Land and Environment Court of New South Wales CITATION : Alpall v Blue Mountains City Council [2006] NSWLEC 510 Applicant: Alpall Pty Ltd PARTIES : Respondent: Blue Mountains City Council FILE NUMBER(S) : 11098 of 2005 CORAM: Roseth SC KEY ISSUES: Development Application :- conservation area DATES OF HEARING: 18/07/2006 to 21/07/2006, 31/07/2006, 16/07/2006 DATE OF JUDGMENT: 08/16/2006 Applicant: Mr A Galasso, barrister instructed by Mr C Drury of Phillips Fox LEGAL REPRESENTATIVES: Respondent: Mr P Jackson, solicitor of Pike Pike & Fenwick JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Roseth J 16 August 2006 11098 of 2005 Alpall Pty Ltd v Blue Mountains City Council Copy of Senior Commissioner's notes read into the record on 31 July 2006 1 Senior Commissioner: This is an appeal against the refusal by Blue Mountains City Council (the council) of a development application to demolish some existing buildings and erect a two to three-storey commercial and residential development containing 12 shops, a supermarket, commercial space and 23 apartments on lot 1 and 2 DP 514529 and lot 18 DP 662808, known as 152-156 and 158-160 Leura Mall, Leura. The site and its context 2 The site of 3,238m2 is located mid-block on the eastern side of Leura Mall and is defined to the east by an existing council carpark. Leura Mall is a significant retail precinct that services Leura's population as well as tourists. Because of its high urban design qualities, it is well known and much loved throughout the State. The mall is characterised by a diversity of individual heritage buildings on both sides that step down the slope away from the railway line together with a landscaped central zone that accommodates the cross fall and defines the one-way road system serving either side. The road on the western side is one or two metres below the eastern side. There are landscape elements in the eastern footpath easement, particularly in the vicinity of the subject site. 3 The site contains a number of large warehouse type buildings set back from the lot boundary as well as two older buildings, the Miko and the IGA buildings, which have streetscape significance and contribute to the character of the Mall. There is also Thornley cottage, the importance of which is in dispute. The building adjoining to the south contains a shop known as Auto One. To the north is the heritage-listed Post Office, which has an eastern extension and a Telstra shed to the rear. The proposal and its history 4 The applicant seeks to demolish the existing warehouse type buildings and Thornley cottage on the site, retain the Miko and IGA buildings, and erect a two to three-storey development containing 12 shops, a supermarket of 1,000m2, commercial space and 23 apartments. The proposal is two-storeys at the Mall alignment, rising to three storeys about 20m behind it. Access to the apartments is through lobbies at ground level as well as directly from the basement carpark. 5 Pedestrian access between the Mall and the council carpark is along the northern boundary. This walkway is lined with shops and there is a weather-protected retail court, which provides access to the supermarket. A new two-storey component continues the line of shops and awnings along Leura Mall; however, it preserves two existing gaps in building on either side of the Miko building. The design of the Mall-component follows the scale of the existing buildings, though the detailing is contemporary, rather than imitative of past architectural styles. 6 The applicant lodged the application in May 2005. Following notification, the council received 32 submissions. Since the council considered the application inappropriate, it commissioned Mr D Logan, a heritage architect, and Ms G Morrish, an architect and urban designer, to prepare design guidelines for the site (the Logan/Morrish Guidelines). In response to the guidelines the applicant revised the concept and submitted amended drawings by a different designer, Mr A Lester, an architect and urban designer. However, Mr Lester's design followed the guidelines only in part. 7 The applicant relied on the expertise of Ms M Fallon for the assessment of the proposal's heritage impact. Relevant planning controls and policies 8 State Environmental Planning Policy – Development Standards (SEPP 1) provides for the objection to development standards. 9 At the time of lodgement, the operative local environmental plan was Local Environmental Plan 4 (LEP 4). It zoned the site Business General 3(a). It established the Central Leura – Conservation Area. The maximum FSR was 1:1, and buildings were restricted to two storeys. 10 Local Environmental Plan 2005 (LEP 2005) commenced on 7 October 2005, which was after the development application was lodged. Clause 6(4) saves the application. The LEP zones the site Village Town Centre and establishes the Leura Mall Precinct within the Central Leura Urban Conservation Area. The applicant has followed the provisions of LEP 2005; however, where the proposal does not comply with the development standards of LEP 4 (such as height and Floor Space Ratio), it has lodged Objections under SEPP 1. LEP 2005 removed the maximum FSR from the Leura Mall Precinct and substituted a building envelope for the two-storey height limit. The parties agreed that it was appropriate to assess the proposal under LEP 2005, since that plan represented the council's latest opinion and, in any case, if the applicant re-submitted the proposal now, it would have to be assessed under LEP 2005. 