Land and Environment Court of New South Wales CITATION : Alpall v Blue Mountains City Council [2005] NSWLEC 627 Applicant: Alpall Pty Ltd PARTIES : Respondent: Blue Mountains City Council FILE NUMBER(S) : 10492 of 2005 CORAM: Roseth SC KEY ISSUES: Development Application :- Seniors Living DATES OF HEARING: 27/10/2005 DATE OF JUDGMENT: 11/09/2005 Applicant: Mr A White, solicitor of Benetatos White LEGAL REPRESENTATIVES: Respondent: Mr T Cork, solicitor of McPhee Kelshaw JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Roseth SC 9 November 2005 10492 of 2005 Alpall Pty Ltd v Blue Mountains City Council JUDGMENT 1 Senior Commissioner: This is an appeal against the refusal by the Blue Mountains City Council (the council) of a development application to demolish the existing structures and erect twelve two-storey townhouses for Seniors Living on lot B DP 391940, known as 33 Falls Road, Wentworth Falls. The site 2 The site is on the western side of Falls Road, about 230m from its intersection with the Great Western Highway. It slopes about 10m from the rear northwest corner to the front southeast corner, and has an area of 3,974m2. 3 The development in the vicinity is detached houses to the north and west, and medium density housing to the south and east. The detached houses to the north are, however, in a medium density zone. The proposal 4 The applicant proposes to demolish the existing structures on the site and erect twelve two-storey townhouses for seniors. The buildings are arranged around a central driveway, with an entrance driveway near the centre of the allotment's frontage and two additional driveways to garages facing Falls Road. The private courtyards are along the side and rear boundaries, facing north, west and south. 5 The applicant lodged the application in October 2004. Following notification, the council received nine letters of objections. The applicant lodged the appeal in May 2005 against deemed refusal. In June 2005 the council received a planning report from its staff, recommending refusal. The council accepted the recommendation and refused the application. The applicant lodged the appeal in May 2005. Relevant planning controls 6 The Seniors Living State Environmental Planning Policy (the SLSEPP) permits medium density housing on this site provided at least one occupant of each dwelling is disabled or over 55. 7 Local Environmental Plan 4 1982 (LEP 4) was in operation when the application was lodged. It zoned the site residential 2(b), a zone in which residential flat buildings were prohibited, but townhouses were permissible. The density was one dwelling per 400m2. 8 Local Environmental Plan 2005 (LEP 2005) came into operation after the application was lodged. It contains a savings clause to the effect that, for applications already lodged with the council, it should be taken into account as if it were a draft plan that had been exhibited. The LEP zones the site General Living, a zone in which residential flat buildings and townhouses are prohibited, while dwellings, dual occupancies and accessible housing are permissible. (Accessible housing is another name for housing under the SLSEPP, ie at least one occupant in each dwelling must be over 55 or disabled.) The Court-appointed experts 9 The Court-appointed experts were Ms K Gordon, a planning consultant and Mr N Dickson, an architect, planner and urban designer. The objectors' concerns 10 The Court heard the evidence of two objectors who live at the villa home development adjoining to the south, 43-45 Falls Road. Ms M Garrett, who lives in Unit 4, said that her main concerns were overshadowing and the loss of privacy. She mentioned that her neighbour in Unit 5, Ms Saunders, was in hospital and asked her to convey her similar concerns to the Court. Mr K Routledge, who lives in Unit 8 and is not impacted by the proposal, said that his main concern was the adverse visual impact on Falls Road. The issues 11 The council submitted a Statement of Issues containing seven issues: · The proposal does not comply with LEP 2005 in its setback from the street, provision of private open space and privacy. · The proposal does not comply with the SLSEPP with regard to streetscape, visual privacy and solar access to the living areas and private open spaces. · The proposal does not comply with the requirements of LEP 4 in relation to density control for residential flat buildings. · The proposal does not comply with the parking Development Control Plan. · The application lacks details on fencing. · The solar diagrams do not allow an assessment of the solar performance. · The proposal is not of good design. 