Land and Environment Court of New South Wales CITATION : Aleksander Design Group Pty Limited v Great Lakes Council [2008] NSWLEC 1488 APPLICANT Aleksander Design Group Pty Limited PARTIES : RESPONDENT Great Lakes Council FILE NUMBER(S) : 10483 of 2008 CORAM: Murrell C KEY ISSUES: Development Application :- Consent Orders for a 10 storey residential flat building, weight to new DCP, amenity impacts to adjoining buildings, overshadowing, privacy, setbacks, precedence streetscape. Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Land and Environment Court Act 1979 Great Lakes Development Control Plan 51 Great Lakes Local Environmental Plan 1996 CASES CITED: Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 Zhang v Canterbury City Council [2001] NSWCA 167 DATES OF HEARING: 05/11/2008 EX TEMPORE JUDGMENT DATE : 5 November 2008 APPLICANT Dr S. Bervelling, barrister LEGAL REPRESENTATIVES: RESPONDENT Mr P. Rees, solicitor of Mallik Rees JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 5 November 2008 10483 of 2008 Aleksander Design Group Pty Limited v Great Lakes Council This determination was given extemporaneously. It has been edited prior to publication JUDGMENT 1 COMMISSIONER: This matter has come before me today as 'consent orders'. The applicant appealed against the Council's refusal of a development application for a ten-storey residential flat building containing 22 units at the property known as 43 Head Street, Forster. The proposed building is 9 residential levels with a roof top pool, amenities and terrace. The ground floor has pedestrian access from Head Street to the foyer and lift area and there is vehicle access to the basement level of car parking at the rear of the site. 2 The Council previously refused the development application with the following reasons in the notice of determination: 1. The proposal fails to comply with the requirements of Great Lakes Development Control Plan No. 21 - Tall Buildings with respect to minimum site area, height, floor area to site ratio, building setbacks and parking. 2. The height, bulk and scale of the proposed development is inappropriate for the size of the block and will have an unsatisfactory visual impact within the streetscape and to adjoining properties. 3. The proposal will result in unacceptable privacy impact to adjoining properties. 4. The proposal will result in unreasonable loss of views to adjoining properties. 5. The proposal is considered inconsistent with the design quality principles contained within State Environmental Policy No. 65 - Design Quality of Residential Flat Development, in particular, context, scale and aesthetics. 6. The proposal fails to provide sufficient geotechnical information to ensure that the flow of groundwater is not affected, restricted or dammed by the construction of the proposed basement car park. 3 The Court heard from a number of resident objectors this morning including Mr and Mrs Kellet, Mr Randall, Mr Rolfe, Mr Murray, and Mr Gilmour. The Court also carried out an inspection of the surrounding area and viewed the subject site from the adjoining building to the east at number 45 Head Street known as 'The Pinnacle'. The Court also had the opportunity of walking the length of the street to observe the location and built form of previous approvals and to also identify sites where the council has recently issued approvals, details of which have been provided to the Court this afternoon. 4 The parties engaged a single expert Mr Stuart Verity, a planning and urban design consultant who also provided a Statement of Evidence. During the course of the hearing today a number of issues have been raised by the Court and objectors, consequently Mr Verity was required to provide further analysis. 5 One significant matter that came to the Court's attention today is Development Control Plan 51 , this was recently adopted by the Council however the application has not been assessed against its provisions. This DCP came into effect 15 August 2008 and was on exhibition in September/October/November 2007. It has the equivalent of a 'savings provision' such that development applications not finally determined are to be determined under the previous DCP , known as DCP 21 . The development application was submitted in March 2007. 6 There has been a great deal of discussion about the weight that I should give to DCP 51 . In this regard, for public interest, I refer to the Court of Appeal judgment of Terrace Towers v Sutherland . DCP 51 provides Council's future direction for the Forster area township, in particular for tall buildings. I consider that DCP 51 should be given significant weight, at the same time I must assess the development application under DCP 21. 7 DCP 51 clarifies guidelines for smaller sites. Provision 14, has specific requirements for 'high density housing' close to the Forster township (previously referred to as 'tall buildings'). In DCP 51 the minimum allotment size requirement, of 1500 sq m for buildings is to be complied with except in the case of isolated sites. Mr Verity was directed to assess the application under DCP 51 and he provided the following analysis under clause 14. DCP 51 - Specific controls high density housing Proposal Compliance 14.1 Minimum Allotment Standards complies -30 m but less allowable in cases of appro. amenity, solar access, privacy, townscape character Depth & Bulk complies 424 m 2 14.2 Max F.P. = 500 m2 complies depth max 18 m complies top floor max 60% 14.3 Building Height (33m) complies 14.4 Density 2:1 FSR 2.04:1 14.5 Primary Street complies Setbacks (4.5m) 14.6 Street Frontage HTS N/A Rear Complies Side West Podium No. 3 Yes (4.5) Side & Rear Boundary Setbacks 3+ No @ Corner 14.7 Up to 3 (min 6) Yes @ middle 3+ (min 6.5 ) Side East Podium No. 3 Yes 3+ No @ Corner Yes @ middle 8 Clause 14(1) of the DCP states that development should not isolate sites. The situation with the subject site is that it has been isolated by previous multi-storey developments on either side. The provisions of DCP 51 state that "Council will only allow development of the site with a frontage below 30 m for the purpose of a building four storeys or more in height where it is demonstrated that sufficient amenity for residents is achieved for solar access, daylight penetration and privacy." 