Land and Environment Court of New South Wales CITATION : Architecture & Building Works v Sutherland Shire Council [2004] NSWLEC 4 APPLICANT Architecture & Building Works PARTIES : RESPONDENT Sutherland Shire Council . FILE NUMBER(S) : 10857 of 2003 CORAM: Hussey C Development Application :- Townhouse development - overdevelopment KEY ISSUES: SEPP1 objections to FSR and landscape area Drainage . Environmental Planning and Assessment Act 1979 LEGISLATION CITED: State Environmental Planning Policy 1 Sutherland Local Environment Plan CASES CITED: DATES OF HEARING: 26 and 27 November and 17 December 2003 DATE OF JUDGMENT: 01/05/2004 APPLICANT Mr P Clay, barrister SOLICITORS McKees Legal Solutions LEGAL REPRESENTATIVES: RESPONDENT Mr S Griffith, solicitor SOLICITORS Pike Pike and Fenwick JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10857 of 2003 Hussey C 5 January 2004 Architecture and Building Works Applicant v Sutherland Shire Council Respondent Judgment Background 1 This appeal is against council's deemed refusal of the development application for a townhouse development, comprising 13 x 3 bedroom units, with basement carparking for 23 vehicles. The property is located at No. 21 - 25 High Street, Carringbah. 2 Several issues were identified for the appeal, and the applicant responded to these with some amendments. Consequently the outstanding issues concern; - Overdevelopment of the site, - impact on neighbours, - drainage, - public interest. The Site 3 The subject site is located on the western side of High Street and is described as Lots 94, 95, 96 in DP 7543. 4 The consolidated lots have a 45.72 m frontage to High Street and the total site area of 1835 m2. The site slopes from east to west with a slight cross fall from south to north. 5 There is a single storey fibro cottage on No. 21 and a single-storey brick dwelling with detached garage on No. 23. Number 25 also contains a single-storey fibro dwelling. The surrounding area is generally residential, comprising a mix of older single-storey dwellings, together with newer townhouses and three-storey residential flat buildings. The proposal 6 This proposal is for: - Demolition of the three existing dwellings and out buildings at Nos. 21 - 25 High Street, Caringbah; - Construction of 13 townhouses, each containing three bedrooms; - Consolidation of the three existing lots and subsequent strata subdivision. 7 The dwellings are contained in two buildings running east-west through the site. The size of the dwellings varies from 99.2 m2 to 100 m2. 8 The northern building contains units B.01 to B.07, with the pedestrian entrance door to all units from an internal access path located in the central portion of the site. The southern wing contains units A.01 to A.07. 9 Parking for 23 vehicles is contained within the basement. Three spaces are nominated disabled. 10 Two garbage storage areas are located within the street setback of the building, adjacent to the pedestrian access paths. Planning controls. Sutherland LEP 2000 11 Under this instrument, the site is in the 2(b) Residential zone. This allows medium density development and accordingly the proposal is permissible with consent. 12 Clause 30 contains the following special considerations: 30 Special considerations in the residential zones When assessing the impact of residential land uses proposed in the residential zones by development applications and whether those uses satisfy the objectives of the zone concerned, the consent authority must take into consideration the following matters and must not grant consent unless it is satisfied that those matters have been adequately addressed by relevant documentation submitted to it: (a) the impact that the proposed development may have on adjoining development, buildings and open space from loss of sunlight, views of privacy, (b) the effect of the proposed development on the quality of the streetscape, (c) the cumulative impact of successive development on the general character the neighbourhood, (d) the impact of the proposed development on adjoining properties in terms and size, bulk, height and amount of landscaped area, (e) the retention and enhancement of existing vegetation, (f) any adverse impact on the natural and built environment, (g) the location of the proposed development in relation to potential risks, including flooding, bushfire and other hazards, (h) the impact that the proposed development may have on any public area or water body from loss of sunlight, views and visual amenity. 13 Clause 33 lists the following objectives of the 2(b) zone: A medium density environment: (a) that provides a graduation between high and low density residential areas, and (b) with co-ordinated, efficient and economical development of villas and townhouses to ensure high quality desired outcomes, and (c) where non-residential uses provide necessary services to the local neighbourhood without adversely affecting the residential amenity . 14 Clause 35 sets the following objectives for floor space ratios (FSR): (a) to provide a degree of consistency for existing residents as to the size and bulk of potential buildings in the neighbourhood, (b) to allow buildings of sufficient scale to satisfy the needs of residents while preventing development of sites beyond community expectations and the environmental capacity of the zone. 15 Clause 35(2) sets a maximum FSR of 0.7: 1 for buildings within the 2(b) Residential zone. 16 Clause 36 sets out the following objectives for landscaped area requirements: (a) to ensure opportunities for tree retention and tree planting to preserve and enhance the tree canopy of Sutherland Shire, and (b) to ensure that unbuilt upon areas balance the built form, and (c) to contain urban run-off flows by minimising the impervious areas on residential development sites. 17 This clause sets a minimum landscaped area acquired of 40% for the subject development. Draft Sutherland Shire LEP 2003 18 This was placed on public exhibition from 18 February to 30 April 2003 and is a consolidating plan that if approved, would repeal Sutherland Shire LEP 2000. The draft LEP proposes significant changes to zone descriptions and adopts in part a localities based approach to land use planning. 19 Under this draft instrument, the subject side is proposed to be zoned "Multi Dwelling A Zone". Within this zone, development for the purpose of townhouses is permissible. SEPP 65 - Design Quality of Residential Flat Buildings. 20 This SEPP 65 applies to residential flat buildings that comprise or include: (a) 3 or more storeys (not including levels below ground level provided for car parking or storage, or both, that protrude less than 1.2 m above the ground level), and (b) 4 or more self-contained dwellings (whether or not the building includes uses for other purposes, such as shops), but does not include a Class 1 a building or a Class 1 b. building under the Building Code of Australia. 21 The aim of SEPP 65 is: "… to improve the design quality of Residential flat development in New South Wales." 22 Of some relevance in this matter are the following aims: (b) to achieve better built form and aesthetics of buildings and of the streetscapes and the public places they define, and (d) to maximise amenity, safety and security for the benefit of its occupants and the wider community, and… Townhouse Development Control Plan (TDCP). 23 This DCP came into effect on 20 December 2001. It contains objectives and design guidelines for a number of matters including streetscape and building design, car parking and vehicular access, privacy and noise. Caringbah Precinct 17 DCP 24 This DCP came into effect on 19 April 1994. Its objectives include: a) The orderly redevelopment of the precinct for villas, houses (sic), townhouses, and flats. b) A living area that minimises commercial through traffic. c) Pleasant, landscaped streetscape within the precinct. d) Development that maximises the potential of the zone. e) Usable local open space to be provided within the precinct. f) Reduced vehicular through traffic to Vista and High Streets. 25 The standards in 1 (a) to 1(f) of this DCP set out controls in respect to the amalgamation of lots for redevelopment in order to achieve the above-mentioned objectives (a) and (d). The relevant standards provide that: (a) No single lots are to be isolated for redevelopment. (b) A minimum 2 lot amalgamation pattern is required in the Medium Density 2 (b) zone, … The evidence 26 Detailed evidence on behalf of council was presented by: - Mr S. Layman, consulting town planner and his report is exhibit 1. - Mr D Shields,landscaped consultant and his reports are exhibits 2,18. - Mr. P Anderson, development assessment officer and his report is exhibit 3. 27 For the applicant, evidence was presented by: - Mr L Fletcher, consulting town planner and his report is exhibit C. - Mr S Cowie, aborist and his report is exhibit C, - Mr M Gerard, landscape architect and his report is exhibit E, - Mr C McClaren, traffic consultant at his report is exhibit F, - Mr D Chesterman, architect and planner and his report is exhibit G, - Mr M Relf, access consultant and his report is exhibit 11. Discussion of the evidence 28 It is apparent from the evidence that the main issue concerns the overdevelopment of the site and associated impacts. According to council submissions this is confirmed by the need to determine the SEPP 1 objections to the FSR and landscaped area development standards. 29 There are a number of controls that apply to this site. Mr Layman considers that SEPP 65 is appropriate because Townhouse B.01 exceeds the 1.2 m height above natural ground level. Furthermore, he says that the proposal is not a class 1 b building (boarding house, guesthouse or hostel) under the BCA. Also that the proposal does not fit the NSW definition of a class 1 a building, being neither a single dwelling nor "two attach dwellings, neither of which is located above all below another Class of building other than its appurtenant private garage". Therefore he says the proposed building is properly classified as class 2 "a building containing two or more sole occupancy units each being a separate dwelling" and class 10a "private garage". 