12 Mr Dickson raised a further issue that had not been raised by the council, namely the site's accessibility for services. He pointed out two shortcomings. There was no footpath on the western side of Falls Road and the bus stop was to the south where a wheelchair-accessible footpath would be difficult to construct. The access into the site from Falls Road was also not suitable for wheelchairs. Ms Gordon's evidence: 13 With regard to streetscape Ms Gordon had the following concerns: · The front dwellings were not adequately set back from the street. · All of the significant trees in the front were lost. While not all need to be retained, one or two should be. · The southern elevation presented and unrelieved visual bulk. · The visual impact of the elevated drainage detention structure was unsatisfactory. 14 Ms Gordon suggested the following changes: · The front setback should be increased to between 9.5 and 11m. · Two of the existing trees in the front should be retained and landscape plans should indicate new plantings. Trees should be on the nature strip and on-site, they should be fast growing, fire-resistant and have narrow canopies. The appearance should be similar to the landscaping to the north of the site, forming a row of trees that are higher than the buildings. · Dwellings 11 and 12 should be moved further from the southern boundary. Their courtyards should be relocated, preferably to the north, but otherwise to the east or west. The privacy of the southern neighbour needs to be protected, and the elevated courtyards need to be set back sufficiently to allow for screen planting. · The southern façade of Dwelling 2 should be provided with architectural relief and landscaping to soften the bulk. · If the drainage structure cannot be provided underground (this is the preferred option and, given the fall of the street, likely to be feasible), it should be set back from the eastern and southern boundaries and landscaped. 15 With regard to internal privacy generally and the external privacy impact of Dwellings 1 and 10, Ms Gordon thought that her concerns could be addressed by conditions. However, her concerns about the external privacy impact of Dwellings 11 and 12 could be resolved only by re-design. Re-design should provide greater setback from the southern boundary, the private open space should be oriented to the north, west or east, with living rooms re-oriented similarly. Privacy fencing and retaining walls should be set back sufficiently from the boundary to allow for landscaping. In addition, the impact on the bedrooms of the adjoining property to the north should be addressed by greater setbacks of Dwellings 5 and 6 from the northern boundary. 16 With regard to overshadowing, Ms Gordon observed that the information provided was inadequate. She was concerned about: · shadow impact on 43-45 Falls Road; · adequacy of solar access to Dwellings 1, 5, 6, 8, 9 and 10 and to the private courtyards of Dwellings 1, 2, 3, 4, 5, 6 and 12. 17 Ms Gordon suggested the following: · Shadow diagrams should be prepared for 9am, 12 noon and 3 pm in mid-winter showing shadows from buildings and fences and No 31 Falls Road accurately, reflecting changes in levels. · Elevation shadow diagrams should be prepared to establish the level of solar access to Dwellings 1, 5, 6, 8, 9 and 10. · Design changes may be required if the accurate assessment shows that the overshadowing and solar access are unacceptable, such as § increased setback of Dwellings 11 and 12 from the southern boundary, or the lowering of its levels; § projection of living areas facing east/west rather than recessing (with suitable shading devices to stop the hot summer sun); § increased setback of Dwellings 5 and 6 from the northern boundary. Mr Dickson's evidence 18 As mentioned above, Mr Dickson raised the fundamental issue whether the site was suitable for seniors living. This was not among the issues that the council had identified, and therefore Ms Gordon had not addressed it. In Mr Dickson's opinion, the application should demonstrate suitable access from Falls Road and to Windsor Park. I agree with Mr Dickson that a proper application should demonstrate suitable access for housing under the SLSEPP, whether or not a council raises access as an issue. However, since the council had not identified suitability of site as an issue, it is not a matter on which it would be reasonable to refuse the application without giving the applicant an opportunity to demonstrate that access could be made suitable. 19 With regard to streetscape Mr Dickson had concerns and suggested the following changes: · The front setback should be increased to about 15m in order to retain the major trees at the site's frontage. · Replacement of the three driveways by a single driveway located at a lower part of the site (near the existing driveway). · Deletion of the garage facing falls Road. · Retention of the existing screen planting along the northern and southern boundaries. · Design changes such as strong verge planting in Falls road; using darker materials; keeping roof pitches consistent; introducing awnings and pergolas to blank elevations; introducing a landscaped plan that incorporates public, communal and private zones; designing fencing, waste bin enclosures and letterboxes as part of the project. 