Land and Environment Court of New South Wales CITATION : Bruce Kerr Pty Limited v Gosford City Council [2007] NSWLEC 501 APPLICANT Bruce Kerr Pty Limited PARTIES : RESPONDENT Gosford City Council FILE NUMBER(S) : 11265 of 2006 CORAM: Bly C KEY ISSUES: Development Application :- residential flat building, development standards, development control plan requirements, building height, bulk and design, bushfire. Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No 1-Development Standards Gosford Planning Scheme Ordinance Draft Gosford City Centre Local Environmental Plan 2006 LEGISLATION CITED: Draft Development Control Plan Gosford City Centre Plan State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings State Environmental Planning Policy No. 71 - Coastal Protection Development Control Plan No 89 - Scenic Quality Development Control Plan No 100 - Medium Density Residential Development Control Plan No 159 - Character CASES CITED: Kerr v Gosford City Council [2004] NSWLEC 471 DATES OF HEARING: 3, 4, 12/07/2007 DATE OF JUDGMENT: 17 August 2007 APPLICANT Mr P. Rigg, solicitor of Deacons LEGAL REPRESENTATIVES: RESPONDENT Mr P. Tomasetti, barrister Instructed by P J Donnellan & Co JUDGMENT: - 1 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 17 August 2007 11265 of 2006 Bruce Kerr Pty Ltd v Gosford City Council JUDGMENT Introduction 1 This appeal relates to Development Application No. 31581/2006 which is for the demolition of an existing fire damaged building and the construction of a four-storey plus basement car park, residential flat building containing 14 dwellings in John Whiteway Drive, Gosford. The site comprises Lots 1 and 2 DP 509541 and Lot 11 DP 873584. These three lots are to be resubdivided to create lots 13, 14 and 15 and the proposed residential flat building will occupy the proposed lot 13. Further development of proposed lots 14 and 15 is not proposed as part of this development application. 2 The rectangular shaped site is a corner block having a northern and a western frontage to John Whiteway Drive. It has an area of about 4,230 square metres. Proposed Lot 13 is irregular in shape has an area of 2,070 square metres and is situated on the corner of John Whiteway Drive. It has a northern boundary of about 34 m and a western boundary of about 46 m. It slopes about 18m from the south-east corner (approximately RL 75 AHD) to the north-west corner (approximately RL 57 AHD). 3 Situated towards the perimeter of Gosford's central business district the site has views to the north, west and south over this district and Brisbane Water. Surrounding development comprises a mixture of older dwellings and more modern multi-storey residential flat buildings. 4 On the 26 August 2004 I delivered a judgement involving this same site, in the matter of Kerr V Gosford City Council [2004] NSWLEC 471. That appeal involved a much larger development by comparison with the proposal, comprising the construction of two residential flat buildings containing 36 dwellings over seven levels. Planning controls 5 The site is zoned Residential 2(c) under the Gosford Planning Scheme Ordinance ("the Ordinance"). The relevantly applicable objective of the 2 (c) zone is to: make provision for the orderly and economic development of suitable land in appropriate locations for housing at medium to high density. Adjoining lands to the north and west across John Whiteway Drive are also included in the 2(c) zone. Adjoining lands to the east, south-east and south are included in the Residential 2(d) zone that has the objective to: make provision for the orderly and economic development of suitable land in appropriate locations for housing at high density. 6 Clause 10(3) of the Ordinance requires that development consent must not be granted unless the objectives of the relevant zone have been taken into consideration. In my previous judgement I noted that the objective of the 2(c) zone is essentially met by the fact of the zoning of the land which facilitates medium density residential development. As for the question of whether approval of this proposal would represent orderly and economic development, no issue was then or now is raised that the proposal would not comprise economic development. However, in relation to the orderly development objective of the zone, the proposal's failure to comply with certain development standards is an indicator that it may not be satisfactory. 7 Clause 10(4) of the Ordinance requires that development consent must not be granted unless the character of the development site and the surrounding area has been taken into consideration. In this context, character means the qualities that distinguish each area and individual properties located within the that area. 8 Clause 28 of the Ordinance contains development standards for minimum site areas and maximum densities for residential flat buildings and these requirements are met by the proposal. Also,the development standards in Clause 28(4) of the Ordinance require that all portions of residential flat buildings in the 2(c) zone must comply with the following requirements: a) Planes must be projected at 45° from a height of 3.5 m above natural ground level at the side and rear boundaries to a maximum height of ... 