Land and Environment Court of New South Wales CITATION : Archiworks Architecture Pty Limited v Sutherland Shire Council [2004] NSWLEC 546 APPLICANT Archiworks Architecture Pty Limited PARTIES : RESPONDENT Sutherland Shire Council FILE NUMBER(S) : 11024 of 2003 CORAM: Bly C KEY ISSUES: Development Application :- townhouse and villa development comprising 24 dwellings and a basement car park - zone objectives bulk scale and character - privacy - internal amenity and design Environmental Planning and Assessment Act 1979 Sutherland Shire Local Environmental Plan 2000 LEGISLATION CITED: Development Control Plan Draft Local Environmental Plan 2004 State Environmental Planning Policy No 1 - Development Standards Novara Crescent Pty Ltd v Sutherland Shire Council [2004] NSWLEC 403; CASES CITED: Troy M Pascoe - Webb and Projectworx P/L v Sutherland Shire Council [2003] NSWLEC 285; Della Homes v Sutherland [2000] NSWLEC 66 DATES OF HEARING: 28/06/2004-29/06/2004 and 20/08/2004 and 23/08/2004 DATE OF JUDGMENT: 09/29/2004 APPLICANT Mr P Clay, barrister SOLICITOR Mckees LEGAL REPRESENTATIVES: RESPONDENT Mr R O'Gorman-Hughes, solicitor JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 29 August 2004 11024 of 2003 Archiworks Architecture Pty Limted v Sutherland Shire Council JUDGMENT 1 Bly C: This appeal relates to Development Application No 03/0498, which is for a one and two storey townhouse and villa development comprising 24 dwellings above a basement car park at 21, 23 and 27 Moreton Rd. Illawong. Vehicular access to the basement is off Moreton Rd. 2 The site, comprising Lots 1, 3 and 4 DP 261089, has an area of 5,088 sq m, a frontage of 35.85 m to Moreton Rd and 50.78 m to Fowler Road (formerly Old Illawarra Road). It has a cross fall of about 12 m along its longest side. It contains several significant clusters of trees. 3 The site is within a residential area predominantly characterised by detached dwellings. The visual characteristic of the locality comprises an open landscaped streetscape with reasonable building separation. Adjoining the site to the west and east are freestanding dwelling houses. Statutory Provisions 4 The site is zoned 2(a1) Residential under Sutherland Shire Local Environmental Plan 2000 ("LEP 2000") and in this zone dwelling houses, town houses, and villa houses are permissible with development consent. Relevantly the LEP contains zone objectives, bushland considerations, height limits, maximum floor space ratio, minimum landscaped area, minimum lot size and width for multiple dwellings. 5 Also applicable is Council's Development Control Plan for Town houses and Villa Houses in 2(a1) and 2(a2) Residential Zones ("the DCP"). Relevantly the DCP contains objectives and controls relating to the number of multi-dwellings in particular localities and on particular sites, setbacks, impacts on neighbours such as overshadowing and privacy, private open space, solar access and energy efficiency, adaptable housing and landscaping. 6 Council has prepared the comprehensive draft Local Environmental Plan 2004 ("the draft 2004 LEP") for the shire, which is to replace LEP 2000. The draft 2004 LEP has been processed under the Environmental Planning and Assessment Act 1979 and forwarded to the Department of Infrastructure Planning and Natural Resources (" DIPNA") for finalisation. It has not progressed beyond that point and cannot be said to be imminent or certain. 7 Relevantly the draft 2004 LEP will, by including the site and surrounding area in the Environmental Housing (Bushland) Zone, have the effect of prohibiting townhouse and villa house developments. Notwithstanding this, draft LEP 2004 contains saving provisions, which will enable development applications that have been lodged but not determined before its commencement to be determined as if it had been exhibited but not commenced. Advertising and Council's decision 8 The original application was advertised and as a result council received 124 letters of objection and a petition containing 83 signatures. Matters of concern raised in those objections include: vehicular traffic impacts, especially safety; and amenity impacts including overshadowing, privacy and excessive built form. Amended plans were subsequently submitted and advertised resulting in 25 letters of objection raising similar concerns. 9 On 1 Aug 2003 the council issued a notice of determination refusing the application for reasons relating to: the failure to meet the special considerations and objectives associated with the 2 (a1) zone in LEP 2000; the failure to meet the it floor space ratio requirement in LEP 2000; the failure to meet the general objectives, the streetscape, adaptable housing, recycling and building design objectives in the DCP; the failure to meet the development size requirements in the DCP; the failure to provide adequate internal amenity and building relationships within the development; and the extent and nature of public submissions opposing the proposal. The evidence 10 On behalf of the respondent Council, town planning evidence was provided by Mr G Hand and Mr K. Nash who, because of Mr Hand's illness took over and adopted his report as his own. On behalf of the applicant, town planning evidence was given by Mr J Lovell. Traffic evidence was provided by the Court appointed traffic engineer, Mr C McLaren. 11 In addition when the hearing commenced on site, a number of neighbours gave oral evidence. The Issues 12 A statement of issues containing 12 separate issues plus a number of supplementary issues were provided to the applicant and the Court. These issues involve the following matters: bulk scale and character; prohibition in the draft 2004 LEP; privacy of adjoining dwellings; internal amenity and design; inadequacies and inaccuracies in the plans; car parking and traffic; waste collection; and objectors concerns. 13 The issue of car parking and traffic, especially the aspect of driver sight lines from the site has now been resolved as a result of discussions between the Court appointed traffic expert and the party's traffic experts. This resolution involved modifications to the proposal, including the relocation of the driveway and the removal of trees together with a number of conditions of consent. Residents, especially those in Moreton Rd continue to oppose the proposal on the basis of traffic safety and the council is concerned about the loss of the street trees. 