XQZ Architecture v Sutherland Shire Council [2003] NSWLEC 284

> Land and Environment Court of New South Wales

CITATION : XQZ Architecture v Sutherland Shire Council [2003] NSWLEC 284 Applicant: XQZ Architecture PARTIES : Respondent: Sutherland Shire Council FILE NUMBER(S) : 10507 of 2003 CORAM: Bly C Development Application :- six storey residential flat building - refusal Loss of privacy Loss of views KEY ISSUES: Traffic congestion Car parking Excess ure building size Precedent LEGISLATION CITED: Environmental Planning and Assessment Act 1979 CASES CITED: DATES OF HEARING: 24/9/03 - 26/9/03 EX TEMPORE JUDGMENT DATE : 09/26/2003

Applicant: A Galasso instructed by Maddocks Lawyers LEGAL REPRESENTATIVES: Respondent: A Pickles instructed by Sutherland SC

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10507 of 2003

Bly C

26 September 2003 XQZ Architecture Applicant v Sutherland Shire Council Respondent Judgment

1 This appeal relates to a development application for the demolition of existing residential flat and dual occupancy buildings at Nos 10 and 12 Gerrale Street, Cronulla and the construction of a six storey residential flat building containing twenty-four dwellings and basement car parking for thirty-six cars. Pedestrian and vehicular access to the proposal is off Gerrale Street. 2 Situated on the corner of Gerrale Street and the extension of Ocean Grove Avenue the site, being a consolidation of Lots 1 to 6 in SP 729 and Lots 1 and 2 in SP 31062, has an area of 1,193 sq. It is located approximately 150 m to the east of the Cronulla town centre. 3 Existing development in the immediately surrounding area comprises mainly medium to higher density residential development in buildings ranging between two and at least nine storeys including older style residential flat buildings and more modern residential flat buildings that also contain commercial development. 4 The site is situated in the Residential 2(c) zone under the Sutherland Shire Local Environmental Plan 2000 ("the LEP") in which zone the proposal is permissible with development consent. The relevant objective of the 2(c) zone is a high density residential environment with a co-ordinated, efficient and economic development of residential flat buildings of high quality design. 5 Also applicable to the site is the Cronulla Centre Development Control Plan ("the DCP") which contains a number of relevantly applicable standards. 6 The application was advertised and in excess of ninety written objections including petitions were forwarded to the council. Issues of concern in those objections include loss of existing trees on the site, non-compliance with various council requirements, excessive bulk, scale and height and over development, building form out of character with the locality, traffic and car parking problems, overshadowing of nearby properties, loss of privacy and loss of ocean views, safety and security. 7 On behalf or the respondent council expert evidence was provided by Mr P Hume, a town planner. On behalf of the applicant expert evidence was provided by Mr D Crane, a town planner, and Mr J Flower, an architect. 8 In addition to the residents' objections to the proposal the Court also took into account in its deliberations the oral evidence of Mr R Abell, Mr J O'Toole, Mrs C Harriss and Mr R Wood. These residents reside in the nearby residential flat buildings at 7-11 Gerrale Street and 1 Ocean Grove Avenue. 9 Particular concerns expressed by these residents include non-compliance with the various requirements of the LEP and the DCP, loss of privacy, loss of ocean views, excessive building height and size, increased traffic congestion and insufficient visitor parking. In addition, Mr O'Toole was of the opinion that this site and other sites to the north including Nos 1-8 Gerrale Street which appears to be able to be re-developed, should all be developed to a height considerably less than the presently permissible six storeys. The proposed development would set an undesirable precedent. Instead, he suggested that the development of the subject site should set an example of good development for these potentially developable properties. 10 In order to better understand the residents' objections the Court visited their homes in conjunction with an inspection of the site and its locality. 11 The tendered statement of issues raised a number of matters of concern including compliance with the objective of the 2(c) zone, compliance with various DCP requirements including floor space ratio and building height, tree retention and landscaped area, aspects of building design including security, balconies, acoustic privacy, visual privacy and solar access, visitor parking and the various matters raised by the objectors. 12 As a result of a number of conferences between the experts together with a number of relatively minor modifications to the design and a number of additional conditions of consent all of the issues that were of concern to the council were effectively resolved. 13 It is to be noted, however, that there was a remaining concern that the visitor parking provision for this development would be deficient by one car space. However, it was recognised that this would not be a reason for refusal. 14 Notwithstanding that there continues to be a number of concerns arising out of the residents' objections there is no remaining issue of determinative concern to the experts. Despite this, it is necessary for the Court to take the residents' concerns into account. The concerns of greatest significance comprise loss of views and privacy and aspects of traffic and parking. 15 In relation to view loss I note that this is a matter which is required to be taken into account under cl 30 of the LEP. It is clear that Mrs Harriss, Mr O'Toole and Mr Wood will all suffer loss of ocean views to various degrees, with Mr Wood being affected to the greatest degree. 16 In his report Mr Crane pointed out that it would be unreasonable for the residents of the properties on the west side of Gerrale Street to expect to retain uninterrupted views for a number of reasons and the principal reason being that the Cronulla Centre DCP permits six storeys of development on this site and, indeed, on other sites further to the east and the proposal complies with this requirement. Moreover, the proposal more than meets the site setback requirements thus facilitating view corridors past the proposal. It is also to be noted that the proposal complies with the site consolidation requirement of the DCP. 17 I have been persuaded by Mr Crane's arguments which are in effect not opposed by Mr Hume and I thus do not accept that this proposal should be rejected on the basis of interference with existing views. I also note that whilst the loss of views, particularly for Mr Wood, will be significant some limited ocean views will nevertheless remain. 18 In relation to the issue of privacy it is clear that Mr Abell's apartment will be affected. However, given the medium to high density character of this area, the considerable distance of separation across Gerrale Street, the nature of rooms affected and the offset window arrangements this is not a determinative issue. 19 The final concern of the residents was that of additional traffic congestion and insufficient visitor car parking. There was no dispute that the proposal complies with the car parking requirement in the DCP, although Mr Hume believed that there was a deficiency of one visitor car parking space arising from his alternate analysis. 20 Again, I do not accept that this is a determinative matter, especially taking into account the fundamental compliance with the DCP and the medium to higher density nature of this area. I also took into account that the proposal should result in there being one additional on-street parking space and the provisions of the DCP which indicate the eventual provision of additional public car parking in the locality. 21 More generally, I have been persuaded that this proposal is highly responsive to the applicable planning controls and I accept that it is a high quality design which will meet the relevant objective of the 2(a) zone. The retention of the Norfolk Island pines which are a significant feature of this site confirms my decision that the appeal should be upheld and development consent granted in accordance with the plans in exhibit L. 22 The consent will also be in accordance with the conditions in exhibit 9 which I note have not been finalised in relation to the s94 contribution which will be finalised next week as discussed prior to the Court's judgment in the matter. 23 Exhibit 9 and exhibit L will be retained by the Court, otherwise the exhibits are returned.