> Land and Environment Court of New South Wales CITATION : One Livingstone Developments Pty Ltd v Pittwater Council [2003] NSWLEC 302 APPLICANT; One Livingstone Developments Pty Ltd PARTIES : RESPONDENT: Pittwater Council FILE NUMBER(S) : 10217 of 2003 CORAM: Murrell C Development Application :- Erection of a 3-storey residential development and underground parking KEY ISSUES: Impacts on adjoining properties Non compliance with DCP provisions LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Pittwater Local Environmental Plan CASES CITED: DATES OF HEARING: 14, 15 September 2003 EX TEMPORE JUDGMENT DATE : 09/16/2003 APPLICANT: Mr D Wilson, barrister SOLICITOR: Roper & Steggall LEGAL REPRESENTATIVES: RESPONDENT: Ms H Irish, barrister SOLICITOR; Mallesons Stephen Jaques JUDGMENT: Appeal No: 10217 of 2003 In the Land and Heard by: Commissioner J S Murrell Environment Court Decision date: 16 September 2003 of New South Wales One Livingstone Developments Pty Ltd v Pittwater Council Judgment Introduction 1 This is an appeal under section 97 of the Environmental Planning and Assessment Act against Pittwater Council's refusal of a development application for the property known as No. 1 Livingstone Place, Newport. The proposal is for the erection of a residential flat building containing 6 units with two units per floor, containing 3 x 2 bedroom and 3 x 3 bedroom units with semi-basement parking. Issues 2 The subject development application was one that was determined by the council by virtue of a refusal and the applicant subsequently appealed to the Court and a statement of issues was provided identifying the issues, and they are largely those as found in the council's letter of determination. The first issue relates to the minimum allotment size and whether the proposed development should be approved as it does not comply with the 25 m minimum frontage and the lot size is less than 1300 m2. 3 The second issue concerns to the side boundary setbacks, in particular the northern boundary setback. The next issue in the statement is whether the development is contrary to the objectives of council's DCP given the height of the building will cause excessive overshadowing of the adjoining land at No. 2. The issues raised by the objectors were also matters of concern to the council, in particular the owners of the properties that front Queens Parade West. 4 An other issue that was identified by the council relates to the Development Control Plan and the definition of sandwich allotments, and whether in fact the proposed site is regarded as a sandwich block or whether in fact it would create a sandwich block on the adjoining property at No. 2. Landscaping was also raised as an issue in terms of the ability to screen the proposed developments. Evidence 5 During the proceedings evidence was given to the Court on behalf of the council by two resident objectors. There were also number of objections that were received in respect of the development application. The first time the application was advertised some 12 letters of objection were received. The second time some 5 letters of objection were received. 6 Mrs Christienson of No. 51 Queens Parade West considered that the proposed development provided insufficient setbacks and would be an imposing development on her rear boundary. She was concerned with the potential overlooking and privacy in terms of her backyard and the rear of her dwelling house. She was of the opinion that the building would present as an imposing towering effect, and also the vastness of the length of the building on her back boundary was of concern. 7 Mrs Blair also gave evidence to the Court and she has an interest in the adjoining property at No. 2 where a previous development application submitted to the council for 7 residential units was not approved by the council. She raised the concern that the development would impact on No. 2. It became clear during the proceedings that whilst she does not have a financial interest in terms of direct ownership of the property she has an interest in the property as she is a relation of those that own the property. She also indicated to the Court that there may be future litigation with respect to that property in terms of her interest. 8 On behalf of the council experts Mr Raven gave evidence to the Court, Mr Raven is an assessment officer with the council and has been for many years. He expressed concern with respect to the separation distances between the dwellings fronting Queens Parade West and the subject site. Mr P Nichols a landscape consultant also gave evidence on behalf of the council and his concern related mainly to the conflict that could be created with the landscaping proposed for the northern boundary and the residents of the proposed building in terms of sunlight access. 9 Mr P Drake a consultant planner gave evidence for the applicant. He informed the Court that in his opinion it is unnecessary to consolidate the subject site with the adjoining land at No. 2, because the outcome as expressed in the development application demonstrated good design. Mr C Miller a landscape consultant also gave evidence for the applicant. He is of the opinion that the proposed development can be appropriately landscaped. 