11 State Environmental Planning Policy 65 – Design Quality of Residential Flat Development contains design principles. The council did not raise any issues with respect this Policy. 12 Better Living Development Control Plan (the Better Living DCP) contains detailed guidelines for residential development. The issues 13 The council submitted a Statement of Issues containing nine issues, of which it pressed seven. These were discussed during the hearing when it became apparent that they fall into three categories: traffic, heritage and urban design, with the two latter overlapping. 14 The three traffic issues were: · Is the number of spaces adequate? · Are the spaces wide enough? · Is the loading dock deep enough? 15 The heritage and urban design issues were: · Impact of the third storey on the northern and western boundary, the setting of the Post Office and the two retained shops. · The relationship between the architectural character and proportions of the ground floor to the top two floors. · The non-retention of Thornley cottage. · Design and location of the public access/laneway. · Inadequate setbacks from the southern boundary, impact on development potential of south-adjoining site. · Inadequate landscape on eastern and southern boundaries. · Blank wall to carpark entry. · Top two floors setback over single floor (instead of top floor set back over two lower floors) to eastern boundary. Objector and supporters 16 Of the 38 representations to the council in response to the exhibition of the revised proposal, 20 supported the application, 15 objected to it and three cannot be placed in either group. 17 While some of the supporters emphasised the need for more shopping, and particularly for a supermarket in Leura, many were specific in supporting the actual design. A typical comment was: I thought it looked really great and should be built immediately. 18 The Court heard several of the objectors on site. Mr J Allan, who represented the National Trust, said that the proposal was not sympathetic to the scale of Leura Mall. Mr J Hockney, who lives at 6 Vale Street, Leura, was concerned mainly with the architectural expression, which he considered out of character with the Mall's existing architecture. Mr H Kozelj, who lives at 6 Pulpit Rock Road, Katoomba, had similar concerns. Ms E de Rusett, who lives at 13 Grose Street, Leura, said that the proposal was out of scale, the parking unsafe for pedestrians and her property would be overlooked. Mr P Nicol, who lives at 8A Russell Road, Leura, said that the design was industrial and out of keeping with the Mall. Mr I McMillan, who lives at 13 Kurrawong Street, Leura, said that the design was monolithic. Ms L Lade, who lives at 145 Megalong Street, Leura, said that her main concern was traffic. She wanted Leura to stay as it is. 19 Only one supporter gave oral evidence. Mr S Hogan, who owns the liquor store on the western side of the Mall, said that he supported additional parking and residential development, which would help combat night time crime at the Mall. Traffic and parking Number of parking spaces 20 The Court heard the evidence of Mr C Hallam, for the council, and Mr C McLaren, for the applicant, both of them traffic engineers. They agreed that, when the council's parking rate is applied to the proposal as a whole, there was a shortfall of 27 spaces in the parking provided. According to Mr Hallam, a new development should provide for all its parking needs. Mr McLaren argued that the applicant should be given credit for the retailing it retains and replaces. In his opinion, the applicant is required to provide for parking only for the additional floor space it creates. If Mr McLaren's suggestion is followed, the existing parking situation will be unchanged. If Mr Hallam's suggestion is followed, the parking situation will be improved. 21 Mr McLaren had surveyed parking in Leura during December 2004, at which time he found that, of the total number of 310 parking spaces (both carpark and kerbside parking), the maximum occupancy was 292. He concluded from this that the parking situation at Leura is acceptable. He argued that, where Section 94 Contribution Plans provide for monetary contributions (which is not the case in Leura), they usually require contributions only for additional floor space. Finally he argued that the retention of two existing shops on the site reduces the number of cars that can be accommodated in the basement, thus making it necessary to build an additional basement level. Mr Lester looked at the design of an additional basement and estimated its cost to be in excess of $1.5 million. This would mean a cost of about $50,000 per car space. 22 Mr Hallam was not convinced that the December 2004 parking survey was undertaken at the busiest time. He remained of the view that the proposal should provide parking for all floor space, not just new or additional floor space. The council's advocate, Mr P Jackson, pointed out that the council was willing to allow the applicant to extend the basement under the council's carpark without payment. Mr Lester said that this would be even more expensive that the additional basement option. 