Land and Environment Court of New South Wales CITATION : Marina Bay v Pittwater Council [2008] NSWLEC 14 APPLICANT Marina Bay PARTIES : RESPONDENT Pittwater Council FILE NUMBER(S) : 10898 of 2007 CORAM: Bly C KEY ISSUES: Development Application :- Demolition of existing building and construction of a seniors living development containing six dwellings with basement car parking, strata subdivision, character and streetscape, removal of trees, excavation and construction, amenity of neighbours. Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No 5 -Housing for the Aged and Disabled State Environmental Planning Policy - Seniors Living LEGISLATION CITED: State Environmental Planning Policy No 1- Development Standards Pittwater Local Environmental Plan 1993 Pittwater 21 Draft Local Environmental Plan Pittwater 21 Development Control Plan GPC No 5 (Wombarra) Pty Ltd v Wollongong City Council [2003] NSWLEC 268. CASES CITED: Marina Bay Developments Pty Limited v Pittwater Council [2006] NSWLEC 531. Marina Bay Developments Pty Limited v Pittwater Council [2006] NSWLEC 577. DATES OF HEARING: 18/12/2007 and 19/12/2007 DATE OF JUDGMENT: 16 January 2008 APPLICANT Mr A. Galasso, SC with Mr M. Staunton, Barrister instructed by Mr T. Flaherty of Willshire Web LEGAL REPRESENTATIVES: RESPONDENT Mr C. McEwen, SC with Mr A. Pickles Barrister instructed by Mr J. Brown of Mallesons JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 16 January 2008 10898 of 2007 Marina Bay v Pittwater Counci JUDGMENT Introduction 1 This appeal relates to Development Application No. NO738/06 which is for the demolition of an existing dwelling and the construction of seniors housing in the form of an in-fill self-care housing development at 2079 Pittwater Road, Bayview, being lot 1 DP 544355 (the site). Strata Title subdivision is also proposed. 2 For the reasons set out in this judgment, I have decided that the appeal should be dismissed ant the development application refused. The site and its context 3 The site is situated within the Bayview locality so named for its outlook onto the Pittwater waterway (Pittwater). It is located on the south side of Pittwater Road overlooking (and viewed from) Pittwater and Scotland Island. It has an area of 2,156sqm comprising: a roughly rectangular shaped area of 1,615sqm with a frontage to Pittwater Road of about 26m, a western boundary of about 81m, an eastern boundary of about 77 m and a rear boundary of about 17m (the main part of the site). It also has, at the rear, an "S" shaped access way to Corniche Road having an area of 531sqm and a variable width of about 6 m (the accessway). The site has minimal lateral cross fall but has a rising slope of about 20% from the street. Numerous trees and shrubs including those in the road reservation surround the existing house on the site. 4 The site (including the accessway) adjoins six properties: + 2075 Pittwater Road - a two-storey house that adjoins the site to the east and fronts Pittwater Road. + 2081 Pittwater Road - a one and two storey house adjoins the site to the west and fronts Pittwater Road. + 2081A Pittwater Road - a two storey brick house adjoins the site to the west at the rear of the site. + 38 Kananook Road - a two storey house adjoins the rear south boundary and the accessway. + The two houses on either side of the accessway. 5 As described in the council's Statement of Facts and Contentions the locality consists predominantly of residential allotments comprising dwelling houses in landscaped settings and having one, two and more stepped levels on their slopes. The majority of these dwellings enjoy high value close and distant water views. Except for 2075 Pittwater Road the de facto front setbacks of adjoining and nearby dwellings are generally substantially greater than the applicable 10 m building line. The street frontages are landscaped with a substantial remnant tree canopy. This residential area is confined to the foot and upper levels of the escarpment on the western side of Pittwater Road with land on the eastern side of the road down to Pittwater itself used as foreshore public open space, foreshore pedestrian walkways and a few private boat sheds. Immediately opposite the site is the Bayview Yacht Racing Association building with open space on either side. 6 A residential development approved under State Environmental Planning Policy No 5 - Housing for the Aged and Disabled (SEPP 5) was recently completed at 2091 Pittwater Road. Another similar residential development approved under State Environmental Planning Policy - Seniors Living (SEPP SL) is under construction at 2085 Pittwater Road. (Marina Bay Developments Pty Limited v Pittwater Council [2006] NSWLEC 531). The proposed development 7 The existing single dwelling on the site is to be demolished and a new building is to be constructed containing six self-care dwellings with lift access (2) and basement car parking for 12 cars with access of Pittwater Road. The building is to step up the site such that it varies between one and two storeys above ground level at any point on the site although a central element of the building in the street elevation will appear as three storeys . 