10 By way of description, Livingstone Place is a small cul-de-sac and at the entry there are two properties on either side that face Queens Parade West with side boundaries to the cul-de-sac, and those properties face in a northerly direction. Around the cul de sac there are some six larger allotments and four of those allotments contain residential flat buildings, ranging in a number of storeys from two to four-storeys, some with exposed parking under, with two-storeys of residential flats above or three-storeys of residential flats above. These buildings are older style residential flat buildings and in the main relatively well maintained. However, they do not demonstrate some of the design requirements of more recent residential flat buildings. The character of the area is one that can be described as a leafy area, excepting for some of the residential flat buildings which have minimalist landscaping. The dwellings fronting Queens Parade West are generally one and two storey dwellings. Some being of timber, some being of brick, some are vegetated more heavily than others, while others have extensive lawned areas. 11 During the proceedings a site inspection was carried out in the presence of the parties and the Court had the opportunity of viewing the subject site from the adjoining residential properties. 12 The subject site under the Pittwater Local Environmental Plan 1993 is zoned Residential 'A'. However, by virtue of clauses 9 and 20 which relate to the 'flat map', the subject site can in fact be developed for the purposes of a residential flat building. The subject site is in the area under the 'flat map' that is shown as a three-storey flat area. 13 There are a number of controls that relate to the development of residential flat buildings by virtue of the Residential Development Control Plan known as R1. This DCP was adopted by the council in 1997. It contains general aims; to encourage residential flat buildings, group buildings, development having improved design, amenities and facilities which will enhance the quality of the surrounding environment; to encourage further development in the residential flat building, group building areas in the area of Pittwater as indicated on the 'flat map'. The specific objectives include: to ensure that the character, design, height, bulk and external appearance of flat buildings in the area does not have an adverse impact on adjoining development, or the landscape or scenic quality of the locality; to ensure that the occupants of flats and townhouses have adequate privacy and access to natural light; to ensure that each residential flat building has ample light, landscaping and private open space for use by residents. 14 There are a number of controls and design guidelines articulated in the document and in terms of the height of buildings the design of flat buildings, the building height and bulk are to be reduced to a minimum to prevent excessive overshadowing of adjoining land. 15 With respect to the carparking provisions, an issue during the proceedings, is the definition of 'fully underground carparking' which to be located totally below the natural ground level and the 'approved underground carparking' shall be below finished ground level and have its first floor less than 1 m below the natural ground level. Sandwich blocks is defined as where a particular site is created which is below the minimum, and this is in respect of 600 m2 being the minimum for such a development of a sandwich block. In terms of the development controls relating to two-storey flat buildings, there are a minimums of a 25 m frontage and 1200 m2 site area. For the height of buildings the guideline is a maximum of 10 m. With respect to sandwich blocks this is 600 m2, and the residential density on a sandwich block is one bedroom per 100 m2 of site area. 16 The controls pertaining to three storey residential flat buildings require a minimum frontage of 25 m and a 1300 m2 site area. There are provisions with respect to boundary setbacks, in particular the one in issue is the side boundary setbacks requiring an 8 m minimum. However this may be reduced by 1.5 m where there is 'fully underground carparking', and side boundary setbacks may be reduced by 1 m where there is 'approved underground carparking'. The controls also state that a reduced side setback shall not be used where the building on the adjoining site is less than 4 m from the side boundary. The maximum height within this area is a 12 m maximum and the minimum allotment size for sandwich blocks is 600 m2, with one bedroom per 90 m2 of area. 17 Other instruments of relevance, although not matters of high significance in terms of the appeal, are the DCP 23 - Landscaping and Vegetation Management, the Development Control Plan known as 'Locality Plan 21' for the Newport Valley; and the Development Control Plan 2 for carparking. With respect to the Locality Plan it is noted that this particular document came into force in June 2003 and includes character statements. Its relationship with other DCP's however it is noted that in the event of any inconsistency with this DCP and other DCP's the other DCP shall prevail. It also states that for multi unit housing refers to the multi unit housing DCP R3. With respect to side boundary setbacks, it is noted that this particular DCP requires a third of the wall height in terms of a side boundary setback for certain classes of development. There are a number of aims and objectives in this DCP and it also provides a statement on the desired and future character of the area of Newport. Assessment and findings 18 I will deal first of all with the issue of landscaping and the experts agreed that landscaping could be provided on the subject site. In terms of council's expert the evidence was that the amenity of the residential flat building could be compromised by virtue of the heavy screening required of the landscaping to ameliorate the impact of the proposed development with respect to those properties fronting Queens Parade West. 19 The evidence of the applicant's landscape consultant was that, yes there could be conflict in terms of the screening and solar access. But nonetheless solar access can be afforded to the proposed units that satisfy the requirements given the orientation of the block and the fact that each unit has either an eastern or western orientation as well as the ability for flow through ventilation from north to south. In Mr Miller's opinion the proposed landscaping would have the effect of providing screening to ameliorate the bulk and height of the proposed development with respect to the rear of the properties fronting Queens Parade West. He said: in terms of providing the screen planting a compromise for solar access is not unreasonable and is often accepted in circumstances such as this where solar access is still adequate." 