Freedom Health and Happiness Pty Ltd v Warringah Council [2004] NSWLEC 579

Land and Environment Court of New South Wales

CITATION : Freedom Health and Happiness Pty Ltd v Warringah Council [2004] NSWLEC 579 APPLICANT Freedom Health and Happiness Pty Ltd PARTIES : RESPONDENT Warringah Council FILE NUMBER(S) : 10268 of 2004 CORAM: Bly C Development Application :- Construction of four dwellings - Housing for older people or people with a disability - Strata title subdivision KEY ISSUES:

LEGISLATION CITED: Warringah Local Environmental Plan 2000 CASES CITED: DATES OF HEARING: 20-21/09/2004 EX TEMPORE 09/21/2004 JUDGMENT DATE :

APPLICANT Mr B Hones, solicitor SOLICITORS Hones Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr N Howie, solicitor SOLICITORS Wilshire Webb

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Bly C

21 September 2004

10268 of 2004 Freedom Health and Happiness Pty Ltd v Warringah Council

JUDGMENT

1 This appeal relates to development application No. 2004/0018 which is for the construction of four three bedroom dwellings at 32 Brighton Street, Harbord, and strata title subdivision in the form of housing for older people or people with disabilities. 2 More particularly, the proposal involves the construction of three buildings each being part single and part two storey. The front building contains two three bedroom attached dwellings plus garaging. The two rear buildings comprise three bedroom detached dwellings and garaging. Vehicular and pedestrian access to the proposed development is to be obtained via a curved driveway off Brighton Street. 3 The site comprises Lot 48 in DP 14450. It is rectangular in shape with a total area of about 1,285 m sq. It has a street frontage of about 15 m and a depth of about 84 m. It has a 3 m fall from the southern rear boundary to the northern front boundary. 4 There are nine trees on the site, three of which are significant trees being a jacaranda, a cheese tree and a large eucalypt. Of these trees, only the cheese tree is to be retained. 5 The locality in the general vicinity of the site comprises a mixture of mainly older single storey detached dwellings and newer two-storey dwellings on conventional and some hatchet shaped lots. 6 The most recent version of the proposal and that for which consent is now sought was publicly notified and approximately 120 submissions were received with all but one objecting to the proposal. 7 Matters of concern raised in those submissions include the following: excessive building bulk and overdevelopment of the site, out of character with the desired future character for the area, insufficiency of car parking and excessive traffic generation and pedestrian safety, overshadowing and overlooking of neighbouring properties, inadequate provision for storm water disposal, the removal of significant trees and an inadequate landscaping proposal and various concerns relating to the suitability of the development for aged or disabled persons. 8 The application was subsequently reported on by Mr L Roberts, a consultant town planner, who, after a comprehensive examination of the proposal and consideration of the relevant statutory planning controls, recommended that the application be approved. 9 The council in the form of its planning administrator considered this report together with the objections and having heard from two of the objectors Ms E Dunphy and Ms A Sharp to whom I shall refer later and Mr B Hones, the applicant's solicitor, decided that the council should enter into consent orders before this Court subject to a number of conditions. The need to deal with the matter in this fashion arose because the applicant had already filed an appeal in the Court. 10 The hearing began on site where the proposal was explained in detail to the Court. This was followed by an inspection of the site, its immediate locality and the properties of a number of resident objectors. 11 Ten objectors gave evidence in the manner of explaining their particular concerns in relation to the proposal as well as more general concerns. 12 The particular concerns comprise many of the matters to which I have already referred and I shall deal with the direct amenity impacts on neighbours shortly. 13 The general concerns expressed by Ms Dunphy and Ms Sharp at some length were about the form and character of the development contending that it did not meet the applicable desired future character requirement in the LEP. 14 Of particular concern was the suggestion that this development is not characterised by detached style housing in a landscaped setting. Nor would it maintain the visual pattern and scale of detached housing in the locality especially in relation to building footprint, orientation and the configuration of open space. The length of the buildings would read together and would add to bulk and inappropriate character. Also, the middle building would interrupt the continuity of adjoining gardens. These objectors also referred to various provisions of the LEP. 15 The site is situated in locality F5 Curl Curl Locality under Warringah Local Environmental Plan 2000 ("the LEP"). Relevantly, housing for older people or people with disabilities is a Category 2 use which is permissible with development consent. 16 Clause 12 of the LEP requires that before granting consent for a development the consent authority must relevantly here be satisfied with two things. First, any relevant general principles of Development Control in Pt 4 of the Instrument. Second, that the development is consistent with the desired future character in the relevant locality statement. 17 The general principles are to be found in Pt 4 of the LEP and those relevant to this application comprise cl 40. This clause sets out particular requirements for the provision of support services, wheelchair access, and the like. In this context I have taken into account the expert evidence of the two access consultants: Mr M Ralph; and Mr T Beardsmore who have, in effect concluded that these requirements are met by the proposal. I see no reason why I should not accept their advice. 