Land and Environment Court of New South Wales CITATION : Luxury Homes Pty Ltd v Warringah Council [2006] NSWLEC 613 APPLICANT Luxury Homes Pty Limited PARTIES : RESPONDENT Warringah Council FILE NUMBER(S) : 10324 of 2006 CORAM: Murrell C KEY ISSUES: Development Application :- s 97 Appeal, consent orders Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Warringah Local Environmental Plan Seniors Living State Environmental Planning Policy CASES CITED: Mete v Warringah Council [2004] NSWLEC 273 DATES OF HEARING: 24/08/2006 - 25/08/2006 EX TEMPORE JUDGMENT DATE : 08/25/2006 APPLICANT Mr B. Hones, solicitor of Hones Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr A. Hudson, solicitor of Wilshire Webb JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 25 August 2006 10324 of 2006 Luxury Homes Pty Limited v Warringah Council This determination was given verbally and it has been edited prior to publication JUDGMENT 1 This is an appeal under s 97 of the Environmental Planning and Assessment Act against Warringah Council's refusal of a development application for the property known as 54 Bennett Street, Curl Curl. The council has now resoved to enter into 'consent orders'. 2 By way of background the development application was considered by council's officers and recommended for approval. The independent hearing and assessment panel recommended refusal and the council subsequently resolved to determine the application by refusal. A s 82A review was carried out for an amended plan that included a number of design changes to the original development application. While the council officers recommended approval, the independent hearing and assessment panel again recommended refusal and council determined it by refusal. 3 The development application has been submitted as an application for older persons and disabled persons pursuant to the provisions of the Warringah Local Environmental Plan. It is noted that the applicant opted to submit the development application under the provisions of the Warringah LEP as opposed to the Seniors Living State Environmental Planning Policy. 4 The Court has the benefit referred to from the parties of a judgment of Talbot J, in Mete v Warringah Council wherein his Honour states: "assuming there is no relevant inconsistency in respect of particular provisions in the two environmental planning instruments they now operate concurrently so that an applicant for a relevant development consent can elect to apply for consent pursuant to or under the provisions of the WLEP or the SEPP." 5 It is noted and the Court enquired further that the provision for the 1000 square metres provided for in the SEPP as a minimum size for an allotment of land for the erection of such housing is not relevant in that cl 38 refers to applications made pursuant to this chapter and cl 38(3) contains the 1000 square metres. However, in terms of an inconsistency with the relevant provisions this is not a matter for the Court as the application has been made pursuant to the Warringah LEP as opposed to the SEPP. 6 The area can be described as of a low-density residential area with single detached dwellings predominating with some of two-storey construction. The subject site at 54 Bennett Street is on the corner of Oliver Street, Curl Curl and it has significant frontages in terms of both streets. The size of the subject site is 804 square metres and the council has a number of controls or guidelines in terms of requirements for seniors living housing and also details in a schedule 16 to the LEP of the design requirements for such housing. 7 The Court has had the benefit of the Court-appointed expert, Mr Laurie Winnacott, who assessed the development application and the Court also made its own relevant enquiries. The development application was accompanied by an assessment in terms of accessibility by Mr Relf and the statement of environmental effects also details the proposal. 8 For the Court record I will state the Court conducted an on site hearing yesterday and following the on site hearing the Court requested consideration be given to design changes, in particular the setback to Bennett Street and the re-configuration of internal areas, in particular the bathroom to the upstairs dwelling two. 9 The Court also requested further additional information or supplementary overshadowing information to have regard to the level or the RL of the porch at the adjoining premises of No 146 and to show additional shadow diagrams. As such the Court has the benefit of the 9 o'clock winter shadow but now also requested the 10 and 11 winter shadow for that property as well. 10 When I returned to court yesterday afternoon I detailed for the Court record the objector to the proposed development that I heard from onsite. 11 I have given consideration to the concerns raised in the objections and also having heard from the objectors on site, as I stated, Mr Neville Machon and his wife of 146 Oliver Street, own the adjoining property to the south of the subject development and, in particular, by way of summary they raised concerns about overshadowing and also with respect to the height of the adjoining boundary fence on their side boundary in terms of visibility for cars egressing from their site, also in terms of the proposal for the tree plantings on the verge. 