12 m above natural ground level... b) The vertical distance measured from the highest point of the floor of the topmost floor above natural ground level must not exceed ... 6 metres... 9 The Ordinance does not contain any objectives directly relating to these development standards. 10 In part the proposed building does not comply with these development standards and an objection pursuant to State Environmental Planning Policy No.1-Development Standards ("SEPP 1" and "the SEPP 1 objection") has been provided. 11 In this regard it was submitted by the respondent that draft Environmental Planning Policy (Application of Development Standards) 2004 ("the draft Policy") that provides for the repeal of SEPP 1 is relevantly applicable. The draft Policy essentially deals with the same subject matter as SEPP 1 but requires, inter alia, in section 7(2) that a departure from a development standard should result in a better environmental planning outcome than that which would have been achieved on the site had the standard been complied with, taking into account site characteristics, design quality, social and economic benefit to the community. 12 Pursuant to s79C of the Environmental Planning and Assessment Act 1979 ("the Act") the draft Policy is a matter that needs to be taken into consideration. It was advertised in June 2004 and there was no evidence that it has progressed beyond this and as a consequence it cannot be either imminent or certain. Consequently it should be given little weight and the provisions of SEPP 1 must attract significant weight. 13 Also applicable are the draft Gosford City Centre Local Environmental Plan 2006 ("the draft LEP") and the associated draft Development Control Plan - Gosford City Centre Plan ("the draft DCP"). The draft LEP was issued with a certificate under s 65 of the Act in November 2006 and subsequently advertised. The council resolved on 5 June 2007 to proceed with the draft LEP subject to a number of amendments none of which directly affects the site the subject of this appeal. 14 The draft LEP includes the site and adjoining lands to the east and south in Zone R1 - General Residential. The objectives of the R1 zone are to provide for the housing needs of the community in a variety of housing types and densities that in turn will increase population levels in locations which will support the viability of the Gosford city Centre. In addition the objective of the zone is to allow development along the coastline to take advantage of view corridors while avoiding a continuous built edge along the waterfront. Adjoining land to the north and west on the opposite side of John Whiteway Drive is included in Zone B4 City Edge. The objectives of the B4 zone include the provision of a mixture of compatible land uses to support the commercial core by facilitating commercial, retail, entertainment, tourism and social development together with higher density residential development. Again development is encouraged to take advantage of view corridors and avoid a continuous built edge along the waterfront. 15 Clause 21(2) of the draft LEP provides that: (2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map, except as provided by clause 21A or 22B 16 Clause 21(3) of the draft LEP provides that: (3) Despite the provisions of this clause, heights in the John Whiteway Drive precinct, as shown edged bold on the Height of Buildings Map, are not to exceed the AHD levels specified in the Special Area provisions of the Gosford City Centre Development Control Plan 2006. 17 The subject site is included within the area edged bold on the map referred to in clause 21(3) of the draft LEP. In this regard the draft DCP contains in Section 7, controls for special areas including the John Whiteway Drive Precinct. However the precinct map excludes the subject site from this precinct. Consequently there are no applicable height controls for the site resulting from the draft LEP. 18 By letter dated 3 July 2007 the council notes this as an "inconsistency" between the draft LEP and the draft DCP that will be corrected in the current review of these plans particularly in so far as they relate to the subject land. It is proposed that the inconsistency, described as a "cartographic oversight", be corrected in the review of the LEP "by applying height and FSR controls to the four parcels". (These parcels comprise the subject land). Whilst the matter has been discussed with the Department of Planning a decision on what height to apply to the land is yet to be made. In these circumstances the draft LEP and the draft DCP are of little assistance regarding height limits and floor space ratio. Hence the provisions of the LEP must take precedence. 19 Despite this, the objectives in clause 21 of the draft LEP in relation to height can still be of assistance. These include the protection of the natural environmental setting of the Gosford city centre; the appropriate location of buildings in relation to view corridors and view impacts; and the provision of high-quality urban form for all buildings. Also, the height controls applicable under the draft LEP for adjoining lands to the west and north of the site can be taken into account in contemplating the likely height of future development in the context of the proposed development. The maximum height indicated on the Height of Buildings Map for these sites is 18 metres. 