Land and Environment Court of New South Wales CITATION : Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 268 APPLICANT Tenacity Consulting Pty Ltd PARTIES : RESPONDENT Warringah Council FILE NUMBER(S) : 11415 of 2003 CORAM: Hussey C KEY ISSUES: :- Apartment buildings - consistency with desired future character - compliance with built forms - streetscape impact - internal amenity - public interest Environmental Planning and Assessment Act LEGISLATION CITED: Warringah LEP 2000 SEPP 65 CASES CITED: DATES OF HEARING: 14/04/04-15/04/04 DATE OF JUDGMENT: 05/31/2004 APPLICANT Mr J Robson, barrister SOLICITOR Landerer & Company LEGAL REPRESENTATIVES: RESPONDENT Mr G Newport, barrister SOLICITOR Wilshire Webb JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 11415 of 2003 Hussey C 31 May 2004 Tenacity Consulting Pty Ltd Applicant v Warringah Council Respondent Judgment Introduction 1. This appeal is against councils refusal of a development application for two apartment buildings above basement parking, containing 49 units, in Pacific Parade, Dee Why. 2. For the appeal, the following issues were identified: + consistency with the design future character statement, + compliance with built form controls, + streetscape impacts/overbearing, + internal amenity, + impact on adjoining properties. The site 3. The subject property is known as 19 – 21 Pacific Parade and 14 Sturdee Parade, Dee Why. It is described as Lots 4, 5 and 27 of Section E in DP 8270. It comprises three similar sized lots forming an "L" shape within the block bounded by Pacific, Sturdee Parade and Pittwater Road. Details of the site are shown in Attachment 1. 4. The site has a frontage of 30.48 m to Pacific Parade and 15.24 m to Sturdee Parade. The total site area is 2048 m2. There is a fall from the southern to the northern boundary of approximately 4 m. 5. The surrounding area is characterised by a mix of detached dwelling houses, residential flat buildings and commercial development. The land adjoining to the southwest forms part of the site containing the Dee Why Hotel. It currently contains a bottle shop and car park. 6. On the eastern side of the site is a childcare centre, which is owned by Warringah Council. This building has its main frontage to Pacific Parade and a rear frontage to Sturdee Parade, which is an open parking area. 7. Further to the east at 31 – 37 Pacific Parade and 24 – 26 Sturdee Parade, an apartment development including buildings up to 7 stories and containing 74 units has recently been completed. Also recently completed is a 41 unit development at 28 – 32 Sturdee Parade, which is designed to be integrated with the aforementioned development and is collectively known as the "IPM" development. 8. On the opposite side of Pacific Parade there is a mix of commercial buildings, residential flat buildings and dwelling houses. The proposal 9. This proposal involves the demolition of the two existing dwellings on the site and the construction of the following 49 apartments: - 3-storey apartment building containing 6 units adjacent to Pacific Parade. This building has a 4 m setback to Pacific Parade and is 3 stories plus loft level in height, with a curved metal roof design. - 9 storey apartment building ("tower ") containing 43 units towards the rear of the site. This building is situated on a 19.6 to 22 m setback to Pacific Parade (mid-block) and has a skillion metal roof design. - Basement car park for 66 spaces, spread over partly 2 levels and partly 3 levels, with vehicular access off Pacific Parade. - Central courtyard, which is a landscaped area between the two buildings that is also occupied by section of the access driveway, pedestrian access pathways, the egress stairs from the basement car park, paved private courtyards of units on the ground floor of the 9 storey tower and a garbage storage room. -Landscaped open space is proposed to be dedicated, located to the rear also of the mid-block building on the vacant lot known as 14 Sturdee Parade. 10 . The 9 storey "tower" building has a similar design and character for the first 8 stories and is stepped back on the 9th storey. This building incorporates 4 units on the ground floor level, 5 units on Levels 1 through 8 and 2 units on the top most floor (9th storey). Balconies generally project beyond the line of the building face, except for the roof terraces associated with the top floor units. 11 . Comprehensive landscaping of the site is proposed. Planning controls Warringah Local Environmental Plan 2000 (WLEP) 12 . Under this instrument the site is located within Locality E8 – Sturdee Parade. Proposed apartments fall within the definition of "housing " in the WLEP, which is a Category 1 use in Locality E8. WLEP notes that: "Category 1 development is development that is generally presumed to be consistent with desired future character of the locality." The WLEP provides for the design future character (DFC) of the E 8 Locality as follows: "The Sturdee Parade locality will remain primarily a residential area except for a new tourist hotel at the western end of the locality. Future development will comprise new apartment style housing in addition to the hotel. The scale of the new apartment buildings at street frontage is not to be overbearing