30 Against this, Mr Chesterman says that although SEPP 65 does not apply to this development, nevertheless he believes that the 10 good design principles set out in that instrument provide an excellent basis for evaluation of a housing project and accordingly he adopts them as the framework for his evaluation. 31 Whilst I am inclined to accept Mr Layman's building classification, nevertheless on the basis of this agreement of the relevance of the SEPP 65 good design principles, I accept that consideration of these principles is relevant and appropriate in this case. 32 The first design principle relates to context. It is apparent that this immediate area is in the process of transformation as the older detached dwelling sites are redeveloped with medium density buildings. These are evident nearby and I accept Mr Chesterman's evidence that the form of building proposed could satisfactorily relate to the future character of the street, notwithstanding the high screened courtyards and balconies. I place more weight on this evidence than Mr Layman's opinion that greater regard should be given to integration of the development with the existing scale of housing development. 33 The next principle concerns the scale of development to ensure that it is appropriate in terms of bulk and height that suits the scale of the street and surrounding buildings. Mr Chesterman relies on the photos and aerial photomontage to conclude that it is of equivalent bulk and scale to surrounding development. 34 Against this, Mr Layman says the height and bulk is exaggerated by its high base and street facade which does not suit the scale of surrounding buildings near the site. 35 The main control for bulk and scale is contained in cl 35 of SLEP, which prescribes a maximum FSR of 0.7:1. In this case the applicant contends this is met. However Mr Layman opposes this because he considers the additional area in the basement car park, required for access and manoeuvring should be included. This additional component is 510 m2, which results in an FSR in the order of 0.97:1. 36 SLEP defines floorspace ratio as: the ratio of the gross floor area of all buildings on a site to the area of the site. The site is taken to be only that part of the site zone to permit the development for which the buildings or are proposed to be used. 37 Gross Floor Area is defined as: the sum of the areas of each floor of the buildings on a site where the area of each floor is taken to be the area within the outer face of the external closing walls, excluding any combat area occupied by: (a) lift towers and motor rooms within a basement or above the roof level, and (b) car parking needed to meet requirements of council, up to 20 m2 per required parking space, and (c) storage areas needed to meet the requirements of council, and (d) plant rooms, garbage storage areas, switch rooms or the light within a basement. 38 The SEPP 1 objection acknowledges that the objectives of this development standard are : `(a) to provide a degree of consistency for existing residents as to the size and bulk of potential buildings in the neighbourhood, and (c) to allow buildings of sufficient scale to satisfy the needs a residents of preventing development sites beyond community expectations and environmental capacity of the zone. 39 It then justifies the variation on the basis that as "the additional floor space is, for all intents and purposes, below ground level it will not alter the apparent scale or bulk of the proposed development on the site and will not have any significant impact of the streetscape". 40 In considering this objection, I also note Mr Griffiths' submission that the prescribed allowance of 20 m2 per car space includes reasonable provision for manoeuvring areas and access ways. Accordingly, I accept that on a literal interpretation of the GFA definition, the additional floor area of 510 m2 should be included resulting in a breach of the standard. 41 However I then note the evidence from the applicant that there have been a number of cases where council practice is to support SEPP 1 objections of this order. Furthermore the previous LEP and the draft DLEP do not include this additional area as part of the GFA. 42 Therefore I accept Mr Fletcher's SEPP 1 objection, on the basis that this additional floor area is underground and unlikely to contribute to the building bulk and consequently the objectives are reasonably achieved, so as to allow the objection. However this additional basement car park area does restrict areas available for deep landscape planting. 43 Associated with this is the SEPP 65 landscape principle, which states that good design recognises that together landscape and buildings operate as an integrated and sustainable system, resulting in greater and aesthetic quality and amenity for both occupants and the adjoining public domain. Whilst Mr Chesterman says that "the layout of the site makes optimum use of all the open space on the site", nevertheless I consider there is a more substantive argument as to the quantity and quality of the proposed landscape areas. 