> Land and Environment Court of New South Wales CITATION : GPC No 5 (Wombarra) Pty Ltd v Wollongong City Council [2003] NSWLEC 268 Applicant: GPC No 5 (Wombarra) Pty Ltd PARTIES : Respondent: Wollongong City Council FILE NUMBER(S) : 11038 of 2002 CORAM: Roseth SC Development Application :- Streetscape KEY ISSUES: Impact on neighbour Internal amenity LEGISLATION CITED: Environmental Planning and Assessment Act 1979 State Environmental Planning Policy 5 CASES CITED: DATES OF HEARING: 3, 4 and 5 November 2003 DATE OF JUDGMENT: 11/10/2003 Applicant: Mr A Pickles, barrister instructed by Simpson Freed LEGAL REPRESENTATIVES: Respondent: Mr C McEwen, barrister instructed by Peedoms JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Appeal No 11038 of 2002 Roseth SC 10 November 2003 GPC No 5 (Wombarra) Pty Ltd Applicant v Wollongong City Council Respondent Judgment Introduction 1 This is an appeal against the refusal by Wollongong City Council (the council) of a development application to erect housing for older people and people with disability in three two-to-three storey buildings containing eleven dwellings on lot 1 DP 350159, known as 575 Lawrence Hargrave Drive, Wombarra. The site 2 The site is on the east side of Lawrence Hargrave Drive, about 60m south of Reef Street. To the north it abuts a two-storey house. To the east is a community centre used for childcare. To the south is the Scarborough/Wombarra Cemetery, separated from the site by the Menarko Creek. There are bus stops on both sides of Lawrence Hargrave Drive nearby. 3 The site has an area of 2,150m2, and a fall from the northwest to southeast of about 10m. There are views of the Pacific Ocean to the east. Along the western and northern boundaries there is a substantial row of established vegetation that now effectively screens the site. 4 The prevailing pattern of development in Wombarra is small single-storey houses on large allotments, though there is a scattering of two-storey larger buildings. Relevant planning instruments 5 The application is made under State Environmental Planning Policy 5 – Housing for Older People and People with a Disability (SEPP 5). That instrument permits medium density housing on the site despite the fact that it is zoned Residential 2(a), which is a zone that permits only detached houses. The applicant lodged an Objection under State Environmental Policy 1 - Development Standards (SEPP 1) to the two-storey development standard in SEPP 5. The proposal and its history 6 The applicant proposes to erect a housing development containing eleven dwellings above partially underground parking for 14 cars. The dwellings are in three buildings, referred to as Buildings A, B and C, though the footprint of the parking area extends under both A and B. Building A has two residential floors over parking that is more than 1m above ground; hence, according to the definitions in SEPP 5, it is a three-storey building. The location and size of the parking floor necessitates the removal of most of the existing vegetation along the western and southern boundaries. The development has a variety of roof forms: parapets, gables and skillion roofs. 7 The applicant lodged the application in 2002 for a development comprising 13 dwellings on the basis of a site area that proved to be incorrect. Following refusal, the applicant lodged an appeal that was set down for hearing in May 2003. The dates were vacated when the applicant became aware of the wrong site area, in order it to produce a revised proposal. The issues 8 The council lodged its Statement of Issues containing 16 issues. However, at the beginning of the hearing the council's advocate, Mr C McEwen, reduced the issues to three, ie: o Whether the proposal's relationship to the streetscape and surroundings is acceptable; o Whether the impact on the privacy of the neighbour to the north was acceptable; o Whether the internal amenity (in particular privacy and solar access) was acceptable. 9 During the hearing it became apparent that the drawings of the proposal were internally inconsistent, did not adequately describe the proposal and the buildings could not be constructed as shown. The Court cannot approve drawings that lack certainty. If this proposal were otherwise acceptable, I would provide the applicant with the opportunity to prepare new drawings that reach the level of professional competence. The proposal in the streetscape 10 Clause 25 of SEPP 5 deals with the design of proposals. Clause 25(a) relates to neighbourhood amenity and streetscape. Subclause (i) requires that proposals should contribute to an attractive residential environment with clear character and identity. Subclause (v) requires that, where possible, proposals maintain reasonable neighbour amenity and appropriate residential character by adopting building heights at the street frontage that are compatible with adjacent development. Clause 13(2)(b) restricts buildings to two storeys. 11 The council's planning expert was Mr A Lester, an architect and planner. In his opinion, the proposal did not fit into the character of the locality and streetscape. He agreed that development under SEPP 5 was necessarily of higher intensity than single dwellings; however, he claimed that a well-designed medium-density proposal, when viewed from the street or other public places, would appear compatible with the surroundings. 12 Mr Lester had four specific criticisms. First, the insensitive location of the carpark required the removal of most of the existing vegetation. Second, Building A (the building closest to the street) was three storeys. Third, the width of Building A was twice that of the adjacent building (and other buildings in the street). Fourth, the variety of roof shapes bore no relationship to the roofs in the area. 13 The applicant's planning expert, Mr J Lovell, a planning consultant, took issue. It would be difficult to locate the carpark elsewhere. It was inevitable that a proposal under SEPP 5 would appear denser than the low-density development around. While the front building was wide, so was the site, having a width three times that of its neighbour. 