Land and Environment Court of New South Wales CITATION : Mosca Pserras Partnership Pty Ltd v Liverpool City Council [2005] NSWLEC 441 APPLICANT Mosca Pserras Partnership Pty Ltd PARTIES : RESPONDENT Liverpool City Council FILE NUMBER(S) : 11480 of 2004 CORAM: Bly C KEY ISSUES: Development Application :- Mixed-use development - residential/commercial and shops - character and amenity of residential area - urban design Liverpool Local Environmental Plan 1997 LEGISLATION CITED: State Environmental Planning Policy No. 65 DATES OF HEARING: 15, 16/08/2005 DATE OF JUDGMENT: 08/24/2005 APPLICANT Mr P Clay, barrister Instructed by: Ms J Hewitt, solicitor of Home Wilkinson Lowry LEGAL REPRESENTATIVES: RESPONDENT Mr D Baird, solicitor SOLICITORS Maddocks JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 24 August 2005 11480 of 2004 Mosca Pserras Partnership Pty Ltd v Liverpool City Council JUDGMENT 1 This appeal relates to Development Application No. 1561/03, which is for a mixed-use development in six buildings plus a basement carpark, comprising residential, commercial and shops on land at the corner of Barry Road and Ernest Avenue, Chipping Norton. The proposal 2 In particular, and in accordance with the revised plans Exhibit D (that changed and reduced in size the fourth floor arrangement of Building F) the development comprises 55 dwellings and 757 sq m of retail/commercial floor space in 8 tenancies as follows: o Building A – 9 x 3 bedroom terrace style dwellings in a part two and part three-storey building. o Building B – 6 x 3 bedroom terrace style dwellings in a two-storey building. o Building C – 6 x 3 bedroom terrace style dwellings in a two-storey building. o Building D – 8 x 2 bedroom dwellings plus retail/commercial floor space at ground floor level in a three-storey building. o Building E – 12 x 2 bedroom dwellings in a three-storey building. o Building F – 12 x 2 and 2 x 3 bedroom dwellings plus retail/commercial floor space at ground floor level in a four-storey building. 3 In addition, the existing local shopping centre comprising retail and commercial development on the site is to be demolished. The site and the locality 4 The site is irregular in shape having a total area of 9,707 sq m and is relatively flat with a depression at the rear. It is designated as an area subject to flooding on a 1 in 100 basis. The topography of the site and the locality generally is significantly "man made" the area having been the subject of sand mining in the past. It has principal frontages to Ernest Avenue and Barry Road with a secondary frontage to Yachtsman's Drive. 5 The locality in which the site is situated is predominantly of a residential nature forming part of the Chipping Norton Lakes suburb, which was developed some 15 years ago. Surrounding residential development to the west, north and east mainly comprises detached one and two-storey dwelling houses. Further to the north there are two and three-storey residential flat buildings and town houses. Adjoining the site to the south is a substantial area of industrial land developed for various industrial purposes including some heavy industry. Statutory provisions 6 The site is zoned 3(a) Business under Liverpool Local Environmental Plan 1997 ("the LEP") in which zone the proposed land uses are permissible with development consent. Surrounding lands to the south-west, north and east are zoned 2(a) Residential with lands further to the north and north-west zoned 2(c) Residential Flat Buildings. Lands to the south and south-east are zoned 4(a) Industrial. 7 The relevant objectives in cl 46 of the LEP that are applicable to the 3(a) zone, comprise: (a) … (b) To provide sufficient land in centres conveniently located in relation to residential areas for retailing, business, community and entertainment facilities. (c) … (d) To promote a high standard of urban design. 8 Clause 47 of the LEP relevantly requires that: Consent may be granted for a building on land within the 3(a) zone only if it would be compatible with the character and amenity of the existing and likely future nearby residential areas in terms of: (a) its scale, bulk, design, height, siting and landscaping. 9 More generally, cl 14 of the LEP provides that: Before determining an application for consent to the erection of the building or work on land, the council must consider the character, location, siting, bulk, scale, shape, size, height, design and probable aesthetic appearance of the building or work when viewed from any waterway, road, railway, public reserve or lands zoned for open space. 10 There are no floor space ratio, height or other numeric provisions contained in the LEP. Public notification 11 The application in its original and amended forms was publicly notified on two occasions resulting in about 120 objections being forwarded to the council. Matters of concern raised in these objections relate to vehicular traffic and carparking; noise, overshadowing and loss of privacy; inadequacy of existing infrastructure; inadequate garbage and waste disposal facilities; reduced values of properties in the locality; absence of communal open space; excessive bulk and scale of the buildings; and loss of local shops and services. Council's decision 12 Council's Independent Hearing and Assessment Panel on 28 October 2004 considered a council officer's (Mr A Coburn) report that recommended approval of an earlier version of the proposal and heard from a number of resident objectors. The panel decided that the application should be refused for reasons relating to the objectives of the 3(a) zone; the streetscape and character of the locality; carparking and loading dock provision; and the public interest. 