Wolff Architecture Pty Limited v Ku-ring-gai Municipal Council
[2000] NSWLEC 120
•06/16/2000
Land and Environment Court
of New South Wales
CITATION: Wolff Architecture Pty Limited & Anor v Ku-ring-gai Municipal Council [2000] NSWLEC 120 revised - 09/08/2000 PARTIES: APPLICANT
RESPONDENT
Wolff Architecture Pty Limited
Ku-ring-gai Municipal CouncilFILE NUMBER(S): 10833; 11017; 11096 of 1999 CORAM: Cowdroy J KEY ISSUES: Development Consent :- housing for older and disabled persons - size of development - access to services - compatibility with area - traffic and access - heritage - design LEGISLATION CITED: Environmental Planning and Assessment Act 1979 CASES CITED: DATES OF HEARING: 10/4/00, 11/4/00, 12/4/00, 13/4/00, 14/4/00, 26/4/00, 27/4/00 DATE OF JUDGMENT:
06/16/2000LEGAL REPRESENTATIVES:
APPLICANTS (FIRST & SECOND)
Mr C McEwen (Barrister) with Mr S MartinSOLICITORS
Garland Hawthorn BraheRESPONDENT
SOLICITORS
Mr R Graham (Solicitor)
Abbott Tout
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESMATTER No.10833;11017;11096 of 1999
CORAM: Cowdroy J
DECISION DATE: 16/6/00
First Applicant
&
Dempsey Constructions Pty Limited
Second Applicant
Respondent
Background
1. In these proceedings Wolff Architecture Pty Limited and Dempsey Constructions Pty Limited (“the applicants”) appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 from the refusal of Ku-ring-gai Municipal Council (“the council”) of three separate development applications (“the applications”). Each application proposes medium density housing for older and disabled persons on lots at Margaret Street, Roseville (“the development”). The parties agreed to have the three appeals heard concurrently by the Court.
2. The individual appeals relate to development applications for three sites in Margaret Street. For convenience such sites will be referred to as site 1 comprising lots no 19-27 Margaret Street; site 2 comprising lots no 9-17 Margaret Street, site 3 comprising lots no 3-7 Margaret Street (“the sites”).
3. In these proceedings I have been assisted by Commissioner Hussey. I have also had the benefit of a view of the sites. The sites are currently zoned Residential 2(a) pursuant to the Ku-ring-gai Planning Scheme Ordinance. Pursuant to such zoning medium density development is prohibited on the sites. Accordingly the applicants seek consent for the development pursuant to the provisions of State Environmental Planning Policy No 5 - Housing for Older Persons and Persons with a Disability.
The Sites
4. The sites comprise 12 adjoining lots located on the southern and lower side of Margaret Street Roseville. Margaret Street forms an intersection with the eastern side of Archbold Street Roseville and then terminates in a cul-de-sac.
5. On the opposite side of Margaret Street from the site there are continuous high rear
boundary fences belonging to dwellings with frontage to Duntroon Avenue, Roseville.
6. Each of the lots on the sites contain an existing dwelling with the following setbacks:-
House no. Setback (metres) House no. Setback (metres) 1 10.5-11.5 17 9.2-10.4 3 12.5 19 10-11.2 5 12.2 21 9.8-11.2 7 13 23 9.8 9 12.8 25 9.5 11 7.4-10.5 27 10 15 12
7. The individual site details are as follows:-
Site 1:
Lots no 19-27 Margaret Street, comprise five lots each with an area of approximately 825 m 2 . The total area is 4138.5 m 2 . The combined frontage of site 1 is 68.58 m 2 .
Site 2:
Lots no 9-17 Margaret Street; comprise four lots with an area of 1101 m 2 . The total area is 4404 m 2 . The combined frontage of site 2 is 73.16m.
Lots no 3-7 Margaret St, comprise 3 lots each with an area of 1101 m 2 . The total area of 3303 m 2 . Site 3 has a combined frontage of 54.87 m. Within such site are houses of historical significance: namely no 3 Margaret Street and no 5 Margaret Street. Such historical residences are constructed of sheeting and identified as having heritage value.Site 3
The Development
8. The development proposes a number of medium density dwellings (“units”) suitable for older or disabled persons There is a common design theme throughout the development; namely the units have a north-south orientation reflecting the existing lot configuration.