14 The issue of compatibility between a SEPP 5 development and the surroundings low-density zones arises in the majority of SEPP 5 applications. This is because the Policy allows development with different physical characteristics to what is permissible under the zoning. It is therefore useful to state some planning principles for assessing compatibility. 15 The first principle is that buildings in a SEPP 5 development do not have to be single-storey to be compatible with the streetscape even where most existing buildings are single-storey. The principle does not apply to conservation areas where single-storey dwellings are likely to be the major reason for conservation. 16 The second principle is that where the size of a SEPP 5 development is much greater than the other buildings in the street, it should be visually broken up so that it does not appear as one building. Sections of a building, or separate buildings should be separated by generous breaks and landscaping. 17 The third principle is that where a site has existing characteristics that assist in reducing the visual dominance of development, these characteristics should be preserved. Topography that makes development appear smaller should not be modified. It is preferable to preserve existing vegetation around a site's edges to destroying it and planting new vegetation. 18 The fourth principle is that a SEPP 5 development should aim to reflect the materials and building forms of other buildings in the street. This is not to say that new materials and forms can never be introduced, only that their introduction should be done with care and sensitivity. 19 Applying the above principles to this appeal, it is clear that the proposal is inconsistent with three of the four principles. The width of the front building is twice that of most houses in the street. The fact that the site itself is wide is no justification for not breaking up the building, or placing a significant visual break in the middle. The site has a healthy band of vegetation along the west and south boundaries. If that vegetation were preserved, the proposal's dominance would be significantly reduced. The proposal involves the destruction of most of the existing vegetation and its replacement by new planting that, in the best of cases, would take many years to be established. The proposal includes a variety of roof forms, such as parapets, gables and skillion roofs. Most of the buildings around have hipped or gabled roofs. 20 In my opinion, the proposal does not contribute to an attractive residential environment with clear character and identity. It emphasises its bulk rather than conceals it. It does not meet cl 25(a)(i) of SEPP 5. 21 In order to vary the two-storey requirement of SEPP 5, the applicant lodged an Objection under SEPP 1 to the development standard. Mr Lester did not think that the Objection was well founded. In view of the above finding it is not necessary for me to determine this question. In any case it cannot be considered in isolation from other aspects of the proposal. I do not think that the three-storey nature of Building A, by itself, makes the proposal unacceptable. If building A appeared like two smaller buildings, or if the existing vegetation on the site were retained, three storeys would probably be acceptable. With the present proposal, however, the three storeys add further to the unacceptable visual bulk. Impact on neighbour to the north 22 The property adjoining the site to the north is 573 Lawrence Hargrave Drive and the home of Mr B Cultin. With the agreement of the parties Mr Cultin gave evidence on site. His main concerns were being overlooked from the site and the noise of cars on the driveway next to his property. 23 The proposal includes several terraces and balconies looking towards No 573. The applicant proposes to erect louvred screens to provide privacy to Mr Cultin's rear yard. Mr Lester agreed that the issue could be resolved by screens; however, the applicant has not provided enough details of the screens to resolve the matter. 24 During the hearing the applicant provided a drawing detailing a typical screen. While the screen may fit some of the balconies, it does not fit others. There was no indication on the plans where the screens would be located. To the extent that the elevations showed screens, they were inconsistent with any position they might have on plans. I accept Mr Lester's evidence that the issue is not resolved. In my opinion, the impact on the privacy of No 373, particularly its rear yard, is unacceptable. Internal privacy 25 Clause 25(b)(i) of SEPP 5 requires that a development should, where possible, consider the visual and acoustic privacy of neighbours in the vicinity and residents by appropriate site planning, the location and design of windows and balconies, the use of screening devices and landscaping. 26 Buildings A and B are located on top of the carpark slab. The slab is bigger than the buildings, and the remaining areas are used either as terraces or as landscaped planters. The planters are divided by walls (of unspecified height) into sections, for reasons that were not apparent from the evidence. In some cases the terraces of different dwellings are within 3m of each other. 27 According to Mr Lester, the separation between habitable rooms of the dwellings in Buildings A and B was insufficient to achieve an acceptable level of privacy. He identified over 20 relationships where overlooking would occur. Mr Lovell pointed out that the privacy issue was resolved by highlight windows and landscaping. He agreed, however, that without landscaping there was a privacy problem between the dwellings. 