8 In response to the decision of the court in relation to a previous development application for this site (see below) the side setbacks of the proposed development have been increased to a minimum of 3 m. In addition two courtyards in the manner of symmetrical indents into the sides of the building (between grid lines E and F) have been provided (the two courtyards) in an attempt to visually break the building into two parts. A single red bloodwood tree is to be planted in each courtyard with the intention of allowing these trees to grow above the proposed built form. These courtyards are 5.4 m wide and extend from the boundaries of the site into the building at the modified (lower) ground level (Proposed Level 1) about 9 m. Above this, the building projects over the courtyards retaining the 5.4 m width but reducing the size of the indents from the site boundaries to about 6 m. The building is thus narrowed at this point from about 15 m (between grid lines D and E) to about 7.5 m (between grid lines F and E). It then widens out to about 12 m (between grid lines F and G). Previous development application. 9 On 19 September 2006 Tuor C delivered judgment (Marina Bay Developments Pty Limited v Pittwater Council [2006] NSWLEC 577) in relation to a similar development proposal (six dwellings over five levels plus basement parking for 12 cars) for the site the subject of this appeal. In deciding to refuse the development application Commissioner Tuor expressed concerns essentially as follows (paragraphs 37, 39, 49, 50 and 53): + The existing character of the area should be taken into consideration. It generally comprises two-storey houses, albeit some are elevated above the slope and appear as three storeys. While some houses are set behind each other as they step up the slope their impact is mitigated by being offset and interspersed with landscaping. + The proposal will appear as four to five storeys when viewed from the waterway and does not have the benefit of offset built forms and interposed landscaping . + The size of the basement is such as to prevent the provision of significant planting of trees and shrubs. Greater set backs for the basement or significant indents where deep soil planting should be provided to facilitate the planting of canopy trees. + The proposal's stepped form with indents and terraces assists in breaking up the length and height of the building but is deficient because it does not provide generous breaks and landscaping resulting in the proposal appearing as one building. A greater visual break between the upper and lower levels of the building is required so that the two components appear separate when viewed from Pittwater Road and Pittwater. 10 Commissioner Tuor recognized the inherent inconsistency between the prescriptive controls in DCP 21 (particularly setbacks) and the means of achieving the aims of SEPP SL and accepted that these controls do not apply to the site. However she accepted, as do I, that DCP 21 is relevant to the extent that it identifies the desirable elements of the location's current character (or desired future character) for the purposes of SEPP SL and that the setback controls are consideration in defining this future character. Advertising and council's decision 11 The development application was lodged with the respondent on 28 November 2006. It was advertised from 5 December 2006 until 18 January 2007. Some 86 submissions were received, 85 being letters of objection and one being a letter of support. Following a request from the council the applicant provided amended plans these plans were not notified as the extent of the changes were minimal. 12 Matters of concern to the objectors essentially comprise: + The proposed development is far too large for the site especially taking into account the surrounding and nearby detached dwelling houses. + The excavation for the proposed basement car park being some 9 m deep is excessive. There will be a higher level of risk that adjoining properties will be at adversely affected. + The proposed development will be out of character with the existing and desired future character of the area. + The basement car park will limit the growth of screening trees and will result in existing trees on the site dying. + The sheer bulk of the building and its use of hard surface materials will adversely affect the streetscape. + The amenity of adjoining neighbours will be at adversely affected in terms of privacy and overshadowing. + Excessive and unreasonable disturbance of amenity as a result of extended period for excavation and building. + The landscape plan is unsatisfactory and the provision of plantings predominantly around the boundary will adversely affect neighbours. + The resulting increases in population at Bayview is inappropriate given that there are no nearby shops. + The increasing number of medium density developments of this kind is adversely affecting the pleasant ambience of Bayview. 