9. Such design theme results in a row of units fronting Margaret St with variable setbacks in the range of 2.5 m to 4 m. The units have rear access onto an internal east-west corridor (“the corridor”). Such access allows pedestrian movement through the development. In addition to the units fronting Margaret Street, units are proposed for the rear and centre of the site. Such units are accessed from the corridor. On each of the sites located along the corridor are community buildings. Such community buildings are proposed to contain an office, kitchen, kiosk, toilet, lobby and covered lift access from the basement car park. Areas of the development will be extensively landscaped. Outdoor seating is proposed for such areas.
10. It is proposed that each of the three sites will have a community bus service. The kiosks are to be operated on a voluntary basis and are to provide basic household goods.
11. The level of development on each site is:-
Site 1:
Eighteen dwellings comprising; 2 x 2 bedroom, 1 x 2 bedroom and a study, 15 x 3 bedroom units. Of these unit no 1 and unit no 3 are designated as single storey, adaptable units. Thirty-six resident car parking spaces and 3 visitor car parking spaces, together with a space for the proposed community bus. All car parking is contained within a basement level which is connected to Margaret Street by an at-grade driveway.
Site 2:
Nineteen dwellings comprising; 3 x 2 bedrooms and 16 x 3 bedrooms, including unit no 1 and unit no 2 which are single storey adaptable units. Thirty-five resident car parking spaces and 5 visitor car parking spaces together with a space for the community bus and car-wash bays. Such carparking is contained within a basement level. Access to such basement level is from two at-grade driveways from Margaret Street.
Fourteen dwellings, comprising; 12 x 3 bedrooms and 2 x 2 bedrooms of these unit no 1 and unit no 2 are single storey, adaptable units. Twenty-seven resident car parking spaces and 3 visitor car parking spaces, car wash bays and a community bus parking space. Such parking spaces are distributed between a basement and ground level.Site 3
12. The overall design concept of the development generally provides that each unit is served by a ground level north oriented terrace accessed from the living area of the unit together with an elevated rear terrace, accessed from the kitchen/breakfast room of such unit.
Issues for determination
13. During the hearing of the appeals a number of issues were identified which are conveniently summarised as follows:-
· Size of development and provision of on site facilities
· Suitability of the site for the SEPP 5 development
· Design of the development
· Building setbacks
· Floor space ratio
· Provision of solar access
· Internal privacy
· Disabled access
· Traffic generation
· Heritage value of the site
Statutory context of the determination of the appeals
14. Section 79C(1)(a) of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) provides that in determining a development application the provisons of any environmental planning instrument applying to the subject development are of relevance. The following environmental planning instruments are applicable to the development:-
a) Ku-ring-gai Planning Scheme Ordinance (“KPSO”)
15. In relation to the zoning of the sites; namely Residential 2(A) cl 1 of schedule 9 of the KPSO prescribes the general aims:-
1. The general aims of this Ordinance in relation to land within zones Nos 2(a), 2(b), 2(c), 2(d), 2(e), 2(f), 2(g) and 2(h) are -
(a) to maintain and, where appropriate, improve the existing amenity and environmental character of residential zones; and
(b) to permit new residential development only where it is compatible with the existing environmental character of the locality and has a sympathetic and harmonious relationship with adjoining development.
16. The sites contain two existing residential dwellings of heritage significance. Clauses 61C, 61D, 61E and 61F of the KPSO provide as follows:-
61D (1) A person shall not, in respect of a building, work, relic, tree or place that is a heritage item -61C Development of heritage items
(Clause 61D added by Local Environmental Plan No 45 vide Government Gazette No 16 of 23 January 1987)(a) demolish, or alter the building or work;
except with the consent of the council.
(b) damage or move the relic, including excavation for the purpose of exposing the relic;
(c) damage or despoil the place or tree;
(d) erect a building on or subdivide land on which the building, work or relic is situated or that comprises the place; or
(e) make structural changes to the interior of a building or work listed in Part 1 of Schedule 7,(2) The Council shall not grant consent to a development application under subclause (1) unless it has taken into consideration the extent to which the carrying out of the proposed development would affect the heritage significance of the item and any stylistic or horticultural features of its setting.
61E The Council shall not grant consent to an application to carry out development on land in the vicinity of a heritage item unless it has made an assessment of the effect the carrying out of that development will have on the heritage significance of the item and its setting.
b) State Environmental Planning Policy No 5 - Housing for Older Persons and Persons with a Disability (“SEPP 5”).