28 I note that SEPP 5 includes the use of screening devices and balconies among the methods to achieve privacy. However, this does not justify poor site planning and architectural design that allow overlooking and then fixing the problem with screens and landscaping. It is an accepted planning principle that site layout and building design should minimise the opportunities for overlooking between dwellings. Screens and landscaping may be used where overlooking cannot otherwise be avoided, but they should not be the primary means of achieving privacy. 29 In my opinion, the proposal is not only inconsistent with, but also antipathetic to the above principle. Its design maximises the opportunity for overlooking by placing terraces within short distances of each other. Privacy is entirely dependent on the successful growth of vegetation in large planter boxes on top of a concrete slab. The application does not indicate how access for maintaining the landscaped planters would be achieved, nor who would have the responsibility for maintenance. 30 In my opinion the internal privacy of the proposal is unacceptable. The proposal does not meet cl 25(b)(i). Access to sunlight 31 Clause 25(c) requires that a development should ensure adequate daylight to the main living areas of neighbours in the vicinity and residents and adequate sunlight to substantial areas of private open space; and involve site planning, dwelling design and landscaping that reduces energy use and makes the best practicable use of natural ventilation, solar heating and lighting by locating the windows of living and dining areas in a northerly direction. While the Policy does not contain any criteria by which the performance of a proposal can be evaluated, it refers to the Australian Model Code for Residential Development (AMCORD). There are numerous other guidelines for evaluating solar performance. In general, such guidelines require that a portion of the living room windows receive a minimum of three hours sunlight at mid-winter. The experts agreed that this was a reasonable criterion, though they disagreed about the proportion of dwellings that should achieve this. 32 It is common ground that two of the eleven dwellings receive less than one hour sunlight, two receive two-and-a-half hours, while the remaining seven receive more than three hours. According to Mr Lester (as well as a publication by the former Department of Urban Affairs and Planning, Better Urban Living), about 70% of dwellings should achieve three hours or more. Mr Lovell said that a lesser performance is acceptable. He pointed to the fact that two of the dwellings achieved almost three hours. 33 In my opinion, it is not appropriate to establish a percentage for dwellings that comply with the three-hour criterion. On certain sites (for example those on south-facing slopes, or those overshadowed by adjoining tall buildings) achieving three hours of sunlight in mid-winter is impossible. This site, however, has no constraints with respect to solar access. It is large, its long axis is north-south and there are no buildings overshadowing it. Good design could achieve a very high level of solar access. In the circumstances of this site, the solar performance of the proposal is poor. Access to facilities and landscaped area 34 The council and applicant's access consultants have met and agreed that the proposal complies with the requirements of SEPP 5. I note that the internal access ways do not indicate any RLs, so I can only assume that the experts have agreed that the proposal is capable of providing grades negotiable by a wheelchair, not that it actually provides such grades. 35 As concerns access to facilities and services outside the site, the applicant has agreed to construct a footpath and pedestrian refuge to bus stops on either side of Lawrence Hargrave Drive. This means that wheelchair-bound residents will be able to get to the bus stop, though not on the bus, since the buses are not accessible to wheelchairs. The bus service runs mainly during peak hours and does not run on Sundays. In my opinion, this kind of access is unsatisfactory. However, I am aware that it satisfies the requirements of SEPP 5, and therefore access is not a reason for refusal. 36 Clause 14(f) states that a proposal cannot be refused on the grounds of landscaped area, if it provides an area of deep landscaping with the minimum dimensions of the width of the site multiplied by 15% of its depth. In this case the clause would require an area 30m by 10m. The proposal does not provide an area of deep landscaping remotely like that required. I note that the council did not raise this as an issue, and therefore it would be unfair to the applicant if the Court took it into account. Conclusion 37 The proposal does not meet the necessary design performance required by cl 25 of SEPP 5. It does not contribute to a residential environment with clear character and identity. It has an unacceptable impact on the privacy of the rear yard of its neighbour to the north. Its internal amenity is poor due to numerous opportunities for one dwelling to overlook another. Finally, its performance with regard to solar access is unacceptable. For these reasons the appeal is dismissed. Orders 1. The appeal is dismissed. 2. Development application to erect housing for older people and people with disability in three two-to-three storey buildings containing eleven dwellings on lot 1 DP 350159, known as 575 Lawrence Hargrave Drive, Wombarra is determined by refusal. 3. The exhibits are returned. __________________ Dr John Roseth Senior Commissioner 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. 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