20 In terms of the Court's assessment of the landscaping I am satisfied based on the experts evidence that landscaping can be achieved on the subject site to compliment the proposed building. And in that regard the setbacks to the side boundaries whilst they are not as large as required by the development control plan I am satisfied that the setback of some 5½ m at the minimum point is adequate to achieve appropriate landscaping to ameliorate the impacts of the proposal on the dwellings facing Queens Parade West. The landscape consultants provided additional comments to the Court on the landscape plan, known as exhibit J, with respect to the appropriate varieties to achieve a landscaped setting for the proposed development and I am satisfied that a variation to this setback is justified by the objectives being satisfied. 21 The relationship with the properties fronting Queens Parade West in the Court's mind is the seminal issue in these proceedings. I have had genuine, proper and realistic regard to the provisions of the development control plan and I have had regard to the objectives of those controls. 22 Mr Raven in his evidence is of the opinion that the standards were introduced in the DCP to result in a more satisfactory built form and landscaping quality of residential flat development where previously there were no planning controls. He said: In this regard the requirement for a minimum size of land is justified to ensure that: adequate space is available for resident's outdoor amenity; sufficient landscaping to screen the development from its neighbours; and building setback to boundaries to provide increased acoustic and visual privacy; and improved outlook from the dwellings. 23 In Mr Raven's opinion, the proposed development was not appropriate in terms of the impact on the dwellings in Queens Parade West. He was of the opinion that the site should be amalgamated with the adjoining site at No. 2, thereby the minimum site requirement of 1300 m2 would be satisfied. He was of the opinion that this would allow for a more centrally located residential flat building located near the common boundary of those properties. 24 However on further analysis by the Court it could be seen that the residential flat building on an amalgamated lot would allow for a floor space ratio of 0.9:1, and a three-storey building in accordance with council's controls. And the setback to the northern boundary that adjoins the Queens Parade West properties may be increased to comply with the minimum but with a three-storey development reaching a height of some 12 m. 25 The respondent was of the opinion that the proposed development being three levels of residential development above the carparking was not appropriate because it would result in an extra level of dwelling units facing the boundary of the properties in Queens Parade West. 26 The applicant on the other hand stated that the proposal is well designed, the building is well articulated and also adequately and appropriately landscaped to provide an appropriate interface and relationship with the single dwellings on its northern boundary. Mr Raven agreed that the setback from the properties in Queens Parade in particular No. 51 is some 18 m from the flat building to the verandah of that building and in excess of 20 to the windows of that building. He agreed "that the separation distance in itself was satisfactory". 27 And Mr Drake on behalf of the applicant cited the requirements of AMCORD that Mr Raven did not consider were necessarily appropriate in this area of Pittwater where there are large lots with landscaping. I have had regard to the character of the area and the desired future character of the area and even if I accept that the AMCORD minimum should be exceeded in this area I am satisfied given above the separation distances that the proposed residential flat building is satisfactory. 28 The issue of three levels of residences being squeezed into the building was raised during the proceedings and I have given careful consideration to this. The design of the residential flat building in terms of the adjoining neighbours in Queens Parade West. The building has been assessed and is well articulated and modulated, it is a three-storey building but it is within the 10 m requirement for a two-storey building on smaller lots. Granted that a two-storey building would not necessarily achieve a 10 m height, although it could in terms of parking plus a pitched roof. 29 I am satisfied that the use of the rooms along the northern boundary that overlook the rear yards of the properties in Queens Parade West are secondary use rooms, bedrooms, bathrooms, et cetera. And that the main living areas have been oriented to the east and west of the subject site, where the conflict for potential overlooking is minimised. It is also agreed between the parties that screens be provided at the ends of the balconies to further ameliorate the overlooking concerns to those residences. I can understand the concerns of the residents living in Queens Parade West and the fact that there is the likelihood of a residential flat building at their rear boundary. 30 It was not disputed that the area has been zoned for many many years for residential flat buildings and that there could be and would be an expectation that it would be developed for such. In terms of the amalgamation of the sites and further setting the residential flat building off the northern boundary, I am satisfied having looked at the controls in detail that the amalgamation of the sites would achieve little in terms of the location of a residential flat building along that northern boundary, which may be setback an additional one and a half metres but it could achieve a greater height. 31 Furthermore in terms of the site planning of this particular proposal this site is one that is adequate in terms of providing for a residential flat building of good design, and in that regard I have had consideration to the principles enunciated in State Environmental Planning Policy 65 . A relevant state policy in terms of the transitional provisions under which the development application must be considered. I am satisfied that the proposed development is one that is of good design and satisfies the provisions of SEPP 65. 32 With respect to the issue of the adjoining property at No. 2, the proposal has been setback to enable the development of that site or to enable the continued existence of the existing dwelling with adequate solar access being provided by an appropriate setback to the site which is to the south of the subject development. 33 With respect to the concerns of other residents in the area some were concerned about the outlook and the impact of the proposal on views to the bushland. I am satisfied that the development as proposed with the proposed landscaping will make a contribution in terms of the amenity of the area and the vegetation of the area. Residents were also concerned about issues such as parking in the cul de sac. The proposed residential flat building has been designed such that the parking is underground or semi underground, and there is parking provision for 12 vehicles, which includes visitor parking. I am satisfied that parking is not an issue that would warrant refusal of the application and the proposed flat building has been designed in accordance with council's controls in this regard. 34 In terms of a three storey building the proposal will sit comfortably within the cul-de-sac that is made up of older style residential flat buildings and is one that will also exhibit good design principles. Mr Raven was of the opinion that the landscaping would reduce the amenity of the residential flat building. I am satisfied that the landscaping whilst it will reduce the solar access to the bedroom, bathroom areas of the units on the northern boundary, at the same time there is adequate solar access because of the design of the building in terms of not only a northern orientation but all dwellings also having an east or a west orientation and all dwellings also having cross flow ventilation in a north south direction. 35 The proposed development is one that in terms of council's controls I have assessed carefully and I am of the opinion that it is one that warrants approval. As I stated I can understand how residents do not want change but it is a development that in the Court's assessment having regard to all the planning controls and a merits assessment of the application it is one that is worthy of approval. 36 With respect to the other issues raised by the council, the landscaping I have discussed. The minimum requirements in terms of the development control plan, I have had consideration to the importance of achieving satisfactory residential amenity in terms of the relationship with adjoining premises. I have had regard to the objective of providing for development of sufficient site area to provide for a landscape setting and I have had regard to the issues identified by Mr Raven as why the residential flat code was in fact introduced and I am of the opinion having regard to a holistic integrated approach to the development that the non compliances with the development control plan in terms of the 25 m front boundary, (the site being 19.3 m), the minimum site area of 1300 m2, (the subject site is some 1015 m2). And the variation to the northern setback, and the variations are justified in the Court's assessment of the merits of this application. In terms of council's controls whether it be a sandwich block or whether it be a block that is less than the minimum site requirement, in terms of the objectives of the controls and the planning principles I am satisfied that the proposed development even if it is regarded as a sandwich block is appropriate in the circumstances of this case and little would be achieved by the amalgamation of the lots given their configuration and the controls. 37 There was also evidence to the Court from Mrs Blair that amalgamation in the near or foreseeable future is not something that could be readily achieved. And the applicant provided evidence to the effect that he had sought to negotiate with the adjoining owner but to no avail. 38 Therefore on the basis of my assessment the orders of the Court are: 1. The appeal in respect of the property known as No. 1 Livingstone Place, Newport, is upheld. 2. The development application submitted to Pittwater Council and as amended, and shown in the plans exhibit 'A' prepared by Avalon Drafting numbered CO 23/A Sheet 1-6 dated June 2003 (as amended 6/6/03 and 10/6/03) and CO 23 Sheet 7 dated 17/12/02 and the landscape concept plan C-023 Sheet 1 dated December 2002 and as annotated in exhibit 'J', is approved subject to the conditions contained in annexure 'A'. 3. The exhibits except for 19, A & J, are returned. ____________________ J S Murrell 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.