13 Whilst the council administrator acknowledged that from a town planning point of view, the application was approvable she accepted the panel's recommendations and the application was refused for reasons relating to: streetscape and visual amenity; the objectives of the 3(a) zone; carparking for the commercial floor space; the development's relationship with adjoining residential land; overdevelopment of the site; and the public interest. Expert evidence 14 Expert traffic, town planning and urban design evidence (including individual and joint reports, comments given on site and concurrent evidence in Court) was given by: * Mr G Shiels (Court-appointed expert). * Mr D Crane (respondent's expert). * Mr M Harrison (applicant's expert). Residents' concerns 15 Whilst on site and in Court I heard at length, evidence from residents of Chipping Norton. In summary their concerns are as follows: o The proposal involves the demolition/removal of shops and services that are important for the local community. Some residents purchased their nearby houses recognising the value of the shops, believing that they would be retained. The replacement shops and services will be insufficient and the provision of carparking will be inadequate and inappropriately located. Public transport to alternative shopping facilities is inadequate. o The additional traffic generated by the proposal will worsen the existing peak time traffic congestion, which includes numerous heavy vehicles, in the locality. Existing roads are inadequate and poorly maintained. The additional traffic will also result in a reduced level of pedestrian safety especially for children. Vehicular access into and out of the site is inadequate and vehicular manoeuvrability within the site is in some instances unworkable, especially for fire fighting vehicles, garbage trucks and trucks servicing the shops and commercial facilities proposed. o The on-site provision of carparking is inadequate and inconvenient to access and this will result in increased parking in the surrounding streets. At times the local streets are incapable of accommodating additional parking demands. o Existing infrastructure including electricity, water and sewerage will be unable to cope with the additional dwellings proposed on the site. Particular concern was expressed that there may be inadequate water supply for fire fighting purposes. o The proposed buildings are too high, resulting in extensive overlooking of surrounding existing residential development and would also overshadow a number of adjoining dwelling houses. In one instance potential overshadowing would be upon the location of a proposed backyard swimming pool. o The proposed buildings would be too large for the locality especially taking into account the elevated nature of the site. These inappropriate buildings will adversely affect the local streetscape considering that surrounding development is predominantly one and two-storey houses. o The proposed dwellings would be likely to be for rental purposes and this could result in an increase in criminal activity in the area. Also property values are likely to decline as a result of the proposal. o Increased densities of residential development will worsen the existing air pollution problems. o The arrangements for disabled people to access the shops and services are ineffective. o On-site garbage facilities are inappropriately located. The issues 16 The statement of issues of 20 June 2005 identifies eight separate issues. As a result of changes to the proposal and agreed conditions of consent these issues devolved to the single issue involving the urban design aspects of Building F in the context of cl 47 of the LEP. 17 Whilst no expert evidence other than Mr Coburn's report, was provided in relation to these matters, the respondent invited the Court to take into account the various concerns of the residents. In this regard I have taken into account the above mentioned objections and find that, leaving aside the urban design issue, these concerns are not such as to warrant refusal of the application. 18 A number of these matters have been or are to be resolved by changes to the proposal and conditions of consent. These include matters of: disability access; vehicular access and manoeuvring; garbage storage facilities; and privacy and overshadowing. A number of other concerns nevertheless warrant some comment. 19 Concerns regarding loss of shops should be substantially mitigated by the agreed condition that 50% of the commercial/retail area be set aside for shops. The provision of commercial/retail floorspace in this development would appear to be in reasonable compliance with objective (a) of the 3(a) zone. More generally, it cannot be expected that owners of land cannot seek to redevelop their land in accordance with applicable planning controls. 20 As for carparking impacts I am satisfied that the on-site carparking provision will meet the needs of this development, complying as it does with council's requirements. It is inevitable that traffic congestion in the locality will be increased as a result of this development, however, I do not accept that this will be increased to such a degree as cause the application to fail. In this context I note that council's traffic engineers have reviewed the proposal and conclude that on traffic grounds it is supportable. 21 I have considered the concerns involving overlooking and overshadowing of neighbouring properties. I have particularly considered the impacts on the adjoining property at No. 52 Yachtsmen Drive. In this context Mr Shiels explained that given the provision of fencing, privacy screens and distances of separation, overlooking was not a matter of concern. As for overshadowing he recognised that there would be a considerable amount of additional overshadowing at 3 p.m. at the winter solstice but that for the majority of the day much of the rear yard of this property would have good solar access. Again this is not an issue sufficient to cause the application to fail. Urban design 22 In his report dealing with the amended proposal (which is otherwise identical to the further amended proposal that reduced the size of the topmost floor of Building F), Mr Shiels acknowledged the architectural and other improvements to the design. In relation to Building F he concluded as follows: While I am of the view that this corner can make an appropriate urban design statement and is the most suited location for a higher building, I have difficulty in reconciling the proposed four-storey structure in light of cl 47 of the Liverpool LEP 1997. 23 When asked about the amended proposal he agreed, leaving aside cl 47 of the LEP, that in urban design terms the proposal would be satisfactory. Moreover the proposal, particularly taking into account the four-storey Building F would represent a better design by comparison with a design which would see Buildings D, E and F each being three-storeys in height. Mr Harrison agreed, emphasising the appropriateness of allowing corner buildings to rise one or two-storeys higher than the surrounding height limit, which in this case is 7.2 m, or two-storeys. 24 Mr Crane disagreed, explaining that three, three-storey buildings would produce a satisfactory urban design outcome because the three buildings are each of good design taking into account the quality of their architecture resulting from built form, articulation and design detail. He nevertheless agreed with Mr Harrison that it is normal practice to provide additional height to a prominent corner to visually reinforce the importance of the street corner and entry location. 25 In this regard and leaving aside cl 47 for the moment, I agree with what Mr Harrison and Mr Shiels have said. Whilst I accept that three, three-storey buildings in the architectural style proposed on the Barry Road and Ernest Avenue corner of the site would represent a reasonable urban design outcome this would not be as good an outcome as would result from the design now proposed. This is because proposed Building F by being one storey taller places greater emphasis on the corner itself. Indeed the top floor of Building F by being stepped in from the floors below will provide greater articulation and interest. 26 Taking also into account the proposed landscape setting and the manner in which the development steps down within the site to the two-storey terrace houses that the adjoin the residential area this produces an entirely acceptable outcome. Whilst proposed Buildings D and F are taller and bulkier than the dwelling houses opposite in Ernest Avenue I accept what Mr Harrison said that the built form relationship across Ernest Avenue, is appropriate especially given the separation afforded by the street and taking into account the different zones. I similarly have no difficulty with the relationship across Ernest Avenue to the industrial buildings and the residentially zoned de facto open space lands. 27 In the circumstances I accept that the requirements of cl 14 of the LEP is met and that the proposal represents a high standard of urban design and thus meets objective (d) of the 3(a) zone. It would similarly meet the good design principles as contained in State Environmental Planning Policy No. 65. 28 However cl 47 of the LEP places these considerations into a somewhat different context. It relevantly prevents consent from being granted for development that would not be compatible with the character and amenity of existing and future nearby residential areas taking into account scale, bulk, design, height, siting and landscaping. Clause 47 does not refer to industrial lands and the character and amenity of those industrial lands opposite are not relevant in this particular context. 