17. This planning instrument sets aside local planning controls that would prevent the development of housing for older people or people with a disability.
18. Clause 12 of SEPP 5 lists the matters for consideration in the determination a development application made pursuant to SEPP 5. Such considerations include:-
(1) Location, facilities and support services
(2) In deciding whether the level of access residents have to each facility and service listed in subclause (1) is reasonable (whether provided as a part of the development or by an external service provider) the consent authority must consider the following:
(a) the type of housing proposed and the needs of the people who are most likely to occupy that type of housing;
(b) whether the type or scale of housing proposed could, or may reasonably be expected to, provide some facilities and services on site in a cost effective manner;
(c) whether any relevant facility or service is or will be convenient to residents of the proposed housing in view of the walking distance and availability of public transport to and from the facility;
(d) the affordability of any relevant facility or service.
19. Clause 25 of SEPP 5 provides a list of design matters that must considered in the determination of a development application pursuant to SEPP 5. Such clause provides:-
h) Visual bulk: The proposed development should, where practicable, maintain reasonable neighbour amenity and appropriate residential character by:-
a) providing building setbacks that progressively increase as wall heights increase to reduce bulk and overshadowing, and
b) using building form and siting that relates to the site’s land form, and
c) adopting building heights at the street frontage that are compatible in scale with adjacent development, and
- d) considering, where buildings are located on the boundary, the impact of the boundary walls on neighbours.
20. Clause 14 of SEPP 5 specifies standards which cannot be used as grounds for refusal of a development application pursuant to SEPP 5. Such standards are prescriptive and relate to ‘ building height’ ‘ density and scale’ ‘ landscaped area’ and ‘parking’ of a proposed development.
c) Development Control Code 1/99 of Ku-ring-gai Municipal Council for Housing for Older People and People with a Disability (“the DCC”)
21. In the Ku-ring-gai Municipality the DCC is a companion document to SEPP 5 and contains detailed design criteria to achieve the councils local planning objectives.
d) Development Control Plan No 38 - The Good Design Manual
22. ‘ The good design manual ’ contains prescriptive and performance design standards for development within in the Ku-ring-gai Municipality.
e) Development Control Plan No 40 - Policy for Construction and Demolition
Waste Management
23. The aim of Development Control Plan No 40 is to ‘ encourage building design and construction techniques which will minimise waste generation. ’
24. Section 79C(1)(b),(c),(d),(e) provides additional matters for consideration in the determination of a development application. Such provisions provide:-
(b)
the likely impacts of that developemnt, including environmental impacts on both the natural and built environments, and the social and economic impacts in the locality,
(c) the suitability of the site for development,
(d) any submissions made in accordance with this Act or the regulations,
(e) the public interest.
The Evidence
25. Evidence on behalf of council was provided by:-
Ms D Laidlaw - consulting town planner
Mr G Vickass - consulting architect
Mr J Begley - traffic engineer with Ku-ring-gai Council
Mr M Nguyen - development control engineer
Ms R Askew - landscape development officer
Mr M Blanche - landscape architect
Mr M Relf - access consultant
Mr R Moore - architect and conservation consultant
Mr J Hewitt - consultant development officer
Ms R Robins - community development officer
Mr G Moir - engineer & resident of 23 Duntroon Ave
Roseville
Mr J Brody - landscape development officer
Mr J Van Aalst - resident, 1 Duntroon Ave Roseville
Mr G Wood - resident, 33 Margaret Street Roseville
Mr P Nixson - resident, 91A Boundary Road Roseville
Mr Arbuz - resident, 1 Margaret Street Roseville
26. On behalf of the applicants, evidence was provided by;
Mr A Smith - consulting town planner
Mr B Masson - consulting traffic engineer
Mr W Riddington - retirement management consultant
Mr T Beardstone - project architect
Prof N Quarry - urban design consultant
Mr I English - consultant arborist
Ms J Hughes - landscape architect
Mr G Bakewell - chartered architect
Mr R Staas - heritage architect
Mr L Tropman - conservation architect
Mr P Davies - heritage architect
Size of the development and provision of on-site services
27. SEPP 5 provides a guide to services for small medium and large development (“the guidelines”). The guidelines provide:-
Guide to services likely to be needed based on the size of the development
Size of development No of units Services Small Up to 10 units Where constructed as infill, can generally rely on existing services and facilities in the area. Medium 10 to 25 units Likely to need more services provided with the development if the development is located at the urban periphery or aims to cater for frailer older people and/or people with a disability. Large Over 25 units Likely to need a higher level of services provided with the development. For instance, communal meeting space, community vehicle, personal care and meals (depending on the type of housing, the development’s location and the likely needs of residents.
28. The development of each site individually falls within the ‘medium’ category and therefore would not require extensive on-site services. The sites are adjacent and have similar development proposed thereon. If all three sites are developed such development would transform the appearance of Margaret St. For these reasons the Court considers that the guidelines should be applied cumulatively to the development. However the sites cumulatively, contain 51 dwellings which classifies the development as ‘large’ and on-site services should be provided accordingly.
29. The main services provided on each site are the community buildings and the community bus. The community buildings which are of limited size and incorporate voluntarily operated kiosks. There was no cogent evidence presented to the Court in relation to the suitability and longevity of such a service. Mr Riddington a retirement management consultant retained by the council stated that a similar voluntary kiosk scheme at nearby Willandra Village had not been successful and had abandoned by the residents of Willandra Village.
30. The applicants propose to establish the kiosks by a special privilege by-law pursuant to the Strata Management Act 1996. Such by-law is conditional on the following factors:-
(a) The Owners Corporation will meet the costs in relation to the maintenance and repair of the Kiosk;
(b) The Owners must indemnify the Owners Corporation from and against claims, demands and liability of any kind which may arise in respect of damage to any property or death of or injury to any person arising out of the exercise of the rights conferred by this By-Law
(c) This By-Law may not be repealed amended or added to without the written consent of each Owner of a lot in the Strata Scheme.
If the requisite number of residents agree, the conditional nature of such by-law permits the elimination of the kiosk service.
31. If residents were to elect to abandon the kiosk services it would be detrimental to future older or less mobile residents of the development. The Court considers the conditional nature of the provision of the kiosks unsatisfactory.
32. The community bus for the development is also provided pursuant to a conditional by-law. Such by-law regulates the availability of the community bus; namely 3 days per week, 4 hours per day. The community bus is to be operated on a scheduled service or as otherwise arranged by the residents of the development.
33. Such by-law does not provide security for the continued maintenance of the community bus for the development. The location of the site will encourage many residents to use private vehicles. Such conclusion is confirmed by the evidence of existing residents and the provision of additional car parking spaces on the site. Mr Riddington provided evidence that the cost per resident of maintaining the community bus would only be $20 per week. Such estimate is questionable as it allows for only $11.50 per week for petrol. If residents do not wish to retain the community bus service, pursuant to the relevant by-law such residents may vote to terminate the community bus. Without a community bus future disabled and less mobile residents would be disadvantaged.
34. The development is a ‘large’ scale SEPP 5 development and as such the provision of services within the development should be pursuant to the over 25 unit guidelines. Even assessed individually as ‘medium’ sized development pursuant to the guidelines the Court considers the conditional nature of the on-site services are inadequate. Accordingly the Court considers that for the size of the development the provision of services without the certainty of the continued maintenance thereof is unsatisfactory pursuant to the requirements SEPP 5.
Suitability of site for the SEPP 5 development
35. Pursuant to the guidelines large size SEPP 5 developments that do not provide comprehensive on-site services are required to have convenient access to appropriate external services. In these proceedings the applicants relied on the availability of the neighbourhood shopping and service facilities at Roseville Chase, which is approximately 750 m from the sites. A complete range of services is available at Chatswood, some 1.75 km from the site. The applicants also relied upon access to the existing bus routes with nearby bus stops.
36. Ms Laidlaw, a consulting town planner for council considered convenient services available to the site and observed:-
· The sites are not within convenient walking distance of any local shopping facility for purchase of day to day goods such as milk, butter, bread.
· The nearest centre, Roseville Chase offers only a limited range of goods and services. There is a chemist and a small supermarket/convenience goods store, however the latter has only a limited range of goods and is not open on Saturday afternoons or on Sundays.
37. Mr Riddington maintained that the development was aimed at the ‘ upper segment of the market’ and accordingly:-
It is anticipated that the majority of these residents will be of independent means and that affordability of services will not be an issue. The site is well located to local community and facilities and to transport. There are certainly no affordability issues arising from the cost of servicing the site that can occur in more remote situations.