20 With regard to the impact on the southern neighbour, Mr Dickson made the following suggestion. · Buildings along the southern boundary should be either single-storey or have a low eaves height of about 6.5m from natural ground level. · The private open spaces of the dwellings along the southern boundary should be oriented to the north to avoid overlooking. · The boundary setbacks to the northern, southern and western boundaries should be 6m; consequently the northern courtyards should also be 6m wide. 21 With regard to solar access, Mr Dickson agreed with Ms Gordon that the applicant had not provided adequate information. In his opinion, living rooms should receive at least three hours of sunlight over 50% of glazed surfaces at mid-winter. 22 Mr Dickson submitted a sketch illustrating the kind of layout that would respond to his suggestions. The sketch shows two rows of buildings facing north, set back 6m from all boundaries. There are six dwellings, as against twelve in the application. Submissions 23 While Ms Gordon's report was filed in time, Mr Dickson's was late, allowing the applicant little time to prepare amendments. In a telephone call-over on 26 October 2005 (the day before the listed hearing), the applicant's advocate, Mr A White suggested that the Court should inspect the site without the presence of the experts, and then adjourn the hearing, thus giving the applicant an opportunity to amend the design. This course of action was not acceptable to the council or the Court, since there appeared no point in inspecting a site without the experts being present. In the event both the site inspection and hearing took place on 27 October 2005. 24 Given the negative opinions of Ms Gordon and Mr Dickson, Mr White agreed that the Court could not approve the proposal in its current form. Mr White suggested that the Court should adjourn the proceedings to give the applicant an opportunity to amend the design. The council's advocate, Mr T Cork, submitted that the criticisms of the Court-appointed experts were so fundamental, and the suggestions for amendment so far-reaching, that an adjournment to allow amended drawings was inappropriate, since the result would be a new proposal, not an amended one. 25 Of the two experts, Ms Gordon's suggestions are probably easier to accommodate than Mr Dickson's, since she had not actually halved the site's development potential. However, even her suggestions (mild compared to those of Mr Dickson) would require increasing the front setback by 2-3m, retaining one or two trees in the front, increasing the southern setback and re-orienting living rooms and courtyards. In addition, she said that she could not assess the solar performance of the proposal, and that the requirement for acceptable solar access is likely to lead to further design changes. Since her report was filed on 19 October 2005, there was ample time for the applicant to provide the information she required. 26 I note that at a case management meeting on 11 August 2005, one of the council's concerns was lack of information. The Court directed the applicant to provide the council with all relevant information by 26 August 2005. While I understand that the applicant did provide council with some information, it appears that the information on solar access was not provided. The council's Statement of Issues, dated 20 September 2005, lists Issue 6 as "the solar diagrams provided by the applicant do not provide sufficient detail to allow the respondent to asses the extent of solar penetration into living areas and private open space areas". Given that Ms Gordon also complained about lack of adequate information on sunlight, there appears to be no reason for the applicant's failure to provide it at least in time for the hearing. 27 While Mr Dickson's suggestions would lead to a completely different design concept, even Ms Gordon's suggestions would require a radical re-thinking of the proposal, possibly abandoning the idea of facing the dwellings and courtyards towards the north, west and south, three directions of which only the north is a desirable aspect. Where such radical rethinking is required, it is not appropriate to adjourn the Court process for amendments. The appropriate course is to dismiss the appeal to allow the applicant to lodge a new application and the council to assess it. The appeal is therefore dismissed. Orders 1. The appeal is dismissed. 2. Development application to demolish the existing structures and erect twelve two-storey townhouses on for Seniors Living on lot B DP 391940, known as 33 Falls Road is determined by refusal. 3. The exhibits are returned. ________________ 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.