Walker & Walker Developments Pty Ltd v Pittwater Council
[2006] NSWLEC 599
•26/09/2006
Land and Environment Court
of New South Wales
CITATION: Walker & Walker Developments Pty Ltd v Pittwater Council [2006] NSWLEC 599 PARTIES: APPLICANT
RESPONDENT
Walker & Walker Developments Pty Ltd
Pittwater CouncilFILE NUMBER(S): 11233 of 2005 CORAM: Bly C KEY ISSUES: Development Application :- Housing for the aged and disabled, solar access, building height and cumulative effect LEGISLATION CITED: Environmental Planning and Assessment Act 1979
State Environmental Planning Policy - Seniors Living 2004
State Environmental Planning Policy No. 1 - Development Standards
Pittwater Local Environmental Plan 1993CASES CITED: Equity Group Investments Pty Ltd v Pittwater Counncil [2004] NSWLEC 339 DATES OF HEARING: 25-26/07/2006
DATE OF JUDGMENT:
09/26/2006LEGAL REPRESENTATIVES: APPLICANT
Mr C McEwen, SC
Instructed by: Mr M Staunton, solicitor
Of: Staunton BeattieRESPONDENT
Mr M Henry, barrister
Instructed by: Ms L Segal, solicitor
Of: Mallesons Stephen Jaques
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Bly C
11233 of 2005 Walker & Walker Developments Pty Ltd v26 September 2006
JUDGMENT
Pittwater Council
Introduction
1 This appeal relates to Development Application No. N0492/05 which is for the demolition of two existing dwellings and the construction and strata subdivision of four two-storey detached dwellings comprising housing for the aged and disabled at 74 and 76 Avalon Parade, Avalon.
2 The irregular shaped site comprises Lot 64 DP 9151 and Lot D DP 409655, which together have a combined area of 2,356 sq m and a frontage to Avalon Parade of 42.57 m. It has a gentle fall generally from its Avalon Parade frontage towards its rear boundary. In addition to the two existing dwelling houses there are a number of significant trees, both native and exotic on the site.
3 The locality generally comprises one and two-storey detached dwelling houses together with a number of existing and under construction medium density (housing for the aged and disabled) developments. The street is generally well landscaped with canopy trees being conspicuous. The Avalon commercial centre is located a short distance to the east of the site.
Statutory provisions
4 The application was lodged under State Environmental Planning Policy - Seniors Living 2004 (" SEPP SL"). But for SEPP SL the proposal would be prohibited. The proposal mainly complies with the variously applicable provisions of SEPP SL.
5 Clause 38 of SEPP SL contains development standards involving minimum lot sizes and maximum building height, including: a minimum site area of 1000 sq m; and a minimum site frontage of 20 m, which standards are complied with. Being situated in a zone where residential flat buildings are not permitted, subcl (4)(a) and (b) are applicable and require maximum building heights of 8 m and 2 storeys. These standards are also complied with by the proposal. Whilst the building height standard in subcl (4)(c) is somewhat ambiguous, it appears not to have been complied with and an objection under State Environmental Planning Policy No 1 - Development Standards ("SEPP 1”) has been provided.
6 Clause 81 of SEPP SL details standards that cannot be used to refuse development consent if they are complied with. They relevantly include; building height; floor space ratio; landscaped area; deep soil planting; and car parking. The proposal meets these standards with the exception of subcl (e) - Solar Access.
7 Clause 29 of SEPP SL requires that the provisions of the Seniors Living Policy: Urban Design Guidelines for Infill Development ("the guidelines") must be taken into consideration.
8 The site is zoned 2(a) Residential A under Pittwater Local Environmental Plan 1993 (“the LEP”). In this zone attached dwellings and dual occupancy development are permissible whereas residential flat buildings are prohibited in this particular locality. Whilst there are no objectives of the zone the aims of the LEP in relation to multi-unit housing include the encouragement of a greater diversity of housing types and wide housing choice in appropriate locations with adequate physical and social infrastructure.
9 In seeking to understand the likely future character of the area it is to be noted that Division 3A of the LEP contains development standards for attached dwellings and dual occupancy development. For example Cl 21H contains various standards for dual occupancy development including: a maximum floor space ratio of 0.3:1; a maximum site coverage of 40%; and a maximum building height of 8.5 m.
10 Also in the context of future character, relevant controls in Pittwater 21 Development Control Plan 2003 (“the DCP”) are to be found in ss C and D. Section C1.8 provides certain controls for dual occupancy development including: a maximum building height of 8.5 m; second storeys to have a maximum cover of 50% of the ground floor area; and a maximum floor space ratio of 0.3:1. Second storeys are required to maximise solar access; minimise overlooking of private yards; complement existing streetscape; and minimise visual bulk. Section D contains Specific Development Controls for the Avalon locality. Section D1.3 deals particularly with the character of Avalon Parade requiring that it not be adversely impacted. It identifies Sought Outcomes as follows:
- To provide a sense of place by acknowledging the setting, history, landscaping and built character and to give residents a sense of belonging, community pride and security.
- To retain the character of Avalon Parade.
11 Section D1.3 also includes the following note:
- Information on the contextual and aggregated impact of the proposed development on the character of Avalon Parade is to be submitted with a development application.
12 In order to achieve inter alia the desired future character of the locality sections D1.6, D1.8, D1.9 and D1.13 set a maximum building height, front and side building lines and maximum site coverage.
Advertising
13 The application was advertised and eight submissions were received objecting to the proposal. Matters of concern raised in these objections include:
- overlooking and loss of privacy,
- inadequate on-site parking,
- restricted use of footpaths,
- unsatisfactory stormwater and drainage facilities,
- inadequate building setbacks,
- excessive development of this kind in the locality,
- unsatisfactory landscaping
14 A number of residents gave evidence when the hearing began on-site, explaining these matters in some detail. Several residents supported the council’s position in relation to cumulative impacts. A number of relatively minor changes were made to the proposal in response to concerns about some particular aspects of the design, such as changes to glazing.
Council’s consideration
15 The application was not determined by the council within the requisite period and the appeal was lodged on the basis of its deemed refusal. The application was subsequently reported on by council officer who recommended that the application be refused. A notice of determination reflecting Council's decision to refuse the application was issued on 28 December 2005 citing 38 reasons for this decision.
The issues
16 The further amended Statement of Issues raised the following issues:
· Unsatisfactory accessibility for the disabled
· Inadequate pedestrian access generally
· Inadequate amenity for private open space
· Inadequate internal visual privacy
· Inadequate visual privacy for adjoining properties,
· Unsatisfactory streetscape appearance and significant departure from the character of the locality
· Unacceptable cumulative effect
· Inappropriate location of two-storey building elements that the rear
17 Issues in earlier Statements of Issues and the current Statement of Issues involving: residential amenity; stormwater and flooding; pedestrian amenity and safety; clothes drying facilities; aspects of visual privacy; waste and recycling; water reticulation and sewerage; access to facilities; and car parking have now been resolved as a result of the provision of additional information, changes to the plans and agreed conditions.
18 In addition the issue involving adverse impacts on the Avalon Parade streetscape is now no longer of concern and is not pressed. I have considered the evidence of Mr Kennedy and Mr Dunbar in relation to these matters and taking into account the requirements of the DCP and having inspected the site and Avalon Parade I agree with the conclusions reached by them. The remaining issues for the resolution of the Court comprise cumulative impacts, building height at the rear and solar access within the proposal.
19 The issue involving unacceptable cumulative effect is:
- The cumulative effect of this development considered together with other recently approved aged housing developments in the locality of the site will result in a change in the character of this part of Avalon Parade from single dwellings on large allotments to a multiple dwelling aged care enclave, contrary to the desired future character of the area.
20 On behalf of the respondent Council expert evidence was given by:
· Mr T. Dunbar - town planner.
21 On behalf of the applicant, expert evidence was given by:
Cumulative effect· Mr R Fleming - town planner
· Mr S. Kennedy - architect/town planner
· Mr F Duff - the design architect.
22 In support of the cumulative effect issue the respondent emphasised the various provisions of the LEP and the DCP, so as to provide an understanding of the desired future character of the area. In terms of different forms of land use permitted under the LEP the 2(a) zone is a relatively inflexible zone allowing few non-residential uses (e.g. educational establishments). As already noted, in addition to permitting detached and attached dwelling houses and dual occupancy development, residential flat buildings are prohibited.
23 In section A4.1 of the LEP, the Desired Character of the Avalon Locality (in which the site is located) is, relevantly:
The Avalon Locality will remain primarily a low-density residential area characterised by one and two-storey residences in a natural landscape setting, interspersed by compatible land uses where appropriate. Dual occupancy development will generally be located on the valley floor and lower slopes, subject to environmental and other constraints.
And:
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 and/or waterways, integrate with the public domain, and be at a "human scale". Contemporary buildings will utilise facade modulation and/or incorporate shade elements, such as pergolas, verandas and the like. Building colours and materials will harmonise with the natural and beach environment and not dominate it.
24 Relevant to this issue, Divisions 1 and 2 of SEPP SL contain a number of design requirements. Clause 31(a) requires that proposed development should:
Recognise the desirable elements of the location's current character (or, in the case of precincts undergoing a transition, were described in local planning controls, the desired future character) so that new buildings contribute to the quality and identity of the area.
