Land and Environment Court of New South Wales CITATION : AVK Pty Ltd v Baulkham Hills Shire Council [2004] NSWLEC 368 revised - 29/07/2004 APPLICANT AVK Pty Ltd PARTIES : RESPONDENT Baulkham Hills Shire Council FILE NUMBER(S) : 10418 of 2003 CORAM: Murrell C KEY ISSUES: Development Application :- For 51 apartments and 44 townhouses - bulk height scale and density of proposal - character of area - draft plan to prohibit apartments - landscaped area - solar access - and impact on adjoining residential area - internal amenity State Environmental Planning Policy No. 65 - Urban Design LEGISLATION CITED: Baulkham Hills Local Environmental Plan 1991 Baulkham Hills Development Control Plan No. 23 - Apartment Buildings Baulkham Hills Development Control Plan No. 4 - Townhouses CASES CITED: Ervin Mahrer and Partners v Strathfield Municipal Council (No 2) (2001) NSWLEC140 DATES OF HEARING: 22, 23 and 24/09/2003, and 15, 16 and 18/03/2004 Mentions - 16/10/2003 and 10/12/2003 (Documentation on solar access received 21/04/2004) DATE OF JUDGMENT: 07/23/2004 APPLICANT Ms H Irish, barrister Instructed by: B T Goldsmith Planning Services LEGAL REPRESENTATIVES: RESPONDENT Mr G Miller QC, Instructed by: PricewaterhouseCoopers Legal JUDGMENT: - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 23 July 2004 10418 of 2003 AVK Pty Ltd v Baulkham Hills Shire Council JUDGMENT 1 This is a judgment for an appeal under s 97 of the Environmental Planning and Assessment Act ("the Act") against the refusal of a development application by Baulkham Hills Shire Council in May 2003. The application was for the construction of 96 dwellings comprising two apartment blocks of 52 units and 44 townhouses with associated carparking on a vacant parcel of land of more than 2 ha known as 40-52 Barina Downs Road, Baulkham Hills. History and background of proposal 2 The development application was submitted to the respondent council in April 2003 and an appeal was lodged with the Court in March 2003. The hearing of the appeal commenced in September 2003 and a site inspection was carried out at this time in the presence of the parties. The Court also heard from a number of resident objectors on the site. 3 The proceedings were adjourned in September 2003 to provide the applicant with the opportunity to respond to late evidence served by the respondent. Amended plans were subsequently submitted to the council in October and renotified with some seven submissions received in response. Following Court mentions and a lengthy adjournment, the hearing continued in March 2004. The respondent objected to amended plans being admitted and the Court directed the experts confer and advise the Court on the changes and the extent of amendments between the various bundles of plans. The conferencing exercise revealed the changes between the sets of plans and also identified a number of inconsistencies. Based on the facts and the degree of changes/inconsistencies I decided that it was appropriate to allow the applicant to rely on a set of amended plans. I note that the respondent continued to raise objection to the amended plans but in my assessment I am satisfied that neither party is prejudiced and the amended plans form the basis of my assessment below the proposal. In summary the amendments do not transform the development but rather its essential elements and character are maintained. 4 The current amended plans provide for: six less dwellings; basement parking for about one quarter of the townhouses; the apartment buildings being rotated approximately 12 to improve the orientation for solar access; and various other changes including RL's, height, paved areas and roofline of the development. To assist in my deliberations the parties referred me to the judgment of his Honour Bignold J in Ervin Mahrer and Partners v Strathfield Municipal Council (No. 2) [2001] NSWLEC 140. At par 154 his Honour states: There is in my opinion, no doubt that the Court is vested in the wide discretion as to whether it agrees or does not agree to the proposed amendment to the applicant's development application … Nonetheless, the Court's exercise of discretion will be influenced by consideration … involving amendments to the development application designed to satisfy as many as the council's objections raised against the proposal as the applicant is willing to meet. Other important considerations informing the Court's exercise of discretion will be consideration of fairness to the parties in the preparation of their cases and fairness to members of the community who may be affected by the development proposal and by its proposed amendment and wish to participate in the process. 5 With the benefit of the principles enunciated by his Honour, I am satisfied that the proposed amendments do not essentially change the character of the proposed development. Even if I use the more stringent test for modifications provided for in s 96 of the Act, the amendments would not convert the proposed development into something substantially different or fundamentally different in character or radically transform it. The test is not the quantum of changes but whether the proposed development is transformed. 6 Mr Miller QC submitted for the respondent that it is the effect of the amendments that is of concern to council not how the amendments arose. I am satisfied that allowing the applicant to rely on the amended set of plans does not prejudice the respondent and in the circumstances and given the history of the application it is fair and reasonable for the amended plans to be admitted and determined by the Court having regard to due process, natural justice and procedural fairness. The current proposal 7 The applicant prepared a 'Statement of Basic Facts' that described the amended proposal as the construction of 90 dwellings comprising 41 two bedroom townhouses and 2 apartment buildings containing 49x2 bedroom dwellings with associated carparking for 229 vehicles and community facilities. Figure 4 shows the site layout of the proposal. 