20 Other variously applicable planning controls include State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings ("SEPP 65"); State Environmental Planning Policy No. 71 - Coastal Protection ("SEPP 71"); Development Control Plan No 89 - Scenic Quality ("DCP 89"); Development Control Plan No 100 - Medium Density Residential ("DCP 100"); and Development Control Plan No 159 - Character ("DCP 159"). Advertising and council's decision 21 The application was advertised and two letters of objection were received from Residents of John Whiteway Drive. Expressed concerns relate to: the inadequacy of water supplies in Gosford; inadequacy of local footpaths and roads; unsatisfactory garbage disposal arrangements; insufficient car parking spaces for visitors; and unsatisfactory building appearance. The evidence 22 On behalf of the respondent council expert evidence was provided by: o Mr F Dobbs - town planner o Mr B Newbold - architect and urban design consultant o Mr M Wasson – architect o Mr G Swain - bushfire consultant 23 On behalf of the applicant expert evidence was given by: o Mr D Kettle - consultant town planner o Mr M Harrison - architect and urban design consultant o Mr M. Standley - architect o Mr R Rose - bushfire consultant 24 Additional bushfire evidence was provided by Mr C. Shackleton of the Rural Fire Service. Council's Design Review Panel 25 Council's design review panel prepared a report dated 15 November 2006 that raises a number of concerns in relation to the proposal and recommends a major redesign. Matters of concern to the panel include the building's excessive bulk and height requiring the deletion of at least one storey and the lowering of the car park levels to allow pedestrian entry via the western facade. The issues 26 Many of the issues in the amended Statement of Issues have been resolved leaving the following issue for my determination: Whether the proposed development should be refused having regard to its height and bulk taking into account the height requirements in the LEP SEPP 65 and SEPP 71 and bushfire threat. 27 The bushfire threat issue was also resolved, taking into account the evidence of the bushfire experts and the applicant's agreement to a number of associated conditions of consent. The SEPP 1 objection 28 The SEPP 1 objection prepared by Mr Kettle deals with the non-compliances with the building height plane development standard in cl 24(4)(a) and the floor height development standard in cl 24(4)(b) of the LEP. It describes the non-compliances by reference to a number of cross sections through the proposed building that show the extent of projections beyond the building height plane and identify those parts of the building floors that exceed the maximum floor height. 29 In the absence of particular objectives for these development standards the objection contends that the underlying objective or purpose of these development standards can be derived from the objectives associated with the similar standards in DCP 100. 30 In relation to the building height plane requirements the objectives of the DCP relevantly seek to achieve an appropriate residential character and visual bulk. Also sought is a satisfactory residential amenity within the development and for adjacent development although these matters are not in dispute. 31 In arguing that compliance with the building height plane requirement is unnecessary or unreasonable particularly in relation to residential character and visual bulk, the objection refers to the following matters: o The principal objective of the 2 (c) zone involving the provision for orderly and economic development in appropriate locations for housing at medium to high-density is complied with by this proposal. o The proposal is responsive to the draft Central Coast Regional Strategy that provides for a significant number of additional dwellings in the city of Gosford in the manner of a "living city". o The proposal is compatible with the character of existing and approved buildings in the locality. o The amenity of the proposed dwellings would be appropriate and that of existing surrounding development would not be adversely affected. o The applicable planning controls provide for a range of highrise developments in this locality at potential heights considerably greater than currently permissible and future development is likely to significantly alter views of the ridgelines surrounding the city centre. 