29 What then is the character and amenity of the existing and future nearby residential areas? In my view the use of the word "nearby" relevantly means that existing and likely future development in the residential areas beyond any adjoining properties can be taken into account even though there is no direct visual relationship. This must still be subject to the proviso that those properties can be reasonably described as being nearby. In this instance I am satisfied that much of the locality shown in Mr Shiels' Fig. 1 in his report can be so described, being within a relatively short distance of the site. 30 However, by referring to development surrounding the site as comprising one and two-storey dwellings and an industrial/business park, Mr Shiels did not apply an interpretation quite as expansive as I do. Mr Crane took a similar approach to that of Mr Shiels excluding (what I describe as) the nearby 2(c) zone because it is not in the immediate visual context of the site. Mr Harrison took a wider view, by including these lands, and I believe his approach to be correct. 31 For the purposes of cl 47 I have included the residential areas as far away as Homestead Avenue to the north and Central Avenue to the west as being relevantly nearby to the site. The development in these areas comprises not only one and two-storey detached dwellings and town houses but also three-storey (with elevated basements) residential flat buildings. Whilst the larger residential flat buildings are probably at the limit of what is nearby they should nevertheless be included in the consideration. 32 As for the likely future character and amenity of the relevant nearby residential areas, I accept that in the reasonably foreseeable future this is likely to remain largely unchanged. I have assumed that the residentially zoned open space opposite the site is not likely to be developed for residential purposes at least in the near future. In other words the existing character and amenity is that which is relevant for the purposes of cl 47. 33 In dealing with cl 47 Mr Shiels believed that the relevant character and amenity comprises one and two-storey buildings and that whilst a three-storey building would satisfy the design criteria a four-storey building would not. This is because a step up from two-storeys to three-storeys was reasonable whereas a step up from two-storeys to four-storeys involved a quantum jump resulting in an incompatibility especially in regard to the relationship across Ernest Street. Mr Crane expressed similar views, emphasising that the proposed Building F was effectively a four and half storey building positioned as it is on a podium approaching 2 m in height. 34 Having concluded that the relevant locality includes buildings higher than two storeys Mr Harrison had no difficulty in supporting Building F with its four storeys above a landscaped podium. He also disagreed with Mr Crane and Mr Shiels regarding the relationship with the adjoining two-storey buildings contending that a two-storey step up was not excessive. 35 Clearly this proposal will be different in character and amenity to that of its immediate neighbours. It will involve larger buildings with a different architectural style, but in my opinion these differences do not lead to any determinative incompatibility. There was little concern expressed by the experts (although some residents disagreed) as to the different architectural style, the concerns mainly focussing on the height of Building F. However, in my view these differences do not mean that the proposal would not be compatible as required by cl 47. Also, unlike the residential zones, the fact that the LEP does not impose any height standard at all for the 3(a) zone cannot be disregarded in deciding the compatibility question. 36 There were no concerns expressed by the experts that Building F was inappropriately sited, had inadequate setbacks or was not provided with an appropriate landscaped setting and I have no disagreement with this. 37 In these circumstances and accepting the approach taken by Mr Harrison, I have decided that the proposal would, for the purposes of cl 47 of the LEP, be compatible with the character and amenity of the existing and likely future nearby residential areas. Having also concluded that the proposal has achieved a high standard of urban design I have decided that the appeal should be upheld and conditional development consent granted. 38 The without prejudice conditions of consent tendered by the respondent were accepted by the applicant and these are to be incorporated into the development consent. Orders 39 The orders of the Court are: 1. The appeal is upheld. 2. Development Application No. 1561/03, for a mixed-use residential and commercial/retail development comprising six buildings plus basement carparking on land comprising Lot 111 DP 857984 at the corner of Barry Road and Ernest Avenue, Chipping Norton, is determined by the granting of development consent subject to the conditions in Annexure A hereto. 3. Exhibits A and D are retained. ___________________ T A Bly Commissioner of the Court rjs DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.