8 The 49 apartments are configured in two blocks positioned centrally within the site with a one-way internal Circuit Street on their perimeter. Around the outer edge are the townhouses of two to three storey construction that have frontage to the internal road with rear courtyards to the outer boundary of the site. 9 The main access is from Barina Downs Road serving 86 dwellings with 4 townhouses accessed from the end of the existing Fairmont Avenue. Pedestrian access is available to the site from Fairmont Avenue and Evesham Circuit as well as Barina Downs Road and on the southern boundary a pathway leads to the employment area. The development is generally set back 6-10 m from the eastern and western boundaries 10 m from Barina Downs Road and 3-6 m from the northern boundary. The townhouses have ridgelines of approximately 9 m and the apartment buildings between 11 and 16 m above natural ground level. 10 The subject site is some 20,220 sq m and has nearly 3,000 sq m zoned Public Open Space (6a). The proposed apartment buildings occupy some 6,300 sq m and the townhouse area is nearly 10,000 sq m with 480 m sq devoted to the internal roadway. Site and Environs 11 The subject site is the last remaining parcel of residentially zoned land previously used for rural residential purposes. It is largely cleared and the remaining trees have been approved by the council in October 2001, for removal. Few structures remain on the subject land apart from a two-storey dwelling and various outbuildings and fencing. 12 The site is described as Lot 6 DP 227129 and it has a total area of 20,252 sq m with a depth of between 164 m and 217 m and the frontage of approximately 130 m to Barina Downs Road. The land falls approximately 12 m from the road to the north as well as gully through the centre of the site falling from each side about 5 m. 13 To the north of the site is the "Norwest Business Park". This is the regional centre for the Norwest urban release area. To the east and west of the subject site the land has been subdivided into allotments of about 400 - 600 m sq for single dwelling houses and there are also a number of medium density townhouse developments in the area. Located opposite the site on Barina Downs Road is the St Josephs' Convent zoned Special Uses 5(A). The aerial photograph at Fig. 1 shows the recent residential development of the area and the Norwest Business Park. Figure 2 is a photograph of the site taken from the south. Statutory Planning Framework 14 The relevant statutory framework for the application to be assessed includes State Environmental Planning Policy No. 65 – Design Quality of Residential Flat Development (SEPP 65). Under this SEPP the proposal must be assessed in terms of the 10 design principles and the publication known as "Better Urban Living – Guidelines for Urban Housing in New South Wales" prepared by the then Department of Urban Affairs and Planning and the NSW Government Architect. The Policy aims to improve the design quality of residential flat development in New South Wales. 15 The policy defines a Residential Flat Building to mean: (a) three or more storey (not including level for low ground level provided for carparking or storage or both but preclude less than 1.2 m above ground level), and (b) Four or more self-contained dwelling (whether or not the building includes uses for other purposes such as shops), but does not include a class 1a building or a class 1b building under the Building Code of Australia (commonly referred to as townhouses or villas). 16 Part 2 of the SEPP sets out the design quality principles to provide a guide to achieving good design and the means of evaluating the merit of proposals. The ten principles are: Context; Scale; Built form; Density Resource, Energy and Water Efficiency; Landscape; Amenity; Safety and Security; Social Dimension; and Aesthetics. 17 The Better Urban Living Guidelines referred to in SEPP 65 provide design guidelines for buildings higher than three storeys. In referring to Sydney's growth a more compact city with the development of higher residential densities in areas with good access to public transport, employment and other services is encouraged. Housing choice is an objective under Pt 1 – 'Strategic Planning' where it states that "in order to achieve housing choice and diversity in a particular locality a departure from the existing housing types may be necessary. Part 4 is about 'Environmental Design' and passive solar suggestions include "most used rooms and private open space should be located to maximise solar access and energy gain in winter months between the equinoxes…The orientation of windows should be within the range 30 east to 20 west of true north to be most effective". 18 There was no dispute that as the application was submitted at the end of November 2002 that under cl 30 the publication Better Urban Living Guidelines for Urban Housing in New South Wales must be taken into consideration. However, the experts also assessed the application in terms of the publication the Residential Flat Design Code. 19 Under the Baulkham Hills Local Environmental Plan 1991 (LEP 1991) the subject site is predominantly zoned Residential 2(a) and partly Open Space 6(a). Refer to zoning extract at Fig. 3. The aims and objectives of the plan include: (c) To promote the efficient utilisation of land, services and support facilities in existing urban areas and to provide for the orderly growth of new urban areas which promote a high level of residential amenity. (d) To facilitate and encourage development which is compatible with the environmental amenity and heritage of the Shire; (e) To facilitate the implementation of the objects of the Act. 20 The objectives of the plan include: (a) To modify planning control having regard to growth and change in the Shire; and (b) To protect areas from inappropriate development and ensure that local amenity is maintained and enhanced; (c) to encourage a high standard of employment related development suited to the environmental quality of the Shire 21 Apartment buildings are defined as: "a building containing three or more dwellings where each dwelling does not necessarily have direct access to private open space at natural ground level". 