> Land and Environment Court of New South Wales CITATION : Sterling Dolores and Associates Pty Ltd v Sutherland Shire Council [2003] NSWLEC 373 APPLICANT Sterling Dolores and Associates Pty Ltd PARTIES : RESPONDENT Sutherland Shire Council FILE NUMBER(S) : 10803 of 2003 CORAM: Hoffman C KEY ISSUES: Development Application :- for a residential flat building comprising 42 units - landscaped area - quality of design - internal amenity for future occupants - access to on site facilities - scale and bulk of buildings - future character of the area Environmental Planning and Assessment Act 1979 LEGISLATION CITED: State Environmental Planning Policy No. 65 Sutherland Shire Local Environmental Plan 2000 CASES CITED: DATES OF HEARING: 24/11/2003, 25 November 2003 EX TEMPORE JUDGMENT DATE : 11/27/2003 APPLICANT Mr G McKee, solicitor SOLICITORS McKees Legal Solutions LEGAL REPRESENTATIVES: RESPONDENT Mr J Reilly, solicitor SOLICITORS Abbott Tout JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10803 of 2003 Hoffman C 27 November 2003 Sterling Dolores and Associates Pty Ltd Applicant v Sutherland Shire Council Respondent Judgment 1 This was a class 1 appeal No. 10803 of 2003 between Sterling Dolores and Associates Pty Limited and Sutherland Shire Council in regard to the refusal of a proposal for forty-two units, all two bedroom, in a three storey building, with fifty-three car spaces in a basement carpark at Nos. 15 to 23 Premier Street, Gymea. 2 The site was on a corner with South Street that ran beside the Cronulla Railway and the Gymea Station was adjacent. The Gymea shopping centre was two streets west of the site. The site and areas to the west were zoned Residential 2(c) under the Sutherland Shire LEP 2000 and several blocks of two and three storey flats existed, although in Premier Street on the west side it was still all houses. On the east side of Premier Street the zoning was Residential 2(b), a lower density zone that did not allow three storey apartments but did allow townhouses. 3 There was a row of townhouses opposite part of the site at Nos. 22 to 28 Premier Street but the rest of that side between South Street and President Avenue were still houses. It was apparent the area was in transition from single houses to medium and higher density dwellings. There were a considerable number of mature street trees and trees on private land in the locality. 4 The applicant had, two weeks before the date of this hearing, obtained leave from the Court to change from what were termed the Issue D drawings to a new set called Issue E. 5 The site was five existing house lots, the houses were probably 1950 vintage and would be demolished. It would produce an almost rectangular area of 3632.7 m2 with a frontage to Premier Street of 86.36 m and at South Street of 44 m. Premier Street ran north south, there was a diagonal fall of 6 m across the land from the north west corner on South Street to the south east corner on Premier. 6 The next house south of the site was No. 25 and it had been acquired by council for a combination park and overland stormwater flow path from Chapman Street, that was west of the site. Number 25 would connect up with another park that resulted from the development of Nos. 16 to 28 Chapman Street, another three storey apartment development in three buildings, two of which adjoined the site on the west. That approval was said in evidence to have originated in 1996, which pre-dated LEP 2000. 7 The proposal adopted a building footprint above ground level that generally followed the placement of the existing houses 15 to 23. The basement carpark projected behind the apartments, and that was where the major communal open space and drying area of the proposal was located. The yard area had some paved areas but was designed with 600 mm of soil on the roof of the basement to allow vegetation to grow. It was intended to retain some trees that existed along the rear boundary and to plant more to maintain a corridor of trees from South Street down to the proposed park at No. 25. It gave the aboveground parts of the proposal an average setback of 11 to 15 m from the rear boundary, although the basement came to within 3 ½ to 4 m from the rear boundary in most places, except for an indentation to about 17 m intended to preserve two mature trees. However by the end of the hearing these trees were to be removed. 8 The units were in six groups, three groups each in two buildings separated by 4 m. In the 4 m gap there was a pathway from the street to the rear communal space. Each group had a separate pedestrian street entry to a stairwell giving access from the basement up to the third storey. 9 The northernmost group also had a lift and the six units in that group were designed as adaptable units for disabled persons. There were five carparks in the basement near the lift for disabled drivers. 