32 The main argument provided by the objection in support of the non-compliance is: The principal reason for the non-compliance of part of the building with the building envelope is due to the topography of the land sloping to the northwest. The dwelling layout of the building achieves an efficient form that enables all dwellings to have level access between floors by way of the lift. Lowering of sections of the floors in the building in order to lower the height of the building would likely result in the removal of level access between floors. Drawing Nos 967/A3/14 & 15 - Revision A - Sections 3 and 6 indicate that the height of dwellings 4.4 and 5.4 are two storeys and located below the building envelope An alternative building designed to increase the height of that section of the building to three storeys within the building envelope would have the effect of creating a building with a greater height as viewed from the west notwithstanding that part of the building would be compatible with the building envelope controls. Such a design is considered to be less desirable than the current proposal notwithstanding that it could be designed to comply with the building envelope. 33 In relation to the floor height requirement the objectives of the DCP are the same as those for the building height plane relevantly seeking to achieve an a appropriate residential character and visual bulk and to achieve a satisfactory residential amenity. 34 In arguing that compliance with the floor height requirement is unnecessary or unreasonable in the circumstances of the case and dealing with residential character and visual bulk, the objection refers to the following matters: o The exceedence is due to the topography of the land and the desire to provide basement levels of car parking that in turn enables the retention of the substantial part of the ground level of the site in its natural state as well as the retention of natural vegetation. o The proposal's height complements the scale of existing and likely future development and responds to the site's topography and streetscape. 35 The SEPP 1 objections conclude that strict compliance with the development standards is unnecessary to achieve the underlying objectives of the planning controls and and would tend to hinder the objects of the Environmental Planning and Assessment Act 1979 particularly those involving the proper management of cities and towns and the promotion and coordination of the orderly and economic development of land. 36 As I said in my previous judgement in relation to this site it is unfortunate that there are no stated objectives for the development standards in cl 28(4) of the Ordinance. Mr Kettle has nevertheless, in my opinion correctly, established the underlying objectives of these development standards and I accept that for the purposes of analysing visual impacts resulting from the non-compliances they relevantly have the underlying objective of seeking to achieve an appropriate residential character and visual bulk. 37 Whilst having accepted that the underlying objective of this standard involves appropriate residential character and visual bulk I have difficulty understanding how, particularly in the absence of a directly associated objective and taking into account the building height plane requirement, a control that involves floor levels within the building can provide much assistance in dealing with visual bulk. I can understand how a control specifying a number of storeys would contribute to one aspect of residential character but if that is what the standard is about one can reasonably expect that it would have been so expressed. I am thus less concerned with the non-compliance with this standard than I am with the non-compliance with the building height plane requirement. In these circumstances and having been persuaded by the reasoning provided by the SEPP 1 objection I find that strict compliance with the floor height development standard to be unnecessary and would, subject to the building height plane SEPP 1 objection being satisfactory,uphold the objection. 38 However the non-compliance with the building height plane requirement is less easily resolved and should be examined in the context of the issue of building height and bulk Building height and bulk 39 In dealing with the issue of height, bulk and design I was assisted by the joint report and concurrent evidence of the two architects and the two urban designers. According to their joint report they note that building height emerged as the single area of disagreement between them and in this context they address the following questions: o whether the non-compliant height and envelope would result in an unsatisfactory streetscape; o whether full compliance with Council's development standards in relation to height and building envelope is reasonable and/or necessary; o whether the building should be lowered to reduce the extent of noncompliances. 40 These experts also agreed with regard to urban and scenic design principles, and that the height of the proposed building, per se, would not be unacceptable in the scenic context of the Rumbulara ridgeline behind the site. They consider that eight design amendments would address the remaining issues in dispute. In relation to the plans now before the Court, five of these design amendments were essentially satisfied either by the provision of additional plans and/or changes to the proposal. The five matters comprise: o The southern boundary setback should be increased to approximately 5 metres to provide for indigenous tree canopy. o Articulation of the southern elevation should be improved by providing an additional setback for the upper storey. o Secondary facades facing north and east should be redesigned to reflect the recommended lightweight top storey. o Existing ground levels along boundaries of the site should generally be maintained. o A detailed landscape plan should be prepared by a qualified landscaped architect. 