38. Notwithstanding this, cl 12(2)(c) of SEPP 5 specifically requires the Court to determine the availability of nearby facilities or services to the site “in view of the walking distance and availability of public transport to and from the facility”
39. The walking distance to the facilities at Roseville Chase varies according to the individual sites and the walking route selected. The most direct route of approximately 650 m would be via Margaret Lane. Such lane runs from Margaret Street adjacent to the sites through to Boundary Street Roseville. From Boundary Street a resident would cross busy Babbage Road and walk along the footpath to Roseville Chase.
40. Clause 12(2)(c) of SEPP 5 requires the walking distance from the development to facilities to be “ convenient ”. The SEPP 5 guidelines indicate a range of 400 m subject to local conditions. The DCC provides that ‘ reasonable access’ to the designated services should be within 500 m of the site.
41. Mr Relf, an access consultant retained by council undertook a survey of the pedestrian route from the sites to shops at Roseville Chase, such survey indicates sections of difficult footpath surfaces and inadequate curb ramps adjacent to such shops.
42. Ms Laidlaw relied on a report by a council officer in relation to the provision of bus services in proximity to the sites. Such report provided:-
Bus services connecting with Chatswood run along Babbage Road/Boundary Street and also Addison Avenue. Inquiries to the relevant bus service operators indicates that there is no convenient/direct service to Roseville or Roseville Station.
Alternative bus stops on Addison Avenue are approximately 330 metres away, while those on Boundary Street, near the intersection with Archbold are 275 - 385 metres away and involve crossing Boundary Street/Archbold Road.Bus stops are located on either side of Boundary Street, close to the intersection with Penshurst Street. These bus stops are located approximately 200 metres to 250 metres away by the closest route using the public footpath to the east of the site (measure from the site frontage). This footpath, however, is poorly made and involves two sets of steps. It is not wheelchair accessible and would not offer good levels of security or convenience/amenity to person of limited mobility.
43. Other bus routes are within a range of 300-400 m from the site. Accessing bus services will involve crossing the very busy roads of Boundary Street and Archbold Rd. The inadequacy of access from the site to public transport is further supported by extensive reliance upon private vehicles to provide access to the site. Pursuant to the requirements of SEPP 5; site 1 provides a surplus of 10 car parking spaces, site 2 provides a surplus of 13 car parking spaces and site 3 provides a surplus of 8 car parking spaces. Such excessive provision of car parking spaces is more characteristic of a medium density development where access to public transport may be less critical than in a SEPP 5 development.
44. The Court accepts the conclusion of Mr Relf in relation to the unsatisfactory access to Roseville Chase for disabled residents. The suitability of Margaret Lane for access by older and less mobile residents is restricted by its gradient, steps at Boundary Street and lack of lighting. The Court also considers that the distance of at least 650 m to Roseville Chase which requires the crossing of a major road; namely Babbage Road is not suited to older or less mobile residents of the development.
45. To access bus services residents will have to cross the busy Boundary Street and Archbold Road. Such bus stops are 300 to 400 m from the sites. The Court does not regard such access as “ convenient” access to public transport as required by cl 12(2)(c) and cl 25(f) of SEPP 5.
Design of the development
46. A development pursuant to SEPP5 must demonstrate reasonable compliance with the design principles provided in cl 25 of SEPP 5. Clause 25(h) of SEPP 5 requires the consideration of various design features such as boundary walls, street frontage setbacks and building heights. Such Clause requires the consideration of such features in terms of there compatibility with adjacent development.
47. The Court has considered the design merits of each site. As the development would result in the transformation of Margaret Street the cumulative effect of the development has also been considered. The Court is devoid of evidence in relation to the impacts of the interfaces of the sites. If one of the sites were not to proceed, then the compatibility of the remaining adjoining sites may be significantly different. In the absence of such crucial design information the Court finds that the development does not comply with the design requirements for a development pursuant to cl 25(h) of SEPP 5.
Building setbacks
48. The development introduces a medium density style of development to a typical suburban street; namely Margaret Street. Such medium density development includes two storey buildings which have a considerably reduced setback of 2 to 3 m less than the set-back currently enjoyed in Margaret Street.