44 The objectives for the landscape area standard is contained in cl 36 of the LEP, as follows: (a) to ensure opportunities for tree retention and tree planting to preserve and enhance the tree canopy of the Sutherland Shire, (b) to ensure that unbuilt upon areas balance the built form, and (c) to contain urban run-off flows by minimising the impervious areas on residential development sites. 45 Landscape area is defined as; "any part of the site of the building or a proposed building that contributes to achieving the objectives of the landscape area development standards in this plan. The site is taken to be only that part of the site zoned to permit the development for which the building is or is proposed to be used. Landscaped area includes any areas used for gardens lawns, shrubs or trees, but does not include any part of the site occupied by buildings, driveways, service access ways, parking areas, communal drying yards, garbage storage areas, swimming pools, balconies or decks". 46 According to Mr Fletchers calculations, 743.1 m2 is provided, which represents 40.5% of site area, therefore complying with the standard. However, Mr Layman disputes some of the components included in this calculation. 47 The various components are shown in Exhibit L. There is agreement to the dominant perimeter landscaped area of 471.6 m2. According to Mr Layman, a further soft planting area of 56.7 m2 could potentially be included. A separate area of courtyards, comprising 84.8 m2 could also potentially be included. From my understanding of the definition, it seems reasonable to include these designated potential areas. Therefore this results in a total landscaped area of approximately 613 m2. 48 The real dispute is with the areas coloured green, which comprises mainly paved areas, particularly along the southern boundary and parts of the central entrance way. It seems to me that the definition allows mainly soft landscape areas such as lawns, shrub and tree areas to be included, but excludes driveways and service access ways, which are generally hard surfaces. From my assessment, the relatively narrow strip along the southern boundary is predominantly paved and does not allow room for any significant soft landscaping or tree retention/planting. Instead it is the main entry way to the 6 southern units. It also is the main access way to the garbage area in the front setback area. As such, I consider this area is most appropriately classified as service accessway, as stated by Mr Layman, rather than landscape area suggested by Mr Fletcher. 49 Similarly, the section of the central pathway to the northern units is predominantly paved. It is the main pedestrian access way to these units from both the street frontage and underground carpark and also is the route for access to the front garbage area and its width precludes any substantive landscaping. I consider this area also is more appropriately classified as service access way rather than landscaped area. 50 This results in a total landscaped area of approximately 613 m2 out of the site area of 1835 m2, which represents approximately 33% and does not comply with the development standard. Insofar as Mr Fletcher's SEPP 1 objection states that this pathway area provides a balance between built and unbuilt upon areas and does not preclude them from making of contribution to containing urban run-off flows as they can be constructed with pervious paving, that proposition does not seem to be specified on the drainage plan. 51 In my assessment then, I rely on Mr Layman's opinion that the area along the southern boundary more realistically presents as a service access way than landscape area. The only section of landscaping is a token triangular shaped garden bed in the south western corner. 52 This conclusion is confirmed by Mr Shields assessment, who also agrees there is a shortfall in landscaped area, which he calculates as 31.2%. From this he concludes that the proposal: 1. does not adequately allow for sufficient new trees for enhancement, particularly around the edges of the site. 2. provides areas that are too narrow, or is located on top of the basement carpark thereby preventing large mature canopy trees such as Scibbly Gums Eucalyptus racemosa and Red Ironbarks Eucalyptus sideoxylon from being distributed within the property; and 3. does not minimise impervious areas to reduce water run-off as the site is deficient in landscape area by 116 m2 53 Accordingly I accept the position put by the council witnesses that this proposal is deficient in landscape area, which contributes to the overall development of the site. Under the circumstances I do not consider it provides an adequate balance between built form an are unbuilt upon areas for this number of units. I accept Mr Shields' evidence that there is insufficient soft landscaping around the perimeter of the site to enable retention and planting of canopy trees, which is consistent with the character of the area. 54 Furthermore, I do not consider there is any substantial evidence indicating these paved areas will contain urban run-off flows. On the contrary, the paved pathways are likely to increase the rate of run-off. 55 For these reasons then, I do not consider the objectives of the landscaped area development standard are satisfied and therefore be SEPP 1 objection is not allowed. In my assessment, this deficiency in landscape area, confirm the Council witness position of the over development of the site. 56 Even though the rejection of this SEPP 1 objection results in the failure of the application, I consider there are some other aspects which are also fatal to the application. Principal 7 refers to amenity, whereby "good design provides amenity through physical, spatial and environmental quality of the development." 