14 Having considered the remaining issues in the light of the evidence including the site inspection, the following are the issues that require the determination of the Court: 1. Whether the proposed development would be out of character with the neighbourhood especially in relation to housing form and bulk and scale. Particular matters to be considered in this regard include: floor space ratio, building height and setbacks; dwelling density; the objectives of the 2(a1) zone; and the objectives of the proposed Environmental Housing zone. 2. Whether the proposal would have adverse amenity impacts on neighbouring dwelling houses in terms of loss of visual and aural privacy, additional overshadowing and the effects of the appearance of townhouse type development. 3. Whether the internal amenity and design of the development would be satisfactory in terms of privacy, solar access energy efficiency and crime prevention. Character of the development 15 It is necessary in dealing with the character and density issue to give proper consideration to the applicable controls and objectives contained in the LEP the draft 2004 LEP and the DCP. 16 Clause 35 (2) of the LEP sets a maximum floor space ratio for buildings in the 2(a1) zone of 0.45:1. Floor space ratio and gross floor area are defined as follows: Floor space ratio means the ratio of the gross floor area of all buildings on the site to the area of the site. The site is taken to be only that part of the site zoned to permit the development for which the buildings are or are proposed to be used. Gross floor area means the sum of the areas of each floor of the building, site where the area of each floor is taken to be the area within the outer face of the external enclosing walls, excluding any of that area occupied by: (a) lift towers, motor rooms and stairwells within a basement or above the roof level, and (b) car parking needed to meet requirements of the council, up to 20 square metres per required parking space, and (c) storage areas needed to meet requirements of the council, and (d) plant rooms, garbage storage areas, switch rooms and the like within a basement 17 The objectives of the floor space ratio requirements are contained in clause 35(1) of the LEP as follows: (a) to provide a degree of consistency for existing residents as to their size and bulk of potential buildings in their neighbourhood, and (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. 18 In their joint report Mr Nash and Mr Lovell agreed on the following floor space ratio calculations: (a) Habitable floor space: 2,053m2 Internal access aisles (incl.78m2): 1,030m2 Total: 3,083m2 FSR: 0.61:1 (b) FSR for habitable component: 0.4:1 (c) Including that part of the basement exceeding ground level (78m2) FSR is: 0.42:1 19 Strict application of part (b) of the gross floor area definition results in the proposal having a floor space ratio of 0.61:1 which is in excess of the applicable development standard. In my view and taking into account the objectives of the standard, the inclusion of car parking access aisles whilst at the same time excluding car parking spaces is an anomaly. The exclusion of access aisles seems not to have any valid planning purpose, even taking into account the objectives of the development standard. (See for example: Novara Crescent Pty Ltd v Sutherland Shire Council [2004] NSWLEC 403; Troy M Pascoe - Webb and Projectworx P/L v Sutherland Shire Council [2003] NSWLEC 285; and Della Homes v Sutherland [2000] NSWLEC 66). 20 Being largely below ground level the car parking spaces and the access thereto do not in my opinion contribute to the apparent bulk and scale of this development. They can thus, on a merits basis, both be excluded from the notional floor space ratio, which would thus be less than the maximum permitted. In this context I note that the draft 2004 LEP proposes that internal access to parking be excluded from these calculations. Despite this there remains a technical non-compliance but in the circumstances I would have accepted the provided objection pursuant to State Environmental Planning Policy No 1 - Development Standards. 21 In dealing with the character issue the DCP contains a number of relevant provisions in section 14. In dealing with the identity of localities the DCP requires the consideration of the character and scale of existing buildings and the maintenance of this character and scale as well as setbacks as far as possible. More particularly and in relation to villa and townhouse development the DCP notes that: The size of the villa and townhouse development also has an impact on the "predominantly single dwelling house character of the neighbourhood" visually, socially and from other impacts including traffic, on-street parking and the provision of other services. Community concern to the villa and townhouse development in the "a" zones usually increases in accordance with the number of dwellings proposed. 22 Section 14.1 sets the maximum size of villa and townhouse development to a total of seven dwellings, a requirement that is significantly exceeded by the proposal. The objectives in s. 14 indicate a need to ensure that new development is compatible with the character and scale of existing residential development in the immediate vicinity and to avoid significant impacts on the streetscape, character of the neighbourhood and the amenity of adjoining properties. 23 Mr Nash was of the opinion that the site density requirement should not be relaxed because the objectives have not been met. He also noted that there are no other sites in the locality that contain such a large number of medium density dwelling units. 24 Whilst I have difficulty accepting that the seven dwelling site control in cl. 14.1 of the DCP is an appropriate planning provision it nevertheless provides an indication of the scale of villa and townhouse developments that are likely to be acceptable here. The proposal far exceeds this provision and this exceedence is one factor that points towards a development that, because of its size, is out of character with this predominantly detached dwelling locality. 25 The relevant objectives of the 2(a1) zone in the LEP are: A residential environment: (a) Where the scale, amenity and the predominantly single dwelling house character (b) Where the streetscape is characterised by detached one and two storey residential buildings, and (c) Where the predominantly single dwelling house character of the neighbourhood is not diminished by the cumulative impact of successive dual occupancy, townhouse or villa house developments. 26 As indicated above the draft 2004 LEP will prohibit townhouse and villa development on this site. The Environmental Housing (Bushland) Zone is described as comprising: Land in this zone will be characterised by detached housing nestled in a bushland setting. Low-density residential development is best suited to protecting natural features and managing bushfire risk to life, property and the environment. 27 The design objectives in draft 2004 LEP relevant to this proposal comprise: (b) to allow development that is of character, scale and nature that complements the natural surroundings, (d) to maintain the predominant single dwelling character of the area 28 In the Novara case the affected site was, as in this case, to be rezoned and that rezoning would result in the prohibition of townhouses on the site under consideration. The weight to be given to the draft 2004 LEP was considered and it was concluded that the prohibition was significant but not necessarily determinative . In terms of the processing to finalisation of the draft 2004 LEP the circumstances here are little different to those applicable when Novara was decided. The prohibition of the proposal in this case is therefore a matter of significant but not necessarily determinative weight. The objectives of the bushland zone would attract weight in the same manner. 29 Taking into account the proposed prohibition and the objectives of the bushland zone together with those for the 2(a1) zone it emerges that the desired future character is one predominantly comprising single detached dwellings in a bushland setting. This proposal, not being detached housing instead comprising townhouse and villa development is significantly different and this is indicative of a form of development that is inconsistent with this desired future character. However, given the permissibility of the proposal this cannot, by itself, be determinative. It is nevertheless an important consideration in deciding whether or not the proposal would be so out of character with the present and likely future character of the neighbourhood that it should be refused. 30 More particularly, in considering building form, it is clear that villa houses such as those here proposed have a character more like detached dwelling houses than do attached townhouses. Hence, in general, a villa house development is more likely to meet the zone objective of protecting the single dwelling house character of the neighbourhood. Conversely having a different built form, townhouses would need to be very carefully designed to meet the objective. 31 In dealing with the character question Mr Nash explained that when viewed from the east the proposal presents as a row of nine attached and two detached dwellings and from the west the presentation is five attached and two detached dwellings. This is antipathetic to the low-density character of surrounding freestanding development. It was therefore inconsistent not only with the objectives of the LEP and the DCP at also with the draft 2004 LEP. 32 Mr Lovell accepted that the proposal would be different but would not be out of character with the locality. He explained that the form and configuration of the development has been largely dictated by the objective of preserving a majority of existing canopy trees. Taking into account the actual floor space ratio compliance with heights and setback requirements consistent scale of the development and the retention of canopy trees the character of the area would be preserved. Also the development will present as three separate buildings to Fowler Rd and that this will preserve the pattern of development in that road. 33 Accepting as I do the evidence of Mr Nash, I have been persuaded that the form and character of the attached townhouse component of the proposal on the Fowler Road half of the site would be inconsistent with the relevant character objective. I have thus concluded, despite the tree preservation and landscaping scheme and the essential compliance with the floor space ratio and other standards, that the townhouse component of this proposal is unacceptable, because it would be significantly out of character with the present and future predominantly single dwelling house nature of the locality. On this basis I have decided that the application should be refused. 34 Otherwise I would have been satisfied that the front part of the proposal comprising six buildings containing eight two-storey villas would have been satisfactory, although the scale of the building comprising the entrance to the car park would require some improvement. The form and character of the villas, taking into account the proposed landscaping would have been sufficiently consistent with the character being sought by the planning controls. 35 In the circumstances it is unnecessary for me to determine the remaining two issues but I would make the observation that for the most part the internal amenity of this development would not have been unsatisfactory and the external amenity impacts would not have been such as to warrant refusal of the application. I do comment however that the close relationship between dwellings 23 and 24 and the two townhouse rows, the extent of west facing glazing and the measures used to protect the privacy of neighbours do not comprise examples of good design. Orders 36 Therefore the Orders of the Court are: 1. The appeal is dismissed. 2. Development Application No 03/0498 for 24 villa and town houses to be erected at 21, 25 & 27 Moreton Road, Illawong is determined by the refusal of development consent. 3. Exhibit A is retained. ________________________ T A Bly Commissioner of the court ljr 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.