49. Such reduced setbacks could be acceptable in an overall redevelopment of Margaret Street but the development significantly departs from the character of the surrounding neighbourhood of Margaret Street. The neighbourhood features large front lawn areas, with private outdoor entertaining areas. Accordingly the Court finds the setbacks provided for in the developments are unsatisfactory pursuant to design principles of cl 25 of SEPP 5.
Floor space ratio (“FSR”) of the development
50. The design seeks to achieve the maximum density for the development of the site. Each site results in an FSR of 0.57:1. Such FSR exceeds the voluntary requirements of cl 14 SEPP 5 by 0.5:1. Such an exceedance cannot be a reason for refusal but its effect upon the amenity of the development may impact upon the determination of the Court. The Court considers that the impact of the FSR upon the provision of solar access are unsatisfactory.
Provision of solar access
51. Given that the residents are likely to spend more time at home and in the garden area associated with their terrace the provision of solar access is an important consideration for a SEPP 5 development. While the terrace areas of the development comply with the minimum areas required, Mr Smith a consultant town planner for the applicant stated that 7 out of the 51 terraces did not achieve the minimum solar access as required by Amcord standards.
52. Shadow diagrams were only provided for site 1. Such diagrams show the terraces of the middle row of units namely; units no 13, 14, and 15 are significantly shadowed. This lack of solar access to such units is not offset by the provision of a common area near the community centre because such area is also substantially shadowed. No detailed shadow diagrams were provided for sites 2 and 3 and the principle evidence in relation to such sites was provided by the intuitive assessment of Mr Smith. The absence of adequate provision of solar access does not satisfy cl 25(c) of SEPP 5.
Internal privacy
53. The internal east-west access corridor between the units adjoins both front and rear terraces and building walls. Due to the topography of the land, the terraces are to be partly screened along the corridor. Such screening results in the corridor being relatively narrow in parts namely; 1.5 m wide adjacent to the community building. Such privacy measures result in the corridor having a canyon-like appearance which the Court considers is not inkeeping with the more open access that prevails in the neighbourhood of the sites.
54. Professor Quarry an urban design consultant retained by the applicants acknowledged that windows from adjacent units face each other. He did not believe that such circumstance was detrimental to the privacy of residents as windows could be off set or use frosted glass. However Ms Laidlaw has expressed concerns about the privacy aspects of the development:-
· In terms of internal amenity the congested layout of the developments gives rise to overshadowing of internal courtyards and clothes drying areas, as well as internal privacy problems. The bedroom to unit 8 (19-27 Margaret Street proposal), for example, is overlooked by the ramp to units 6 & 7 which is one metre from the window and nearly a metre higher than its ill. Similar issues arise in respect of the ramps to the north of Unit 15,16 and 17 of this proposal. In each case, while planting areas or fencing is shown on the plans, this would need to be to a height of up to 2.5 metres before a privacy screen could be obtained. In the case of unit 15, for example, the footpath adjacent to the terrace is 1.3 metres above the terrace level, meaning that a fence to secure privacy would rise to a height of at least 2.8 metres above that level.
· The majority of dwellings on the southern row (in each proposal) have their main living areas elevated above the parking platform and therefore, up to one storey above their private gardens. Step access is also required along the sides of each property.· Similarly, a number of units, specifically those on the southern row, have a very poor aspect. Unit 15 in the proposals for both 3-7 and 19-27 Margaret Street for example, has an outlook from its living room towards the blank wall of Unit 16, at a separation distance of only 3.5 metres (in the 19-27 Margaret Street proposal, Unit 16 has its floor level 700 mm above that of Unit 15, thus the wall can be expected to be around 3 metres high). No 15’s courtyard is enclosed on two sides by the side wall of No 15 which on the western side is two storeys in height. Unit 14 (19-27) Margaret Street proposal) faces towards the (estimated) 3.7 metre high side wall of the community building at a separation distance of some 4.5 metres.
55. The Court does not accept that the windows opposite one another and the design corridor afford acceptable privacy measures for the residents of the development. Accordingly the Court adopts the evidence of Ms Laidlaw that the proposal is an overdevelopment of the site resulting in unsatisfactory amenity in terms of privacy.
Disabled access
56. Mr Vickas a consultant architect retained by the council initially identified a number of design deficiencies in the development regarding access and convenience to the units for disabled residents. The Court notes that during the proceedings the applicant responded to the evidence of Mr Vickas by amending the details of such units. Notwithstanding this Mr Vickas maintained his criticism of the distances within the site for wheelchair bound residents and lack of access for such residents to the units of the development. The disabled access on the site is unsatisfactory but the Court considers such access could be addressed by minor redesign conditions.
