Land and Environment Court of New South Wales CITATION : Thornbrook Properties Pty Limited v Sutherland SC [2006] NSWLEC 91 APPLICANT Thornbrook Properties Pty Limited PARTIES : RESPONDENT Sutherland Shire Council FILE NUMBER(S) : 10758 and 10759 of 2005 CORAM: Hoffman C KEY ISSUES: Development Application :- Demolish existing dwellings and construction of 18 two-storey townhouses on one site and 21 two-storey townhouses on the other - density of development - landscaping - setbacks - parking and traffic safety issues - height - streetscape - open space and solar access. Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Sutherland Local Environmental Plan 2000 State Environmental Planning Policy No. 1 Sutherland Planning Scheme Ordinance 1971 DATES OF HEARING: 31/01/2006 and 01/02/2006 EX TEMPORE JUDGMENT DATE : 02/01/2006 APPLICANT Ms J. Ware, solicitor of Piper Alderman LEGAL REPRESENTATIVES: RESPONDENT Mr J. Reilly, solicitor of Abbott Tout JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 1 February 2006 10758 of 2005 and Thornbrook Properties Pty Limited 10759 of 2005 v Sutherland Shire Council JUDGMENT 1 This is two Cass 1 Appeals Nos. 10758 and 10759 of 2005 between Thornbrook Properties Pty Limited and Sutherland Shire Council in regard to a refusal of both developments, being for townhouses on adjoining sites fronting the Kingsway and Yathong Road, Caringbah. 2 Appeal No. 10758 is for 18 two-storey townhouses above basement car parking at Nos. 252 to 256 Kingsway and No. 70 Yathong Road. During the hearing this was called, the Kingsway site. There is also Appeal No. 10759 for 21 two-storey townhouses and one villa above basement car parking at No. 72 to 80 Yathong Road and during the hearing it was called the Yathong site. 3 Both sites slope gently uphill to the south of Kingsway. They comprise existing houses, all of which are to be demolished. Significant native trees are to be retained wherever possible and exotic trees and exempt trees from the council's tree preservation order are to be removed. 4 Extensive fresh landscaping with native trees and shrubs is proposed. Boundary landscaping of the proposal is quite dense with feature landscaping and trees on the corner of Yathong and Kingsway. Behind the street landscaping is to be a masonry fence. It is to be high on Kingsway side to help reduce traffic noise and 0.9 m high on the Yathong side. 5 The area has a mix of medium density developments and detached houses. Both sites are subject to an amalgamation requirement by a council Development Control Plan. The consolidation has taken place, except for No. 250 Kingsway, which is a house the owner of which does not wish to sell and does not wish to become part of the development. It is on the east side of the Kingsway site. The owner is an objector to the development but has been satisfied on privacy matters by the retention of existing boundary trees, the building setbacks adjacent his property and controls on windows to retain privacy and also height of fences. The remaining objection is to the density of the development to which I will refer again later. 6 On the east and south of the Yathong site and on the opposite sides of the street are medium density developments in which there are several objectors. Their concerns, apart from amenity impacts, are similar to No. 250 Kingsway in that they feel both proposals are too dense. 7 Some objectors live in their own medium density housing called St Johns Wood. It comprises single-storey villas and two-storey townhouses with ground level garages and driveways as opposed to the underground car parks of the proposals. The objectors seek changes to the proposed type of design to give a more spacious layout. They are also concerned about increased on-street parking and traffic safety issues that the proposal might create. 8 The applications for both the Kingsway and the Yathong sites had been lodged at the same time. Council staff had reported in favour of the proposal. It had been referred to the council's architectural review panel who sought more on-site open space and reorientation of the units for better solar access. These had been done and the amended application went to the council's IHAP panel which recommended approval. The council, when it considered it, however, gave refusal on several grounds. 9 With the appeals lodged, a Court-appointed expert urban designer, town planner and architect, Mr Harrison, examined the proposals and recommended further changes that had been incorporated in the final plans in exhibits A, B, C, D, E and F. In the end Mr Harrison, in his report in exhibit G and his oral evidence, recommended approval of the proposal subject to conditions in Exhibits 9 and 10. 10 The parties came to the Court with consent orders on the basis of Exhibits 9 and 10. I visited the site and heard the objectors' concerns and walked through the locality via pedestrian walkways to Dwyer Park. Previous consents and planning of other development in the locality had created these walkways across city blocks to connect from the Caringbah shopping centre, library and swimming pool to the rugby union field at Dwyer Park. The pathway ran close to the site. 11 Mr Harrison notes that the locality is zoned Residential 2(b) under the Sutherland Local Environmental Plan 2000 which intends medium density for the area and the proposal complies with all council's requirements, except for the statutory floor space ratio (FSR) and complies with Medium Density Residential Development Control Plan 9.1/06 Edition 7. He had examined the FSR question and says in his report the exceedence comes about due to the council requiring areas greater than twenty square metres per car in the basement to be included in the gross floor space calculation for the FSR. He regards this as an anomaly in the statute. 12 It is his experience that for basement car parks a bare minimum of 30 to 35 sq m per car is needed to allow for ramps, driveway aisles and manoeuvring space. The 20 sq m per car is perhaps applicable to ground level carparking. The aboveground FSR calculation which comprises essentially just the units, comes in at just below 0.7:1 which is the statutory FSR. 13 Mr Harrison says the objectives of the FSR are met with the added bonus that there are more car spaces than the minimum required. This would allay some of the fears of the objectors in regard to increased on-street carparking. Also Mr Harrison says that the residential strategy of both the council and the state government is to achieve densities such as the proposal in designated locations, such as the 2(b) zone to assist in housing of future populations. 14 If the proposal complies with all the other amenity, streetscape, landscape, open space, height and solar access controls as this proposal does, the State Environmental Planning Policy Number 1 objection filed in the proceedings should be supported for each appeal. 15 The site is within walking distance of the Caringbah shops and community facilities and the rail station. Main bus routes pass the site on the Kingsway. Mr Harrison says it was a good location for such a development. He believes that the neighbours' concerns that the proposal may be future slums is not correct. The proposed units have a high level of amenity and would contribute to the locality in the way the local environment plan intends. 16 The neighbours are also concerned that the development is involved in Defence Housing and appear to be under the impression that it has a lower standard than the council's controls. The respondent assures the Court that Defence Housing, even if it is involved, would have to comply with the council's controls and that is the way the application has been assessed. 17 Mr Harrison thinks the neighbours' fears may be predicated on the density of their own sites which the respondent advises had been approved in 1974 under the Sutherland Planning Scheme Ordinance 1971 and the 1969 Medium Density Housing Code. The FSR at that time was 0.5:1 or less, in Mr Harrison's opinion, so it was a lesser medium density than the council now wants. 18 In regard to Mrs Bode's concerns on the south side of the Yathong site, the design had moved the second storey of the units adjacent to have a 7 m boundary setback to minimise shadows on her courtyard in mid-winter. The shadows are reduced almost to being the same as her boundary fence currently causes. Overlooking is taken care of, as it is for several neighbours, by having frosted lower panels at bedroom windows on the first floor level. The amenity impact, as a result, is much less than a two-storey house at the normal 1.5 m setback would have. 19 On drainage, the drawing showed the site drainage is designed to a one in 100 year storm capacity and takes surface water away from the neighbours that currently receive overland flows from the subject properties. There is a detention tank system on site. Off site the council conditions require investigation and upgrading as needed of council's drains. This is another concern of the objectors that old infrastructure could not take the extra loads. Also included in the design is retention of roof rainwater through water tanks and a pump out system from the detention tank for irrigation of the landscaping. 20 On traffic and parking, the council engineer, Mr Anderson is satisfied that traffic safety sight lines on the Kingsway is acceptable and the traffic and parking generation of the site is acceptable, given the capacity of Yathong Road, into which the driveways from both developments enter. 21 The landscaped area of the proposals has been increased with the provision of common open space areas such that the sites both provide more open space than required. 22 While some existing trees would be removed on both sites, there would be replanting of 64 trees on the Kingsway and 56 on Yathong. The exotic existing trees being removed and the new ones being native species, the landscape of the locality would be improved, including the habitat of native fauna. 23 In terms of private open space courtyards only one unit on the Yathong site has poor solar access but the living rooms of the same unit have good northern sunlight exposure. Mr Harrison says having all of the other units with good sunlight is an excellent outcome and the one unit being deficient does not warrant refusal. 24 Only two courtyards in the total of both developments are close to the minimum area requirements but there are compensating factors in both cases and overall most units have larger courtyards than the minimum. 25 On streetscape, Mr Harrison notes the council's minimum setback of 7.5 m is complied with and stepping in and out of the buildings gives as much as 10 m setback in places and produces good articulation in the building facades. The spaces between groups of units provides larger setbacks with views through to vegetation beyond. This reflects, to some extent, the pattern of buildings and landscaped separation along the street. The size of each group of units is similar to a large house on a separate lot with landscaping between. This suits the medium density character of the area and is not in conflict with the existing streetscape. 26 Mr Harrison suggests the materials and colour finishes in the montages in Exhibit K be changed, by condition, to obtain more variation between groups of units to obtain a better outcome again. 27 Having heard the evidence on both appeals, I accept Mr Harrison's report and oral evidence and uphold the State Environmental Planning Policy No. 1 objections to the FSR for the reasons he gives. Therefore, I find no reason sufficient to refuse the consent orders sought by the parties. 28 In appeal 10758 of 2005 the Court orders by consent: 1. The appeal is upheld. 2. Development application 04/0795 lodged with the respondent council for the demolition of existing dwellings and the erection of eighteen townhouses with basement car parking and strata subdivision at lot 21 DP586728, lot B DP382267, lot A DP378176 and lot D DP382267, otherwise known as 252 to 256 Kingsway and 70 Yathong Road Caringbah is approved subject to the conditions contained at annexure A to these orders. 3. The exhibits are returned except exhibits A, B, E, G, K and 1, 2 and 9. I note the parties agree no order as to costs. 29 In appeal 10759 of 2005 the Court orders by consent of the parties: 1. The appeal is upheld. 2. Development application 04/0793 lodged with the respondent council for the demolition of existing dwellings and the erection of twenty-one townhouses and one villa with basement parking and strata subdivision at lot A DP382267, lot C DP371081, lot 1 DP590016, lot X DP396900 and lot 341 DP569925, otherwise known as 72 to 80 Yathong Road Caringbah is approved subject to the conditions contained in annexure A to these orders. 3. The exhibits are returned except exhibit C, D, F, G, K, 1, 2 and 10. I note the parties agree no order as to costs. ___________________ K G Hoffman 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.