41 Having considered these matters in the light of the experts' evidence, I am satisfied with the resolution of these aspects of the proposal. Notwithstanding that the building has been further improved the remaining three suggested design amendments remain to varying degrees unsatisfied: o The top storey should be redesigned to display a distinctly light-weight character. o The building's western silhouette should display three distinct steps o Articulation of the western elevation should be improved by varying the alignment of balconies. 42 As for the need for the top storey of the building to display a more lightweight character this was not a major issue for Mr Wasson and Mr Harrison was unconcerned. Mr Newbold accepted that the building partly achieved this requirement. Having examined the plans and the photomontages showing the proposed building in its setting I accept that the design of the top storey of the building with its differing presentation and use of materials would sufficiently achieve the light-weight character as sought. 43 The matter involving the need for the building's western silhouette to display three distinct steps is the main area of disagreement between the experts. In this context, DCP 100 requires the minimisation of visual intrusion into the natural environment. DCP 89 requires a sensitive approach when dealing with development close to ridgelines and seeks a balance between development and the landscape. Particular reference is made to the height of remnant vegetation that often dominates and visually contains existing development. DCP 159 similarly requires the protection of the scenic qualities of hillside properties. More particularly it seeks to minimise the scale of new buildings by using strongly articulated forms including floor levels that are stepped to follow natural slopes plus facades that vary in shape and height. Floorspace should be divided into individual dwelling pavilions with a varied form or orientation. 44 When viewed from the west the proposed building essentially comprises three adjoining elements. The northernmost of these is about 10 metres wide. The central and southern elements each have a width of about 15 metres and comprise the majority of the building's western presentation. Over the full length of the building, the downward slope of the site from south to north is about 5 metres. In response, the floor levels and the roof of the northern element step down about 1.5 metres or half a floor level from the central element. In addition, within this element, there is a one storey step down at level 5. Levels 2, 3 and 4 in the central and southern elements have the same floor levels as those in the northern element and there is little to distinguish between them. However some appearance of stepping down between these elements at level 5 is nevertheless achieved by having a difference in floor levels of 500mm together with a different floor to ceiling height resulting in a step down of 900 mm at roof level. This results in a total stepping down (excluding the step down at the level 5) of 2.4 metres but this is less than half of the slope of the site. 45 Mr Newbold said that the lowering of the central and northern elements of the building by 1 m and 0.75 m respectively was needed to achieve the necessary steps in building form as required by DCP 159 although he acknowledged the approach involving the raising the ceiling height of the southern element. However, whilst he generally agreed with Mr Harrison that there was no need to lower the whole building he did not accept that this method of stepping the building (between the central and southern elements) was satisfactory because the necessary distinct steps had still not been achieved. Mr Wasson considered that the lowering of the central and northern elements of the building by about one metre would assist in the stepping of the building and a reduction in its scale and bulk. It would also make the building more responsive to the overall height control development standard. 46 Mr Standley opposed any further lowering of floor levels because of the resultant difficulty of providing access to a number of dwellings from the lift lobby and difficulties in providing access to and within the basement car park. Moreover, in his opinion, the lowering of the building would have no tangible benefit, especially taking into account the height limits available on adjoining land to the north and west. Mr Harrison agreed, explaining that stair access to some apartments would not be desirable. In response the respondent's experts said that this was not a matter of concern noting that the proposal presently includes split level lobbies that require half-level stops for the lift. 47 This site is, by virtue of the objectives of the zone, an appropriate location for housing at medium to high-density and in principle the proposal is responsive to this. It will assist in increasing the population that in turn will support the viability of the Gosford city centre. Close by lands are identified in the LEP, and in the draft LEP that facilitates development up to 18 m high (or six storeys), as being suitable for high-density residential development, this being one indicator of the likely future character of the area. Also there are other existing close by medium and high-density residential developments. 48 When viewed from the west the upper levels of the proposed building will appear below the canopy of the trees behind the site. It will nevertheless extend above the ridgeline behind the site but there are no planning controls that would prevent this nor were there any concerns about this expressed by the experts. I also do not find this aspect of the proposal problematical particularly taking into account that the building height plane anticipates a built form higher than the ridgeline. Nevertheless being a height control that relates to the ground levels of the site it has the effect of limiting the height of a building on this sloping site in a manner that is responsive to the ridgeline behind the site. There is thus a consistency between it and the requirements of DCP 159 that requires individual pavilions with stepped floor levels that follow the natural slope. 49 Whilst it was uncertain, despite an analysis involving the application of the 18m height limit in the draft LEP to the adjoining lands to the west and north, as to the extent of possible development, it is nevertheless likely that substantial built forms are possible. These buildings will appear from some viewpoints in front of the proposed building but I do not accept that they will obscure it. In these circumstances the requirements of DCP 159 particularly those dealing with building articulation, stepped floor levels and individual pavilions continue to attract considerable weight. 50 With the majority of the floor levels of the proposed building in its central and southern elements and their presentation being largely identical I accept that the building does not achieve the necessary pavillions with a varied form as required by DCP 159. Moreover, with the building stepping down less than half of the slope of the site I am persuaded that it is not sufficiently responsive to the stepped floor levels requirement. 51 Regarding the suggested need for increased articulation by varying the alignment of balconies on the west side of the building I note that whilst the facade of the building at levels 2, 3 and 4 is articulated in the manner of varying setbacks from the boundary, the balcony edges are largely unarticulated. Taking into account the sliding screens on the balconies this would, if the screens were closed, result in a largely unarticulated building. Despite this, Mr Harrison believed the proposal to be satisfactory. However I agree that a better outcome is possible and indeed necessary, taking into account the requirements of DCP 159 that seek strongly unarticulated forms and facades that vary in shape and height. 52 The site meets the applicable area requirements and the proposed building has a compliant density and will take advantage of view corridors. Whilst it fails in part to meet the floor height and building height plane requirements it represents a reasonably balanced outcome, taking into account the experts conclusions that the height of the building is acceptable especially in relation to the ridgeline behind the site. Despite this I have been persuaded by the evidence of the respondent's experts in relation to the need for increased articulation and the stepping of the building in response to the slope of the site. I also agree that difficulties involving access to the various levels via a revised lift and corridor design are not insurmountable. 53 I thus conclude that the proposed building is not sufficiently responsive to the requirements of the development control plans hence my decision that the application should not be approved. 54 Finally, although Mr Newbold said he was not persuaded by the SEPP 1 objection dealing with the building height plane he accepted that this steeply sloping site offers visual and scenic quality arguments that support a variation of the development standard. In principle I agree with him and would have upheld the objection taking into account the extent to which parts of the building exceed the building height plane and the other parts that sit well within it. However this conclusion is irrelevant given that I have decided to dismiss the appeal. Orders 55 It is therefore the decision of the Court that: 1. The appeal is dismissed. 2. Development Application No. 3148/2004 for the demolition of an existing dwelling and the construction of two residential flat buildings containing 36 dwellings on Lots 1 and 2 DP 509541 and Lots 11 and 12 DP 873584 being land in John Whiteway Drive, Gosford is determined by refusal. 3. Exhibit D is retained. ___________________ T A Bly Commissioner of the Court Ljr/dk 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.