9 In my assessment the proposed development does not adversely impact on the amenity of the adjoining buildings with respect to solar access and privacy to living areas or private open space. Furthermore in my assessment the building form and height is consistent with the streetscape and townscape character of Forster/Tuncurry. Other provisions include building depth, bulk, building height, frontages, side and rear setbacks and density controls. 10 I consider that the recently adopted DCP 51 must be given significant weight as it establishes the future direction for Forster. Furthermore the evidence of the council officers is that the provisions of DCP 21, adopted in 1998, have not been followed and developments have been approved with significant non-compliances. Mr Verity in his evidence stated that SEPP 65 and the residential flat code are more recent documents, and set the benchmark for residential flat development. I note the new DCP is consistent with these provisions. 11 The residents expressed concern about precedent, privacy, impact on views and solar access. I have examined and considered their concerns in the proceedings today. I also required Mr Verity to address their concerns. The residents are also concerned that the proposed development does not comply with DCP 21, in particular the numeric setback of 10 metre from side boundaries. 12 In my assessment I have considered the numeric controls of the DCPs and where a variation to such controls is proposed the development must be assessed importantly on its merits against the performance criteria and the objectives if contained in the development control plan. In the circumstances of this case I am satisfied while there is non-compliance with the numeric controls that the performance criteria or objectives of those provisions in the DCP's are met and there are no significant adverse impacts. 13 DCP 51 requires that the setbacks on each lot should represent approximately half of the separation distances required for high rise development in accordance with the standards of the Residential Flat Design Code under SEPP 65. On the adjoining sites where 'The Pinnacle' and The Shores are erected the relationship of the proposal with these developments can be appreciated and I am satisfied the separation distances and the design of the proposal are satisfactory and will not create adverse impacts to warrant refusal of the application. As such I am satisfied that 10 m setbacks from the side boundaries are not necessary in the circumstances of this case on a merits assessment and having regard to the residential flat code under SEPP 65 . 14 Furthermore, I agree with Mr Verity, there are no unreasonable impacts in my assessment in terms of privacy or view loss for the adjoining properties, and I am satisfied the amenity of adjoining properties will be maintained. 15 The residents expressed concern about the setbacks. Strict compliance with the side setback of 10 m under DCP 21 would limit the footprint of the building to a 6 metres width and on a merits assessment of impacts arising from the development of the site I am satisfied that this is an unnecessary constraint in the circumstances of this case. Furthermore in terms of the objects of the act, orderly and economic development, I am satisfied, the building separation distances as required by the Residential Flat Code are met by the development. 16 I understand objectors to proposals do not always embrace new development, but I am satisfied that the impacts of this proposed development are not unreasonable in the circumstances of this case and the amenity of the adjoining properties in terms of privacy, views and solar access is reasonably maintained. There is no prohibition to development of an isolated lot and every application must be assessed on its merits. Furthermore this approach is reinforced in the more recent DCP No. 51 that requires an assessment of maintaining amenity for adjoining properties. 17 With respect to noise, the applicant has agreed to a condition for the upper level swimming pool, which is half enclosed and half open, and in my opinion this condition should be imposed on the development to ensure that the pool is not in use from 9 pm to 7 am to mitigate unreasonable adverse impacts. 18 The issue of precedent is a relevant matter for me to consider. In terms of precedent, it is also important to move to DCP 51 , because this provides the Council's anticipated/contemplated vision for the Forster area. This particular precinct is envisaged by the Council as accommodating the high rise/ taller buildings within the local government area. 19 The parties provided a plan that shows the number of allotments that are under 30 m in width. The majority of these allotments, with the exception of a handful, can be amalgamated with adjoining sites to achieve the 30 m minimum. With the provision under the new DCP , this will ensure further sites are not isolated and where isolated/ sandwich sites exist any future development must be assessed under cl 14 of the DCP 51 having regard to amenity impacts. 20 The subject site is what would be regarded as an isolated or sandwich lot. It is a smaller lot amongst larger, taller residential flat buildings. I am satisfied that there are not unreasonable impacts, and approval will not create a precedential having regard to the new DCP provisions for the assessment of future development. Precedence is a relevant matter for consideration as stated in the judgment of his Honour Lloyd J in Goldin & Anor v Minister for Transport Administering the Ports Corporation and Waterways Management Act 1995 [2002] NSWLEC 75 . However, given DCP 51 is now the relevant guideline for amalgamated and isolated sites, approval of this proposal does not create an undesirable precedent. 21 The Court was referred to the matter of Zhang v Canterbury City Council [2001] NSWCA 167 , wherein the Chief Justice of New South Wales, Spigelman CJ, commented that DCP's must be a fundamental element in consideration and assessment of development applications. At the same time this judgment states that DCP's are not environmental planning instruments and mandatory but are discretionary. 22 It is in the public interest that DCP's be consistently applied as this provides for certainty in the planning process, also relevant for the issue of precedent. The evidence to the Court is that DCP 21 has not been consistently applied over the years and this reinforces my decision to give the recent DCP 51 significant weight in my determination. Furthermore it provides clear direction on what is contemplated for this area into the future. 23 In many respects, the objectors' concerns are about Forster becoming in an area that has an increased number of high rise developments, taller buildings. However the council's planning controls and guidelines have identified this precinct for higher densities/taller buildings within the local government area previously and as confirmed by the recent adoption of DCP 51. 24 As such the concerns of the residents are very much related to the planning controls, that is, the LEP and the DCP 51. The Court's role, however, is to assess development application in the context of the council's planning regime, and I am satisfied on the basis of the councils local planning framework established for this area that the proposed development would not be an aberration and indeed would be contemplated by the new DCP and LEP. 25 Currently the subject site is zoned 2(c) under the LEP for the Great Lakes LEP 1996 and I must give consideration to the aims and objectives of the zone in assessing the development application. The objectives of the the 2(c) high density residential zone include: (a) to enable development of tall residential buildings in suitable locations. I am satisfied the proposed development satisfies this objective. 26 The Court enquired as to the non-compliance in terms of parking and in terms of the open space provision. In Mr Verity's assessment it is appropriate that further open space be provided at the rear of the site, and this requires the deletion of a number of car parking spaces. The Council supported reduced parking on the site although the residents expressed concern. While it is desirable for developments to generally comply with parking requirements, based on the evidence before me this would not warrant refusal of the application. 27 I accept Mr Verity's evidence that landscaped areas in the proposal less than a width of 4.5 m should be counted as deep soil landscaped area. In total the proposed development provides for 36 per cent open space landscaping area around the subject building. 28 The Court expressed concern about the architectural element of the balconies in the proposed development. Mr Verity advised the Court that in urban design terms, which is the test for the Court, as opposed to the style of architectural, the proposed development is satisfactory, and he commends the design. Under SEPP 65 , Mr Verity undertook an assessment of the ten design principles, and once again, in terms of bulk, scale and height, which had initially been raised as an issue by the council, I am persuaded the proposed development is satisfactory. 29 The setback from Head Street is 4.5 m to the balcony, and some 7 m to the face of the wall of the building. This complies with the new DCP provisions, which envisage setbacks of between 4.5 and 5 m, and in instances, balconies that are not more than 50 per cent of the façade of the building can also protrude up to 600 mm within the setback. The proposal is 4.5 m clear for the balconies with a further setback to the face of the wall. 30 As Mr Verity commented in his assessment: " the proposal will be seen as one element amongst taller buildings, and indeed, it will be seen as a well proportioned building in terms of its slender width to the street compared to adjoining buildings and its presentation has significant articulation in its form, compared with many that are seen in the streetscape today. For side boundary setbacks there is a curvilinear setback so that the setback is increased further within the middle points of the building than at the front and rear. This is an appropriate design response to providing amenity for dwellings and the necessary separation distances to the units on the adjoining properties to the east and west." 31 I accept Mr Verity's assessment of the application that includes the detailed analysis provided in exhibit 10 to the Court, and the further analysis he has undertaken today in response to the Court's questions. 32 In my assessment I have considered the relevant planning controls and in my overall assessment the proposal could be contemplated by council's current planning regime and is worthy of approval. 33 The council and the applicant have agreed to the conditions and there have been further conditions proposed today. This includes to limit the hours of operation of the swimming pool, and a deferred commencement consent to ensure that the materials, colours and finishes are compatible with this coastal locality. As such a materials, colours and sample board is to be submitted for the approval of the council's Director of Planning. 34 Under section 39(6) of the Land and Environment Court Act, the Court must also consider the question of concurrence. Approval of the development application requires the concurrence of the Department of Planning. The Department has indicated that they do not wish to be a party to these proceedings. I note the Department was advised of these proceedings some months ago, and chose not to participate. Under section 39(6) I exercise the function of concurrence. 35 From the proceedings today, including the site inspection in my assessment I am satisfied the proposed development warrants approval. I am satisfied there is no reason as to why the Court should not agree to the 'consent orders' of the parties being made. 36 Accordingly the formal orders of the Court will be: 1. The appeal for No. 43 Head Street, Forster is upheld. 2. The development application submitted to Great Lakes Council, as amended, is approved subject to the conditions contained in Annexure 'A'. 3. The exhibits are returned with the exception of the architectural plans and the conditions. 4. The Court notes that each party is to pay its own costs. _________________________ J S Murrell 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.