23 It seems to me that both Mr Hallam's and Mr McLaren's argument has merit. On balance, I find Mr McLaren's more persuasive for the following reasons: · The survey in December 2004 may not have taken place on the busiest day, but it was certainly one of the busy days in the Blue Mountains. If it indicates that the available parking was not all taken up, then one may conclude that the parking situation around Leura Mall is reasonable. · Most contribution plans (not only in the Blue Mountains but elsewhere in the State) require parking contributions only for additional floor space. · The retention of two existing shops restricts the basement from providing more parking. · There is no obvious element of the proposal that could be deleted in order to reduce the parking demand. · The cost of providing additional parking is unreasonably high. It is more than ten times what a development would have to contribute in Katoomba, where there is a Section 94 Contribution Plan. Width of parking spaces 24 The parking spaces are 2.5m wide; while according to the Australian standards, they should be 2.6m. Mr Hallam and Mr McLaren agree that the main result of this is that driving in and out of the spaces will take longer. In Mr McLaren's view, in a small one-level car park, this is acceptable. 25 Given my finding above, it seems to me that it is better to have slightly narrower spaces than to lose further parking spaces. Since these are the only two options, I find that the parking spaces are acceptable. The depth of the loading dock 26 The loading dock is 14m deep, but it is expected that 16.5m long semitrailers will need to access it, thus sticking out into the footpath. On a cursory assessment of the plans, it appears that a minor re-arrangement of stairs and toilets would allow the loading dock to be increased to 16.5m or at least 16m. The proposal should be amended accordingly. Urban design and heritage The differences between the proposal and the Logan/Morrish Guidelines 27 The applicant considered the Logan/Morrish Guidelines but departed from it in three significant aspects: · The proposal has two three-storey elements while the Guidelines have one such element to the rear. · The public laneway through the site is at the north boundary while the Guidelines locate it between the existing Miko and IGA buildings. · At the eastern boundary the proposal is two storeys on top of a single-storey podium, while the Guidelines suggest a third storey on top of a two-storey podium. 28 The Guidelines are more restrictive than LEP 2005 and allow for less floor space. Not surprisingly, the applicant opted to follow the LEP. I note that the Guidelines are not a development control plan. They represent the views of two experts. The LEP is the law and represents, to the extent that it is possible, the views of the council, the community, the Department of Planning and the Minister. It seems to me that where the differences between the proposal and the Guidelines are the result of two alternative design approaches, I have no option but to prefer the LEP. However, where I consider that reliance only on the LEP would threaten the urban quality of Leura Mall, I have accepted that the standards of the LEP must be tempered by the opinions of the urban design and heritage experts. Impact of the third storey 29 This is the major issue for the council's experts, Mr Logan and Ms Morrish. In their opinion, the third floor should not be seen at all from the Mall. It was agreed that the setback of the three-storey component was sufficient for the two-storey component at the Mall alignment to screen it from view. The important exception is where there is a break in the line of buildings. The proposal has three breaks, one at the northern end of the site adjoining the Post Office, and one on either side of the retained Miko building. 30 Mr Lester, Ms Fallon, Mr Logan and Ms Morrish agreed on the revised treatment of the northwest corner of the building, bringing the built element more forward and nearer to the Post Office, thus screening the north elevation from view from the mall. The amendment came to the Court as a sketch by Mr Lester (Exhibit N). However, the gaps in building continuity on either side of the Miko building remained a point of disagreement. Mr Logan and Ms Morrish wanted it "filled in", thus eliminating a view of the three-storey component from all points along the Mall. The suggested amendment came to the Court as two sketches (Ground floor Layout and First Floor, Leura Mall, July 06, GM + Logan), which became part of Exhibit 17. Mr Lester and Ms Fallon resisted the suggestion on the grounds that the gap had existed historically. Moreover, they did not think it was such a bad thing to see the three-storey element form the Mall. 31 I should add that Mr Logan and Ms Morrish considered the above amendments only bandaid solutions. Ms Morrish would ideally have moved the three-storey component further back than 20m. Mr Logan would accept only the eastern three-storey section, thus requiring deletion of the third floor in the western section. They agreed, however, that if the three-storey section was to remain, it should be completely screened from the Mall. 32 It seems to me that, in view of the development standards for Leura Mall in LEP 2005, it would be unreasonable to refuse the application because it contains a three-storey element set back by 20m behind Leura Mall, when the LEP would allow a setback about 10m from the Mall. The height is more than 1m below the 12m maximum permissible, and the setback is more than twice required. 