Wren Investments Pty Ltd v Willoughby City Council

[2006] NSWLEC 542

Land and Environment Court

of New South Wales

CITATION:

Wren Investments Pty Ltd v Willoughby City Council [2006] NSWLEC 542

PARTIES:

APPLICANT
Wren Investments Pty Limited

RESPONDENT
Willoughby City Council

FILE NUMBER(S):

11101 of 2005

CORAM:

Brown C

KEY ISSUES:

Appeal :- demolition of existing improvements, construction of a development for older people or people with a disability, bulk and scale and visual privacy.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Willoughby Local Environmental Plan 1995
State Environmental Planning Policy Seniors Living
State Environmental Planning Policy No. 5

DATES OF HEARING:

17/07/2006 and 18/07/2006

 
DATE OF JUDGMENT: 

08/23/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr J. Hones, solicitor
SOLICITORS
Hones Lawyers

RESPONDENT
Mr M. Henry, barrister
SOLICITORS
Malleson Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

23 August 2006

11101 of 2005 Wren Investments Pty Limited v Willoughby City Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal of DA 2003/1269 by Willoughby City Council (the council) for the demolition of all existing improvements and the construction of a housing development for older people or people with a disability at 401A and 403 Mowbray Road, Chatswood (the site).

The site

2 The site comprises two lots; being lot 2 in DP530366 and lot 100 in DP88721. The lots have a combined frontage of 21.03 m to Mowbray Road and a total site area of 2850 sq m. The site is T-shaped with the rear portion containing a number of mature trees. The narrower front portion of the site has a moderate fall to the centre of the site of approximately 3 m, while the rear portion slopes considerably to the north west corner with a fall of over 10 m.

3 The Mowbray Road character is made up of a mix of development ranging from three and four storey residential flat buildings to single dwellings. At the rear, where the site abuts development in Sharland Avenue, the character is predominantly single dwellings with some dual occupancy developments.

Relevant planning controls

4 The site is zoned 2(a) Residential under the Willoughby Local Environmental Plan 1995 (LEP 1995). The proposal is prohibited within this zone however it is permissible through State Environmental Planning Policy No. 5 - Housing for Older People or People with a Disability (SEPP 5). Even though SEPP 5 has been repealed by State Environmental Planning Policy Seniors Living (SEPP Seniors Living), the application gains the benefit of the transitional provisions in cl 6 of the SEPP Seniors Living.

5 I note that cl 14 of SEPP 5 provides numerical standards for building height, density and scale, landscaped area, parking, visitor parking and private open space. If satisfied, these matters cannot be used as grounds to refuse the application. There was no dispute that the proposal satisfies these requirements.

The proposal

6 Approval is sought for 13 residential units configured in five separate two-storey buildings. Block A/B is located at the Mowbray Road frontage with Block C located behind. Blocks D, E, F and G are located along the rear boundary. A basement car park has access from Mowbray Road for 21 vehicles.

7 The proposal has been the subject of considerable change over its existence, including further changes during these proceedings.

The issues

8 The Council filed a Statement of Issues containing nine separate issues, although the issues have been generally overtaken by the amended plans. As I understand, bulk and scale is still an issue supported by the local residents (Issue 1). Height (Issue 2), overshadowing (Issue 3), visual privacy (Issue 4), access and visibility (Issues 5 and 6), and landscaping (Issues 8 and 9) are addressed through further conditions or amended plans. Stormwater drainage (Issue 7) was in dispute even though the applicant provided details of disposal of a theoretical stormwater through an easement to Sharland Avenue. The Court was advised that the final stormwater design would be subject of negotiation of an easement through one of a number of downstream properties or in the event that this could not be achieved, action through s 40 of the Land and Environment Court Act 1979 to obtain an easement. A deferred commencement condition addresses the issue of stormwater disposal together with operational conditions. I accept that this is an appropriate way of dealing with this issue.

The expert evidence

9 The parties agreed to the appointment of Miss Deborah Laidlaw as the Court-appointed town planning expert, Mr Trevor Beardsmore as the Court-appointed access expert and Mr Peter Castor as the Court-appointed arborist and landscape expert. With some modifications that can be included into an amended design, all Court-Appointed experts agreed that the proposal was acceptable.

Bulk and scale and visual privacy

10 Excessive bulk and scale was an issue from the properties in Sharland Avenue and relates only to the location and appearance of Block D/E. Block D/E provides for a two-storey building with a single large unit at the upper level and 2 x 3 bedroom units on the lower level. Large balconies are provided for each unit and are orientated to the north west. The Court inspected properties at 20, 18A and 14 Sharland Avenue on the site view. Mr Nick Juradowitz, a town planner on behalf of residents in Sharland Avenue explained the particular issues on site that impacted on these properties. These included the potential for overlooking and the imposing bulk and scale because of the elevated position of Block D/E.

11 The minimum setback to the rear boundaries of the properties in Sharland Avenue is 6 m at the lower level and 9 m at the upper level. Further amendments during the proceedings increased the setback at the lower level by providing additional areas for planter boxes and the erection of additional screening on the edge of the balcony. A ramp to gain access to the communal open space area has also been removed to increase privacy to the dwellings in Sharland Avenue. In my view, this provides a satisfactory level of privacy to the properties at the rear. Because of the elevated topography of the site and the expansive views, viewing from balconies will generally be over the tops of the adjoining dwellings. The upper level is also acceptable because of the proposed setback of 9 m.

12 When combined with the proposed landscaping, I accept that the proposal demonstrates adequate regard has been given to visual privacy in accordance with cl 25B of SEPP 5.

13 In relation to bulk and scale, I accept that the separation distances between Block D/E and the dwellings in Sharland Avenue and the proposed landscaping in this area, adequately addresses the perception of bulk and scale. I find that the proposal demonstrates that adequate regard has been given to the principle of neighbourhood amenity and streetscape in cl 25A of SEPP 5.

Conditions

14 Three conditions were in dispute between the parties.

15 Condition 2A(h) places restrictions on the location of any potential easements to Sharland Avenue based on natural heritage items listed in the Willoughby Natural Heritage Register. As the location of any easement is yet to be determined, the assessment will need to consider items of natural heritage. This will be part of the work required to satisfy the deferred commencement condition and, as such, the condition should be deleted.

16 Conditions 21 and 22 require a photographic survey of adjoining properties and a dilapidation report respectively. Because of the distance that the basement car park is located from the boundaries and the location of the dwellings from the boundaries, the imposition of these conditions is not warranted, in my view. Consequently, the conditions can be deleted.

17 Condition 23 relates to the public risk insurance policy. The applicant opposes the requirements that the policy should indemnify Council against any claims. I accept the applicant’s submission that it is not appropriate for the consent to impose an obligation on a party not subject to the consent.

Conclusion

18 Findings on the merits given on 18 July 2006 found that the proposed development is suitable for approval however the amendments made during the hearing are more appropriately dealt with through amended plans and the conditions will require amendment based on the findings in the judgment.

19 The Court gave the following directions for the amended plans and revised conditions :

• the applicant is to provide copies of amended architectural and landscape plans to council and the Court-appointed experts by 28 July 2006,
• the council and Court-appointed experts are to respond to the applicant by 4 August 2006,
• the council is to provide the applicant with the conditions that reflect the findings in the judgment by 4 August 2006,
• the applicant is to review the conditions and file the conditions by close of business on 7 August 2006.

20 Formal orders, including conditions of approval, upholding the appeal were made on 23 August 2006.

________________________

G T Brown
Commissioner of the Court
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