Traffic Generation
57. The Court heard evidence from nearby residents of the sites concerning the traffic generation from the development. The residents were anxious about the effect of additional traffic at the intersection of Margaret Street and Archbold Road. The residents felt that the additional traffic generation at such intersection would be unsafe.
58. The individual and cumulative aspects of the traffic generation from the development were assessed by Mr Masson a consultant traffic engineer for the applicant and Mr Hewitt a consultant development officer for council. Mr Masson has researched similar developments and found that the traffic generation in the relevant location of these sites would not was not likely to increase or at the very worst would increase by:-
· approximately 5 vehicles per hour to a total of 20 vehicles per hour in the morning peak.
· approximately 8 vehicles per hour to a total of 29 vehicles per hour in the evening peak.
59. The anecdotal evidence from the nearby neighbours and residents of the Margaret Street and Archbold Road intersection (“the intersection”) establishes the intersection was hazardous, particularly when making a right hand turn into Archbold Road. Mr Masson examined the accident records for the intersection and found that it was not inherently unsafe. Overall his conclusion was that the traffic arrangements for the development were satisfactory.
60. The safety concern of the residents and neighbours in relation to traffic generation from the development was supported by Mr Hewitt. Mr Hewitt believed that a precautionary approach should be adopted so that the appropriate means of assessing the traffic generation from the development would be to use medium density development rates as contained in the Roads and Transport Authority of New South Wales (“the RTA”) Guidelines. On this basis the development yields an increase of 20 vehicles per hour which he did not consider a major safety concern however he considered such figure in the context of the nature of the development namely the aged and less mobile residents.
61. The RTA had advised that certain safety measures were desirable for the intersection. Accordingly he concluded that the development failed to assess adequately safety measures for the intersection. Mr Hewitt believed the additional traffic loading would significantly increase the number of resident vehicles, such vehicles would have a high proportion of elderly drivers. The percentage of elderly drivers was significant as Mr Hewitt believed that the intersection contributed to stressful and unsafe driving conditions which older drivers and their visitors would be required to negotiate.
62. The development is highly dependent upon the use of private vehicles as confirmed by the provision of 31 surplus car parking spaces therein. Such provision appears more appropriate to a medium density development than a SEPP 5 development. The development is likely to generate more traffic, as maintained by Mr Hewitt.
63. The Court prefers the cautious approach of Mr Hewitt. A more appropriate approach to a SEPP 5 development would be to discourage reliance on private vehicle transport and thus reduce traffic generation and potential safety risks. Notwithstanding these considerations the Court acknowledges that the consideration of traffic aspects in isolation would not result in the refusal of the applications provided that arrangements can be made for safer entry and exit from Margaret St.
Heritage value of the site
64. The heritage matters to be considered pursuant to clauses 61D of the LEP and 61E of the LEP relates to the asbestos cement residences at no 3 and no 5 Margaret Street. (“the residences”). No 3 Margaret Street is a heritage item under Schedule 7 of the KPSO. Currently no 5 Margaret Street is not a listed heritage item but has been listed for consideration as a heritage item in a future amending local environmental plan. The residences were built circa 1912 and the main heritage interest is their construction of timber framing, clad externally and internally with asbestos reinforced cement sheeting. Mr Moore an architect and conservation consultant for the council researched the origins of the residences and concluded they were “kit homes”. Mr Moore contended that as kit homes the residences should attract serious academic interest because of their ubiquity and continued survival. Mr Moore was therefore of the opinion that the residences should be retained.
65. Both Mr Moore and Mr Stass a heritage consultant retained by the applicant agreed that the residences were ordinary in character. Mr Staas conducted a heritage assessment of the residences and made the following observations:-
Historic Values: The house has no significant association with any significant persons or events relating to the development of Kur-ing-gai or Roseville. Like many other houses in the area it occupies part of the Archibald [sic] Estates and it represents as they do the later expansion of the suburb following subdivision after the establishment of the Railway.
The building is in no way special or unique in respect to its historic value, it was owned by a tradesman as were many of the surrounding cottages it was neither the first or the last of the development of this somewhat unremarkable estate. Its subsequent ownership is typical of the area.