13 On behalf of the Bayview Residents' Group Mr. J. Coleman a town planning consultant provided a critique of the proposed development: + The proposed development would make a significant impact on the streetscape and the built environment especially when viewed from opposite the site in Pittwater Road and on the Pittwater waterway. + This large development proposal is to be positioned at a focal point central to the bay area and would not be in keeping with the natural character of the locality. + The developer has forced a development of this size on to the site resulting in its over-development. + There are serious and significant technical problems associated with this very large excavation. + The proposed development fails to recognize and take into account the requirements of DCP 21. + Because of the configuration of the site, particularly the accessway, this means that a larger building is forced into the developer will area of the site. While being technically compliant with the floor space ratio controls the size of the building on this part of the site creates an unacceptable outcome. 14 When the hearing began on-site I heard from the following objectors (and Mr Coleman): + Mr. F Makin, 26 Eastview Road, Church Point, President of the Bayview - Church Point Residents Association Incorporated; + Mr. M Dixon, 7 Corniche Road, Bayview; + Mr. L Wright, 38 Kananook Avenue, Bayview + Mr. A Muir, 2075 Pittwater Road, Bayview + Mr. D Williams, 2081 Pittwater Road, Bayview; + Mr. G Sheidow, 2081A Pittwater Road, Bayview. Planning controls Pittwater Local Environmental Plan 1993 15 The site is zoned Residential 2(a) under Pittwater Local Environmental Plan 1993 (the LEP) and the proposed development, comprising a residential flat building for the purposes of the LEP is prohibited. The proposal is nevertheless permissible with development consent being in-fill self-care housing (see clauses 14, 17 and 18 of SEPP SL). Because the LEP prohibits residential flat buildings in the 2(a) zone it is not surprising that there are no particular provisions therein that are to be applied to this proposed development. Pittwater 21 Development Control Plan 16 Pittwater 21 Development Control Plan (DCP 21) applies to this site but it's relevance was disputed. Despite this Part A 4.4 of DCP 21 that describes existing development within the Church Point and Bayview localities and describes their desired future character can be taken into account in reaching an understanding of the context in which the proposed development is to occur, notwithstanding clause 5(3) of SEPP SL. 17 The Bayview locality will remain a low-density residential area with one and two storey dwelling houses in a natural landscaped setting integrated with the landform and landscape. The bulk and scale of future development is to be minimised. Canopy trees are to be integrated with new development that should maintain a height limit below the canopy of these trees. Contemporary buildings should utilise facade modulation with colours and materials of that harmonise with the natural environment. On sloping sites development should be stepped down or along the slope to integrate with the landform and landscape. Site disturbance is to be minimised. More generally a balance is sought between maintaining landforms, landscapes and other features of the natural environment and the development of land. 18 Also in the context of desired future character Part D4.1 of DCP 21 details certain desired outcomes including the need for built form to be secondary to landscaping and should not dominate the streetscape. Parking structures are to be minimised and should not be the dominant feature when viewed from a public place. State Environmental Planning Policy - Seniors Living 19 The aims of SEPP SL in cl 2 speak of the need to increase the supply and diversity of residences that meet the needs of seniors or people with a disability and to make efficient use of existing infrastructure and services and that such housing be of good design. These aims are to be achieved by setting aside local planning controls (see clause 5(3)) and the provision of design principles that should be followed to achieve built form that responds to the characteristics of the site under consideration. 20 Clause 29 deals with the design of in-fill self-care housing and requires that in determining a development application the consideration of the Seniors Living Policy: Urban Design Guidelines for Infill Development (the guidelines). Clause 30 requires that consent must not be granted unless the consent authority is satisfied that adequate regard has been given to certain principles in Division 2. Relevant to this application those principles are contained in clause 31 and require that the proposed development should: + Recognize the desirable elements of the location's current character ... so that new buildings contribute to the quality and identity of the area. + Maintain reasonable neighbourhood amenity and appropriate residential character by: providing building setbacks and the reduction of bulk and overshadowing; providing building form and citing that relates to the site's land form; and providing building height of the street frontage that are compatible in scale with adjacent development. + Recognize the existing building line + Provide planting that is responsive to that in the streetscape and where reasonable, retain existing major trees . 21 Clause 38 of SEPP SL contains development standards including: minimum lot size and frontage; and maximum building heights. there was no dispute that these standards are met by the proposed development. 