33 The question whether to retain the existing gaps in building on either side of the Miko building is the most important decision in this case. There are two competing arguments. The argument for retaining the gap is that it has always been there. The argument for "filling in" is that it would screen the three-storey section, which would otherwise be visible to pedestrians on the Mall. 34 To resolve the conundrum, I ask myself which solution would preserve the special quality of Leura Mall in the eyes of ordinary visitors who have no heritage or urban design expertise. It seems to me that visitors would find it more disturbing to see a three-storey apartment building from the Mall than to find that the Miko building is no longer free-standing (which they probably would not even notice). This is not because the three-storey building is in any way objectionable; however, by its very nature and function, it is alien to the character of the Mall. If it is possible to avoid it being seen, then that possibility should be embraced. I have therefore accepted Mr Logan and Ms Morrish's sketches as the indicator of how the continuity of building along the Mall can be achieved. Relationship of proportions of the ground floor to the top two floors 35 According to Mr Logan and Ms Morrish the elevation treatment of the upper two floors is inconsistent with the ground floor and the Leura character. Mr Lester responded with a sketch of the proposal towards the Mall that came to the Court as Exhibit P. In my opinion, that sketch answers, at least to some extent, Mr Logan's and Ms Morrish's criticisms. Demolition of the existing Thornley cottage 36 Mr Logan and Ms Fallon agreed that Thornley cottage is likely to be one of the oldest surviving buildings in the area. In Mr Logan's opinion, it should be preserved in the new development. Ms Fallon thinks that too much of the original fabric has disappeared to warrant retention and that there are other better-preserved examples of the era. 37 It is clear that Thornley cottage cannot be preserved in the current proposal. I note that the cottage is not given any significance in any of the council's documents. I note also that Mr Logan said that, by itself, the non-retention of the cottage is not a determinative issue. The matter is certainly not of sufficient significance to refuse the application, which is what the Court would have to do in order to achieve the retention of the cottage. Design and location of the public laneway 38 The proposal locates the public laneway through the site at the northern boundary while the Logan/Morrish Guidelines locate it between the existing Miko and IGA buildings. It seems to me that both approaches have advantages and drawbacks. The northern location provides better sunlight to the lane and allows for a sunlit court in the middle. The Guideline's location allows the retention of Thornley cottage. Given that no single design can achieve all desirable objectives, in my opinion, the location of the public laneway is acceptable. Impact on development potential of south-adjoining site 39 I understand that Ms Morrish's concern relates mainly to overlooking from the first-floor balconies. Mr Lester provided a sketch detailing a privacy screen that came to the Court as Exhibit M. This appears to resolve the problem. Inadequate landscape on eastern and southern boundaries 40 Clause 4(2)(d)(iii) of Part 5 Division 1 of schedule 1 of LEP 2005 states that each building should be surrounded by garden courtyards that provide space for canopy trees planted to frame individual buildings. 41 However, clause 3(2) states that setbacks from the front and side boundaries should be 0m (ie that buildings shall be built to the front and side boundaries). Clause 3(3) states that development may have a maximum site cover of 100%. In view of this it is hard to see how the proposal should accommodate landscaping on the site. Moreover, the character of Leura Mall relies on landscaping in public spaces, such as the dividing strip within the Mall and the car park. Blank wall to carpark entry 42 The entrance to the car park is opposite the blank wall of the supermarket. To the east there are shopfronts that would be visible to drivers entering the car park. Ms Morrish would prefer to see shopfronts opposite the entrance. I agree that this would be desirable, but I do not think that it is an issue of great importance. It could be achieved only by refusing the application, which is not warranted by this minor drawback. Top two floors set back over single floor to eastern boundary 43 In Ms Morrish's view (and also shown in the Logan/Morrish Guidelines) the third floor of the eastern section is set back above a two-storey podium. The proposal sets back a two-storey section over a single-storey podium. As with the issue above, I agree that Ms Morrish's solution is preferable, but I do not think it is a matter of significance. Dispute about conditions 44 The parties disagreed on draft conditions A1, B32, B43 (second paragraph) and B44(a). Draft condition A1 is a deferred commencement condition that the applicant wants deleted. The council is willing to convert it to an ordinary condition of consent, but not to delete it. I accept the council's position. 45 Condition B32 requires an electronic capacity indicator at the entrance of the basement carpark. I accept that this is desirable and that it will avoid drivers driving to the basement carpark only to find that it is full. 46 The applicant wants to delete Condition B43 (second paragraph), which requires the applicant to obtain the council's consent if it wishes to dispose of excess spoil at a location in the Blue Mountains other that at a location indicated by the council. I accept the need for this condition. 