22 Townhouse means: "one or a group of three or more two-storey dwellings which may or may not be attached on single allotment of land or on adjacent allotments that constitute a single site, where each dwelling has a separate entrance accessible from an outside area and direct access to private open at natural ground level". 23 Clause 9(2) states that: "the consent authority must not grant consent unless it is satisfied the development is consistent with one or more of the aims and objectives of the plan and one or more of the objectives of the zone. The objectives of the 2(a) Zone are: (a) to make general provision for land to be used for the purposes of housing and associated facilities, and (b) to provide for development for medium-density housing forms (including apartment buildings, townhouses, villas, cluster housing, semi-detached housing and the like) in locations close to the main activity centres of the area of Baulkham Hills, and (c) to allow people to carry out a reasonable range of activities from their homes, where such activities are not likely to adversely affect the living environment of neighbours, and (d) to allow a range of development, ancillary to residential uses, which: (i) is capable of visual integration with the surrounding environment, and (ii) serves the needs of the surrounding population without conflicting with the residential intent of the zone, and (iii) does not place demands on services beyond the level reasonably required for residential use. 24 Development allowed only with consent in the residential zone includes: apartment buildings; attached and detached dual occupancies; environmentally integrated housing; townhouses; and villas. Zone 2a1 also allows apartment buildings whereas zones 2(a2) and 2(a3) prohibit apartment buildings. 25 Clause 15 relates to minor variations to zone boundaries and cl 27(3) states "the council may where the topography of the land to be subdivided makes it necessary, approve a plan of subdivision in which the boundaries of the allotment referred to in that subclause you not correspond precisely with the boundaries of the land within Zone 6(a) as shown on the map which depart there from only to a minor extent". Subclause 1 states that "council shall not consent to the carrying out of development on land within Zone 6(a) unless consideration has been given to the need for the proposed development of that land; the impact of the proposed development on the existing or likely future use of the land and the need to retain the land for its existing or likely future use". 26 Development Control Plan No. 102 provides the parking requirements for development in Baulkham Hills as well as technical guidelines or parking layout, design and access. 27 Development Control Plan No. 8 - Open Space DCP No. 197 - Landscaping; CP No. 23 - Apartment Buildings and DCP No. 4 – Townhouses, are also relevant to the assessment of the Development application. 28 Council has also prepared draft Local Environmental Plan 2003 that is a relevant consideration for the Court's assessment. The draft plan was publicly exhibited and council resolved to forward the draft plan to the Department of Infrastructure Planning and Natural Resources under s 68 of the Act. At this stage the plan has not been made. Refer to Fig. 3 for zoning extract of draft plan. 29 The draft LEP 2003 in cl 9(2) states that "the consent authority is to be satisfied that development is consistent with one or more of the aims and objectives of the plan and is not contrary to the objectives of the zone". The second aim of the draft plan is "to conserve, manage and enhance a natural and built environment for present and future generations". Aim three of the plan is "to encourage a strong sense of community identity and economic well being through the development of local communities that are safe, liveable and offer a diversity of land use and economic opportunity". 30 The fourth aim of the draft plan is "to promote the efficient utilization of land, services and support facilities in existing urban areas and to provide for the orderly growth of new urban areas that promote a high level of residential amenity". The objectives under this aim are to: (a) Protect areas from inappropriate development and ensure that local amenity is maintained and enhanced; (b) Provide choice in housing for residents; (c) Ensure that urban housing type varies and is designed and constructed in a manner that can accommodate a variety of household types; and (d) Contribute to the synergy between land use activities. 31 The objectives of the draft 2(a2) zone include: (a) To provide for development for townhouses, villas and the like in locations close to established public transport routes and the main activity centres of the Shire; (b) To ensure that building form is in character with the surrounding built environment; (c) To ensure that development is compatible with adjoining structures, has regard to privacy, noise transmission between dwellings, minimises energy consumption and utilises passive solar design principles; (d) To encourage diversity of dwelling type (townhouses, dual occupancies and villas are permissible in this zone. However, apartment buildings are prohibited). 32 The draft plan maintains the Open Space (6a) zone over the same portion of about 3,000 sq m, refer to Fig. 3. Clause 32 of the draft plan provides for the owner of any land within 6(a) "may by notice in writing, require the council to acquire the land but the council is not required to acquire the land if it might reasonably be required to be dedicated as a condition of consent to a development application. Subclause (3) provides for a person may with the consent of the council carry out development on that land until the land is acquired by the council and in deciding whether to grant consent the council shall take into consideration the affect of the proposed development on the cost of acquisition and the imminence of acquisition". This clause provides similar provisions to that contained in LEP 1991 in cl 26A and 27 respectively. 