18 The second test under cl 12 leads one to Appendix F of the LEP which deals with the desired future character for this locality. But before I deal with that matter I need to deal with cl 29 of the LEP which sets out a number of standards which if complied with cannot be used as a reason for refusal of the application. 19 The matters referred to in cl 29 include building height, density and scale in the manner of a maximum floor space ratio, landscaped area, car parking, visit parking, and there was no dispute that all of these matters are complied with. 20 The desired future character statement in the LEP contains two components relevant to this application. The first is that: "The Curl Curl Locality will remain characterised by detached style housing in landscaped settings interspersed by existing apartment buildings and a range of complementary and compatible uses". 21 The second is that: "Future development will maintain the visual pattern and predominant scale of detached housing in the locality. The streets are to be characterised by landscaped front gardens and front building setbacks which are consistent with surrounding development". 22 Those residents who gave evidence of their concerns about the proposal seemed to apply the character statement in a manner that would indicate new developments should be essentially detached style housing in landscaped settings. But the character statement needs to be read in its entirety. The important aspect here is that the character of the locality can be anticipated to have not only existing apartment buildings interspersed into the existing detached style housing but also a range of complementary and compatible uses. Clearly a different form of development can be anticipated in the midst of detached style housing. 23 The LEP helpfully defines complementary and compatible uses and relevantly there are two tests to determine whether a particular form of development fits within this definition. The first is that such an activity should maintain and where possible enhance the amenity of a locality. The second test is that the activity should comprise housing for older people or people with disabilities. The proposal meets the second of these criteria but the question arises as to whether it will maintain and where possible enhance the amenity. 24 Leaving aside the broader consideration of amenity which might include matters of aesthetics and as referred to in the character statement matters of visual pattern and predominant scale and landscaping, it is appropriate to look at the amenity impacts of this proposal on the neighbours. 25 Dealing firstly with loss of privacy, I note that any opportunity for overlooking would come from the first floor bedroom windows and sitting rooms. Such overlooking would not be in the manner of overlooking should it arise, from living rooms, dining rooms, kitchens or the like. Taking that into account together with the provision of obscure glazing within the appropriate elements of the windows or areas of the windows I do not accept loss of privacy is a matter of any significant loss of amenity. 26 The second matter of concern was the overwhelming appearance of the development as might be observed from close adjoining properties. These three buildings as I have explained comprise partly one and partly two storey structures. They are articulated, well proportioned buildings of a character not inappropriate in this locality. Notwithstanding the fact of their occupation of a significant length of the site I do not accept that the extent to which they are able to be seen from neighbouring properties would be such as to be critical to the application. 27 The loss of trees from the site was another matter of concern and leaving aside the large eucalypt which I shall deal with later, I am satisfied taking into account the evidence of Mr P Castor and Mr D Ford the arborists/horticulturists that the landscape scheme as proposed will not only be successful but will provide an appropriate setting for this development including trees of a scale appropriate in an urban setting. 28 It is clear that given the north south orientation of allotments in Brighton Street that development of sites such as this will result in morning and afternoon overshadowing of adjoining properties. 29 Mr Roberts examined the overshadowing diagrams and the consequences of such shadowing in detail. Clause 62 of the LEP requires that development is not to unreasonably reduce sunlight to surrounding properties and in the case of housing where there is existing overshadowing sunlight is not to be further reduced by new development by more than 20%. In Attachment C to his report Mr Roberts carried out a careful analysis of overshadowing in terms of cl 62 and was able to conclude that in relation to different interpretations of the clause that it would be met and that there would be no unreasonable reduction of sunlight. 30 Whilst there is no doubt that this development will add to the overshadowing of adjoining properties, taking into account the extent of this in the general sense and the compliance with cl 62 I do not accept that this is a critical aspect of this application. 31 Another element of amenity involves traffic generation and access and egress to the site. And here I note that expert traffic engineering advice has been sought by the council and obtained from Mr J Rudd, a traffic engineer. The essence of that advice is that the impacts on the street or indeed on the neighbours would be minimal, taking into account the very low traffic generation of this site. Also, pedestrian safety would not be of concern given the low traffic numbers and the fact that vehicles can enter and leave the site in a forward direction. Appropriate sight lines are met. 32 Taking all of these matters into account and recognising that this development will be different to surrounding development it would nevertheless maintain, and I would expect that upon completion of the development and its landscaping, would enhance the amenity of the locality. 