Orthmac Developments Pty Ltd v Pittwater Council [2002] NSWLEC 57

Land and Environment Court of New South Wales

CITATION : Orthmac Developments Pty Ltd v Pittwater Council [2002] NSWLEC 57 APPLICANT: Orthmac Developments Pty Ltd PARTIES : ACN 096 383 890

RESPONDENT: Pittwater Council FILE NUMBER(S) : 10752 of 2001 CORAM: Lloyd J KEY ISSUES: Development Application :- State Environmental Planning Policy No. 5 - merit considerations LEGISLATION CITED: Environment Planning and Assessment Act 1979 s 97 State Environmental Planning Policy No. 5 cl 3, cl 13, cl 14 and cl 25 CASES CITED: DATES OF HEARING: 04/02/2002 and 05/02/2002 DATE OF JUDGMENT: 04/30/2002

APPLICANT: Mr A E Galasso (barrister) SOLICITORS: Peter C Prior & Co LEGAL REPRESENTATIVES: RESPONDENT: Ms S A Duggan (barrister) SOLICITORS: Mallesons Stephen Jaques

JUDGMENT: IN THE LAND AND Matter No.: 10752 of 2001 ENVIRONMENT COURT Coram: Lloyd J OF NEW SOUTH WALES Decision date: 30 April 2002

Orthmac Developments Pty Limited ACN 096 383 890 Applicant v Pittwater Council Respondent