and is to be consistent with the scale of most typical apartment buildings when viewed by pedestrians on either side of Pacific or Sturdee Parade. Within the block, the height of the buildings may be greater, and is such that they form a transition, stepping down from the new tourist hotel at the western end of the locality to the low rise apartment buildings at the eastern most part of the locality. The design and arrangement of buildings within the locality are to recognise and preserve existing significant public views (from parks, streets etc) and significant views from private properties . Buildings are to be highly articulated and fragmented to reduce the apparent building mass and reflect the existing pattern of development at street. Future development is to also be sited and designed to enclose and define a series of mid-block open spaces connected by a series of open space linkages both within the block and to and from the surrounding street system. Sites are to be amalgamated when necessary to facilitate new development and car parking is to be provided the low ground in shared driveways where possible." State Environmental Planning Policy number 65 -- Design Quality of Residential Flat Development (SEPP 65). 13 . This Policy applies and its aims are to improve the design quality of residential flat development. It contains 10 design quality principles for this type of development. The evidence 14. Detailed evidence on behalf of council was presented by: Mr S. Layman - consulting town planner (Exhibit 1). Mr S. Findlay - consulting town planner (Exhibit 2). Mr R. Fleming - consulting town planner (Exhibit 5). The submissions contained in Exhibit 3 have also been considered. 15. For the applicant, detailed evidence was presented by: Mr N. Ingham - consulting town planner (Exhibit C). Professor P. Webber - urban design consultant (Exhibit D). Ms. N. Sonter - landscape consultant (Exhibit E). Mr. N. Dickson - consulting architect/urban designer (Exhibit G). Mr. J. Lawrence - consulting engineer (Exhibit M). Discussion of the evidence 16. The detailed planning for this area relies significantly on the desired future character statements in WLEP 2000. In this case, the E8 Statement refers to a number of Built Form components, which include the following (summarised) design standards; i) Street frontage height – buildings at street frontage are neither to exceed 3 stories nor 13 m, except for the tourist hotel site. ii) Building height (mid block) – the maximum height for the block should recognise the following 2 key principles: a) consider opportunities for greater development intensity/height in the internal areas of block, b) the overall building heights are to step down to the east from the approved hotel development. The maximum allowable heights (in stories) is derived from transition line and detailed in Diagram E 8 (Attachment 2). iii) Build-to lines – these lines have been established to define future development in terms of the street and public paces (Map E). iv) Building massing and buildable area – Diagram E8.2 controls the building massing, buildable area within the central portion of the block and the locations where side setbacks and cross block links are envisaged. v) Landscaped open space – this envisages that the central portion of the block will be comprised of buildings sited and designed to enclose and define a series of mid block open spaces. The spaces will be connected by a series of open space linkages both within the block and to / from the surrounding street system. These are shown on Diagram E8.2 (Attachment 3). vi) Access, requires provision of a pedestrian circulation system which allows access through the central portions of the block, generally in accordance with Diagram E8.3. 17. Clause 12 of WLEP lists the matters that are to be considered before consent is granted. Of relevance is the following; (3) In addition, before granting consent for development classified as: (a) Category One, the consent authority must consider the desired future character described in the relevant Locality Statement, or (b) Category Two or Three, the consent authority must be satisfied that the development is consistent with the desired future character described in the relevant Locality Statement. 18. The first issue relates to whether the proposal has adequate regard to and is consistent with the desired future character (DFC) for E8. Interestingly, Mr Ingham notes that WLEP requires only that the desired future character be "considered" for Category 1 development, rather than be consistent with. Accordingly, I consider this infers a distinction in that the requirement for consideration is a less restrictive test, than that for consistency, which requires compatibility or adherence to the same principles. 19. From my consideration of the controls in the DFC statement, I understand that the desired future character can be summarised to include the following elements; i) allow new apartment buildings in this precinct, ii) locate lower buildings at street frontage, which are not overbearing, iii) locate buildings of greater height mid block, which conform to the designated height transition, iv) provide an internal open space linkage, v) encourage site amalgamation to facilitate new development and shared driveways. 20. It is then apparent to me that the proposal is consistent with element i), because it is of the allowable apartment building form. Also, I understand that the lower, 3-storey frontage building is acceptable, according to the joint conference report between the planners and urban design consultants. Therefore element ii) is also reasonably satisfied. 21. The main concern relates to the mid block tower, because of its variation from the building footprint shown in diagram E8.2. But in applying this diagram, I note that it is of relatively small scale, which restricts accurate dimensioning. Accordingly I consider this allows some discretion to be exercised in the placement of the mid block building footprint. 22. But this discretion should be in accordance with the provisions of the locality statement, which provides that: In cases where sites are amalgamated, interior portions of the block may be built upon subject of the following provisions: A distance of at least 9 m is required between the rear facade of any building frontage a street and the facade of any building located within the central portion of the block. The siting of individual buildings within the buildable area in the central portion of the block must be guided by the controls applying to open space and access. Under no circumstances may development within the central portion of the block be comprised of a single tower 23 . It then appears that the locations of the setbacks for the front and western elevations are the main issues. From the evidence, I understand that the eastern end conditions are generally acceptable, apart from consolidation considerations. 24 . By reference to E8.2, it appears that the western section of the proposal, extends about 11 m further than the L point common boundary with the hotel site. But in doing so, it maintains a 6 m setback to the adjoining Murlan development and also a 6 m rear setback to the hotel site. I note that the planners/urban designers discussed the relationship with the future hotel development and agreed that a 6 m setback is preferred. Although they also consider there will be improved solar access if the proposal were to be re-sited 3 m to the east. 25 . Insofar as the experts do not agree on the western end condition, I am inclined to rely on Professor Webbers evidence that: "it can surmised that the reason why the "buildable area" was at the time not shown extending to the western part of the subject site was because of the then existing proposal for development on the hotel site to extend right to which northern boundary, -presenting in part a blank wall to that boundary. That proposal has now lapsed, and it would be illogical not to allow the "building area" to embrace the western part of the subject site, and not to require any residential development on the hotel site to have boundary setbacks consistent with those required for development on the adjoining residential sites. " 26 . This position seems reasonable to adopt in terms of building separations, given that the hotel development consent has lapsed. Notwithstanding this, I am satisfied that the 6 m setbacks allow reasonable flexibility to develop appropriate buildings on the adjoining properties with reasonable setbacks and amenity, so as to enable unsatisfactory neighbourhood relationship. 27 . In addition to this, the locality statement also refers to the need to adequately consider open space and access. These aspects were considered by the planners/urban designers, who agree: - that public access can be provided either between the two buildings proposed or the rear (south) of the mid block tower, - landscaping should allow for possible future access along the common boundary to the Hotel site, - access should be possible from landscape node to the Hotel site. 28 . Even though the front setback to Pacific Parade of the tower, is reduced from that shown on diagram E 8.2, nevertheless it's footprint does allow for an integrated 9 m wide ground level accessway, as required by the locality statement. Therefore my assessment is that the central tower building satisfactorily adheres to the access and open space guidelines. 29 . In summary then, I consider that the position of the tower building, in terms of the buildable area footprint, does demonstrate reasonable compliance with the identified design concepts for this block. 30 . The remaining concern with this building position is that it has had overbearing effect, according to the Council witnesses. From the controls, it appears to me that any overbearing effects are to be avoided in the public street domain. Furthermore, I consider that the controls relate this overbearing effect primarily to the influence of the front building. 31 . Insofar as the front building is below the allowable maximum height, this consequently allows limited views of parts of the top two levels of the mid block units. These limited views then constitute the overbearing effect, according to councils consultants. However from my observations on the view, parts of the higher sections of other building towers nearby, i.e. IPM, are visible from the street and form part of the visual catchment. Therefore I consider that some limited views of upper level units is acceptable. 32 . In doing so, I note that if the front building height was maximised, then the resultant view-line would not allow the mid block tower to be seen (refer Attachment plan 4). But I consider this would likely result in an increased overbearing effect, by increasing building height closer to the street. In my opinion, this proposal represents a reasonable balance with the streetscape impacts and scale buildings. 33 . Insofar as the controls encourage amalgamation sites, this proposal does involve the amalgamation of 3 sites. It appears to me that the other adjoining property owners have been aware of this proposal and there has been the opportunity to consider any further amalgamations. But in this case, the property to the east is owned by council (childcare centre) and the Court was not informed of any council initiatives for consolidation of this property. Otherwise, there are a reasonable setbacks and opportunity for development of the adjoining Hotel and Murlan sites. Therefore I do not consider it reasonable to require further amalgamations, because the adjoining properties future development is not prejudiced. 34 . In addition to the LEP/DCP controls, SEPP 65 applies to the apartment buildings. The relevant design principles have been addressed by the planning/urban design consultants. Most of these, including the context, building scale/form and landscaping have already been dealt with. On the basis of my understanding of the local controls, I am satisfied that the relevant design principles of SEPP 65 are satisfied in the context of this development. 35 . Although, there are some outstanding matters concerning internal amenity and waste disposal arrangements. One matter relates to the nominated 2400 mm ceiling heights. However I accept the applicant submissions that the ceiling heights can be adjusted to provide a clear 2700 mm, within the overall building height and this envelope can be covered by conditions of consent and incorporated in the Construction Certificate. Also, garbage storage areas can be satisfactorily located, according to Professor Webber. 36 . Insofar as the number of objections were raised by neighbours, they generally concerned the proposed height of the mid block building and consequential loss of amenity and views. However the mid block building does demonstrate reasonable compliance with the planning/height controls and DFC statement, in my assessment. Therefore I do not consider significant weight should be given to the objections, which would result in refusal of this application on the basis of its building height and scale. 37 . I have also considered Mr Flemings submissions on behalf of the adjoining property owner Murlan. He considers that the proposal does not satisfy the DFC requirements and is not appropriate causing does not achieve effective coordination. However no specific evidence was presented to the Court concerning further coordination initiatives. As I have previously dealt with the proposals satisfactory response to the DFC, I also note that the proposal has a variable building setback to the Murlan property which provide reasonable separation and possible opportunities for joint pedestrian access. Conclusions 38. Having considered the evidence, the submissions and undertaken a view I am satisfied that this proposal merits conditional consent. 39. The site is located within the Sturdee Parade Locality E8, where the zoning allows residential apartment buildings. The associated controls require consideration to be given to the desired future character. This envisages a development concept with lower apartments at the street frontage, that do not have an overbearing effect on the street. These buildings are then to transition to higher internal (mid-block) apartment buildings along the block spine. Also, the overall height of these mid block buildings is to conform to a longitudinal height line, controlled by the approved height on the Hotel site. 40. In this case, I am satisfied that this application demonstrates reasonable compliance with concepts stated in the desired future character statement and relevant SEPP 65 design principles. Furthermore I note this application was subject to a detailed development assessment by council planners, who recommended conditional approval. In the ultimate I rely on Professor Webbers conclusion that the application is for a development of good quality. It responds positively to the aspirations of Council relation to the desired future character of the Sturdee Parade Locality and would said a good precedent in terms of implementing the pattern of development advocated in the diagrams accompanying the relevant section of WLEP 2000. Court Orders 1 The appeal is upheld. 2 Development consent is granted to DA 2003/0939 demolition of existing buildings, construction of two apartment buildings comprising 49 units with basement car parking at 19 - 21 Pacific Parade and 14 Sturdee Parade Dee Why, in accordance with the conditions in Annexure A. 3 The exhibits may be returned except for Exhibits 4, 8, 10, B, D, N, O, P, Q and R. ________________________ R R Hussey Commissioner of the Court mp 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.