12 Mrs Wendy Berryman of 49 Bennett Street considered it was too bulky a structure. Mr Simon Thorne of 49 Bennett Street also considered it was a bulky structure and that the setbacks were not complied with, in particular in relation to the Bennett Street which he considered to be the primary frontage for the subject development. Mr Eric Bailey of 52 Bennett Street was concerned about setbacks and visual appearance of the proposed development. 13 Mrs Sheila Kerr of 51 Bennett Street, commented on parking and difficulties of the streets. Mr and Mrs McKee of 73 Bennett Street were concerned abut the bulky nature of the proposed development and Mr McGuiness of 57 Bennett Street, traffic and possibility of accidents and supported the others in their concerns and Mr Thorne also indicated that the design of the development in terms of the persons to occupy the finished development, it was not of good design and the proposal needs to consider the accessibility to facilities. Mr David Rust of 53 Bennett Street also reiterated or agreed with such comments. 14 It is also noted that there were over a hundred and fifty submissions made to the council against the proposed development and a number of 'pro forma' letters were also provided. The objectors stated that: the proposed development is out of character with the existing streetscape and it presents as one continuous bulky structure from Bennett Street; seriously encroaches the setbacks of both Oliver and Bennett Streets and Bennett Street is a primary street; does not comply with the Warringah LEP housing density or the landscaping provision; it does not comply with the Seniors Living Policy minimum land size; it does not comply with the floor space ratio; and the proposal is poor design for the intended users. 15 The Court has considered the proposal in the context of s 79C and the relevant provisions of the Warringah LEP. For the purposes of this judgment the statement of basic facts identifies the relevant clauses, in particular the clauses relating to the seniors living development and schedule 16 and cl 29 of the LEP and in particular the locality and character provisions of the LEP which I will state for the record: The Curl Curl locality F5 under the LEP refers to the desired future character. "The Curl Curl locality will remain characterised by detached style housing in landscaped settings interspersed by existing apartment style housing and a range of complementary and compatible uses. Future development will maintain the visual pattern and predominant scale of detached style housing in the locality. The streets are to be characterised by landscaped gardens and front building setbacks, which are consistent with surrounding developments. The exposed natural sandstone rock outcrops throughout the locality will be maintained. Development on prominent hillsides or hilltops must be designed to integrate with the landscape topography and long distance views of the hills. Unless exemptions are made to the housing density standard in this locality statement any subdivision of land is to be consistent with the predominant pattern, size and configuration of existing allotments in the locality. The locality will continue to be served by the existing local retail centres in the area." 16 The proposed development is a category 2 development under the Warringah LEP and as such a category 2 is permissible with consent provided the development is consistent with the desired future character that is required by cl 12(3)(b) of the proposal and in that regard it is important that compatible is considered in the light of the meaning to mean harmoniously co-exist and represents a fit in terms of the streetscape. 17 The other relevant clause is cl 19 of the LEP and cl 29 of the LEP requires a number of matters to be taken into consideration and cl 29 specifies the grounds on which applications for housing for older people or people with disabilities cannot be refused. In Mr Winnacott's assessment on p 11 of his report a compliance table is provided. 18 It is noted that the development complies with the 8 metre height limit, the floor space ratio which is a maximum floor space ratio is 0.5 to 1, the proposed development is approximately 0.48 to 1; the landscaped area requirement of 35 square metres per dwelling is more than satisfied with the provision of 100 square metres per dwelling; the parking of 0.5 spaces per bedroom is complied with in terms of the proposal providing for five spaces, the visitor parking is not applicable as that is for developments over eight dwelling; the landscaped areas requires 103 sq m and the proposal provides for 144 square metres and the private open space dimensions are more than satisfied as well. 19 The development in Mr Winnacott's assessment is worthy of approval subject to an amendment to increase the setback to one portion along Bennett Street. The setbacks to the proposed development to Oliver Street are 5.8 metres at the minimum. The development provides for articulation and variation in terms of the setbacks to the two street frontages and the building does not present as a continuous element but is punctuated by the differing roof line and treatment and also by the elements forward of the general setback of the development while other portions are setback further. 20 The proposed development is to provide for a minimum 3.5 m setback to Bennett Street and it has been demonstrated to the Court that a 3.5 m setback can readily be accommodated with minor amendments to the plans. An amended plan would be required to be approved by the council in that regard as part of the deferred commencement 21 With respect as to whether the issue of whether the Court considers Bennett Street to be the primary frontage as opposed to the secondary frontage was raised: In my overall assessment I am satisfied that the proposed development will not unreasonably impact on the streetscape to Bennett by having a setback minimum of 3.5 bearing in mind that various elements are set back 4 and a half metres from Bennett Street and together with the proposed landscaping opportunities it will provide an appropriate fit in terms of a housing development for people with disabilities and older people in the context of what is envisaged in the LEP. 22 The applicant has nominated the primary street frontage to be Oliver Street. Nonetheless there are still provisions in council's controls to ensure that development fits within a streetscape by providing a minimum setback of 3 and a half metres to the secondary street and I am satisfied that the proposed development can satisfy this requirement and will not be incompatible in the streetscape. 23 Corner sites present opportunities as well as constraints in that both boundaries to the street should provide a compatible presentation in the streetscape. I am satisfied the design of this particular development addresses both frontages such that it is appropriate for its location and context. 24 The proposed development in terms of the built form that in the Court's assessment would not overwhelm the area. It will be a more substantial form of development and larger than many of the dwelling houses within the area. However, in terms of its scale it will still represent a domestic scale in its built form despite the fact it is a development in terms of seniors living or people with a disability. 25 The development satisfies council's requirements in terms of the floor space ratio and in fact is less the floor space ratio maximum permitted in the zone. 26 The landscaping provision falls slightly short of council's numeric requirement in terms of the Curl Curl precinct, it providing for some 36 to 37 per cent of landscaped area as opposed to 40 per cent. However, in terms of the provisions of council's controls under cl 29 the proposed development is near compliance with the landscaped area calculated in accordance with that clause is some 39.9 per cent. I am however satisfied the objectives are inert. I am also satisfied that there is space for canopy trees to ameliorate the impact of the height of the development and to provide a landscaped setting which will not be out of character with the proposed area and street. 27 On question of the desired and future character I am satisfied the development is compatible and will be harmonious and is consistent with the desired future character, albeit being a development under the provisions for older people and people with a disability. It will not present as an institutional building or one that is out of character. It will present as an integrated residential development that is consistent with the provisions of council's controls. 28 The re-design or the amendment following yesterday's discussion of the upstairs bathroom area for dwelling two provides the opportunity for a separation of the two built elements at the upper storey and as such it provides for a view through to landscaping at the rear of the property or on the southern boundary of the property and that is considered to be an appropriate amendment. While the buildings remain as one at ground level a visual separation will be seen from the street especially in terms of reading the roof form of the development and the upper storey. 29 The design of the bathroom, as I stated, is one that can be accommodated by the change to allow for the greater separation but I am also satisfied the proposed development will meet the Australian standards in terms of bathroom facilities capable of accommodating the disabled and older persons as required by the LEP. 30 It is noted that the lift is to be contained such that it is approximately the height of the eave so that there is not an over-run as shown on the plans currently. A lift is necessary in terms of the design of the proposed development with two of the three dwellings on the first floor level with single level living. 31 The proposal has parking at grade with five vehicle accommodation accessed by a single electronically activated door and one dwelling on the ground floor and there are two dwellings on the upper floor, one contained within what is substantially seen as one building to Bennett Street and the other dwelling two which is on the corner of Bennett and Oliver Streets. 