Land and Environment Court of New South Wales CITATION : Center Developments Pty Ltd v Wyong Shire Council [2009] NSWLEC 1356 APPLICANT Center Developments Pty Ltd PARTIES : RESPONDENT Wyong Shire Council FILE NUMBER(S) : 10400 of 2009 CORAM: Brown C KEY ISSUES: DEVELOPMENT APPLICATION :- demolition of all existing structures and the construction of a residential flat building containing 12 units - public access along the foreshore - scale, form and massing - design features - streetscape - setbacks - parking - noise Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Wyong Local Environmental Plan 1991 State Environmental Planning Policy No 71 The Entrance Peninsula Planning Strategy CASES CITED: Terrace Tower Holdings Pty Limited V Sutherland Shire Council [2003] NSWCA DATES OF HEARING: 23, 24 September 2009 DATE OF JUDGMENT: 27 October 2009 APPLICANT Mr G Miller QC SOLICITORS Puleo & Partners LEGAL REPRESENTATIVES: RESPONDENT Mr J Cole, solicitor SOLICITORS HWL Ebsworth JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 27 October 2009 10400 of 2009 Center Developments Pty Ltd v Wyong Shire Council JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal of Development Application No DA/484/2008 by Wyong Shire Council (the council) for the demolition of all existing structures and the construction of a residential flat building containing 12 units at 2 – 4 Brogden Road and 6 Hargraves Street, Entrance North (the site). 2 The council contends that no provision is made for public access along the foreshore to link parts open space in this location the development. Also, the proposal does not appropriately respond to its prominent location on the foreshore and as a gateway site to The Entrance through it's scale, form and massing. The proposed development also does not properly respond to its contextual setting and site opportunities and constraints through design features such as the car parking, building lines, setbacks, lack of landscaping and poor internal amenity. The site 3 The site comprises Lot 21 in DP 11682, Lots 3 and 4 in DP 3877706 and Lot 6 in DP 533184. The site is adjacent to The Entrance Bridge and has a part northern frontage to The Entrance Channel, a southern frontage to Brogden Road and a western frontage to Hargraves Street. The site contains four separate lots and is U - shaped with the central part of the U consisting of a recently constructed 2 storey residential flat building containing three units at 4 Hargraves Street. 4 The site is flat with some scattered vegetation mainly along the foreshore. Development in the area consists mainly of older style single residential dwellings but with some newer residential flat buildings. The proposal 5 The proposal provides for the demolition of all existing structures and the construction of four separate buildings (Buildings A, B, C and D) containing 12 units comprising 11 x 3 bedroom units and 1 x 4 bedroom unit. 6 Building A comprises 2 x 2 storey units (Units 1 and 2, including the 4 bedroom Unit 1) with access off Hargraves Street adjacent to the foreshore to a double garage for Unit 1. Building B comprises a two-storey building with two units on each level (Units 3, 4, 5 and 6). Building C provides two units (Units 11 and 12) located above the double garages for Units 3 and 4) and 8 car parking spaces. Building D comprises a two-storey building with two units on each level (Units 7, 8, 9 and 10). Access to a carport structure containing 7 car parking spaces, double garages for Units 2 and 6 and the car parking provided under Building C is from Brogden Road. Relevant planning controls 7 The site is within Zone No 2(b) (Multiple Dwelling Residential Zone) under Wyong Local Environmental Plan 1991 (LEP 1991). The proposed development is permissible with consent within this zone. Clause 10(3) provides that consent must not be granted unless the development is compatible with the objectives of the zone. The zone objectives are found in the Table to cl 10. Clause 19 provides specific requirements for Development near lakes, rivers and creeks and cl 23 provides requirements for Flood prone land. 8 State Environmental Planning Policy No 71 - Coastal Protection (SEPP 71) applies to the site as it is within the coastal zone. Clause 7(b) provides that the specific matters identified in cl 8 are to be taken into account in determining a development application. The relevant matters are: (c) opportunities to provide new public access to and along the coastal foreshore for pedestrians or persons with disability, (d) the suitability of development given its type, location and design and its relationship with the surrounding area, (f) the scenic qualities of the New South Wales coast, and means to protect and improve these qualities, (j) the likely impact of coastal processes and coastal hazards on development and any likely impacts of development on coastal processes and coastal hazards, 9 Wyong Multiple Dwelling Residential Development Control Plan No 64 (DCP 64) applies. The relevant parts of DCP 64 are Context (cl 3.0), Building Height (cl 4.2), Site Coverage (cl 4.3), Building Design (cl 5.1.1), Building Lines (cl 5.3), Car parking (cl 5.4), Ground Level Parking (cl 5.5.2), Landscape (cl 8.0), Amenity (cl 9.0) and Streetscape (cl 12.2). 10 The Entrance Peninsula Planning Strategy (the Strategy) was adopted by the council in July 2009 and applies to the site. The Strategy provides guidance and direction for the future development of The Entrance Peninsular. The site is located within Precinct 2 - The Entrance North Neighbourhood Centre. The Desired Future Character for Precinct 2 is described as: Precinct 2 will be a mixed use waterfront holiday, tourist, recreational and residential area, of the generally low scale, that provides a good awareness of its location adjacent to, and with good access to the foreshores of The Entrance Channel and the Pacific Ocean. Precinct 2 will have strong connections to other areas outside the precinct. 11 Coastal Design Guidelines for NSW (the Guidelines) apply and provide a framework for analysing and understanding the important relationships between settlements and the local, urban and natural areas and between neighbouring settlements and reserves. 12 State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65) applies to the proposed development. Clause 30 requires consideration to be given to the design quality principles in Part 2 (cl 30(2)(b)) and the publication Residential Flat Design Code (cl 30(2)(c)). Should public foreshore access be provided? The evidence Town planners Mr John Hancock and Mr Brian O'Dowd provided evidence for the applicant and council, respectively. Mr O'Dowd states that the fundamental objective of providing public access along the coastal foreshore has been ignored in this application despite it being identified in the Strategy. The proposed development also intrudes on the visual amenity of the coast. The conglomeration of private facilities to the water's edge effectively alienates this area from public use. 13 Mr Hancock refers to the Statement of Environmental Effects, which states that access along the foreshore adjacent to the site is at present, somewhat constrained by infrastructure in the public domain (both public and private), together with the informal access resulting in potentially dangerous and unauthorised access to foreshore facilities. Approval of the proposed development will provide an upgrade for: o the private facilities within the interface of the private land and the public reserve, and o the improved safety of the uses and through appropriate signage, manage and control and contain public access to the public domain. 14 Mr Hancock expressed concern over the reliance placed by the council on the Strategy and the viability of the public access along the coastal foreshore because of the poor head height under The Entrance Bridge for any accessway. Findings 15 SEPP 71 requires that certain matters identified in cl 8 are to be taken into consideration when determining a development application. Relevantly, cl 8(c) states: (c) opportunities to provide new public access to an along the coastal foreshore for pedestrians or persons with a disability. 16 The Strategy, under the heading Pedestrian/Bicycle and Public Transport Facilities section of the Strategies and Recommendations for Precinct 2, relevantly states: Negotiate with property owners fronting The Entrance Channel in regard to the provision of a public continuous waterfront shared pedestrian and bicycle path that links under The Entrance Bridge Terilbah Reserve and across the bridge to The Entrance Town Centre. Such a facility will improve the physical connection between the Pacific Ocean coast, The Entrance Channel and other areas outside Precinct 2 and provide a pleasant place for residence of, and visitors to, the Peninsular to enjoy. 17 A plan showing the location of the waterfront promenade is provided in the Strategy and effects of the site. 18 The plans for the proposed development identify the western boundary as the Height Water Mark (HWM). A pedestrian walkway and BBQ area are located within the site but directly the adjoining this boundary. Building A is located some 5 m from the western boundary. Some land below the HWM is contiguous with the site and at the same level. The land below the HWM also contains a number of structures, such as a concrete seawalls, a concrete retaining wall, fencing, timber jetties, a ramp and a timber boat ramp. While some foreshore access can be obtained over a land below the HWM, the use of some private land is required to provide continuous access along the foreshore. 19 I am satisfied that there is a warrant for the public access along the foreshore. Clause 8(c) of SEPP 71 requires this to be considered as part of the consideration of a development application. The Strategy is also a relevant consideration. In Terrace Tower Holdings Pty Limited V Sutherland Shire Council [2003] NSWCA the Court of Appeal relevantly stated (at 81): 81 In any event, matters relevant to the public interest touching a particular application are not confined to those appearing in published environmental planning instruments, draft or final. Obviously such instruments carry great and at times determinative weight, but they are not the only source of information concerning the public interest in planning matters. 20 While Mr Hancock is correct in that the development application was lodged on the 7 May 2008 and that Strategy was not adopted until 8 July 2009 however Mr O'Dowd's evidence states that the strategy "has been a decade in the making with continual public participation, forums and assessment". The precursor to the Strategy was The Entrance Precinct Study 1998. Further reports were prepared in 2000, a Council resolution to review the documentation in 2003, further work by the council in 2004 with public consultation sessions throughout 2005 and 2006 to ascertain the key community and stakeholder issues. The strategy was publicly exhibited for 12 weeks from late November 2007 to February 2008. The ongoing planning of The Entrance clearly precedes the lodgement of the development application. 21 I am satisfied that the opportunity for public access along the foreshore is an important planning consideration in the context of the Strategy. The approval of the proposed development will, in my view, frustrate an important feature of the Strategy. In my understanding of the evidence, there is an opportunity to provide this public access along the foreshore on part of the land below the HWM but not for the whole length of the western boundary of the site. I do not accept Mr Hancock's evidence that the foreshore access in locations around the site is undesirable because of the poor head height below The Entrance Bridge and that it may be necessary to provide a boardwalk type structure further to the west or that there are other viable options for pedestrian access. 22 In my opinion, the provision of a public access way along the foreshore is a legitimate and valuable public asset and appropriate for inclusion in a strategic planning document such as the Strategy. While The Entrance Bridge provides a constraint to the development of this public access way, I do not accept that it is an insurmountable constraint and that while any design may be less than optimal, it is still achievable. As the proposed development does not make adequate provision for this facility and even though some progress was made during the hearing on the potential acquisition of part of the site for this public access way, there was no finalisation of any details or how it would affect the proposed development. 23 On this basis, the approval of the proposed development would unacceptably frustrate the achievement of an important component of the Strategy and is a sufficient reason to refuse the application. 24 For completeness, I will briefly deal with the other contentions raised by the council. Is the design acceptable for the site? The evidence 25 Mr O'Dowd states that the proposed development fails on a number of planning levels. Firstly at the broader strategic planning level based on SEPP 71, the Guidelines and the Strategy. Mr O'Dowd describes the site as a gateway site of high visibility and of critical importance regarding the existing and potential public recreational use of The Entrance. He states that the proposal fails to address the fundamental issue of the natural, cultural and recreational attributes of the coastal locality. Mr O'Dowd also states that the scale, form and massing of the proposal would be seen as overbearing and dominant on the foreshore. The elevated two-storey scale of the structures will stretch for an almost unbroken length of 40 m along the foreshore. 26 Secondly, at an architectural and design level, Mr O'Dowd states that the design and location of car parking is inadequate and does not satisfy the objectives and design criteria within the relevant council controls. Other issues raised by Mr O'Dowd relate to: o the 6 m building line to Hargraves Street has encroachments from terraces, pergolas, balconies and an entry portico, o the building line to Brogden Road is intruded upon by entry porticos, o the northern nil setback o a lack of landscaping o the unacceptable visual impact of the car parking forecourt entry to Brogden Road, o the inappropriate location of the bin storage area, o the convoluted pedestrian access to each unit, o unacceptable privacy intrusion from The Entrance Bridge, and o the potential noise impact from traffic on The Entrance Bridge. 27 Mr Hancock comes to a different conclusion. He states that it is incorrect to assume that the site is "iconic" and as such warrants consideration above and beyond that provided for in the Residential 2(b) zone. Similarly, there is nothing within the planning controls from the council to suggest that the site requires special and separate designation other than the zoning of the site. 28 Mr Hancock notes that the aims and objectives of SEPP 71 have been addressed at a time that preceded the introduction of a broad strategy that included, amongst other things, a foreshore connection adjacent to the site via the under croft of The Entrance Bridge. He rejects any suggestion that the design does not respond to its waterfront location as it is responsive to the site and existing built environment constraints in a manner consistent with the zoning and by providing resort living and appropriate amenity. 29 In relation to the building design, Mr Hancock states that it is a skilful design solution to a difficult site providing optimum exposure to views and access to waterfront infrastructure in a manner consistent with the emerging built environment. In response to those specific matters raised by Mr O'Dowd, Mr Hancock makes the following comments: o the 6 m building line to Hargraves Street has encroachments but is separated from the public domain by landscape and garden walls o the building line to Brogden Road is not intruded upon by entry porticos but is punctuated by the inclusion of identifiable pedestrian access points to the complex to address the street, o the northern nil setback can comply with some minor amendments, o significant areas of deep soil planting are available, particularly to the extensive perimeter of the site, o appropriate "interface" opportunities remain to be solved by way of negotiation with the council and the generation of appropriate conditions of consent with respect to the adjoining public lands, o the streetscape presentation to Brogden Road is acceptable by providing a landscape garden offering privacy and security and screening vehicular access and manoeuvring areas from the public, o the bin storage area is conveniently located, being accessible, containing odours and concealing the contents from view, o the pedestrian access to each unit is discreet and identifiable in a landscape resort setting, o any potential noise impact from traffic on The Entrance Bridge can be addressed through appropriate acoustic treatment. Findings 30 The site is subject to a number of planning controls that relate to its design and setting. The Residential 2(b) objectives provide generally uncontroversial objectives, such as "to cater for a wide range of housing types essentially domestic in scale and character" (objective (a)). SEPP 71 however raises the issue of context and particularly its location on the foreshore. One aim seeks "to ensure that the visual amenity of the coast is protected" (cl 1(e)). The relevant matters for consideration include "the suitability of development given its type, location and design and its relationship with the surrounding area" (cl 8(d)). 31 In relation to design, cl 3.1 of DCP 64 has the following relevant objective: to encourage design that results from a genuine analysis of the site character and capacity, and its suitability for the proposed development. 32 Clause 5.1 of the DCP 64 provides the following objectives for construction and appearance of development: To promote high architectural quality in residential flat development. To ensure that new development have facades which define and enhance the public domain and desired street character. To ensure design of development is : Of a high quality which contributes positively to the streetscape; Compatible with the desired character of the area; and Visually interesting, offering variety to the observer while presenting an integrated design outcome. To ensure that building elements are integrated into the overall building form and facade design. 33 Mr O'Dowd raised a number of areas where the proposed development is unacceptable. As the proposed development is not to be approved for the reasons mentioned earlier in the judgement, I propose to deal with the more significant issues raised by Mr O'Dowd. Bulk, scale and massing from the water: the site is in a prominent location, being visible from the water and The Entrance Bridge. While I agree with Mr Hancock that it may not reach "iconic" status, it is nonetheless an important site in terms of its location on the waterfront and prominence from many areas at The Entrance. SEPP 71 requires consideration be given to its location on the foreshore. DCP 64 requires high architectural quality for all residential flat buildings, not just those located on the foreshore. 34 Mr Hancock stated that part of the design philosophy was to provide a visual connection from each of the units to the water. While this is not an unrealistic goal for a site that is located on the waterfront, it should not be the guiding design principle for the site, particularly when the site is irregular in shape and some parts of the site do not have a direct relationship with the water. The effect of such a design philosophy results in a disproportionate massing of building form where more accessible views of the water are available. In this case, the areas where Buildings A and B are located at a disproportionate massing and density compared to Buildings C and D. 35 I accept the conclusions of Mr O'Dowd that the scale, form and massing of the proposed development is overly dominant when viewed from the water. I am not satisfied that the visual amenity of the coast is protected by the proposed development (SEPP 71 (cl 1(e)). Streetscape- the site has frontages to Hargraves Street and Brogden Street. The Hargraves Street setback is 6 m and while Building D satisfies this requirement, the balconies for the lower level units (Units 7 and 9) have a setback of only 1 m. The prominence of the encroachment is exacerbated by the height of the balconies of around 2.1 m (including the solid balustrade). Even accepting the need to raise the floor level of the ground floor units to address the flooding impacts, I am not satisfied that the significant encroachment of the balconies into the setback area is appropriate, given the objectives in cl 5.1 of DCP 64. I do not accept Mr Hancock suggestion that the provision of landscaping within the 1 m setback to the balconies provides an acceptable level of screening to the balcony structures. 36 The Brogden Street setback also has encroachments in the form of two entry portes, although these structures are relatively small and, in my view, do not significantly impact on the streetscape appearance. Of far greater importance, in terms of streetscape, is the entrance to the car park, the carport structure and stand-alone garages. When viewed from Brogden Street this component of the development is uncharacteristic of what would be expected in any contemporary residential flat building even putting aside the special qualities of this site. 37 I find that streetscape appearance of Brogden Street is in total conflict with all the objectives for construction and appearance in cl 5.1 of DCP 64, in that it does not promote high architectural quality, the facades do not define and enhance the public domain and desired street character, the design does not contribute positively to the streetscape, is incompatible with the desired character of the area and could not be described as being remotely visually interesting, offering variety to the observer while presenting an integrated design outcome or providing building elements that are integrated into the overall building form and facade design. Access - the car parking arrangements have consequential unsatisfactory impacts in terms of access between the parking facilities and their respective units. I agree with Mr O'Dowd that the paths of travel excessive, with the possible exception of Unit 1 where the double garage adjoins the unit. For example, a person parking a vehicle in the garage for Unit 2 is required to walk around 40 m to gain access to Unit 2. For access without the need to use steps, the distance is around 70 m. 38 I do not accept Mr Hancock's suggestion that the development should be seen as a tourist orientated development and as such the excessively long travel paths can be justified. 39 The evidence also does not suggest that I could be satisfied that the turning movements for vehicles using the garages for Units 3 and 4 could be undertaken in a manner that was consistent with Australian Standard AS 2890.1. Noise - the issue of noise centred on the noise from vehicles using The Entrance Bridge and the close proximity of this bridge to Units 3 and 4. Mr Hancock acknowledges the potential conflict but suggests that this could be adequately addressed at a later time through the specific design of Units 3 and 4. He stated that the costs associated with the preparation of acoustical report could not be justified in this instance but accepted that some work would be required to these units to address the noise issue. 40 I do not accept this approach has been reasonable. The Entrance Bridge is located some 6 m from the outdoor balconies of Units 3 and 4. Unit 3 has a bedroom and dining/living area adjoining the balcony and Unit 4 has a kitchen and living/dining area adjoining the balcony. 41 While there may be a potential solution to any noise impacts on Units 3 and 4, the extent of the modification is unknown and it is appropriately dealt with as part of the development application stage. The relationship between The Entrance Bridge and the development is a constraint to the development and, in my view, can only be properly addressed through an acoustical assessment of the bridge noise on the development with recommendations identifying how to address these impacts through specific building design. Height - the two-storey height control is breached by the proposed viewing and structure area on Building B. Compliance with the two-storey height control could achieved through the removal of the structure and in the event that development consent was to be granted, a condition requiring this could be placed on the development consent. Orders 42 The orders of the Court are: 1. The appeal is dismissed. 2. Development Application No DA/484/2008 for the demolition of all existing structures and the construction of a residential flat building containing 12 units at 2 – 4 Brogden Road and 6 Hargraves Street, Entrance North is refused. 3. The exhibits are returned. ____________ G T Brown Commissioner of the Court 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.