REASONS FOR JUDGMENT 1. This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") against the refusal of a development application to construct twelve residential home units on land known as Nos. 182-184 Powderworks Road, Elanora, being lots 166 and 167 in deposited plan 22670. 2. In these proceedings I have been assisted by Commissioner Bly and had the benefit of a view of the land in the presence of representatives of the parties. 3. The proposed development is described in the development application as "SEPP 5 housing project". The statement of environmental effects which accompanied the development application states that the proposed development is intended to "be developed for 12 dwellings as Housing for Older People and People with Disability under the provisions of SEPP No. 5…". The site of the proposed development is at present subject to the provisions of Pittwater Local Environmental Plan 1993 ("the LEP"). The land is zoned 2(a) under that instrument which makes residential flat buildings such as that which is proposed prohibited. The development is, however, permissible with consent pursuant to State Environmental Planning Policy No. 5 ("SEPP 5") which permits development for the purpose of housing for older people or people with a disability, and which prevails over the local environmental plan to the extent of any inconsistency therewith. 4. A number of issues originally identified as being raised in this appeal were either not pressed or were resolved before or during the hearing. For example, it was initially contended by the respondent Pittwater Council ("the council") that the proposed development did not satisfy cl 25(f)(i) of SEPP 5 by the provision of footpath and pedestrian crossing to the bus stop on the northern side of Powderworks Road. This issue was resolved by way of a proposed condition of consent, agreed to by the parties, for the construction of a pedestrian crossing and footpath on the northern side of Powderworks Road, Elanora, to a bus stop. 5. It is accepted by the parties that the only two following related issues remain: · Streetscape and design; and · Character. 6. As noted above, the subject land comprises of lots 166 and 167 in deposited plan 22670 (being Nos. 182-184 Powerworks Road). It has a frontage of 51.5 metres to Powderworks Road, with a slight fall from its rear to the front boundary of about 4.5 metres. The proposed building consists of two storeys at the front and one residential level at the rear of land with parking under, which is accessible by a driveway that passes between Nos. 182 and 184. The Relevant Planning Controls 7. In order to appreciate what the applicant has to demonstrate for consent, it is necessary to turn to the legislation. 8. The principal legislative context in which the streetscape and design issues of this case fall, can be found in cl 3 of SEPP 5 which relevantly provides: (1) This Policy aims to encourage the provision of housing that will: … (c) be of good design. (2) These aims will be achieved by: … (c) setting out design principles that should be followed to achieve built form that responds to the characteristics of its site and location. 9. Part 3 of SEPP 5 (cll 20-25), entitled "Design Requirements", encourages a proposed housing development to be of a good design by stipulating design principles that must be taken into account by the consent authority and to which it must have adequate regard, "where possible", when considering an application for consent. Clause 25 relevantly provides: 25. Consent must not be granted for development to which this Part applies unless the consent authority is satisfied that the proposed development demonstrates that adequate regard has been given to the following principles: (a) Neighbourhood amenity and streetscape: The proposed development should: (i) contribute to an attractive residential environment with clear character and identity; and (ii) [not relevant] (iii) where possible, maintain reasonable neighbour amenity and appropriate residential character by providing building setbacks that progressively increase as wall heights increase to reduce bulk and overshadowing; and (iv) where possible, maintain reasonable neighbour amenity and appropriate residential character by using building form and siting that relates to the site's land form; and (v) where possible, maintain reasonable neighbour amenity and appropriate residential character by adopting building heights at the street frontage that are compatible in scale with adjacent development; and (vi) where possible, maintain reasonable neighbour amenity and appropriate residential character by considering, where buildings are located on the boundary, the impact of the boundary walls on neighbours; and (vii) be designed so that the front building of the development is set back in sympathy with, but not necessarily the same as, the existing building line; and (viii) embody planting that is in sympathy with, but not necessarily the same as, other planting in the streetscape. … 10. In addition, "streetscape" is described in the dictionary to SEPP 5 as follows: The character of a locality (whether it is a street or precinct) defined by the spatial arrangement and visual appearance of built and landscape features when viewed from the street . 11. Also relevant to the matters of streetscape, design and residential character are cll 13 and 14 of SEPP 5 and Development Control Plan No. LP18 ("the DCP"). Clauses 13 and 14 of SEPP 5 relevantly provide: 13. (1) General A consent authority must not consent to a development application made pursuant to this Part unless it complies with the standards specified in this clause. (2) Height in zones where residential flat buildings are not permitted: (a) the height of all buildings in the proposed development must be 8 metres or less. … 14. The consent authority must not refuse consent to a development application under this Part on the grounds of: (a) building height: if all proposed buildings are 8 metres or less in height; or (b) density and scale: if the density and scale of the buildings when expressed as a floor space ratio is: (i) 0.5:1 or less, except as provided by subparagraph (ii); or (ii) 0.75:1 or less for hostels and residential care facilities located within 400 metres waking distance of public transport node (being a public transport facility such as a railway station, bus stop, or ferry wharf, that operates from Monday to Friday (both days inclusive) in daylight hours); or … 12. "Height" is defined in the dictionary to SEPP 5 as follows: height in relation to a building, means the distance measured vertically from any point on the ceiling of the topmost floor of the building to the ground level immediately below that point. 