25 According to Mr Dunbar this is not an issue involving social effects but rather it is an aggregation issue. Notwithstanding that he no longer has concerns in relation to streetscape the cumulative impact of this development with other close by similar developments is unsatisfactory.
26 Mr Fleming commented that the stated issue provided no assistance to enable the quantification of the negative impacts implied. He also referred to the Court's decision in Equity Group Investments Pty Ltd v Pittwater Counncil [2004] NSWLEC 339 Moore C, noting the approach of distinguishing similar developments in terms of style and design. He was of the opinion that the proposed design was of good quality and is different and readily distinguishable from the existing or approved nearby developments and that the site is not contiguous with any other SEPP SL developments. It will nevertheless increase the number of dwellings of this type in this part of Avalon Parade by 4 to a total of 28 dwellings on 7 sites by comparison with 21 remaining dwellings. Despite this, even with the approval of this development the area will, as required by the DCP, remain primarily a low-density residential area and no adverse cumulative effects will result.
Court's conclusions - cumulative effects
27 I accept for the purposes of deciding this appeal that there might be a threshold beyond which there should be no further development of this kind in this particular locality. However the provisions of the planning instruments to which my attention was drawn are deficient to the extent that if there is a threshold there is no clear indication as to its purpose (other than in relation to desired future character) and what might constitute an exceedence of it. Nevertheless there are a number of provisions (referred to above) in SEPP SL, the LEP and the DCP dealing with character, streetscape and design that need to be considered, but apart from the reference in the DCP to the consideration of contextual and aggregated impacts these are of limited direct application in this particular context.
28 Clause 31 of SEPP SL requires that proposed developments should:
(a) recognise the desirable elements of the location's current character (or, in the case of precincts undergoing a transition, where described in local planning controls, the desired future character) so that new buildings contribute to the quality and identity of the area.
29 However this provision does little to assist in dealing with the cumulative effect issue, dealing as it does with sensitive change. Whilst it could be said that this area is undergoing a transition of sorts given the introduction of SEPP 5 and SEPP SL developments, the desired character of this locality as referred to in section A4.1 provides for the locality to remain as primarily a low-density residential area with the introduction of some dual occupancy development. In this regard I accept the evidence of Mr Fleming that, taking into the account the effect of this proposal, this locality will continue to be primarily a low-density residential area characterised by one and two-storey residences. Whilst the landscaped setting will not be as natural as that which it replaces, this is not in my opinion critical to the issue. Here I also take into account that the various controls in the LEP and the DCP are largely met by the proposal.
30 It is plainly possible that significant changes to a locality can occur by way of medium density development of the kind under consideration here without changing its character to the extent that the application should be refused. Indeed the character has already been changed. But where is the threshold in terms of cumulative effect?
31 In Equity Group, Commissioner Moore addressed this question and in accepting the proposition that, at some stage, there might be reached a point where development of this kind in Avalon Parade attain a sufficient aggregation where it would be appropriate for the council or the Court to say "enough is enough". In that case he was not satisfied that the threshold had been passed, having taken into account:
· the number developments already approved;
· the differences in style and design between them; and
· the fact that the proposed development is located between existing approvals.
32 Whilst I accept that character should not be read down to just streetscape, in the absence of other assessment criteria the visual presentation of the proposal in the context of cumulative effects must be an important consideration. This is what I believe the Commissioner was referring to when he spoke of differences in style and design.
33 The proposal will have an apparent higher density and a different landscaping regime by comparison with surrounding single detached dwellings on their own land. It nevertheless comprises four detached dwellings and will predominantly present to the street as two such dwellings, notwithstanding that the rearmost of the dwellings will also be apparent. Whilst it will appear somewhat different, including its newness, to other dwellings in Avalon Parade I do not accept that this difference is such as to cause me to conclude that it is critically different in character.
34 One of the other matters that Commissioner Moore took into account was the number of developments already approved although again there is no indication available as to what a numerical threshold in this context might comprise. I nevertheless accept the evidence of Mr Fletcher in this regard, that it is not critical.
35 The Commissioner's third matter for consideration involves the question of whether there are any other existing or approved close-by developments of this kind and plainly there are, notwithstanding Mr Fletcher's contention that there are no other contiguous developments. Whilst this is a negative consideration in this context I am satisfied that it is subsumed by the other matters just discussed.
36 Finally, I accept the submissions made on behalf of the applicant that the character of this area is not static and that it can and will include other land uses and different forms of development and that what is here proposed is appropriately and sufficiently responsive to the existing character of the area. In all of the circumstances I am satisfied that the proposal is sufficiently sensitive to the desired future character requirements of the LEP and that the cumulative effects of this proposal are not such as to require the refusal of the application.
