Land and Environment Court of New South Wales CITATION : Gosport Street Development Pty Ltd v Sutherland Shire Council [2002] NSWLEC 23 APPLICANT: Gosport Street Development Pty Ltd PARTIES : RESPONDENT: Sutherland Shire Council FILE NUMBER(S) : 10630 of 2001 CORAM: Talbot J KEY ISSUES: Development Application :- five residential flat buildings - over development Environmental Planning and Assessment Act 1979 s 72, s 79C(1)(a)(ii) Sutherland Shire Local Environmental Plan 1993 Sutherand Shire Local Environmental Plan 2000 cl 5, cl 30, cl 34, cl 35, cl 36, cl 37, cl 38, cl 39 Development Control Plan for Caringbah Precinct 14 Development Control Plan for Car parking LEGISLATION CITED: Development Control Plan for Landscaping Development Control Plan for Residential Flat Development State Environmental Planning Policy 1 State Environmental Planning Policy 11 - Traffic Generating Developments State Environmental Planning Policy 65 - Design Quality of Residential Flat Development Sutherland Shire Planning Scheme Ordinance Sutherland Shire Code for Residential Flat Development CASES CITED: DATES OF HEARING: 26/02/2002, 27/02/2002, 28/02/2002, 01/03/2002 DATE OF JUDGMENT: 03/01/2002 APPLICANT: Mr B J Preston SC with Ms H P Irish (Barrister) SOLICITORS: Colin Biggers & Paisley LEGAL REPRESENTATIVES: RESPONDENT: Mr J A Cole (Solicitor) SOLICITORS: Abbott Tout JUDGMENT: IN THE LAND AND Matter No. 10630 of 2001 ENVIRONMENT COURT Coram: Talbot J OF NEW SOUTH WALES Decision Date: 1 March 2002 Gosport Street Development Pty Limited Applicant v Sutherland Shire Council Respondent REASONS FOR JUDGMENT The Proposal 1. The applicant proposes redevelopment of land situated at No's 131 – 143 Willarong Road North and No 375 The Kingsway, Caringbah for multi-unit housing comprising a complex of 158 dwellings to be constructed in two stages. Stage 1 will be Buildings A and B containing 86 units at No's 137 – 143 Willarong Road North and No 375 The Kingsway. Stage 2 will be Buildings C, D and E containing 72 units at No's 131 – 135 Willarong Road North. The applicant has not pursued that part of its development application that seeks consent to a strata subdivision. 2. The total site area is 10, 899m 2 . The total floor space ratio ("FSR") over the whole site will be 1.52:1. 3. There is a dispute as to whether finished open levels above parts of the underground car park can be regarded as landscaping within the definition of "landscaped area" in cl 5 of the Sutherland Shire Local Environmental Plan 2000 ("the 2000 LEP"). The applicant contends that 62.3 per cent of the site will be landscaped whereas, according to the Sutherland Shire Council ("the council"), calculation of landscaped area in accordance with the 2000 LEP definition produces a landscaped area of 36.5 per cent. The minimum landscape requirement for the 2(c) Residential zone, within which the land is situated, pursuant to cl 36(2) of the 2000 LEP, is 65 per cent. 4. Existing development on the site consists of a group of dwelling houses facing Willarong Road North while the western half of the site contains the former Caringbah Baptist Church and the Gilmore Tennis School. 5. The development application No 11230 is dated 22 December 2000. The appeal arises out of the council's deemed refusal of the application for development consent. 6. Following compliance with directions made in accordance with par 5 of the Sch to the Expert Witness Practice Direction 1999 at the commencement of the hearing the issues were crystallised to the extent that only two expert witnesses were required to give oral evidence. Description of the buildings 7. The council's consultant architect and town planner, Steven Layman, has conveniently summarised the description of the individual buildings as follows:- 3.2.1 Building A Building A occupies an allotment of land fronting The Kingsway, which is 15.183 metres wide and would have been previously occupied by a single dwelling. Building A consists of a total of nine x two-bedroom dwelling units in 3 residential storeys over a basement car park for 15 cars. This basement car park is connected internally with the basement car park beneath the four other residential flat development blocks proposed. Beneath Building A the basement car park extends to the western boundary but is set back 2 metres from the principal eastern boundary. The residential flat building is long and proportionately thin. Pedestrian access is proposed from The Kingsway. Vehicular access is proposed via the basement of Buildings B, C, D and E from Willarong Road. The building has a curved "colorbond" metal sheet roof. Building A together with Building B form Stage 1 of the proposal. 3.2.2 Building B Building B is "S" shaped in building footprint and its eastern end fronts Willarong Road. Beneath Building B are two levels of basement car parking. The lower basement area contains 43 car spaces and 4 car wash spaces. The upper level basement contains 93 car spaces (including the spaces below Building A) plus 4 car wash spaces. Building B is proposed to contain 66 x 2-bedroom and 11 x 3-bedroom units. The "S" shape of Building B forms two courtyards, one nearer Willarong Road facing south and one further from Willarong Road facing north. The Willarong Road end of Building B is to be four storeys high. The part of Building B surrounding the north-facing courtyard is to be six storeys high. 3.2.3 Building C Building C along with Buildings D and E forms Stage 2 and is sited in the northwestern corner of the site. It can be described as "L" shaped, is five storeys high and contains five units per floor (four levels) plus top-level penthouse. Stage 2 Buildings share a separately accessed two-level basement carpark, with a total of 117 car spaces and 7 car wash spaces. 3.2.4 Building D Building D adjoins the north boundary of the site between Buildings C and E. It is generally rectangular in shape and five storeys in height. It consists of six 2-bedroom units per floor, a total of 30 units. 3.2.5 Building E Building E is similar in plan shape to Building C though laterally inverted ("mirror-imaged"). External treatment varies, but this building, like Building C, is five storeys high and contains five units per floor (four levels) plus top level penthouse. Statutory planning controls 8. The 2000 LEP applies to the site. The objectives of the 2(c) Residential zone are as follows:- A high density residential environment: (a) in close proximity to the major shopping centres and railway stations, and (b) with co-ordinated, efficient and economical development of residential flat buildings of high quality design, and (c) where non-residential uses provide necessary services to the local neighbourhood without adversely affecting the residential amenity. 9. The consent authority, before granting consent to development in the 2(c) Residential zone, must consider any height limit specified in any Development Control Plan ("DCP") applying to that land pursuant to cl 34(2)(b) of the 2000 LEP. No site specific DCP has been adopted under s 72 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") for the purposes of the 2000 LEP. There are two DCP's that make provision in respect of height of residential flat buildings, namely DCP for Caringbah Precinct 14 ("DCP 14") and DCP for Residential Flat Development ("the Residential Flat DCP"). The Residential Flat DCP sets a general maximum height of three storeys unless otherwise specified in a site specific DCP. DCP 14 contemplates amalgamation of three sites. The proposed development is on two of these nominated sites. The council argues that the effect of the two DCP's, if they apply, is to limit the height of buildings to three storeys and that accordingly, a submission equivalent in substance to an objection pursuant to State Environmental Planning Policy 1 ("SEPP 1") is required to justify variation to the height in storeys. 10. FSR in residential zones is controlled by cl 35 of the 2000 LEP. The clause provides that, except where a FSR is specified in a DCP, the maximum FSR is 1:1. The applicant argues that because there is a specification of density in DCP 14 the clause of the 2000 LEP has no application and accordingly, no objection pursuant to SEPP 1 is required. It relies upon a convoluted route of construction whereby the language of the former Sutherland Shire Planning Scheme Ordinance ("the repealed PSO") and the Sutherland Shire Code for Residential Flat Development ("the earlier Code") is applied to explain the meaning of the expression "highrise density" in DCP 14 so that it equates to a FSR of 1.6:1 for the site. Although DCP 14 was generated during the currency of the repealed PSO, nevertheless the Court is not prepared to accept that its provisions are capable of being construed in the way contended by the applicant. It requires the derivation of 1.6:1 FSR out of a prescribed density of 320 persons per hectare. Clause 35 of the 2000 LEP prescribes a maximum FSR of 1:1 in the 2(c) Residential zone "Except where a floorspace ratio is specified in a development control plan" . The provision is in clear terms and refers specifically to "a floorspace ratio" . It does not contemplate the derivation of a FSR from different and distinct criteria. Although the council agrees with the mathematical calculation undertaken to convert 320 persons per hectare to an FSR of 1.6:1, it nevertheless disputes that the repealed PSO and the earlier Code can be used for that purpose. The Court agrees. Accordingly, the reference in DCP 14 to the application of highrise density on the amalgamation of sites does not equate to the specification of a FSR. Furthermore, other conditions in DCP 14 have not been satisfied. Accordingly, the maximum FSR of 1:1 specified in cl 35(3) of the 2000 LEP applies and is not to be regarded as being superseded by the provisions of DCP 14. A SEPP 1 objection has been lodged. 11. Clause 36 of the 2000 LEP sets minimum landscape area requirements. The requirement for the 2(c) Residential zone pursuant to cl 36(2) is 65 per cent. The Court has earlier briefly outlined the issue in respect of the discrepancy in the provision of the landscaped area. The applicant contends, in support of a SEPP 1 objection, that the proposed landscaped area meets the objective of the clause and that strict compliance with minimum landscape area is unnecessary and unreasonable in the circumstances of the case. 12. Clause 37 of the 2000 LEP describes a minimum allotment size of 1,800m 2 for residential flat development, except where a DCP specifies a minimum amalgamation of parcels or minimum allotment size. If development of a residential flat building is proposed in the 2(c) Residential zone on a site that is less than the minimum allotment size, pursuant to cl 39 of the 2000 LEP, then the maximum FSR must be the equivalent of the site area in square metres x 0.0005 + 0.1:1 (but is not greater than 1:1 and not less than 0.7:1) and the site is required to have a minimum landscape area of 65 per cent. The applicant's argument is that as a matter of construction it is not necessary to comply with the development standard in cl 37, which requires a minimum allotment size of 1,800m 2 , if the proposal complies with cl 39. Moreover, if there is a breach of cl 39 then an objection pursuant to SEPP 1 is required. Nevertheless, the parties now agree that it is unrealistic to regard the amalgamated site as comprising the separate elements represented by executing subdivision. The Court is satisfied to regard the development as occurring over two amalgamated allotments even though they are not in the configuration contemplated by DCP 14. It is proposed that Buildings A and B be constructed as one lot in Stage 1 and that Buildings C, D and E be constructed on a second lot across the northern part of the site in Stage 2. Accordingly, the minimum allotment size development standard is satisfied. Notwithstanding that technically Building A complies with the minimum allotment size and width requirements in principle the built form will appear as contrary to the intent of cl 37 and cl 38 of the 2000 LEP when regarded in isolation from The Kingsway. 13. State Environmental Planning Policy 11 - Traffic Generating Developments applies. The Roads and Traffic Authority supports the application of the provisions of the council's DCP 14, which denies access to The Kingsway. Permanent access to The Kingsway is not proposed. 14. Pursuant to s 79C(1)(a)(ii) of the EP&A Act, State Environmental Planning Policy 65 – Design Quality of Residential Flat Development, which was exhibited from 25 June 2001 to 17 August 2001, is to be taken into consideration. The draft policy contains design quality principles for residential flat buildings. The development application was referred to the council's Architectural Review Advisory Panel for review. The panel invited the applicant to make amendments in accordance with its recommendations. The recommendation of the panel included the deletion of Building A, apparently to meet the concern that No's 377 and 379 The Kingsway will be isolated from future development opportunities if the development is approved in its present form. There has been no response by the applicant. 15. DCP 14 has the following objectives:- 1. The orderly redevelopment of the precinct to residential flat buildings; 2. A maximum increase in residential densities within the precinct; 3. Enhanced capacity and safety of Kingsway; 4. Protection of the amenity of houses on adjoining lands; 5. The maintenance and enhancement of the landscape characteristics and visual amenity of the precinct. 16. Notwithstanding that DCP 14 was originally adopted for the purpose of the Sutherland Shire Local Environmental Plan 1993 ("the 1993 LEP") it nevertheless applies to the provisions of the 2000 LEP in so far as the subject land falls within part of Precinct 14. The major part of the site is within Development Site 2 identified in DCP 14. The balance of the subject site is in Development Site 3, which has already been substantially developed with residential flat buildings. The remainder of Development Site 3 comprises property No's 377 and 379 The Kingsway, which are presently occupied by single dwellings. These sites will be isolated and may not be capable of a development that complies with the objectives of DCP 14. Development Site 1 has already been developed with residential flat buildings. 17. Although DCP 14 has not been strictly followed in respect of existing development within the precinct the present proposal fails to an even greater extent to meet the expectations reflected in the DCP in so far as they relate to the provision of common open space, retention of trees, provisions of setback of buildings (particularly Building C) and the protection of the amenity of houses on adjoining lands. Furthermore, the isolation of No's 377 and 379 referred to above effectively precludes the achievement of redevelopment of both sites in accordance with DCP 14. DCP 14 allows that on amalgamation of Development Site 2 and provision of access to Development Site 1 (which faces The Kingsway and currently gains access to that road) highrise density, including the erection of towers, will apply. The proposal is to consolidate part of Development Site 2 with part of Development Site 3 and to amalgamate the balance of Development Site 2 into one allotment. No formal provision is made for access across Development Site 2 for Development Site 1 in the manner anticipated in DCP 14. There is an extant offer to provide alternative access through the basement of Building B. Open space is not provided in the area indicated in DCP 14. Fences will exist notwithstanding a requirement in DCP 14 to the contrary. Building A is proposed within the prescribed 9 metre setback to The Kingsway. The applicant relies on DCP 14 to justify the height of buildings above the three storey limit imposed by the Residential Flat DCP. Arguably, if the obligations earlier referred to in DCP 14 are not respected then development of the site must be considered in the light of the preferred three storey limit. 18. The council rightly contends that if the applicant seeks to take advantage of the benefits provided by DCP 14 then it must also respect its provisions. 19. The Residential Flat DCP, a Car parking DCP and a Landscaping DCP are to be taken into consideration. Landscaping 20. The applicant has struggled to demonstrate that there are adequate areas of deep soil that are capable of supporting and sustaining large trees around the perimeter of the site. Not only is the soil depth limited in some crucial areas, the success of the landscape plan depends upon substantial critical areas of canopy and roots being accommodated in adjoining properties. In the light of the relative close proximity of buildings to the boundaries, in particular the basement car parks, it is essential for the Court, as consent authority, to be satisfied there will be adequate landscaping to compliment the bulk and height of the proposed buildings, which range from three storeys up to six storeys. The Court has not been satisfied that a satisfactory solution has been demonstrated in this regard. The concerns are compounded by doubts raised about the penetration of sunlight to the trees in some areas during the early period of development. 21. The deficiencies in the landscape plan are inherent. Furthermore, the standards generated by the Landscaping DCP are not met. The constraints imposed by the height of the podium over the car park areas depreciates the value of those areas for landscaping purposes. The failure to provide what, in the Court's opinion, is an adequate standard and quality of landscaping is a product of over-development of the site. 22. The design of the footprint of the buildings appears to take little or no account of the importance of, at least, four trees identified in DCP 14 as trees to be retained. The applicant's Consulting Aborist, Mr Stuart Pittendrigh, was obviously presented with the design of the project and briefed to generate a landscape plan around the pre-determined design. He was not able to comment authoritatively in respect of the quality of solar access to some open space areas within the site. The Court is driven to the conclusion that the landscape design was generated as a consequence of the building design. It is no more than a response to the pre-determined parameters of the proposed buildings. That approach, in the Court's opinion, is not a satisfactory way to plan the development of this site. 23. In the Court's opinion, insufficient regard has been given to objectives 4 and 5 of DCP 14 as set out above. 24. Instead, the landscaping plan can be fairly regarded as no more than an attempt to provide screening for the large buildings proposed around the amalgamated site. 25. The Court is not satisfied that two nominated lemon scented gums will survive. 26. Furthermore, as the objectives of the minimum landscape area requirements set out in cl 36 of the 2000 LEP (particularly ensuring opportunities for tree retention, enhancement of tree canopy and a balance between unbuilt upon areas and the built form) are not, in the Court's opinion, satisfied, the objection made pursuant to SEPP 1 is rejected. Over development and Design 27. The applicant has failed to persuade the Court that the proposed development is not an over development of the subject site. The configuration of the five buildings and the basement parking on the subject site, ranging in height from three to six storeys and yielding a FSR on average of 1.52:1 occupying approximately half the site with, in some instances, minimal set backs to adjoining properties, is not regarded as good design. The likely adverse impacts of the development are such that the application should be refused. 28. The Court is not satisfied that appropriate consideration has been given to the interface of Building C, with the adjoining 2(a1) Residential zone to the west of the site. Furthermore, the boundary setback to balconies in this location for a building the equivalent of four storeys in height does not satisfy cl 30 of the 2000 LEP. In particular, cl 30(d) requires consideration of "the impact of the proposed development on adjoining properties in terms of size, bulk, height and amount of landscaped area" . 29. If the tower type development foreshadowed for Development Site 2 in DCP 14 had proceeded the provision of adequate setbacks and landscaping could have been achieved. 30. The existing development on the eastern site of Willarong Road opposite the site steps down to the 2(a1) Residential zone to the north. The subject proposal does not make a realistic attempt to achieve a transition to the adjoining 2(a1) Residential zone or to the High School property along the northern boundary. 31. The internal open space areas are not adequate in terms of solar access and there is little opportunity for deep planting within the site except for perimeter plantings. 32. DCP 14 is a relevant consideration and the applicant relies on it in terms of justifying variation to the standards contained in the 2000 LEP. However, many of the requirements and objectives in DCP 14 are not satisfied by the proposed development. 33. Stage 1 includes No 375 The Kingsway, which is approximately 15 metres wide, for a distance of approximately 60 metres back from the frontage to The Kingsway. The result is a very thin and elongated flat building approximately 45 metres long and 7 metres wide. Apart from the isolation of No's 377 and 379, the built form on this narrow part of the site is not accepted as good design. 34. Clause 38 of the 2000 LEP sets a minimum allotment width of 30 metres. The objectives of the allotment dimension requirements are stated in the 2000 LEP as follows:- (1) The objectives of the allotment dimension requirements are: (a) to require sufficient allotment widths and depth to enable some variations in design for development, and (c) to ensure sites have adequate widths and depth for the arrangement of sufficient side boundary setbacks, efficient driveways, sufficient landscaped areas and satisfactory building form that takes into account the uses made of adjoining properties. 35. The applicant supported its SEPP 1 objection (which is no longer necessary) as follows:- This is considered a minor non-compliance with Clause 38(2) and is justifiable for the following reasons: q The non-compliance relates to only a small part of the site and even so, has no adverse effect with respect to the objectives provided in Clause 38(1). Overall, the site is large in size and irregular in shape, which makes it well suited to accommodate the proposed development and generally compliant with Clause 38(2): For the greater part of Stage 1, the minimum width of the site is 48.836m, while for Stage 2 the figure is 36.201m, giving a total minimum width for the main body of the site of 85.037m. q The absolute minimum width of 15.183m affects Building A in part only, however boundary setbacks and relationships with adjoining development are seen as satisfactory. It is observed that the adjoining site to the east has a minimum width of 12.19m and although narrow, is adequately developed by a three storey residential flat building. 36. The design of buildings is similar throughout the whole site. The proposal for Building A to be erected on the narrow section fronting The Kingsway makes no contribution to the achievement of the objectives in cl 38 of the 2000 LEP in terms of variation in design, building form, landscaping and respect for adjoining buildings. Accordingly, the elongated building proposed in the 15 metre wide section of the site does not otherwise satisfy the intention of the objectives in cl 38. 37. The objective of the FSR requirements are stated in cl 35 of the 2000 LEP as follows:- (1) The objectives of the floorspace ratio requirements are: (a) to provide a degree of consistency for existing residents as to the 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. 38. The applicant has lodged an objection pursuant to SEPP 1 in respect of the 52 per cent excess of FSR over the development standard of 1:1. The observations already made make it clear that, in the Court's view, the applicant's proposal will result in an over development of the site and create inconsistency of bulk and mass with surrounding development. The proposed landscaping is inadequate. The Court is not satisfied that the objective of the FSR development standard has been satisfied. The height and bulk of the buildings will have a direct significant impact on the adjoining properties and is generally inconsistent with the existing medium density development in the neighbourhood. Furthermore, there are significant adverse impacts on the internal amenity in terms of privacy and over-shadowing. Other issues that arose during the course of the hearing included the extent of stack parking, lack of visitor spaces and inadequate garbage and recycling storage areas. All of these are as a consequence of exceeding the FSR requirements. That is not to say that it is imperative for the FSR of 1:1 to be slavishly adhered to. However, in the circumstances of this case, having regard to the design of the buildings, it is not appropriate to uphold the objection to the FSR development standard. Conclusion 39. There are so many aspects of the development that contribute to disamenity and adverse impacts within and around the site that it is not necessary to deal with many of the other issues raised by the council. It is sufficient to find that the development is a significant over-development in its present form and that consent should be refused on that ground alone. 40. Significant re-design is appropriate in order to provide a greater degree of respect and recognition for the juxtaposition between the development and land within the 2(a1) Residential zone, the High School site and adjoining remnant single dwellings in precinct 14. Orders 41. Commissioner Murrell has assisted the Court and we have the benefit of a site inspection as well as the evidence of local residents, including adjoining owners, who strongly object to the proposal. 42. The Court makes the following orders: (1) The appeal is dismissed. (2) Development application for multi-unit housing in the form of five residential flat buildings containing 158 units at 131 – 143 Willarong Road North and No 375 The Kingsway, Caringbah is determined by refusal of consent. (3) The exhibits may be returned. 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.