10 Each of the forty-two units had a terrace or a large balcony directly off the living rooms, thirty-two of which overlooked the street and ten overlooked the rear yard or proposed park. The units facing Premier Street had projected into the 7.5 m front setback parts of the ground level courtyards and courtyard walls in that location. 11 There was a single two-way vehicle entry off Premier Street into the basement with fifty-three car spaces including the five for disabled drivers, one wash bay and visitor spaces. 12 The issues were: 1. Whether the proposal complies with objective (b) (co-ordinated, efficient and economical development of residential flat buildings of high quality design) of the 2(c) Residential zone contained in the Development Control Table in cl 33 of the Sutherland Shire Local Environmental Plan 2000 (SSLEP 2000). 2. Whether the proposal complies with the minimum landscaped area development standard, as set out in cl 36 of the SSLEP 2000, and whether compliance with that standard is unreasonable or unnecessary, having regard to the objectives. 3. Whether the proposal complies with the objectives of the Landscape Development Control Plan with regards to conservation and enhancement of the Shire's tree canopy, improving the relationship between the built and natural environments, and ensuring that landscape submissions are of acceptable standard. 4. Whether the proposal complies with the requirements of cl 6.7 of the Landscape Development Control Plan with regards to the provision of a detailed landscape plan. 5. Whether the proposal is of excessive bulk and scale given its non compliance with the floor space ratio objectives and standards contained in cl 35 SSLEP 2000. 6. Non-compliance with cl 30: (a) loss of sunlight views and privacy to neighbouring properties, (b) effect of the proposal on the streetscape, (c) detrimental impact upon adjoining properties in terms of size, bulk, height and amount of landscaped area, and (e) poor retention and enhancement of existing vegetation of SSLEP 2000. 7. The proposal fails to provide adequate and appropriate internal amenity for residents, and instead exhibits poor private open space, poor solar access, inadequate internal layout, and illegible access ways for visitors. 8. Non-compliance with objective (d) of cl 3 and objectives 1, 2, 5 and 6 of cl 14 of the Residential flat buildings in the 2(c) Residential and 9(a) Mixed Residential Business Zones Development Control Plan. 9. The proposal has not been designed to adequately minimise noise impact arising from the railway line to the north of the site. 10. Non-compliance with objectives 1, 2 and 3 of cl 11 of the Residential Flat Buildings Development Control Plan and non compliance with paragraphs 2, 3, 4, 5, 7 and 8 of cl 11.1 of that Development Control Plan. 11. Non compliance with cl 11.4 of the Residential Flat Buildings Development Control Plan in respect of roofing. 12. Non-compliance with cl 18 of the Residential Flat Development Control Plan with regard to energy efficiency and environmentally sound building materials. 13. The proposal is unsatisfactory in terms of the number and size of carparking spaces, manoeuvring areas into and out of those spaces, ramp gradient and the unobstructed ceiling height in the basement carpark having regard to cl 13 of the Residential Flat Development Control Plan AS 2890 Parts 1 and 3 and AS 4299. 14. Non-compliance with objective 1 of cl 16 and cl 16.3 of the Residential Flat Buildings Development Control Plan in respect to the provision of storage areas. 15. Non-compliance with objectives 3 and 4 (both) of cl 16 and cl 16.2 of the Residential Flat Development Control Plan in respect of waste management. 16. Non-compliance with objectives 1 and 2 of cl 16 and cl 16.1 of the Residential Flat Buildings Development Control Plan in respect of the provision of communal drying areas. 17. Non-compliance with the Building Code of Australia in respect of the foyer stairs and the failure to provide a closet pan and washbasin for employees. 18. Whether the proposal complies with objective 3 and the controls in cl 17 of the Residential Flat Development Control Plan in respect to internal design and access to site facilities and communal open space. 13 In regard to State Environmental Planning Policy No. 65 the following issues were raised: 19. The proposed building will have a detrimental effect on the quality and identity of the area. 20. The scale and bulk of the development is inappropriate for the character of the area. 21. The built form is inappropriate and will have a detrimental effect on the character of the streetscapes and parks, including their vistas and views. 22. The proposed development does not make efficient use of energy and water. 23. The landscape and buildings do not operate as an integrated and sustainable system, resulting in greater aesthetic quality and amenity for both occupants and the adjoining public domain. 24. The development provides poor amenity in terms of its physical, spatial and environmental quality. 25. The development fails to respond to the social context and the needs of the local community in terms of lifestyles. 26. The aesthetics do not respond to the environment and context, particularly to the desirable elements of the existing streetscape or contribute to the desired future character of the area. 14 And then in regards to the plans: 27. Inadequacies and inaccuracies with the plans. 28. Matters raised by resident objectors. 15 The Court heard the respondent's evidence from: * Ms K E Simmons, resident objector, of unit 6, 22-28 Premier Street, * Mr R Staples, resident objector of unit 1, 22-28 Premier Street. 16 Other objectors' letters were in Exhibit 7: * Mr M Luchitti, architect for the council * Ms D Pinfold, town planner for the council, and * Mr D Shields, landscape consultant. 17 Statements by council's engineer Mr P Anderson were in evidence but due to joint expert statements he was not required for cross-examination. 18 The applicant's evidence was heard from: * Mr P Connor, consultant town planner of Connor Siwak Associates, and * Mr D Chesterman, consultant architect for Jackson Teese Chesterman Willis. 19 There were also reports from the following experts but due to joint expert statements they were not required for cross examination. They were: * Mr M Gerard, consultant landscape architect of Urban Landscape Projects Pty Limited, * Mr J Krinelos, licensed building energy rating assessor of Sydney Building Approval Centre. * Mr M A Boudib, drainage engineer of United Consulting Engineers Pty Limited, * Mr S A R Cowie, arborist and horticulturalist of Leaf and Limb Horticultural Consultants * Mr M Relf, disabled access expert of Accessibilities Solutions. * Mr C Hazell, traffic engineer of Traffic Solutions Pty Ltd and * Mr N G Koikas, acoustic engineer of Koikas Acoustics Pty Ltd. 20 At the commencement of the hearing the applicant sought to tender another set of drawings to be relied upon referred to as the Issue F set dated 21 November 2003. After hearing the amendments explained, the respondent did not object as the Issue F drawings had been notified, but the exhibition period had ended only on the Friday before this hearing. Leave was granted to tender any objections received during the hearing and these were appended to Exhibit 7 which held the objections to the previous versions of the plans. Although there were a number of changes to the plans the main one was to reduce the size of units to overcome an exceedance of the floor space ratio. 21 The principal objections from the local residents were: * On Premier Street there was a narrow roadway with rollover kerbing such that to keep a two-way moving lane, cars needed to park illegally with one side of the car up on the grass, otherwise the roadway became a single moving lane. On the view it could be seen in some places the grass, was worn through by cars parking over the kerb, this occurred according to locals due to overflow parking from railway commuters, even though there was commuter parking on South Street. * The residents had the opinion that most units in the area generated more than one car per unit for unit occupants alone without allowing extra spaces for visitors and commuters and as a result there was existing street parking congestion. It was often experienced now and would become unacceptable because of the fifty-three spaces in the proposal being considered inadequate for forty-two units. * An additional concern was that the on street congestion would create unsafe conditions in the street for pedestrians and vehicles. On a recent occasion when emergency vehicles had to access the area the street became blocked to local residents. * Another concern was that the units had very small rooms that would encourage people to keep the sliding doors open and use the commodious balconies. This was not in itself objectionable except that residents already had nuisance from noise and activity from parties at existing flats. With thirty-two balconies and terraces facing the street parties and noise must increase the nuisances and adverse effects upon amenity of the area. * The residents also said the building was ugly and the splitting of the proposal into two blocks above ground level, instead of the previous large single building, did not improve it or fit into the streetscape. The residents also noted the building was on the high side of the street and would become more dominant because of that, and * It was claimed would reduce sunlight in the afternoon to properties on the east side of Premier Street. It might be noted that shadow diagrams for the assessment period set by the council between 10 am and 2 pm at the winter solstice did not support the overshadowing contention. Any overshadowing would only occur very late in the afternoon. * The residents also were concerned the height of the proposal would allow units on the upper floors to see into the private courtyards and bedrooms and living room windows of the townhouses on the east side of Premier Street. The evidence indicated that this might be true but it was across the width of a full street and there was some intervening vegetation and the separation between the buildings would not of itself make this any reason for refusal. 