Solar access
37 Clauses 30 and 33 of SEPP SL read together require that adequate regard be given to the solar access principle:
(a) ensure adequate daylight to the main living areas of neighbours in the vicinity and residents and adequate sunlight to substantial areas of private open space.
38 Also, Cl 81(e) provides that consent must not be refused on the basis of solar access if living rooms and private open spaces receive, for a minimum of 70% of the dwellings of the development, a minimum of three hours direct sunlight between 9 a.m. and 3 p.m. in midwinter.
39 Mr Dunbar and Mr Fleming agreed that the four dwellings satisfy the requirements for solar access to their living rooms and that dwellings 3 and 4 satisfy the requirements for solar access to their private open space. Mr Dunbar was concerned that sunlight access for the courtyard of dwelling 1 did not amount to three hours although with changes additional sunlight may be obtained. He was nevertheless concerned that the private open space area accessible from the main living area did not appear to receive direct sunlight of any significance. Mr Fleming however explained that this courtyard space and terrace deck adjacent to the living room would receive direct sunlight to 70% of its areas that 9 a.m. but it would merge into shade by 12 noon.
40 In relation to dwelling 2 whilst it was agreed that there would not be three hours of sunlight to its private open spaces this could they achieved by the relocation of a dividing wall and this has been agreed to by the applicant.
41 Whilst I accept that technically the proposal just fails to achieve the 70% threshold in cl 81(e) I nevertheless accept the evidence of Mr Fleming that the available solar access for the development generally will result in a satisfactory level of amenity for its residents. Hence in this is not a reason for the refusal of the application.
Building height
42 The development standard in cl 38(4)(c) requires that:
- A building located in the rear 25% area of the site must not exceed one storey in height.
43 It is difficult to be sure what the rear 25% area of this site is, given its obtuse configuration. The SEPP 1 objection explains that one interpretation of the standard involves applying the 25% requirement to the depth of the allotment. On this basis a set back off 15.24 m would be required at the first floor level and the proposal complies with this. However, Mr Dunbar, taking into account the irregular shaped of the allotment identified the front 75% area of the site and thus nominated the remainder as the 25% area to which the one storey height limit should be applied. This equates to a set back of 18.62 m.
44 Whilst I agree that the standard is ambiguous, I am inclined to agree with the approach taken by Mr Dunbar because the standard refers to site area rather than to a setback. Hence, most of the single first floor bedrooms at the rear of dwellings 3 and 4 do not comply with the standard.
45 Accepting the non-compliance, the SEPP 1 objection notes that there are no specific objectives for the building height standards in cl 38 of SEPP SL. The underlying objective is said to involve a response to the characteristics of the site and its form and to avoid amenity impacts including overlooking from the development into the rear of adjoining properties. It presents a number of arguments explaining how the non-compliance will nevertheless achieve this objective:
· The non-compliance built form elements maintain setbacks, which are well in excess of the side set back and building envelope provisions contained within the DCP.
· The relatively small area of noncompliant elevations will not contribute significantly to the bulk of the development as viewed from adjoining properties.
· The relatively minor nature of the non-compliance will ensure that there will be no unreasonable impacts to adjoining development associated with overshadowing, privacy or visual massing.
· The proposed landscaped treatments to these first-floor elements will provide effective screening.
· The proposed built form responds provides for the orderly and economic use of the land in accordance with the planning regime comprising SEPP SL.
46 In the circumstances the SEPP 1 objection concludes that it is well founded and that strict compliance with the standard would be unreasonable and unnecessary in the circumstances of the case.
47 Mr Dunbar was of the opinion that the non-compliance was unacceptable particularly in terms of the resultant additional bulk and scale. It would also be inconsistent with the guidelines that require that development towards the rear of a site should be more modest in scale to limit the impact on adjoining properties, particularly in this instance the neighbouring 72 Avalon Parade.
48 Conversely Mr Fleming explained that given the configuration of the site, the application of the standard to site area rather than setbacks produces an inappropriate and artificial outcome taking into account the uniform lot layout characteristic of the subdivision pattern in general in this locality. On this basis he suggested 15.24 m rear setback is an appropriate response.
49 For the reasons given by Mr Fleming and those contained within the SEPP 1 objection I have decided that it should be upheld, particularly taking into account that any impacts on neighbouring properties would be within reason especially considering the extent of the setbacks of the non-complying elements from their respective site boundaries.
Orders
50 The orders of the Court are therefore:
- 1. The appeal is upheld.
2. Development Application No. N0492/05 for the demolition of two existing dwellings and the construction and strata subdivision of four two-storey detached dwellings comprising housing for the aged and disabled at 74 and 76 Avalon Parade, Avalon, is determined by the granting of development consent subject to the conditions in Annexure A hereto.
3. Exhibit E is retained.
- T A Bly
Commissioner of the Court
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