit. Even though this area contains a large number of existing trees, the proposed development would be clearly noticeable from most locations in the park through these trees, particularly the bridge across the creek that leads to the subject site.

53 In consideration of those matters in pars 38 to 42, I can comfortably conclude that the proposed development is not a good design and is unacceptable because of its excessive height, bulk and scale when compared to the form and character of existing development in the area. Under any test the proposed development could not be said to be “of a domestic scale”, "compatible with the residential development ", "not out of character" with adjoining development, "complement existing development" and "not be intrusive". This unacceptable relationship justifies the refusal of the application for this reason alone.

54 While other issues remained between the parties, it is not necessary for these to be considered because of the findings on the other substantive issues.

Orders

55 The orders of the Court are:

1) The appeal is dismissed.

2) Development Application F980/2003 for the demolition of an existing shopping centre and the construction of a mixed retail/commercial/residential development and associated car parking on the site known as the Bradbury Shopping Centre, 69 Jacaranda Ave, Bradbury is refused.

3) The exhibits are returned.


___________
G T Brown
Commissioner of the Court