22 In regard to these objections the applicant's evidence showed the revised plans in Issue F complied with the council's carparking requirements, previous plans had not as some of the fifty-three spaces were not accessible and the entry ramp doorway had been found to be only 1.5 m high. This had been fixed in the Exhibit F plans by raising the units above the doorway by about ½ m and also raising the balcony of unit DW.03 such that it had three steps up from the living room doors to get head clearance for the vehicular ramp. Issue 13 was resolved to council's satisfaction by these changes. 23 The council engineers did not raise any issue on street parking or congestion or traffic. 24 The council experts were concerned at the small size of the units as they were purported to be high quality by the applicant in accordance with the applicable development control plan, yet on closer examination and calculation of the unit floor space areas none of the units had the floor space of 89 m2 recommended in the guidelines to State Environmental Planning Policy No 65 for 2 bedroom units, the agreed category being 03.06. In fact most units were in the 60 to 70 m2 floor area size with four having 82.5 m2. And when going to the Affordable Housing Service Guidelines there was for two bedroom units a recommended minimum floor space of 70 m2 for two bedroom units. Fourteen of the units were below even that standard by up to 7.9 m2. There were other concerns related to this to be referred to later. 25 The council experts agreed with the objectors on the aesthetics in that it did not fit into the character of the locality or its intended future character due to matters such as: o the more rectangular emphasis than other apartments in the area, o the lack of eaves overhangs, o the street frontage courtyards and courtyard walls projecting into the front setback and o this emphasised the height and length of the building even though it did step in and out along the facades. 26 It was said that other nearby apartments had two storey and three storey components and greater separation between blocks of units to allow solar penetration and a sense of space between buildings. The form of this building being n a row about 70 m long, although articulated on the facade, did not have sufficient articulation of the blocks themselves to break up the scale and allow glimpses through to vegetation or spaces beyond that would retain the open character mixed with bushland seen elsewhere in the locality. 27 A transitional form between the two storey limit of the 2(b) zone on the east side of Premier Street and the proposed park on the south would also be appropriate in the council's expert's view. Also the corner of South Street and Premier Street was not addressed satisfactorily as required by the development control plan with a corner feature in the design. 28 The applicant's experts pointed to the deep rear setback that contributed to a bushland strip to the area from South Street to the proposed park and provided a good buffer to units at Nos. 16 to 24 Chapman Street that otherwise would have little separation. This was indeed an excellent feature of the design. It was also put that the design was a little different to existing buildings in external details but in scale the two blocks of buildings were similar in scale height and bulk to the apartment buildings in Chapman Street. It was put that it was these components that made the proposal compatible with the future character of the area. 29 Mr Chesterman said the units although small had excellent layouts with larger useable balconies and terraces directly outside living rooms with good orientation. Being small did not necessarily equate with poor quality design he said. 30 Whilst agreeing with this latter statement the Court saw more weight in the respondent's evidence. 31 There were other matters such as twenty-five of the external terraces and balconies, which were commodious and would be well used, were either directly beside each other, or on entry walkways, or in such close proximity that privacy screens would be a necessity. These were not shown on the plans. So the materials and appearance on the street elevation could not be assessed. 32 The locations these privacy screens would have to be installed in would cause shadowing of terraces and balconies, and there would be a need to consider how much acoustic privacy they might give between terraces and balconies, especially those that directly adjoined each other. 33 Four of the terraces had entry stairwell intercom panels located directly beside them and beside living room doors of the relevant unit. Whilst this was not raised it was obvious some noise nuisance to the occupants of those units would occur. 34 Courtyard fences or walls also were not shown except on plan, not on elevation. The architectural plans referred one to the landscape plan for details but it also showed only the plan layout and no wall or fence details. 