13. Clause 3.1.5 of the DCP specifies the front building line control as follows: A minimum 6.5m setback measure parallel to the road boundary or established building line, shall apply to all streets other than those listed below. This shall apply to all structures and carparking spaces whether covered or not. Where the established building line is greater than 6.5 metres, the established building shall prevail. 14. Clause 3.1.7 of the DCP provides that the maximum height of a building should be 8.5 metres. This height shall be measured from the highest point of the building (including the top of the ridge line) to the natural ground level and shall apply at any point on the building. The Evidence 15. The principal evidence on the two remaining issues was given by Miss J McLoughlin, the council's town planning witness and by Mr C F Blyth, the applicant's consultant town planner. 16. Miss McLoughlin noted that the neighbourhood amenity and residential character of the vicinity of the site principally comprises of single storey residential properties within mature, leafy gardens that contain canopy trees. These things combine to give the locality a leafy garden suburb appearance. By contrast she explained the proposal does not resemble the established character of this locality. She was concerned that the two proposed buildings facing Powderworks Road would have a total height of 9.3 metres that will dwarf the surrounding single storey dwellings. This situation will be exacerbated by the absence of effective landscape screening. The proposal also does not comply with the DCP that sets a maximum building height of 8.5 metres for the area. The requirements of the DCP are important because it points towards the likely future character of the area. 17. Miss McLoughlin noted a number of other matters of non-compliance that the proposal has with the DCP. The development should seek to retain and improve existing tree canopy and indigenous vegetation, which forms an important role in maintaining the natural forested character of the locality. (I note, however, that the subject land could not be described as having a forested character and, on the contrary, is almost bare of vegetation other than grass.) New buildings should be designed with facade modulation and should incorporate shade elements such as pergolas and verandas in combination with the retention and planting of vegetation. The DCP requires a minimum setback of 6.5 metres as a front building line and for the most part the proposal complies with this requirement having an average setback of 9.5 metres. However there is a further requirement that where the building line indicated by the adjoining developments is greater than 6.5 metres, the established requirements shall prevail. This requirement is said to be infringed by up to 5.5 metres. She explained that these requirements are designed to reduce the visual bulk and scale of buildings and assist new developments in complementing existing streetscapes and blending into the natural environment. 18. Miss McLoughlin's concerns as to the excessive height and the inadequate setback from the frontage was exacerbated in which her opinion by the extensive site coverage of the proposal, and which is said to be at 77 per cent and which in her view is excessive and inconsistent with the residential character of the area. These matters are said to be indicative of an inadequate level of integration with the established residential character of the area. She did not believe that the proposed development consequently gives "adequate regard" as required by cl 25(a) of SEPP 5 to the building bulk. 19. Miss McLoughlin also explained that the proposal would not resemble these dwellings which might otherwise be expected on land with a frontage of this size. In effect the development will present as a two-storey building with long walls. Mechanisms have not been used to break up the façade and the buildings will present a dominant character of the kind inappropriate in this streetscape. The only aspect of the proposal which she believed was responsive to the locality was the roof form but because in general the development was not well integrated into the streetscape, this was not enough. Instead the proposal will look like a unit development, which is completely at odds with other buildings in the immediate area. Such an outcome can be and should be avoided because unit development is not the dominant form in the streetscape. 20. In considering all these matters together it was Miss McLoughlin's opinion that the proposal does not meet the requirements of clause 25(a)(i) of SEPP 5 which in terms of neighbourhood amenity and streetscape requires a proposed development to contribute to an attractive residential environment with clear character and identity. 21. Conversely, Mr Blyth believed that the proposal was, in terms of neighbourhood amenity, residential character and streetscape entirely appropriate and acceptable. In was his opinion that the entire proposal met with 8 metres maximum height limit stipulated in cl 14(a) of SEPP 5 because the "height", according to the definition section in SEPP 5 (as noted in par [12]), is measured vertically from any point on the ceiling of the topmost floor of the ground level immediately below that point, and not from the top of the roof as calculated by Miss McLoughlin. According to his calculations, at its maximum the building height of the proposed development is 6.5 metres. He did however accept that the maximum building height requirement in the DCP of 8.5 metres to the top of the ridge was exceeded by about 600 mm. 22. More particularly in relation to streetscape and neighborhood amenity Mr Blyth explained that the proposal would create contextual character through the adoption of pitched tile roof forms with projecting "sub-hips" and articulation created through the use of steel picket panels between masonry columns setback from the property line. Extensive landscape is also proposed as part of the development. 