57 Mr Layman identified some of these aspects in his statement. From the evidence, I consider that privacy for some of the units is unreasonably compromised. The basement stairs under unit A.01 are adjacent to the main bedroom of this unit and will likely result in poor visual and acoustic amenity. They lead to the accessway along the southern boundary, which is within 2 m of the main bedrooms, resulting in compromised privacy amenity in my assessment. 58 Likewise the basement stairs adjacent to unit B.01 are in close proximity to the front entry of this unit and then the principal access way is via the relatively narrow 1m strip adjacent to units 2, 3 and 4. As this accessway abuts the 1.8 - 2.0 m courtyard fences of the southern units, I accept Mr Layman's opinion that this will result in a poor level of acoustic, privacy and aesthetic amenity. In my assessment this is another factor indicating the intensification of development on the site, resulting in its overdevelopment, that I do not regard as a high-quality design outcome. 59 The building design also incorporates 1.5 m high privacy screening on the first floor, north facing balconies. Insofar as Mr Chesterman conceded that this was not a common design feature but that it will still acceptable, nevertheless I consider it adds to the visual bulk of the building, which compounds the concerns of overdevelopment of the site. 60 Another substantive issue concerns the amalgamation provisions in the Caringbah Precinct 17 DCP, which seeks to avoid the isolation of the adjoining property at No 19 High Street. However the evidence is that this property was acquired by council for amalgamation with other open space. Furthermore under the draft LEP it is proposed open space. Even though, Mr Griffiths was unable to concede this outcome, the evidence indicates the likelihood of this property becoming open space, in which case the amalgamation provisions could be relaxed. 61 Insofar as drainage was identified initially as an issue, further conferencing between the relevant experts achieved some resolution of this matter. But reference to the drainage plan (Exhibit R) indicates a complex system of individual Atlantis Purification Units in each courtyard of the northern block. This incorporates irrigation pumps, because the stormwater disposal system does not gravity flow to the council pipe system as specified in the DCP. Furthermore there is some inconsistency with the draft conditions that requires the drainage to be piped to the existing drainage in Vista Street. In my assessment, the detailing on the drainage plans, which were produced late in the proceedings, still raise some concerns. However resolution of these concerns is unnecessary due to the failure of the application on other grounds. Conclusion 62 Having considered the evidence, the submissions and undertaken a view I do not consider this application merits consent. The principal issue concerns the overdevelopment of the site and in this case refers to the appropriate balance between the built and unbuilt upon areas. 63 That is regulated by a number of development standards including the provision of a minimum landscaped area of 40% of the subject site. But in this case the amount of landscaped area is in the order of 33% and its location is compromised to such an extent that I do not consider the SEPP 1 objection should be allowed. The deficiency in landscaped area unreasonably restricts opportunities for appropriate landscaping, particularly along the southern boundary of the property. 64 The provision of adequate and appropriately located landscaped areas would likely necessitate a reduction in a lower unit yield, which could result in an acceptable development that demonstrates reasonable compliance with the zone objectives and particularly the good design quality principles in SEPP 65. In the ultimate I accept the case presented by the council witnesses that this proposal represents an overdevelopment of the site. Court orders 65 The orders of the Court are: 1. The appeal is dismissed. 2. The State Environmental Planning Policy No.1 (SEPP 1) objection to the minimum landscaped area development standard in cl 36 of the Sutherland Local Environmental Plan is disallowed. 3. The development application No. 03/0935 for the demolition of three dwellings and construction of 13 townhouses at Nos. 21 - 25 High Street, Caringbah, is refused. 4. The exhibits may be returned except for exhibits 1, 5, 11, 12, 18, A, C, G, Q, R, S and T. _______________ R Hussey Commissioner of the Court 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.