35 On the landscape plan it was noted there was no access pathway to the garbage bins from the disabled persons units. To get to them a person would have to go out onto South Street, around into Premier Street and into the driveway. A single 1500 litre bin was shown on a pad beside the driveway. The evidence was two 1500 litre bins were needed under the council's requirements for forty-two units. There was no elevation of the bin enclosure, it was directly beside a terrace of unit DW.01. The architectural plans did show an on site pathway from the disabled units to the garbage bins but it had disappeared on the landscape plan. 36 The architectural plans had no access way from the disabled units to the clothes drying yard but there was one on the landscape plans. 37 All the other units in the remaining five groups, in order to access the garbage bins or the clothes drying yard or the communal open space at the rear had to come out of the stairwell doors of the respective group, onto the Premier Street roadway as no footpath along the frontage was shown, and walk along the road to the path that ran from the kerb through the gap between the two blocks of units. The only other alternative would be to continue down the stairwell to the basement and walk across to either the rear escape stair that came up in the rear communal open space or walk up the vehicular ramp to the garbage bins. 38 Another point raised by the respondent's experts on accessibility was the fact that only six of the 42 units had access to a lift, the other occupants would have to use the stairs. For those on the top floor this meant negotiating four sets of stairs between the basement and unit carrying shopping or children et cetera. 39 It might be noted the stairwell entries, the entry door to hallways and stairs measured about 1 m wide on plan, so they would not be commodious for moving furniture. The respondent noted that few units had built in wardrobes. 40 Miss Pinfold said that the various shortcomings of the proposal led her to the conclusion it was not a high quality design under the requirements of the Local Environmental Plan for the zone or under the Development Control Plan. 41 In her opinion the small sizes of the units allowed forty-two units to be fitted within the floor space ratio, but this had expanded the need for carparking and other facilities compared to a development that might have had fewer units, even if they were larger units. 42 In the end this had created the non compliance with the landscaped area requirement of 65% of the site area. The proposal had 59.4% she said. The landscaped area requirement was high under the relatively new Local Environmental Plan 2000. The evidence was it was necessary to retain the amenity of the area with its substantial tree canopy and balance between buildings and bushland. Miss Pinfold said the objectives of the zone in cl 36 of the Local Environmental Plan were conjunctive and even the applicant's experts only laid claim to the proposal satisfying two of the three objectives. 43 The area of deep soil was also deficient she said, although the soil over the roof of the basement could grow vegetation. 44 There was disagreement with the calculation of the landscaped area due to the definition on p 8 of the Local Environmental Plan. Mr Connor said that terraces were not excluded from areas of landscape and those at ground level should be allowed. He had reached this conclusion after legal advice when he had previously, in a joint conference, agreed with Miss Pinfold they were not allowed. Miss Pinfold maintained the terraces were below two sets of balconies, and as no rain or very little rain would fall on the terraces vegetation could not be grown in them. Mr Connor said that the water collected from the terraces would go into the reuse tank for irrigation of the site and could be seen to contribute to the landscaping. 45 The Court concludes that although the definition may not include open terraces, open to the sky that is, those effectively with roofs over them, be it balconies, must be considered as part of the building and be excluded. The statutory objectives of the landscaped area are conjunctive and the evidence showed they were not all met, which is the crucial test in considering the State Environmental Planning Policy No. 1 objection in this case, therefore the objection cannot be supported. Even Mr Connor in the end had to agree that elements of the proposal were not high quality design. 46 Overall the Court has concluded that on issues 1, 2, 7, 10 and 18, the proposal must fail and in relation to State Environmental Planning Policy 65 it fails on issues 19, 20, 21, 23, 24 and 26. 47 Therefore the orders of the Court are: (1) The appeal is dismissed. (2) The exhibits be returned to the parties except exhibits 8, 9, 13, 14, 15, 16, 17 and exhibits E, M, P, S, T, U, V and W. _________________ K G Hoffman Commissioner of the Court rjs DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.