32 The pro forma letters, stated that the proposed development was not of good design. It is important to note that it is preferred that the housing for people with a disability and older people is contained on one level and this development provides single level living for all three units. The fact that the dwellings are all on one level is the important fact, whether that be at ground or an upper floor. And it is not uncommon for seniors living development, to be on elevated levels accessed by a lift, for example many are built in the style of apartment buildings with lifts that then provide access to single living for the residents of those dwellings. 33 The issue of landscaping: I am satisfied there is sufficient space for canopy trees to provide the appropriate setting for the development and provide trees that are of a commensurate size given the larger nature of this development to many of the single storey dwellings surrounding. The floor space ratio more than complies. The development is assessed in terms of being nominated under the Warringah LEP as opposed to the Seniors Living SEPP and is therefore a smaller development than often envisaged under seniors living which requires larger parcels of land but the LEP contemplates smaller developments as proposed. 34 I am also satisfied that the proposed development is not out of character or will not be out of character in the streetscape given the design changes proposed and given the landscape setting, I am also satisfied and agree with the Court-appointed expert that the articulation and modulation of the presentation to the streetscape will provide for a development that is not bulky in scale or dimensions and the visual separation of the roof forms and the passage between the buildings, albeit that there will be a lift and stairs within that area, will also make for a development that is not an unreasonable large or bulky form of development. 35 The applicant has agreed to submit a plan to reflect the design changes to be for council's approval as a 'deferred commencement'. Similarly, the landscape plan is to be amended to incorporate comments previously made, that is, the council is not desirous of having palm trees as shown on the landscape plan and, as discussed yesterday on site, it would be appropriate to provide for canopy trees on the council verge, eucalypts, given there is no impediment in terms of electricity lines which will also complement the built form of a two storey development on the corner. The plans are to be provided to the council and on satisfaction of those plans being submitted and approved by the council the consent will then operate. The materials and finishes are also to be provided with the amended architectural plans for council's approval. 36 Therefore on the basis of the Court's assessment I am satisfied that there is no reason why the Court should not agree to the consent orders as proposed by the parties and I consider that while some of the recent amendments may not go to fully satisfying the concerns of the local objectors and residents I consider that they will provide for a development that is satisfactory and not inconsistent with the character of the area. 37 I should make mention of the overshadowing issue which was one direct impact to the adjoining neighbours at 146 and the applicant today has provided the additional supplementary hours for the overshadowing mid-winter and this provides for the RL of the porch and also has regard to the design amendments to reduce the size of the bathroom for dwelling 2 to provide the visual separation and this has also assisted in improving the solar access to the porch area of No 146 I am now satisfied in terms of the shadow diagrams now before me that while at 9 am part of the porch will be overshadowed by 9.30 the porch will be largely free of overshadowing and certainly it is in sunlight from 10 am. As such I am satisfied the amended proposal satisfies council's requirements and solar access to the adjoining is reasonably maintained. 38 The council's control is that there be solar access not reduced to less than two hours, which is a minimalist requirement. However, the proposed development will provide for much greater solar access to the property at No 146 having regard to solar access in the rear of that property as well as the solar access for the front of the property facing east and the porch. 39 There were concerns raised about an easement over the front of the allotment and with the presentation of the terms of that easement I am satisfied that it is not an impediment to the proposed development. Similarly with respect to any other pipes and services I am satisfied there is no reason as to why the consent orders should not be entered into. 40 Accordingly on the basis of my assessment, there is no reason why the Court should not enter into the consent orders. (I will await by Monday afternoon the conditions agreed to between the parties and then I will be in a position to formally issue orders in chambers.) 41 The formal orders of the Court will be: (1) The appeal in respect of the property known as 54 Bennett Street, Curl Curl is upheld by consent. (2) The development application in respect of the above property as shown in the development application submitted to Warringah Council and as amended is approved subject to a deferred commencement consent and the other conditions contained in Annexure A. (3) The exhibits are returned with the exception of 6, B, C, K and L. ___________________ J S Murrell Commissioner of the Court ljr 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.