33 There was no evidence to the Court whether the owner has requested the council to acquire the subject portion of land zoned 6(a) or whether it is on council's current acquisition programme. I note that council utilised the provisions of cl 15(2) of the 1991 LEP when it approved a townhouse development where a similar amount of land zoned for open space was affected. Issues 34 An amended Statement of Issues was provided and includes the following: 1. Whether the development is in accordance with the aims and objectives of LEP 1991, in particular to protect areas from inappropriate development and ensure that local amenity is maintained and enhanced; 2. Whether the proposed development is prohibited under Draft Baulkham Hills Local Environmental Plan 2003. Particulars (a) A large portion of Lot 6 DP 227129 ("'the site") is zoned Residential 2(a2) which prohibits Apartment Buildings. (b) A portion of the site is zoned Open Space 6(a) (Existing and Proposed Public Recreation) which prohibits Apartment Buildings, Town Houses and associated works. (Section 79Cl(a)(ii) of the Environmental Planning and Assessment Act 1979). 3. Whether the proposed development satisfies the aims and objectives of the DCP 23 - Apartments in terms of: character; context; design; and internal amenity. 4. Whether the proposal satisfies the provisions of the DCP 23 - Apartments, in particular setbacks, building separation; landscaped area, building length; building design and streetscape; open space; and privacy; and solar access. 5. Whether the proposed development satisfies the aims and objective of DCP 4 -Town Houses, in particular: (a) Encourage a high standard of aesthetically pleasing and functional town house developments that sympathetically relate to adjoining and nearby developments; (b) Encourage innovative and imaginative design with particular emphasis on the integration of buildings and landscaped areas that add to the character of the neighbourhood; and (c) Provide high levels of amenity and safety for future residents of any town house development. 6. Whether the provisions of DCP 4 – Townhouses are satisfied. In particular: setbacks; building separation and driveway treatment; landscaped areas; building design and streetscape; open space; and privacy. 7. Whether townhouses and apartments are consistent with cl 27 for that portion of the land zoned 6(a). 8. Whether the proposal is consistent with DCP No. 8 – Open Space and its objectives. 9. Whether the proposal is consistent with DCP No. 107 – Landscaping and the objective to encourage and maintain a high standard of environmental amenity throughout the Shire. 10. Whether the proposed development is consistent with Baulkham Hills Multi-Unit Housing Urban Design Guidelines. 11/12 Whether the proposed development is consistent with State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development and in particular the 10 principles. 13. Whether the proposed development is considered to be in the public interest, having regard to the expectations and submissions of the local residents. (Section 79C 1 (d)(e) of the Environmental Planning and Assessment Act, 1979). 14. Whether the proposal is consistent with Draft State Environmental Planning Policy No. 66 - Integrating Land Use -Use and Transport Planning. (Section 79C1(a)(iv) of the Environmental Planning and Assessment Act, 1979). 15. Whether the proposed development is in character with surrounding development, that being single dwellings and town houses. 16. Whether the plans are accurate and correct. Evidence and submissions 35 The Court heard from a number of expert witnesses and also had the benefit of the experts' statements. 36 For the applicant evidence was given to the Court by: § Mr Patrick Hurley, consultant town planner § Mr D Menzies, a consultant architect urban designer 37 On behalf of the respondent, expert evidence was given to the Court by: § Mr A Lester, consultant architect urban designer § Mr J Swan, council's assessment planner. 38 The Court heard from a number of residents on the view and their concerns are also in the letters of objections, and include the following: § Development is not in keeping with the surrounding homes and townhouses; § The development is totally out of keeping with the area; § Apartment buildings should be located close to Castle Hill and Baulkham Hill CBD; § The bulk and scale and density of the project is out of character to the surrounding areas as there were no other residential apartment developments within this local precinct and § Concern that the apartments would be rented. 39 In response to the re-notification of the October 2003 plan out of 75 persons notified, 7 objections were received by council wherein the residents concerns were reiterated. Assessment and finding 40 The council submitted that the draft LEP is 'imminent and certain' and that the proposed development would be out of character with the existing and future character of the area as apartment buildings will be prohibited on the site once the plan is gazetted. It was pointed out the draft plan does not contain a general savings provision to facilitate development applications being finally determined under the provisions of the plan in force immediately before the draft plan is gazetted. Section 79C(a)(ii) relevantly requires the Court to take into consideration the provisions of any draft Environmental Planning Instrument that has been placed on public exhibition. The draft plan was exhibited from 12 August to 9 September 2003 and on 13 October 2003 council resolved to adopt the draft plan and referred it to the Department. 41 The question for me in these proceedings is the weight to be given to the draft plan and this includes its certainty and imminence. As for many draft plans its making is inevitably certain, however, in the circumstances of this case more particularly the question is the certainty as to the future zoning of the subject large parcel of land. 42 On the basis of the evidence I am not persuaded that the draft plan is either certain or imminent with respect to the subject parcel of land that adjoins a major employment and business zone. I consider it is more relevant in my determination of this development application to give considerable weight to the general provisions and aims and objectives of the draft plan. This includes: development that should recognise and relate to the land uses that form the rural and urban environmental of the Shire; where development should integrate land use and improve access to open space, employment opportunities, public transport, community facilities and commercial services; reinforce the retail and commercial centres hierarchy within the Shire; provide a choice in housing for residents; ensure that urban housing type varies and is designed and constructed in a manner that can accommodate a variety of household types; and contribute to the synergy between land use activities. 43 I am satisfied the proposal is consistent with one or more of the aims and objectives of the draft plan. From a strategic planning point of view the site is possibly the largest single parcel in the area zoned for residential purposes where apartment buildings are currently permissible. Furthermore the proposal provides choice in housing in a rapidly developing part of Sydney that is a planned urban release area of not only residential dwellings but an adjoining employment area and a commercial centre about 1 km from the site. 44 In my assessment the site is appropriately located and dimensioned to provide for a higher medium density form of development with the opportunity to contain impacts to the adjoining dwelling houses to the east and west. 45 In this regard I also have the benefit of a letter from the Regional Planning Co-ordinator of the Department of Infrastructure Planning and Natural Resources dated 21 August 2003 states: … As the draft plan is currently the responsibility of Baulkham Hills Council, the Department has asked Council to fully consider the consistency of the draft plan with Council's approved Residential Development Strategy. I have also drawn Council's attention to the close proximity of the site to the proposed alignment of the North West Rail corridor and the need to allow, appropriate residential densities within the vicinity of the corridor. As indicated at the meeting should Council resolve to proceed with the draft plan, the issues of appropriate zonings, together with the need to include a savings clause, will require to be addressed by Council to allow the Minister to consider whether to make the plan or take other action …. 46 From the site inspection with the parties it could be seen that other medium density developments have recently been constructed in the area with large numbers of dwellings that provide a distinctive built form amongst the lower density single residences. Apartment buildings of a higher medium density form on the subject site would read as a more intensive residential form of development but would clearly provide a choice in housing for this growing planned sector where it would be anticipated and appropriate to provide the opportunity for a variety and choice in housing including apartment style units. 47 Mr Lester was engaged by the respondent to undertake a qualitative review of the development application against urban design principles and council's planning documents. From his statement it is noted that he was instructed that the relevant land use zone is as under the adopted draft Baulkham Hills Local Environmental Plan for the subject site. That is 2(a2) which permits townhouses and villas and prohibits apartments and there is no reference to the 1991 LEP zoning of the land. 48 The joint statement of Mr Lester and Mr Menzies identified the areas of disagreement when the proposed development is assessed in terms of the design quality principles contained in SEPP 65. 49 For the principle of context Mr Lester comments that the proposal is inappropriate with the adopted draft LEP whereas Mr Menzies considers it is appropriate for land zoned Residential 2(a). I am satisfied that the proposed development is appropriate for its context and would not be out of character with the area having regard to its proximity with the Norwest Business Park. The character of the local area is varied albeit that the majority of housing is large single detached dwellings on moderate size allotments, the majority being of two-storey construction. However, as can be seen from the aerial photo with cadastral information at Fig. 1. there is a complex of a large number of townhouses one block removed from the subject site. Also to the east of the subject site on the corner of Windsor Road there is a recent developed complex with a significantly large number of townhouses. I am satisfied given the size of the site that the proposed development would not be out of character but sit comfortably in the context of the area. Prohibition of the proposed development in terms of a draft plan does not provide a comprehensive assessment of the principle of context having regard to the key natural and built features of the area. The adjoining Norwest Business Park forms part of the context for the proposal and will continue to do so irrespective of future zonings. 50 On the principle of scale the SEPP relates this to "the bulk and height that suites the scale of the street and the surrounding buildings". Mr Lester considers that the closely spaced townhouses adjacent to single dwellings are inappropriate as is the excessive scale of the apartment buildings whereas Mr Menzies is of the opinion that the overall scale of the buildings compliment the existing two-storey residential housing in the area and that the natural slope of the site … compliments the overall character of the building form throughout the site and that this presents well in the streetscape. I am satisfied that the proposal will provide a satisfactory relationship with the adjoining development of dwelling houses and the Norwest Business Park. 51 The Policy states that: Appropriate built form defines the public domain, contributes to the character of streetscape and parks, including their views and vistas, and provides internal amenity and outlook. In my assessment when the proposal is viewed from the public domain, outside the site, this would not warrant refusal of the application. However, I agree with Mr Lester that the juxtaposition of the townhouses on the periphery to the apartments opposite the internal Circuit Road is less than adequate for environmental amenity. I do not accept that providing a private internal road justifies an inappropriate relationship and presentation of dwellings, that is townhouses to the apartments such that separation distances with minimum setbacks reduce the opportunity for appropriate landscaping. 52 The road system whether public or private and the configuration of dwelling units must allow the relationship of the built form to provide a level of presentation commensurate with streets within the public domain. I agree with Mr Lester that the computer generated views serve to reinforce the inappropriate relationship between the townhouses and apartments without the opportunity for landscaping to compliment the built form. The applicant's experts focussed on the appropriateness of providing townhouses on the perimeter to provide the transition to the residential dwelling houses to the east and west of the site. I do not accept that this is an appropriate design philosophy for the site as the amenity within the site is less than satisfactory. Mr Lester describes the SEPP 65 density criteria to include compatibility with existing or desired future density as well as compatibility with public transport, infrastructure, environment and community facilities. And he concludes that the density is inappropriate and excessive because of the adopted draft LEP that provides for a density of 95 persons per hectare whereas the proposal is 113 persons per hectare. I do not accept this analysis for the reason that the proposed density must be considered in the context of the site not only in terms of the adjoining dwelling houses but other medium density developments in the area and the Business Park together with the opportunity a large site presents for higher density as described in the "Better Urban Living Guidelines". 53 SEPP 65 for the principle of 'Resource, Energy and Water Efficiency' states that "good design makes efficient use of natural resources, energy and water throughout its full life cycle and sustainability is integral to the design process including layout and built form, passive solar design principles and re-use of water". There is little evidence available to fully assess the proposal against this principle. While assessment against this principle may not warrant refusal of the application, it would appear however, that a project of this scale does present the opportunity for proactive sustainability measures to be incorporated in the design process such as consideration of the re-use of water and EDP principles. 54 For the principle of landscape SEPP 65 recognises that "together landscape and buildings operate as an integrated and sustainable system resulting in aesthetic quality and amenity for both occupants and the adjoining public domain". Mr Menzies comments that the proposed landscaping will be a dramatic improvement whereas Mr Lester is of the opinion that the landscaping does not build on the natural features of the site and that the communal open spaces are poorly located and inadequate. It is noted that the council has approved the removal of the existing trees on the subject site and the landscaping plan provides for landscaping commensurate with other development in the area. However, for a site of this size where apartment buildings are proposed vegetation to compliment the built form in terms of providing sufficient dimensioned spaces for canopy trees and an appropriate setting for the apartments would not be achieved in my assessment having regard to the footprint of the basement parking, the internal Circuit Road and the perimeter of the site dominated by the footprint of the townhouses. 55 The principle of amenity requires appropriate consideration of room dimensions, access to sunlight, natural ventilation, visual and acoustic privacy, indoor and outdoor space and ease of access. Mr Menzies comments that the small discrepancies can be easily remedied while Mr Lester is of the opinion that there are significant privacy and amenity issues. Despite the fact that the minimum separation distances may be capable of being achieved for each individual unit and townhouse at the same time I am not satisfied that the relationship of the apartment buildings of 3 and 4 storeys to the Circuit Road and the perimeter townhouses of 2 and 3 storeys is an appropriate design layout concept. While the townhouses may provide an appropriate transition to the residential dwellings to the east and west at the same time the dominance of garages with two storeys above and minimal setbacks to the Circuit Road and of apartments not because of adverse amenity impacts to adjoining residences. 56 The Policy states that: Good design optimises safety and security, both internal to the development and for the public domain. Mr Lester is of the opinion that the design and random distribution of elements of the communal open space rather than consolidation together with the garage dominated environment of the internal Circuit Road are not supportive of an effective passive surveillance framework for the proposed development and that a formal crime risk assessment has not been prepared. Mr Menzies comment on the latter was that this was not required at the time the application was submitted and in the circumstances such details could be provided if the Court was minded to grant approval. Given the large number of dwelling units, a formal crime risk assessment would be prudent despite the fact that there was not a formal requirement. 57 For the principle of social dimensions the Policy states: New developments should optimise the provision of housing to suite the social mix and needs in the neighbourhood or, in the case of precincts undergoing transition, provide for the desired future community. 58 Mr Lester comments that the proposal is not consistent with the adopted draft LEP which is taken to reflect community expectations and desired future character. However, in my assessment the proposal is consistent with the general aims and objectives of the draft Plan in that amongst other objectives it provides for housing choice within the area. Furthermore, I agree with Mr Menzies that given the close proximity of the site to the Norwest Business Park and shopping centre, that apartment buildings per se are appropriate for the site. 59 The final principle to be addressed is aesthetics. The Policy states that: Quality aesthetics require the appropriate composition of building elements, textures, materials and colours and reflect the use, internal design and structure of the development. Aesthetics should respond to the environment and context, particularly to desirable element of the existing streetscape … . In Mr Lester's opinion the design of the proposal is less than optimal in terms of aesthetics. Mr Menzies on the other hand considers that the details, materials, finishes and colours and design features and the general form of the development are sympathetic to the precinct. I do not dispute that the proposed development picks up common elements, roof forms, colours, materials, finishes of the adjacent adjoining buildings, but I agree with Mr Lester. While my observations may not be fatal to the application nonetheless on a holistic view of the development complex, the configuration on the built form does not respond to the natural topography and the concentration of density in the centre of the site flanked by townhouses in my assessment will not present as an aesthetically pleasing development from the internal road. The presentation of dwellings with minimal setbacks and garages dominating the streetscape (albeit internal road) is not reflective of good design. 60 During the proceedings in March a conclave of the four experts: Mr Lester; Mr Menzies; Mr Hurley; and Mr Swan conferred on a number of issues including not only the extent of amendments and the identification of inconsistencies in the plans but also to provide the respondent with the opportunity to visit the architect's office to view the computer model for the proposal. 61 Mr Lester made the following comments to the Court on the views simulated by the computer model. He identified a number of difficulties and inaccuracies in the views provided. In particular the lack of ground planes and road alignments required a number of assumptions to be made and in that regard he was of the opinion that the views depicted by the model were a misrepresentation and this was explained in Court by reference to the simulated views. I was persuaded by Mr Lester's evidence that the computer model has inadequate inputs to provide confidence in the 'views' and they should not be relied upon to give a reliable indication of the final built form on the ground. I agree with Mr Lester's evidence that despite their deficiencies the simulated 'views' do however, serve to reinforce that the proposed development would be an unacceptable built form. 62 In my assessment I am also of the opinion that when viewed from within the site the internal configuration of the buildings and their inter-relationship is not satisfactory. In this regard I do not accept the applicant's submission that the internal roads are private roads and from the public domain the proposal is satisfactory. From the external boundaries the proposal may be satisfactory but it is the juxtaposition of buildings and the presentation to the narrow internal road of 2-storey townhouses above garages opposite 4-storey apartments that would not result in good urban design. 63 The proposal is for 90 dwellings and the internal environment created must be suitable when assessed in terms of urban design criteria and in this regard I am persuaded by Mr Lester's assessment that the proposal does not warrant approval and that it is an inappropriate solution to the site to provide "a wall of townhouses to the apartment buildings". I do not accept the proposal provides an appropriate relationship for dwellings within the site even though it may provide a transition to the existing housing as submitted by the applicant. 64 Mr Lester is of the opinion that: "the scale and density of the 2 to 3-storey townhouses together with the 3 to 4-storey apartments located in close proximity to the narrow Circuit Street is not compatible with good urban design practice and will result in a substandard urban environment and in a number of locations apartments are located within several metres of the internal road. The importance of establishing a street setback to enhance the setting for an apartment building is identified in the Residential Flat Design Code and a minimum setback from the street frontage of 10 m is required under DCP 23 to help secure the objective" … to ensure sufficient space in front of the building to permit landscaping that will compliment the building form and enhance the landscape character of the street". 65 While the minimum separation distances between dwellings is generally satisfied there are several non-compliances and while this may not be fatal to the application, nonetheless it is symptomatic of the restricted nature of the design approach in locating townhouses around apartment buildings separated by a relatively narrow internal road dominated by garage doors that provides vehicular access to the majority of the town houses. 66 In the earlier statement of Mr Lester and Mr Gelder, it was agreed the potential to extend the basement carparking under the townhouses would diminish the visual dominance of carparking access and garage doors and enhance the streetscape. However, the subsequent amended plans provided for only about a quarter of the townhouses to have basement parking. 67 A basic and fundamental concern of the proposed development is the poor orientation of the proposed apartments despite the rotation of the development by some 12 to improve solar access to a number of units. I agree with Mr Lester that the opportunities of the site to provide an east/west orientation would have significant advantages by increasing the number of units facing north as well as opening up the view corridors to reduce the wall affect of the current proposal. I recognise that I must assess the application before me but nonetheless for a large site of over 2 ha alternative design solutions are not an irrelevant consideration where the current design performs poorly in terms of solar access. Nonetheless, leaving aside possible alternatives based on an assessment of solar access the amended proposal does not warrant approval. 68 The issue of the design of drainage was submitted by the applicant as the reason for the orientation of units, however, this constraint has not persuaded me that this would justify the majority of units not being afforded appropriate solar access for what is essentially a large greenfields site. 69 The proposed design also fails to read the topography and I agree with Mr Lester that "the natural ground is not celebrated or reinforced but rather the natural ground is modified such that the natural topography will not be interpreted". Mr Menzies agreed that the proposed building form dictates the degree of solar access afforded to the units. However, in his assessment in terms of the Better Urban Living Guidelines solar access at the equinoxes between 9 and 5 means that 47% of the apartments would comply. 70 The rule of thumb for solar access in the 'Residential Flat Design Code' is that living room and private open space in at least 70% of apartments in a development should receive a minimum of 3 hours direct sunlight in mid winter. I recognise the Code is not a statutory requirement for the assessment of this application but it does provide a guide as agreed between the parties. On Mr Lester's assessment some 22 (45%) out of 49 apartments meet the basic ESD and solar access standards and in his opinion "given the relative flexibility associated with the rectangular site, the solar performance of the proposed development is a particularly poor response to basic environmental guidelines and criteria". For the townhouses he comments that only 14 (34%) out of 41 dwellings meet the recommended 50 arc for living areas (northern orientation) set out in AMCORD. 71 It was agreed that the current zoning provides for a maximum density of 175 persons per hectare and the proposed development is less than 115 persons per hectare. It is noted in the draft plan that the (2a2) zone provides for a maximum density of 95 persons per hectare. It is also noted that a formal crime risk assessment has not been prepared and while not mandatory under the Better Urban Living Guidelines it is required under the Residential Flat Design Code. 72 In my overall merits assessment under SEPP 65 using the design quality principles as a guide, the development application fails because the concept of the design will not provide for acceptable amenity for the future residents of the complex. Furthermore, the development affords future occupants inappropriate amenity because of poor orientation with some 55% of units not receiving appropriate solar access. 73 The relationship of 3-4 storey apartments juxtaposed with 3 storey townhouses separated by a 3.5 to 6 m roadway is not an appropriate design solution to a site where higher densities could still achieve a feeling of space between buildings and a curtilage of open space with commensurate landscaping and canopy trees to provide an internal environment to compliment apartment buildings as well as providing a buffer to adjoining lower density residential development. However, it is not the external impact to adjoining residences in my assessment that warrants refusal of the application. Similarly when viewed from the public domain, of Barina Downs Road, the public open space to the north of the site and the adjoining Business Park Zone, the impacts would not warrant refusal of the development application. But rather it is the amenity within the proposed complex that is not satisfactory. 74 The applicant provided photographs of medium density townhouse developments in Fig. 5. It could also be seen on the view that the pattern and form of such development creates 3-storey development accessed by narrow roads with little soft landscaping and no spaces for canopy trees. A similar approach has been taken with the current development. However, the impacts are further exacerbated in this proposal by the large apartment buildings of over 50 m in length opposite the 3-storey townhouses. In my assessment this is unacceptable and undesirable. 75 I also agree with Mr Lester that a detailed site analysis and identification of constraints and opportunities could lead to a more appropriate built form to maximise solar access and to allow the natural topography to be read/interpreted. But I disagree with Mr Lester in dismissing apartment buildings per se as inappropriate for the site. 76 With respect to the question of amended plans, I am satisfied that the applicant acted in good faith in attempting to respond to some of the concerns of Mr Brooks, council's senior development engineer, Mr Swan, council's planner and Mr Lester. I note that a considerable number of inconsistencies and inaccuracies were also identified by the respondent in the amended set of plans but in my opinion this has not prevented the Court from assessing the application on its merits. In large projects such as this it is often difficult, if not impossible, to get every detail right and inaccuracies and discrepancies in plans may require further amended plans if proposals otherwise have merit. In my overall merits assessment of the application the inconsistencies are not fatal but the Court's fundamental concerns could not be addressed by further amended plans. 77 In summary the juxtaposition of 3-storey townhouses and 4-storey apartments arranged around the narrow internal road, the orientation of the apartment buildings providing for less than satisfactory solar access to the dwelling units that in combination with an assessment under SEPP 65 has led me to conclude that the development application should be refused. 78 On the basis of the Court's assessment the formal orders of the Court are: 1. The appeal in respect of the property known as 42-50 Barina Downs Road, Baulkham Hills, is dismissed. 2. The development application submitted to Baulkham Hills Shire Council, and as amended, is determined by the refusal of consent. 3. The exhibits are returned. ___________________ J S Murrell Commissioner of the Court rjs Attachments (5 figures) : 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.