Aesthetic Values: The house is typical of many later examples of the Federation period and of smaller less expensive cottage designs, possibly prefabricated or builder designed which can be seen in many areas of Sydney. It is neither unusual or a particularly good and intact example of the style and has been considerably changed from its original form and detail by later modification and removal of early detail.
There are no particularly outstanding aesthetic values that the house exhibits and the planning and construction are quite standard.
Social Values: The House is not identified by any community group for its value to the local community or to society as a whole. Its present inclusion in the LEP is not indicative of any considered social significance and appears to be arbitrary given its location next to a comparable example in better condition which is not identified.
Integrity: The building has been modified from its original form and detail to an extent that reduces its potential significance as a good and intact example.Technological Value: The house is very typical of its type and has no potential to provide any evidence that is significant to the local community in respect to any of the above values.
66. Mr P Davies a heritage architect retained by the applicants undertook a detailed heritage evaluation of no 5 Margaret Street. He observed:-
Historic Values: The house does not have association with any significant persons or events related to either Ku-ring-gai or the State. There is no known particular historic value in the form of the house in this location or as part of the pattern of sub-division and development of Roseville.
The form of construction, detailing or use of materials has no particular historic value that cannot be seen in many similar houses throughout Sydney and the State. Historically this is a typical example of this form of housing development and is without distinction or particular interest.
It is considered that the place does not have historic value that warrants its inclusion as a State of local heritage item under this criteria.
Social Values: The house does not appear to have any identified social value within the State, the Council area or to local group. It is typical in its representation of owner occupied housing and the property has a typical pattern of ownership for modest suburban housing throughout the area.The building does not satisfy the requirements that warrant its inclusion as a State or local heritage item under this criteria.
Technological Values: The house demonstrates no rare, unique, interesting or unusual technological values. It does not appear to have any potential to demonstrate these values. The form of construction, the materials and the technologies employed in the building are typical of standard construction practice of the time and provide no insights or information that is not known or readily available in a wide range of buildings from the same period. The use of asbestos cement, which appears to be the major criteria for its consideration for listing, while not extensively used in the Ku-rin-gai area is neither unique or of intrinsic heritage value of itself as it is a material that has been widely used in the development of the Sydney area.
The building does not satisfy the requirements that warrant its inclusion as a State or local heritage item under this criteria.
The building does not satisfy the requirements that warrant its inclusion as a State or local heritage item under this criteria.Rarity: The building is not rare. The design of the building is typical for housing of the period and is a form found extensively throughout Australia. The materials are typical and are again found across Australia on houses from this period onwards. It does not appear to have any claim to being unique or a pivotal example of the style or use of materials.
67. The Court notes that council has requested protection under the Heritage Act for no 5 Margaret Street but the New South Wales Heritage Office has decided that it is not of State significance and protection was not warranted. Under these circumstances the Court accepts Mr Staas’ conclusion that the residences do not have historic, aesthetic, social or technological significance that would warrant retention.
Conclusion
68. SEPP 5 can operate to displace the applicable local planning policy. Accordingly the requirements of SEPP 5 should be strictly adhered to.
69. The development is correctly categorized as a large SEPP 5 development. As such the provision of on site services for the aged and less mobile residents of the development are unsatisfactory. The access to off site facilities such as bus stops and the local shopping centre is also inadequate for a SEPP 5 development of this size.
70. The reliance of the development upon private vehicles will exacerbate the traffic generated therefrom. The Court accepts the evidence of the local residents of Margaret Street that such additional traffic could further threaten the safety of vehicles using the intersection of Margaret Street and Archbold Road at Roseville as it presently exists.
71. The design information provided to the Court in relation to shadowing and the interface of the development on each site are not meritorious. The additional design considerations of building setbacks, internal privacy and the provision of solar access are also unsatisfactory and evidence that the development represents an overdevelopment of the site. The development is not acceptable to the Court.
Orders
72. Accordingly the Court orders:-
1. That the appeal be determined by the refusal of consent.
2. The development application for Site 1, (Appeal 10833/99); 19-27 Margaret St for 18 dwellings is refused.
3. The development application for Site 2, (Appeal 11017/99); 9-17 Margaret St for 19 dwellings is refused.
4. The development application for Site 3, (Appeal 11096/99); 3-7 Margaret St for 14 dwellings is refused.
5. The exhibits be returned.
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