47 Condition B44(a) prohibits works on the site on Saturdays, Sundays and public holidays. The applicant wishes to work on Saturdays. Given the Mall's popularity with tourists on Saturdays and the fact that the development will cause significant disruption during weekdays, I accept the need for this condition. Conclusions 48 In this case the Court had the benefit of four respected, experienced and sensitive experts in urban designers and heritage. Although their opinions differed on matters of substance, they worked together during the hearing in order to offer the best possible advice to the Court. Mr Logan and Ms Morrish were of great assistance because they suggested solutions that would preserve the integrity of the Mall without the need to re-design the proposal in substance. It seems to me that the special quality of Leura Mall is best preserved if my decision is based on the views of all four experts. 49 The major flaw of the proposal is that the three-storey apartment building can be glimpsed from the Mall through three breaks in the line of buildings: at the public laneway to the north and at each side of the Miko building. The experts agreed on the manner in which this can be avoided at the public laneway; however, there was no agreement about "filling in" the gaps at each side of the Miko building. 50 In my opinion, the proposal is not acceptable while the breaks in the line of buildings allow a view of the three-storey apartment building behind. However, if the applicant adopted the amendments suggested by Mr Logan and Ms Morrish, the proposal would become acceptable. In addition, two further amendments suggested by the applicant, as well as one by Mr Hallam, should also be taken on board. 51 The required amendments are: · Amend the northwest corner according to Exhibit N. · Amend the proposal on each side of the Miko building, generally along the lines suggested in two sketches by Ms Morrish, (First Floor, Leura Mall, July 06, GM + Logan), which became part of Exhibit 17. The aim is to prevent views of the three-storey component from the Mall, so if the aim is achieved, the sketches need not be followed exactly. · Amend the west elevation of the three-storey apartment building as shown in the sketch by Mr Lester in Exhibit P. · Amend the south elevation as shown in the sketch detailing a privacy screen in Exhibit M. · Extend the depth of the loading dock to at least 16m. If this cannot be accommodated, the applicant is to apply for another short hearing. 52 In addition, the detailing of the shop fronts and first floor facing the Mall is of such importance to the overall quality of the proposal that it should be finalised as part of the development consent, rather than left to a later stage and a principal certifying authority. 53 On 31 July 2006 I read the above findings into the record. On 16 August 2006 the council sought a further hearing at which it submitted that it was desirable to re-advertise the amended proposal. Mr Jackson added that re-advertising was not legally required, but it was in line with the council's policy of keeping the community informed. The applicant submitted that the amendments were minor and did not warrant re-advertising. 54 In my opinion, it is neither necessary nor desirable to re-advertise the amended drawings. As I have noted above, among the representations to the council the number of supporters outnumbered the objectors. While this does not suggest that one pays any less attention to the objectors' concerns, it is nevertheless a very unusual circumstance. 55 The objectors had three main concerns: · the three-storey residential component was alien to the Mall's character; · the Leura Mall elevations were too contemporary; and · the proposal generated too much traffic. 56 As regards the first concern, the amendments required by these findings will render the three-storey component hardly visible from points within the Mall. While it will exist in the background, and be visible from the car park and from the distance, its existence is the consequence of the council's recent changes to the controls governing Leura Mall, which permit 12m high buildings. (The proposal is less than 11m in height.) The Court's findings have thus responded to the objectors' concern to the extent that it is possible given the council's latest local environmental plan. 57 As regards the second concern, all the experts agreed that it was inappropriate for a 21st century building to pretend that it was built in the 19th century. On this aspect the views of the objectors were in conflict with the unanimous view of the experts. 58 As regards the third concern, traffic, neither of the traffic experts thought that the proposal's traffic generation justified refusal. 59 The amendments required by the Court are all minor in extent, albeit the filling in of the gaps in building facing the Mall would have a major effect in reducing the visual impact on the Mall of the three-storey component. Thus, the impact that the objectors most feared has been considerably lessened. I do not think that it is possible for new objections to arise out of the amended drawings. 60 Moreover, there would be an element of tokenism in re-advertising the amended drawings. After carefully reading every letter by supporters and objectors, the Court has made a decision that, subject to the required changes, the proposal is worthy of approval. Where a decision has been made, it would not be appropriate to put people to the trouble of writing further representations. 61 Since the council is anxious to keep the community informed of the progress of this application, I place my findings on the Internet. The council may advise the Blue Mountains community of this. _________________ Dr John Roseth Senior Commissioner 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.