23. Mr Blyth believed that the buildings would present as a combination of simple domestic scale elements and provide an inviting, accessible and pleasant environment for the residents as well as be an appropriate addition to the streetscape. He recognised that the proposal comprises a medium density form of development that is normally prohibited in such area, exhibiting a different character by comparison with a single storey detached housing, an outcome anticipated by SEPP 5. In this regard Mr Blyth noted that the applicable non-refusable standards specified under SEPP 5 have been met and the relevant design considerations taken into account by the proposed development. 24. Mr Blyth did not accept that the proposal would have a significant impact on the streetscape or that the proposal would be incongruous in the area. It was his opinion that although the proposed buildings would be closer to the street by comparison with some others in the locality, the setbacks of the proposal do not so significantly depart from the residential environment, that there would be any consequential adverse impacts taking into account the details of the design and its landscaped setting. 25. When cross-examined about the symmetry of the design and the fact that there were no other developments in the locality with such features, he said that he did not believe that this would result in unacceptable impacts. Conclusion 26. When examining the question of whether the proposed development is of good design as encouraged by SEPP 5 and dealing with the issues of residential character, neighbourhood amenity and the streetscape, it is necessary to examine the nature and character of the existing streetscape and the neighbourhood amenity. 27. The definition of streetscape in SEPP 5 expressly makes reference to "the character of a locality" and specifically provides "whether it is a street or precinct". Consequently the locality or precinct in which the application needs to be considered includes more than just the adjoining or close-by properties. It is relevant then, to look beyond the land bounded by Elanora Road and Kalang Street and have adequate regard to the neighbourhood amenity and development of the locality. 28. As disclosed during the site view with the representatives of the parties, the character of the area comprises of a "mishmash" of a great range and variety of differing styles and types of buildings. Not only does the locality as a whole includes detached single-storey dwellings in landscaped allotments, but also larger double-storey residential buildings in more open settings and properties with substantial front boundary fences. In this context and bearing in mind that SEPP 5 anticipates a multi-unit and medium density form of development, the Court has not been persuaded that the design of this proposal would be unacceptable. 29. Although Miss McLoughlin expressed a concern about the non-compliance with the height control under the DCP, noted in par [16] above, the proposal clearly complies with the height control under SEPP 5. The maximum height calculated in accordance with SEPP 5 is 6.5 metres. As noted in par [11] above, consent cannot be refused on the ground of building height if the buildings are 8 metres or less in height. 30. Whilst the proposed development does not comply with the established building line requirement of the DCP, it is nevertheless well in excess of the minimum 6.5 metres requirement. Moreover, as cl 25(a)(vii) of SEPP 5 states, the front setback must be in sympathy with but not necessarily the same as the existing building line. This control prevails, of course, over the front setback requirements of the DCP. Taking into account the fact that the proposal complies with the height requirement in cl 14(a) of SEPP 5 and has acceptable landscaping, the proposed development should present to Powderworks Road and relate to its neighbours in a satisfactory manner notwithstanding that the proposed buildings will be noticeably larger than its immediate neighbours. As I have indicated, the latter fact is one which is anticipated by SEPP 5. 31. In terms of its presentation to Powderworks Road the proposal was criticised because architectural devices have not been used to break up the facades of the two buildings. I have referred to Miss McLoughlin's comments in this respect in par [16] above. Whilst more might have been done in this respect, I nevertheless accept the evidence of Mr Blyth that the use of pitched tiled roof forms and articulation resulting for the use of balconies at the corners of the buildings can sufficiently overcome this concern and achieve the aims of the DCP in having a modulated facade. 32. It was also suggested that the proposed site coverage was indicative of excessive building bulk. There was, however, no suggestion that the proposal did not comply with the 0.5:1 floor space ratio in cl 14(b) of SEPP 5. This being the case, I do not know how Miss McLoughlin estimated a site coverage of 77 per cent as noted in par [18]. It must be remembered that the consent cannot be refused if the development complies with the requirements of the controls specified in cl 14 of SEPP 5. In this respect also, I am inclined to accept the evidence of Mr Blyth that whilst the proposal comprises a medium density form of development and will exhibit a different character by comparison with single detached dwelling houses, it will not be excessively bulky and will result in an appropriate addition to the locality and to the streetscape. 33. Having considered the standards in cl 14 and the principles in cl 25 of SEPP 5 including residential environment, setbacks, bulk, building form, building height, and landscaping, I conclude that there is nothing about the proposed development which would justify its refusal. Orders 34. The orders of the Court are therefore: (1) The appeal is upheld. (2) Development consent is granted for a residential development comprising housing for older people or people with a disability at 182-184 Powderworks Road, Elanora, subject to the conditions in Annexure "A" hereto. (3) Exhibits A and C are retained. I hereby certify that the preceding 34 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd