Land and Environment Court of New South Wales CITATION : Moran v Wingecarribee Shire Council [2004] NSWLEC 438 APPLICANT Kerry Moran PARTIES : RESPONDENT Wingecarribee Shire Council FILE NUMBER(S) : 11631 of 2004 CORAM: Bly C - Tuor C. KEY ISSUES: Development Application :- Heritage significance - solar access - building height - site modification Environmental Planning and Assessment Act 1979 LEGISLATION CITED: State Environmental Planning Policy No. 5 Wingecarribee Local Environmental Plan 1989 CASES CITED: DATES OF HEARING: 06 and 07/07/2004 DATE OF JUDGMENT: 08/11/2004 APPLICANT Mr A Galasso, barrister SOLICITORS Maddocks LEGAL REPRESENTATIVES: RESPONDENT Mr D Wilson, barrister SOLICITORS Bilinsky & Company JUDGMENT: - 1 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C and Tuor C 11 August 2004 11631 of 2003 Kerry Moran v Wingecarribee Shire Council JUDGMENT 1 THE COMMISSIONERS: This appeal relates to Development Application No 03/1543, which is for a housing development under State Environmental Planning Policy No 5 - Housing for Older People or People with a Disability ("SEPP 5") on the site of the resort hotel known as "Craigieburn" in Centennial Road, Bowral ("the application"). 2 Craigieburn is a complex of one and two-storey buildings comprising hotel and conference facilities in a landscaped setting, including a nine hole golf course and two tennis courts. Access to the hotel is via a tree-lined gravel driveway from the site's southern frontage to Centennial Road. 3 It is proposed to construct 27 three-bedroom dwellings in nine essentially identical buildings in the immediate environs of the existing hotel buildings. Six of the buildings are to be situated immediately to the north of Craigieburn and three to the south. All but one of the nine buildings will have an essentially unimpeded outlook to the east over Craigieburn's golf course. The site 4 The Craigieburn property comprises three allotments: Lot 56 in DP 664260, part Lot 2 in DP 960196 and Lot 1 in DP 347273. It has an irregular shape with a southern frontage to Centennial Road of about 296 metres, a western frontage to Centennial Road and Warburton Road of about 429 metres and a total area of about 44,315sq m. 5 Craigieburn is located on the north-west edge of Bowral at the head of a wide valley that is set into the Mittagong range. The immediately surrounding area is characterised by large semi rural properties containing one and two-storey dwelling houses in garden settings. Immediately to the north is a property containing some remnant forest together with grazing and a vineyard. Statutory provisions 6 The site of the application comprises that part of the Craigieburn property zoned Residential 2(a1) under Wingecarribee Local Environmental Plan 1989 ("the LEP"). The adjoining golf course is zoned Open Space 6(b). Whilst dwelling houses and single storey aged housing developments are permissible with consent in the 2(a1) zone, the proposal is prohibited. However because the site is "zoned primarily for urban purposes" clause 4 of SEPP 5 means that the proposal is permissible with development consent. It is also subject to the various requirements of SEPP 5 including the aims in cl 3, the matters for consideration in cl 12 and the principles in cl 25. 7 The proposed development technically does not comply with the height control in SEPP 5 and an objection under State Environmental Planning Policy No 1 has been lodged. This policy allows development standards to be varied provided their application is either unnecessary or unreasonable. 8 Also applicable to this proposal are the following: - Wingecarribee Development Control Plan No 39 - Energy Smart Homes; - Wingecarribee Development Control Plan No 44 - Requirements for the Erection of Buildings; and - Wingecarribee Development Control Plan No 49 - Waste Management. Advertising and council's decision 9 The application was lodged in September 2003 and was subsequently advertised in November 2003. At least 15 objections were lodged with the council raising issues including: - whether the existing infrastructure, particularly water supply and sewerage, has the capacity to accommodate the proposal; - the form and scale of the proposed development would be unattractive and out of character with the surrounding semi rural area; - the capacity of the locality and Centennial Road to accommodate the additional traffic generated by the proposal; - the proposal would be an adverse precedent and would result in an acceptable changes to the village character of the locality; - attached houses at the density proposed are inappropriate in a detached housing locality; - the tranquillity of the locality will be adversely affected; - mature trees that contribute to the character of the locality will be lost; - the outlook from a number of nearby homes would be adversely affected; and - hospital and health services would be unable to cope with the additional aged population. 10 Because the council failed to determine the application within the statutory period, it is deemed to have been refused. The appeal was filed on 23 December 2003. The issues 11 The final Statements of Issues comprise a total of 19 separate issues which can be summarised as: - Inadequate arrangements for parking, traffic, usage of facilities and security; - The built form and layout of the proposal, especially the southern three buildings, and its compatibility with the surrounding area and Craigieburn; - Flooding and stormwater drainage, water supply and sewerage; - Access to facilities and support services and internal access for disabled people and the associated requirements of SEPP 5; - Impacts on existing mature trees; - Building height in relation to the requirements of SEPP 5; - The provision and location of private open space; - The adequacy of solar access in relation to the requirements of SEPP 5; - The heritage significance of Craigieburn particularly its curtilage, landscape, cultural and aesthetic attributes; - Waste management. 12 Leading up to and during the hearing many of these issues were resolved as a result of negotiations, changes to the proposal and proposed conditions of consent. Two fundamental issues remained: 1. Whether proposed dwellings 1-9 would adversely affect that part of the site to the south of Craigieburn and to the west of the existing access driveway particularly taking into account any heritage significance of Craigieburn and the associated importance of this part of the site and its setting. 2. Whether the proposed dwellings would receive satisfactory solar access particularly taking into account the requirements of SEPP 5 and AMCORD. 13 In addition to these two key issues there were the following less significant issues: 1. whether the introduction of skylights and changes to the ceiling exceeded the height control; and 2. whether the extent of cut and fill had an acceptable impact. The Evidence 14 On behalf of the applicant expert evidence was given by: + Mr D Brooks - heritage consultant + Mr D Crane -town planner + Mr Flower- the applicant's architect + Mr M Relf - access consultant + Mr C McLaren - traffic engineer + Mr T Lydon - arborist + Mr M Taylor - landscape architect + Mr V Sofrevski - civil engineer + Mr S Perrens - drainage engineer 15 On behalf of the respondent council expert evidence was given by: + Ms A. Humphreys - heritage consultant + Mr R. Smyth - town planner + Mr S King - solar access consultant + Mr D Stefani - civil engineer + Ms K O'Donnell - access consultant 16 In addition resident objector evidence was given by: + Mr B McAuley of 37 Centennial Road. + Mr G Rennerswal of 52 Centennial Road + Mr T Saltern of 68 Centennial Road. + Mr R Gabriel of 12 Myosotis Street (on-site) + Mrs J Huggett of 62 Centennial Road (on-site) 17 The residents who gave evidence did not raise concerns about the specific impacts of the proposal on their properties but rather raised general concerns about SEPP 5 developments and that the proposal was out of character with the area. Heritage significance 18 Whilst there was no dispute that Craigieburn is not a listed heritage item we accept that the property does have some heritage significance. Insofar as the evidence before the Court reveals it, the significance of Craigieburn was initially identified in a report (January 2001) prepared by Mr Crane in relation to a former proposal for a zone swap. This would zone land to the south of Craigieburn, currently zoned 2(a1), to 6(b) and land to the north of Craigieburn, currently zoned 6(b) to 2(a1). In this report the Craigieburn residence is described as an important element in Bowral and, not having been modernised still has a certain bygone charm with formal dining rooms, gracious lounge rooms and a private nine-hole golf course. 19 Mr Crane wrote to the council on 1 May 2003 stating that the rezoning would have significant community benefit that would enable the preservation of a unique visual feature of the townscape of Bowral. More particularly the rezoning would: - ensure that the open landscaped area to the south of the existing buildings would always be retained as a rustic country setting which is visible from the public domain (Centennial Road) and adjoining properties, - protect the highly valued view corridors to Craigieburn and the golf course from Centennial Road, - rule out development to the south of the hotel, thereby ensuring that the cultural heritage of the locality is preserved, and - would provide opportunities to complement the existing landscape character of the curtilage of Craigieburn with additional appropriate planting. 20 Included in the Statement of Environmental Effects submitted to the council with the subject development application is a heritage assessment report, which was prepared by Mr Brooks. This report was essentially replicated and attached to Mr Brooks' statement of evidence for this appeal. 21 Mr Brooks describes Craigieburn as a large single-storey Victorian Villa with a deep veranda overlooking a small carriage loop and the golf course that has been the subject of a number of alterations and additions since its construction in the late 19th century including: - one and two-storey extensions at the rear; - a major two-storey face brick wing to the south of the original house (1960's); and - a major three-storey wing on the north side which was recently expanded and renovated. 22 There are also a number of outbuildings including storage sheds, a row of garages, formerly stables and a single-storey cottage. The curtilage of Craigieburn includes the following significant elements: - The circular garden in front of the original building and the golf course which forms the major curtilage; - The entry driveway from Centennial Road including the mature rows of large trees; - The main service area and the staff car parking area to the rear of the complex; and - The open landscaped area to the south including open laundry and tennis courts and the main on-site parking area for guests. 23 The latter of these elements comprises the site of the proposed three southern buildings. 24 Mr Brooks concludes that the property is of limited local heritage significance being one of many private homesteads erected in the Bowral district in the late 19th century. The report also concludes that because of its low integrity and limited social, historical and technical values Craigieburn is not included as a heritage item in the LEP. 25 In Ms Humphreys' and Mr Brooks' initial joint report, Ms Humphreys accepted that the historical analysis undertaken by Mr Brooks was an appropriate assessment of the history of Craigieburn. However, she did not agree with his conclusions as to the significance of the property, being of the opinion that it had: historical and social significance within the local context, primarily for its adaptation and continuing use as a guesthouse and that the landscape setting of the building complex, with the formal front garden, views out over the golf course and flanking rows of trees, was an important characteristic of its visual composition. 26 In her Statement of Evidence, Ms Humphreys concluded that: Craigieburn's principal value lies in the relationship between the Homestead and outbuildings and the setting…..It is this relationship between the built form in the natural and designed landscapes that the proposal should be seeking to conserve. 27 In their report, Ms Humphreys and Mr Brooks agreed to a number of matters in relation to possible impacts of the proposal on Craigieburn including: … it was important to retain the landscape setting of the complex by ensuring that there were no new buildings to the east of the two flanking rows of trees or in front of the main complex. … any new buildings on the overall site should be grouped into the area around the existing building complex. This reflects and continues the evolutionary growth of the complex during the 20th century. The comment by Ms Humphreys, in her statement of evidence, suggesting that the new development should be located remotely from the existing building complex, is no longer accepted as appropriate… …there were no heritage related issues associated with the proposed residential buildings to the north of the existing complex. 28 However they disagreed: …on the potential impact of the three buildings, dwellings 1 - 9, located to the south of the existing building complex. Ms Humphreys indicated that she considers this area makes a contribution to the setting of the main house. The current density of (built form) development was excessive. She recognised that the 1960's red brick wing effectively screens views of the original house from this part of the site. 29 This issue emerged as the only point of disagreement between the heritage experts. With a view to resolving this concern, Ms Humphreys said that she would prefer a reduction in the number of dwellings proposed for this area or at least if the buildings closest to the line of trees could be moved back a little. 30 In response Mr Brooks argued that this area makes a very limited contribution to the setting of the house primarily as a backdrop to the major row of trees along the entry driveway. Moreover given that there are to be no new buildings to the east of the row of trees he is not concerned about the impact on the historic house or its setting. 31 Notwithstanding that Mr Brooks believed the proposal to be acceptable, in a further attempt to resolve this issue he and Ms Humphreys prepared a supplementary agreement reaffirming that the outstanding issue involved the degree of impact arising from the proposed three separate buildings to be located to the south of the Craigieburn complex. They continued to agree that there was no issue between them concerning the number of units or the actual density of these three buildings. Considering an alternate building design they also agreed that: The primary objective was to reduce the overall visual influence arising from three separate buildings by combining the accommodation into a single articulated building mass and achieving larger consolidated landscaped areas. 32 In their opinion this alternate building design could overcome a perception of greater density in comparison with three separate buildings, reduce impacts from driveways and would provide improved opportunities for the provision of a landscaped setting. Such a building would comprise an articulated or stepped three-storey composition and could be architecturally responsive to the Craigieburn complex. Such a design would reinforce the primacy of Craigieburn as the major built element on the site and would facilitate an expanded view corridor from Centennial Road. It could have improved solar access and greater separation from the proposed parking area. 33 Mr Smyth was of the opinion that this vegetated area of land is a very important landscape element in the setting of Craigieburn. The three proposed buildings are to be located in a very visually prominent position adjacent to Centennial Road and within the visual catchment of Craigieburn and the visual impact will be huge and severe as the dwellings will largely destroy highly developed view corridors. Moreover these buildings will largely destroy the historic setting of Craigieburn when viewed from Centennial Road and the main entry gates. 34 Mr Crane pointed out that two of the three buildings would be visible for a short distance along Centennial Road at the driveway entrance to the site. This same view encompasses Craigieburn including the existing unsympathetic three-storey brick building, which to some extent restricts views of the original residence. He was of the opinion that the proposed buildings will be in character with the original Craigieburn, particularly in scale. These new buildings would also be in keeping with the built form character of surrounding residential housing. 35 Taking into account all of the evidence we accept that the original Craigieburn residence and its landscaped setting has a level of local heritage significance. This significance is adversely affected by a number of more recently erected ancillary buildings especially the 1960's two-storey building located between the residence and the presently proposed three buildings. The existence of these inappropriate buildings does not however mean that new development on the site can disregard the significance of the original buildings or the cultural landscape. Conversely the level of heritage significance is not such that development of the kind here proposed is unacceptable. The development of SEPP 5 housing, which is managed as part of the hotel, could have benefits in retaining the setting of Craigieburn rather than dwellings in separate ownership. 36 Heritage listing identifies that the item has cultural significance that should be retained. Mr Brooks does not consider that Craigieburn should be identified as a heritage item largely because of the changes to the building and its setting and that there are other better examples in the area. This may be the case and it is certainly not disputed that Craigieburn is not listed or proposed to be listed. However, the relationship of the existing building and the new buildings need to be considered, whether Craigieburn is a heritage item or not. In particular, for the development to be permissible under SEPP 5 it must be of "good design" and under cl 25(a) should contribute to an attractive residential environment with clear character and identity. The residential environment of both Craigieburn and surrounding development is of buildings in substantial landscaped settings. It is this character that the proposed new building should respond to. 37 We note Ms Humphreys original opinion that any new development should be sited well away from the main building group and screened by appropriate landscaping. An opinion not held by Mr Brooks and he and Ms Humphreys subsequently agreed that new development should be clustered around Craigieburn to reflect its evolutionary growth. While we accept that development can be located to the north and south of Craigieburn, it is important that this development does not read as a continuous expanse of buildings. This may have been the pattern of development of Craigieburn but the end result is of a complex of buildings which subsume the original house and which are of acceptable bulk and scale only because of the extent of landscaping which surrounds them on all sides. The current proposal maintains the landscaped setting to the east and west but removes it to the north and south. This pattern of development, with a continuous line of buildings with little separation or landscaping between them, is not characteristic of the area where buildings are in generous landscaped settings. 38 In these circumstances, whilst we do not find that their form and scale are inappropriate we are inclined towards Ms Humphreys' evidence that the two buildings closest to the line of trees along the driveway should be moved (more than a little) further to the west and that there should be sufficient separation between buildings and the Craigieburn complex to provide a landscaped setting. Here we recognise that other site constraints may result in a reduction in the amount of built form possible on this part of the site. 39 Although such relocation would also open up views towards the unfortunate 1960's building, we believe that it would, importantly and consistent with what we believe to be its heritage significance, improve Craigieburn's setting. It would also reduce the dominance of these buildings and maintain the view corridor along the access road towards the residence. This should assist in resolving what we consider to be the inappropriate relationship between the car park and units 1, 2 and 3 and may also improve solar access to these dwellings. 40 We would be concerned as to the impact on Craigieburn of a building having the bulk and scale equivalent of that which would result from the conversion of the three proposed buildings into a single building containing as many as nine dwellings with associated car parking. Notwithstanding what Ms Humphreys and Mr Brooks said about such a building we are of the opinion that a building of this bulk and scale could have the potential to significantly detract from Craigieburn by adversely affecting its setting. We also wonder whether such a building would adversely affect the present design symmetry when viewed from the golf course (the best and most important view of the original residence) that results from having essentially identical buildings on either side of the existing Craigieburn complex. 41 Despite this, their concerns about the extent of hard paved areas particularly driveways associated with these three buildings should not be ignored. We are nevertheless not able to reach a determinative conclusion in relation to such a solution, not having seen, even conceptually, such a design. Solar Access 42 Clause 25(c) of SEPP 5 relates to solar access and design for climate. It states that: The proposed development should, where possible: (i) ensure adequate daylight to the main living areas of neighbours in the vicinity and residents and adequate sunlight to substantial areas of private open space, and (ii) involve site planning, dwelling design and landscaping that reduces energy use and makes the best practicable use of natural ventilation solar heating and lighting by locating the windows of living and dining areas in a northerly direction. Note: AMCORD A National Resource Document for Residential Development, 1995, may be referred to in establishing adequate solar access and dwelling orientation appropriate to the climatic conditions. 43 The performance criteria in AMCORD for Design for climate in cool-temperate climates is: P11 the buildings are sited and designed to maximise solar access to north facing windows of living areas and principal areas of open space, having regard to slope, views, existing vegetation and overshadowing. P12 buildings are designed to maximise solar access during cooler months. Acceptable Solutions A11.1 Windows to north facing living areas receive at least three hours of sun between 9 am and 5 pm on 21st June over a portion of their surface. AND A11.3 East facing windows (with external shading to restricts some of sun) are provided for morning sunlight during cooler months. 44 Mr King accepted that it was appropriate to include sunlight before 9 a.m. for east facing glazing with unobstructed sun access. He noted that a significant number of units will receive useful sun at that time due to their easterly orientation. However, in his opinion, the non-deciduous row of trees in front of units 1 to 6 would reduce this. 45 If overshadowing from these trees is not taken into account Mr King concluded that: A total of 18 apartments out of the total of 27 can be characterised as having three hours or more midwinter sun access of an appropriate quality to meet the performance objectives of controls. This represents 66% of the total. The development overall does not meet the applicable numerical controls. 46 Mr Crane considered that 22 out of 27 apartments (88%) met the standard and Mr Flower stated that all the apartments received three hours of sunlight if the west facing bedrooms were included not just the living areas. Mr Flower did not consider that the trees would reduce the morning sun to any significant extent. 47 The key difference between Mr King and Mr Flower was whether the development had been designed to maximise solar access. In Mr Flower's opinion the development was designed to take advantage of the views over the golf course and that an appropriate level of solar access was achieved considering the characteristics of the site and the way the intended occupants would utilise the development. In particular, he stated that the site had views towards the east and would receive early morning sun. This sun is important to elderly residents, as they tend to rise early. 48 Mr King's opinion was that the development could be re orientated and redesigned to achieve better solar access while still achieving views the north and the east. 49 In determining whether appropriate solar access is achieved the key question is whether the buildings are sited and designed to maximise solar access to north facing windows of living areas and principal areas of open space, having regard to slope, views, existing vegetation and overshadowing. In answering this question we have considered firstly compliance with the numerical standard. The internal sunlight drawings (A22 to A25 of Ex A) clearly demonstrate the amount of sunlight that the different types of units will receive. These drawings show that while numerical compliance is achieved, some units for a large part of the day have only small slivers of sunlight to achieve this. These slivers of sunlight provide some radiant gain and will improve the amenity of these interiors but they do not achieve the intent of the control. For example the ground floor units on the northern buildings achieve excellent solar access until about 10 am after this time there are small patches of sunlight in the kitchen and study area. Useful areas of sunlight do not reappear until 3 pm. Of all the units, Mr King considered that these best achieved a satisfactory solar outcome. 50 The south facing units in the northern block receive eastern sunlight until about 10am. After this time there is a patch of sunlight from the skylight on the walls of the living area and patches of sunlight on the walls in the west facing bedroom. These patches are not sufficient to satisfy the numerical standard or to achieve acceptable solar access. 51 We do not accept that the apartments have been sited and designed to maximise solar access. It is clear that on a site of this the size with its slope, views, existing vegetation and existing overshadowing, greater solar access could be achieved. Simple changes to the layout of the units such as windows to the study and dining area on the northern façade would improve solar access as well as replanning the units so that the living areas have the northeast orientation by relocating the study. However, to maximise solar access the units would need to be re orientated towards the north. While regard should be had to the views over the golf course, there are extensive views from the north right around to the south of the site, a design which better achieves solar access while also achieving appropriate views is feasible. Building Height 52 Clause 13(2) (a) of SEPP 5 requires that a building shall not exceed 8m in height, where height is defined as: Height in relation to a building, means the distance measured vertically from any point on the ceiling of the topmost floor of the building to the ground level immediately below that point. 53 The dwellings in the proposed development have a maximum height of 8.7m. This is a result of the skylight openings in the ceiling and the resulting technical increase in ceiling height. The majority of the ceilings comply with the 8m limit. 54 There are no stated objectives for this development standard in SEPP 5 however we accept Mr Crane's evidence that: the underlying intent of the standard is to ensure that the bulk and scale of development is not excessive and is compatible in scale to neighbouring development, it responds to the topography of the size, and does not unreasonably impact humanity of neighbouring properties in terms of overshadowing, privacy, view loss and visual bulk and scale. 55 The proposed skylights do not impede the attainment of this the objective. They are contained within the roof space and the overall bulk and scale and the skylights do not affect the overall impact of the development. The SEPP 1 objection is therefore well founded. Site Modification 56 Clause 25(a)(iv) states that the proposed development should: Where possible, maintain reasonable neighbour and amenity and appropriate residential character by using built form and siting that relates to the site's landform. 57 Mr Smyth was concerned about the extent of cut and fill of the development. He stated that: The proposed development does not relate to the site's landform but rather adjusts the site's landform to the development. This puts the proposed development at odds with the aim of the Policy that sets the design principles that should be followed to achieve a built form that responds to the characteristics of the site and location. The amount of cut the fill is also in severe conflict with council's normal standard as set out in DCP 44. 58 Mr Crane and Mr Flower held the contrary view that the proposed development responded to the topography and landscape setting of the site. 59 The northern units are designed so that in each building the two upper units are generally at the level of the western access road and the lower unit is generally above natural ground at its eastern façade. This arrangement results largely in the site being filled rather than excavated and the form of the buildings is responsive to the landform by stepping down the slope. However, the car access to the lower units involves changes to the landform, use of retaining walls and the area between the buildings being largely hard surfaces, porous paving with shrub landscaping. This car access is provided to the south of each building and could be rationalised if the access where shared between two buildings to reduce the extent of changes to the landform and hard surfaces. 60 The buildings to the south are the same form as those to the north although the topography in this location is different. These buildings will involve cut and fill, although some of the excavation is of previously filled areas of the site. As discussed earlier the layout of the buildings in this area also involves retaining walls and access roads, which the heritage experts considered should be consolidated to provide a greater landscaped setting. 61 While of itself not a ground for refusal, opportunities to limit the extent of hard paved areas and changes to the landform could be examined in any redesign of the proposal. Orders 62 For the above reasons we have decided that in its present form the proposal does not warrant approval. The orders of the Court are therefore: 1. The appeal is dismissed. 2. The development application to construct 27 aged housing units under State Environmental Planning Policy No 5 at Craigieburn, Centennial Road, Bowral, is determined by refusal. 3. The exhibits are returned. ______________________ _____________________ T A BLY ANNELISE TUOR Commissioner of the Court Commissioner of the Court rjs 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.