33 I therefore accept that the proposal meets the definition of a complementary and compatible use as required by the desired future character statement so as to be one of those forms of development which are interspersed amongst detached style housing in landscaped settings. This of course raises the question of whether in the broader sense this development would be complementary and compatible with detached style housing in landscaped settings. Here I am satisfied that it will achieve this test. 34 It is of particular relevance to note that the style of each of these proposed buildings is in the form of a detached dwelling house albeit at a higher density than that of surrounding detached houses. The two rear dwellings are indeed detached houses whilst the front building comprises a pair of attached houses. 35 A landscaped setting is provided and the presentation to the street will in terms of the form of the building and its setback and landscaping be consistent with the character of other buildings in the street. 36 The second test in the desired future character statement deals with a number of things. I have already dealt with the matter of landscaped front gardens and building setbacks and concluded that the development would be consistent in the streetscape, taking into account the nature of existing buildings in the street. 37 That leads to the more difficult test of maintaining the visual pattern and predominant scale of detached housing in the locality. The individual buildings proposed in this application are of a similar scale to that of existing detached housing in the locality. But when read together there is to be much more building on this site by comparison with what exists in the surrounding area. 38 However, this is not a matter of concern because the desired future character for this area includes the interspersion of a range of complementary and compatible uses and existing residential flat buildings. So something that is different to detached style housing is to be expected. Hence, taking into account that each building has a predominant scale that is responsive and consistent with detached housing in the locality, I find the proposal to be acceptable in this regard. 39 The final question here is whether this development will maintain the visual pattern of development in the locality. Again this development will be different. I interpret the notion of the visual pattern of housing in the locality in terms of building footprint and by providing buildings albeit separated from one another down the site this is different to what already exists. It will produce a different visual pattern. 40 In this context several residents expressed concern that there should be a break between buildings closest to the street and buildings at the rear of these deep allotments, providing for a continuous landscaped strip of land extending across numerous properties. 41 Whilst there is a town planning logic associated with this suggestion, there is nothing in the planning controls that points the consent authority to this approach. Again it is to be recognised that developments of the kind here proposed are anticipated to be interspersed into the existing setting or locality. 42 In this context whilst the break between buildings as some might hope for has not been provided, it is nevertheless true that there are significant breaks between the three buildings and that in those breaks landscaping and the retained cheese tree are to be provided. In addition, the two storey elements of the proposal are separated by even greater distances. Hence whilst these buildings particularly the two centre most dwellings will appear in this corridor, I do not accept that they are such that they would have such an impact as critical to the visual pattern of this locality. 43 As a consequence I am satisfied that the proposed development would, in accordance with cl 12, be consistent with the relevant general principles of the LEP and the desired future character statement. 44 That leaves me with the matters of precedent, overdevelopment and the loss of the large eucalypt. As for precedent, it is well established that development applications are treated on their own merits and in their relevant context and here I am satisfied that on its merits this proposal warrants approval. Whilst it is different to that in the immediately surrounding area this is, for the reasons I have given in relation to the desired future character statement, appropriate. 45 The desired future character statement for this Curl Curl Locality as I have said recognises complementary and compatible uses. This being the first of such in this immediate locality does not mean that it would be setting an inappropriate precedent, rather it is responsive to the character statement. But it may mean that further developments of this kind in this immediate locality by the character statement (i.e. could be inappropriate because the balance that is required, characterised by detached style housing in landscaped settings) may begin to be compromised. 46 As for the matter of overdevelopment, given the overwhelming compliance with the various standards applicable and given what I have said about amenity impacts I do not accept that this development would comprise an overdevelopment of the site. 47 In relation to the large eucalypt, I accept the evidence of the tree experts that it would be appropriate for this tree to be removed. Here I note that the tree is not indigenous to this locality. It is a very large tree and is presently oversized for its urban location and is likely to grow even larger. It is a tree that is prone to dropping branches unexpectedly. I therefore agree that it is, in this urban setting, an inappropriate tree. 48 More generally, I note that one significant tree is to remain on the site and the trees that are to be removed from the site are to be effectively replaced as shown in the landscape plan by plantings appropriate in species and size to the urban surroundings. 49 For the above reasons I have decided that by consent: