Land and Environment Court of New South Wales CITATION : Crown Atlantis Joint Venture v Ryde City Council [2005] NSWLEC 54 APPLICANT Crown Atlantis Joint Venture PARTIES : RESPONDENT Ryde City Council FILE NUMBER(S) : 10963 of 2004 CORAM: Bly C Development Application :- Application of development control plan - bulk and scale - character - streetscape - location. KEY ISSUES: Ryde Planning Scheme Ordinance 1979 LEGISLATION CITED: Local Environmental Plan No 110 Development Control Plan No 39 DATES OF HEARING: 16/12/04-17/12/04 DATE OF JUDGMENT: 02/18/2005 APPLICANT Mr J Webster, SC Instructed by Mrs M Peatman of Hunt & Hunt LEGAL REPRESENTATIVES: RESPONDENT Mr P Clay, barrister Instructed by Ms J Walsh of Pike Pike & Fenwick JUDGMENT: - 11 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 18 February 2005 10963 of 2004 Crown Atlantis Joint Venture v Ryde City Council JUDGMENT Introduction 1 This appeal relates to Development Application No. LDA 953/2003, which is for the erection of a mixed residential and commercial development at 7-9 Rutledge St, Eastwood, being within the Eastwood Town Centre. 2 The proposed ten-storey building includes a residential flat building, commercial/retail premises plus three levels of basement car parking. Strata subdivision is also proposed. More particularly the building is to contain 62 dwellings, 593 sq m of commercial/retail floor space and parking for 115 vehicles. Recreational facilities including a swimming pool and gymnasium are to be provided. 3 The site, which comprises part Lot 23 in DP 4231 and Lot 24 in DP 653568, is located on the north-east corner of the intersection of Rutledge and Trelawney Streets. It has a 41 m frontage to Rutledge Street, a 47 m frontage to Trelawney Street and an area of 1974 sq m. It slopes away from Rutledge Street towards the north. 4 The site is located on the southern periphery of the Eastwood Town Centre ("the town centre"). Adjoining development consists of the Eastwood shopping centre and a vacant retail premises to the east. The adjoining buildings to the north comprise two-storey retail and commercial buildings and the heritage listed Eastwood Masonic Lodge to the north-east. There is a service station and the Eastwood Public School to the west of the site on the opposite side of Trelawney Street 5 To the south, on the opposite side of Rutledge Street single storey residential dwellings are the predominant form of development. Many of these properties are affected by an RTA road reservation to widen Rutledge Street although there are no immediate plans for any road works. Statutory provisions 6 The site is zoned Business 3(uv) Urban Village under the provisions of Ryde Planning Scheme Ordinance 1979 ("the PSO"). Also applicable is Local Environmental Plan No 110 ("LEP 110") which introduced new planning controls for the Eastwood town centre from 18 July 2003 7 Supplementing these controls, from 18 July 2003 is Development Control Plan No 39 - Eastwood Town Centre ("DCP 39"). Advertising and Council's decision 8 The development application was notified to adjoining residents and landowners and a total of 25 submissions were received. Amended plans were subsequently notified and a further six submissions were received. Matters of concern raised in these submissions include: loss of the existing church; non-compliance with the requirements of DCP 39; the excessive height of the proposed building; traffic generation and the associated impacts on surrounding streets; and out of character with the town centre. There were at least two letters of support for the proposal. 9 On 13 July 2004 the council considered an officer's report that recommended approval subject to appropriate conditions. In that report it was concluded, following an analysis of the relevant requirements of the PSO and DCP 39, that the proposed development was a well designed architectural building that is generally consistent with the council's planning controls for the town centre. However it was noted that the proposal did breach the sight line control (in DCP 39) from Trelawney Street. Also considered was the report of the Council's Design Review Panel that also found the proposal to be satisfactory. Despite this the council refused the application and a notice of determination to this effect was issued on 22 Jul 2004. The issues 10 Having considered all of the evidence, the submissions of the advocates and having taken a view of the site and its environs, the following is the relevant issue for the determination of the Court: Whether the proposal properly reflects the requirements of DCP 39 and whether its form and presentation especially to Trelawney Street would have an excessive bulk and scale taking into account the location of the site at the gateway to the town centre and the scale and character of existing development. Development Control Plan No 39 11 The focal point for the consideration of this application must be DCP 39, which has as its stated purpose to provide policies relating to the future development of the town centre. This development control plan is one of a series such plans for the various town centres in the local government area of Ryde. The centres are to be progressively transformed into urban villages. 12 These villages are described in section 2.1 as urban precincts located around public transport interchanges incorporating: a mixture of land uses; attractive and well used public spaces; a safe and convenient pedestrian environment; and urban design elements which promote community pride and identity. The site is included in the so-called Eastwood Urban Village, which is relevantly bounded to the south by Rutledge Street. 13 Section 2.1 of DCP 39 contains Guiding Principles and refers to the Eastwood Commercial Centre Planning Study and Masterplan (October 1998) ("the masterplan"), which provides guidance for the development of the town centre to the year 2020. Because the masterplan is incorporated by reference into DCP 39 it can therefore be given commensurate weight. 14 The essence of the master plan is to provide for future development that is consistent with the traditional village character. In relation to the area between Rowe Street and Rutledge Street the masterplan provides for the highest intensity of land use within the town centre, where indicated building heights are between two and ten storeys. Whilst the associated performance criteria do not include any specific requirements for Trelawney Street they provide that height and bulk is to be more generally positioned towards Rutledge Street. Generally the masterplan requires that new development should be consistent with the urban village character of Eastwood. In terms of building scale, a natural relationship between people and the built environment is to be maintained. 15 The masterplan identifies most of Trelawney Street as a shopping street with an area close to the intersection with Rutledge Street, including part of the frontage of the site, as one of several gateways into the town centre. 16 The Existing Character Statement in section 2.2 of DCP 39 describes the town centre as an important retail and commercial centre and transport interchange in the City of Ryde. It has a village character with development that is generally two to three stories in height with isolated buildings up to seven stories in height. The Future Character Statement for the centre provides that: In the future, Eastwood will be a place specifically designed for the enjoyment and utility of pedestrians and a place which allows convenient access for people between home, work, shopping and leisure. It will also be a place which has a high level of aesthetic amenity at street level; have safe attractive and convenient public spaces; be a vibrant, viable and profitable commercial centre; and contain an appropriate mix and arrangement of uses, which satisfactorily integrate with existing surrounding activities. 17 DCP 39 recognises that there are opportunities for future growth in the centre including residential, retail and commercial uses and that competition with larger regional centres is to be avoided. The village character of the centre is again stressed together with the need to encourage street activity at ground level. 18 Section 3.3 deals with architectural characteristics including height, setbacks and the development of corner allotments. The purpose of these controls is to achieve an attractive public domain and produce a desirable setting for the intended uses within the centre. 19 In dealing with height, reference is again made to the village character that is to be partly provided by the scale of buildings to the streetscape. The relevant strategy is to ensure that the existing human scale element of the streetscape is retained. Buildings are required to comply with the maximum height limit shown on the Eastwood Urban Village Height Map, which, for this site, indicates a height range of between two and ten storeys with a maximum height of 30 metres. 20 Parapets fronting retail/pedestrian priority streets (including Trelawney Street) are required to remain at their existing levels. Vertical extensions to these buildings are required to be designed so that they cannot be seen from the opposite side of the street onto which they face ("the building height plane control"). Buildings must also be within a southern altitude height plane, ("the sun altitude plane") being a plane projected at an angle of 26° over a building site measured from the property boundary on the opposite side of the road. 21 Section 3.3 of DCP 39 contains a variations provision which essentially provides that buildings may be approved if they project above the building height plane where: a) the non-compliance is consistent with the aims, principles and strategies of the Plan; b) in the circumstances of the site the strict application of the provision is unnecessary or unreasonable, such as corner allotments or the presence of an intervening structure; c) it can be demonstrated that the intention of the control is largely met; or d) variation of the control results in an improved design for the site taking into consideration the nature of the adjoining development. 22 Section 3.3 also deals with setbacks, pointing out that the first two to three stories of the building are critical in terms of the public domain and the visual order of the streetscape. The established and accepted streetscape characteristics are to be reinforced when considered from the perspective of pedestrians. New buildings are required to be built predominantly to the street alignment for the first two storeys. Above the two-storey level the separation of multi-storey buildings is required, to avoid a canyon effect to the streetscape and to achieve this buildings are required to be set back a minimum of three metres above the first two storeys. 23 There are particular requirements for the development of sites on the corner of two streets. Such buildings should provide for visual interest and address the intersections that they front. This can be achieved by stepping up the building where it turns the corner, and the incorporation of a distinctive feature such as a tower. 24 Section 3.5 deals with pedestrian access and amenity and in relation to street frontage activities points the need to provide a diversity of activities at street level to reinforce the attractiveness and liveliness of the public domain. Trelawney Street north of Rutledge Street is identified as a Retail/Pedestrian Priority Street where active frontages are required so as to maintain contact between the street and the interior of buildings. Active frontages are achieved by the provision of visually interesting land uses such as retailing cafes and restaurants with direct access onto the street. The evidence 25 On behalf of the respondent Council, evidence was given by Miss G. Morrish, an architect and urban design consultant. On behalf of the applicant Mr R Lamb, a visual impacts consultant and Mr A Ludvik, a town planner gave evidence. Mr D Sanger an architect and urban design consultant gave evidence as a court appointed expert. 26 Additional oral and written evidence was provided by Mr P. Sullivan of 16 Burmah Road. Denniston who, in essence was concerned that the proposed building would be too large and too high and would be out of character with the existing town centre. Instead the DCP should be correctly applied. Mr H Sangkuhl the President of the Eastwood Community Association explained that his association believed that the proposal would have an excessive bulk and scale by comparison with the existing two-storey human scale of the town centre. There are no tall towers on the edges of the centre and this proposal would therefore be inappropriate. 27 The council officer's report (referred to above) notes that the subject site is a gateway site into the Eastwood Town Centre, occupying a prominent location on the southern periphery. The design of the proposal is said to be of a high architectural standard thus meeting design requirements that reflect the status of the site at the entry point into the centre. Whilst the proposal meets the other height controls it does not meet the height line control. The Council's Design Review Panel also found the proposal to be worthy of approval. 28 Mr Ludvik expressed similar views in his report, arguing that in the context of the allowable variations provided for in DCP 39, the intention of the controls are largely met. He also referred to the supporting conclusions of the Council's Design Review Panel, particularly noting that the proposal would be an excellent model and would integrate with the characteristics of Eastwood. Moreover it complies with the height limits in DCP 39 and taking into account that this is a gateway site, would be sensitive to the streetscape. 29 Mr Sanger acknowledged that the intersection of Rutledge and Trelawney Streets is a gateway to the centre although it cannot offer the same vibrance nor people friendly character as Rowe Street, which is the focus of retail and general activities. It is more likely to be developed for commercial rather than retail purposes. He questioned whether Trelawney Street can truly be a retail/pedestrian priority street or will it is simply be a main access road with commercial frontage, concluding that the latter is the more likely outcome. The consequence of Trelawney Street not having a retail or pedestrian priority is that the height plane requirements would no longer apply. 30 Mr Sanger further notes that the structure will introduce a material visual change but this is to be expected. The building is to step back at upper levels providing a 2.5/3-storey facade with an awning thus satisfying the sunlight access requirements. There is presently no parapet formation on this side of Trelawney Street and the proposal will introduce this. In terms of height the proposal would not cause (adverse) visual impacts. He concluded that the proposal would satisfy variations a), b) and c) in section 3.3 of DCP 39. 31 Dr Lamb provided his usual comprehensively reasoned analysis of the issues relevant to streetscape, character and visual amenity. He argued that the building height control plane cannot be sensibly applied to the site and that by stepping the building away from the street it would maintain the openness of vistas both up and down in Trelawney Street. Strict adherence to DCP 39 would not produce an outcome that relates positively to its objectives and would unreasonably restrict the ability of the land to support an innovative and high quality design. 32 Miss Morrish referred to the village character objectives of the master plan and noted that an urban village has two important characteristics: the height and scale of buildings should be compatible to the human scale (generally 2 - 4 storeys); and there should be a positive relationship between buildings and the public domain. In this context the masterplan notes that the built form in Eastwood is generally consistent in scale and that the two-storey shop buildings relate well to the human scale and to the street. The opportunities plan in the appendix to the masterplan identifies Trelawney Street as both a gateway and a shopping street. She also referred in detail to the provisions of DCP 39 particularly those in section 3.3. 33 In examining the character of Trelawney Street, particularly existing building heights, Miss Morrish was able to conclude, taking into account that this is a retail/pedestrian priority street and the village character requirements, that the building height plane should be applied on the basis of an approximately three-storey building height where the plane intersects with the boundary of the site. In dealing with the scale element requirement of DCP 39 she acknowledged that above the third floor level the proposed building complies with the 3 m set back from Trelawney Street. However the setback requirements must be considered in concert with the building height plane and this indicates the unacceptability of more than seven storeys of development so close to the street edge. This scale of development will be seen not only from within Trelawney Street but also from Rowe Street and contradicts the intent of the controls. 34 Miss Morrish, in considering Trelawney Street's retail/pedestrian priority and its role as a gateway, believed that these roles would be strengthened by the application of DCP 39 and the masterplan. Again an appropriate urban form is necessary to achieve the human scale and village character and this would not be achieved by the significant massing of seven storeys above and in close proximity to the Trelawney Street boundary. Despite this the controls in DCP 39 for corner sites require a physical acknowledgement of the corner and entry status of the site and that a height greater than a three or four-storey village scale would be appropriate close to the corner. Whilst the proposal seeks to achieve this it would not be entirely successful because of the bulk of the buildings behind the corner structure, its transparent nature and its absence of balanced massing to both streets. Court's findings 35 In so far as the provisions of DCP 39, including the masterplan apply to Trelawney Street I find that they are not entirely clear. However I have been particularly assisted by the evidence of Miss Morrish in interpreting these provisions sufficient to conclude that any design for this site needs to meet a number of objectives. 36 First, the site is in an urban village zone and the intention of DCP 39 is that new development should have an urban village character. Development should be of human scale in the streetscape, being generally two to three stories in height. Taller building elements set back from street are permissible but they should not dominate. 37 Second, Trelawney Street is to be developed for the enjoyment and utility of pedestrians with a high level of aesthetic amenity at street level. 38 Third, Trelawney Street is a retail/pedestrian priority street and at its intersection with Rutledge Street forms a gateway to the Eastwood Town Centre. The street corner portion of site is therefore a gateway site for the purposes of DCP 39 and notwithstanding the first objective above should be developed accordingly. More particularly the corner element of the building should address both streets and be stepped up especially in relation to structures at the street frontages. 39 In my view when these objectives including the various relevant provisions of DCP 39 are considered and applied to the site they indicate a form of development unlike the proposal for which consent is sought. Whilst I agree with Dr Lamb that strict enforcement of the development controls in DCP 39 would, in relation to this site, result in an unreasonable restriction on development, this does not mean that the controls should be disregarded. Although strict compliance is not necessary they still have an important function. 40 I am satisfied that a three-storey building fronting Trelawney Street would be acceptable but when the building height plane is applied to this height and notwithstanding the 3 m set back, a significant proportion of the building above this plane will be apparent. Whilst I do not accept that for this site there can be no development above the building height plane I find the 3 m set back for the four levels of building above the building height plane to be inadequate. The bulk of the building as would present to Trelawney St. and indeed to Rowe Street would be excessive and inconsistent with the urban village, streetscape and human scale objective. 41 Clearly the ground floor level of this development is capable of providing for the enjoyment and utility of pedestrians with a high level of aesthetic amenity at street level. (Although I have noticed an inconsistency in the drawings as to the extent of the awning in Trelawney Street at the southern end - compare drawings 2.02, 2.03 and 3.03). 42 For essentially the same reasons that she gave I agree with the concerns of Miss Morrish regarding the design of the building at the street corner of the site. The building element as proposed would not be sufficiently dominant taking into account that the bulk of the main building behind would visually overwhelm it. The photomontage confirms this. 43 I have therefore decided that, in terms of the variations provisions in section 3.3 of DCP 39, the proposal would not meet the intention of the control nor would it be consistent with the aims, principles and strategies. Whilst I accept that strict application of the building height plane would be unreasonable or unnecessary, the extent of the non-compliance is excessive and in the circumstances the application should not be approved. Orders 44 The orders of the Court are therefore: 1. The appeal is dismissed. 2. Development Application No LDA 953/2003 for a mixed residential and commercial development at 7 – 9 Rutledge St., Eastwood is determined by the refusal of consent. 3. The exhibits are returned with the exception of the reduced scale plans marked Exhibit E _________________________ 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.