22 Section 2 of the guidelines deals with site planning and design and in addition to requiring that new dwellings have a higher level of amenity and respect the privacy and amenity of neighbouring properties, the existing character of the neighbourhood needs to be taken into account. It is particularly noted that residential flat buildings can look out of place in the street in relation to smaller scale adjoining properties. The retention of existing natural features that contribute to neighbourhood character encouraged, as is the maximization of deep soil and open space for mature tree planting and water percolation. Designs that reduce the space occupied by driveways garages and approaches thereto are encouraged. 23 Section 3 requires that new infill developments need to achieve and harmonize with the existing streetscape character or desired future character. The design principles suggest that visual bulk can be reduced by breaking up the building massing and articulation of building facades; allowing breaks in rows of attached buildings; setting back upper levels behind the front building facade; and the avoidance of uninterrupted building facades. The evidence 24 On behalf of the respondent expert evidence was provided by: + Mr. H Sanders-town planner, + Mr. L de Ambrosis-geotechnical engineer. 25 On behalf of the applicant expert evidence was provided by: + Ms C McKenzie-horticulturist, + Mr. P Crozier-geotechnical engineer, + Mr. R Fleming-town planner, + Dr R Lamb-visual analysis consultant. 26 Joint reports were prepared by: Mr. Sanders, Dr Lamb and Mr. Fleming; and Mr. de Ambrosis and Mr. Crozier. The contentions 27 As described in the statement of facts and contentions there are a number of concerns for the council. In essence these are: + The proposal will result in unacceptable impact on the streetscape. + The development will be inconsistent with the desired character of the area. + The proposal will remove existing significant vegetation. + The amount of excavation proposed is excessive and inappropriate. + Certain west facing habitable rooms will have an unacceptable level of amenity. + The proposal will have privacy impacts on neighbouring properties. 28 Taking also into account recent amendments to the proposed development and all of the evidence I have decided that the principal issue for the resolution of the Court is whether the proposed development will have an unacceptable impact on the streetscape and will be inconsistent with the desired future character of the area. 29 I have not been persuaded that there will be any unreasonable removal of vegetation from the site, taking into account the proposed setbacks, the landscape plan and the evidence of Miss McKenzie. Taking into account the evidence of Mr Flemming I also do not accept that the provision of car parking excessive. It is not inappropriate for a development of this standard to provide two car parking spaces per dwelling notwithstanding that DCP 21 might otherwise have required (as a minimum) less than this, taking also into account the significant demand for on street parking in this locality. 30 Regarding the proposed excavation for the car parking basement I am satisfied with the expert engineering evidence that this could be undertaken in a manner that minimizes risk and possible impacts on neighbouring properties. 31 Overall the proposed dwellings will have a satisfactory level of amenity and, in terms of privacy and building bulk neighbour amenity will not be unreasonably affected, particularly taking into account the landscaping to be provided in the 3 m setbacks. Character and streetscape - the evidence 32 In the joint report Mr. Sanders explained that, in relation to the character and streetscape issue, his main concern involves the impact of the proposed building in the context of the visual catchment from Pittwater and from Pittwater Road although he is less concerned with the appearance of the building when viewed from the more immediate vicinity of the site. 33 In this regard it was agreed between the experts, taking into account the amended landscape plan that there would be no significant impact on the desired future character of the area in terms of the number of levels in the proposed building when it is viewed from Pittwater Road. Miss McKenzie was of the opinion that with the minimum 3 m site setbacks (as previously sought by Mr. Sanders) this would enable the planting of canopy trees and other landscaping which, by the spread of branches and foliage, would contribute to the visual softening of the building when viewed from Pittwater and adjoining properties. Dr Lamb here noted that the three-storey appearance of buildings at the street is not uncommon in this locality. 34 Dr Lamb acknowledged that the greater visual impact would come from medium to long-range views from Pittwater but once the building was completed and as the landscaping matures it would have no special prominence. 35 Whilst Mr. Fleming disagreed, Mr Sanders contended that the site coverage and quantum of development of the proposal is excessive. This is because the accessway to Corniche Road has been included in the area calculations (ie if the accessway is excluded the floor space ratio is significantly greater). Whilst he was not so concerned about the total number of levels in the development, he agreed with Dr Lamb that if significant vegetation is established in the side/site setbacks and between the main components of the building some of his concerns in regard to the appearance of the scale of the building may be resolved. 36 However Mr. Sanders remains concerned with the unsatisfactory arrangement of the two courtyards because they are not sufficient to facilitate the provision of appropriate vegetation that will result in a visual separation between the front and the rear parts of the proposed development and will not prevent the development from appearing as more than two storeys. Mr Fleming said that the proposed trees in the courtyards will provide a significant layering of bushland within the site but Mr. Sanders said that these trees are unlikely to be successful. Miss McKenzie was of the opinion that the two red bloodwood trees (that are endemic to the area) would be a successful in the two courtyards provided that the volume of soil that she recommended (36 cubic metres) is achieved. She understands this to be the case. She also acknowledged that these trees would need regular maintenance including selective/formative pruning and watering. 37 In relation to excavation, Mr. Sanders argued that the car parking provision should be reduced so as to be consistent with the requirements of SEPP SL. This would result in a smaller basement that could be achieved without any changes to the external appearance of the building. It would also avoid concerns as to site stability and impacts on neighbours. He also objected to the extent of excavation because of its depth and proximity to the boundaries of the site, this being contrary to the requirements of SEPP SL that development should have a building form and siting that relates to the site's land form. It could also provide better opportunities for more substantial vegetation to be planted on the site in locations where it would be most effective to break up the appearance and bulk of the building. 38 Mr Fleming was of the opinion that in the light of the engineering evidence, the proposed conditions of consent (dilapidation reports and acoustic amenity) and taking into account the anticipated quantity and duration of the excavation process the work would not be excessive or inappropriate. also, taking into account the landscaping evidence he accepted that within the setback areas there would be a sufficient soil depth to enable deep soil planting that would enable trees to be grown to a sufficient height to result in an appropriate landscaped setting for the building. This outcome would be consistent with the requirements of DCP 21. As for the provision of two car parking spaces per dwelling this was an appropriate response to the higher car ownership in the municipality and the acute demand for on street parking in the locality. Also, if the impacts of the building itself can be managed there would be no adverse visual impacts as a consequence of the basement. Conclusions 39 The proposed building that the applicant now seeks approval for is very much like the building that Commissioner Tuor found to be inappropriate and I have no difficulty in adopting the approach that she has taken in relation to the building the subject of this appeal. It is plain that the applicant's architects have attempted to respond to her concerns but in my opinion the present proposal still does not provide the necessary breaks in its built form and landscaping and, as a result, will still appear as one building when viewed from Pittwater. 40 As described earlier the site comprises a roughly rectangular shaped area of 1,615 sq m and a 6 m wide accessway at the rear that has an area of more than 500 sq m (out of a total area of 2,156 sq m). The accessway cannot be developed, resulting in the visual bulk of the now proposed development being concentrated on the main rectangular part of the site. This is what Mr. Sanders described as the excessive quantum of development. 41 Because the size of the building is greater than the majority of buildings in this locality and is positioned on the main part of the site, is essential that it be broken up so that it does not appear as one building. Hence, as submitted on behalf of the council, sections of the building should be separated by generous breaks and landscaping (see GPC No 5 (Wombarra) Pty Ltd v Wollongong City Council [2003] NSWLEC 268). In this regard I accept the evidence provided on behalf of the council that despite significant improvements (by comparison with the development rejected by Commissioner Tuor), the proposed courtyards and landscaping therein do not satisfy this principle. Hence the development still fails to appropriately respond to the desired future character of the area as required by SEPP SL and DCP 21. I have reached this conclusion notwithstanding that this is a quality design that is reasonably integrated into the site and its stepped configuration respects the land form. I have also taken into account that the accessway adds to the landscaped setting of the proposed development and contributes to the landscaped character of this locality and thus provides some support for the proposed development. However even when considered together with the other landscaping (existing and proposed) on the site it does not overcome my concern that the proposed building will predominantly read as a single structure. 42 I accept that the building will have little visual impact when viewed from Pittwater Road taking into account the retention of vegetation and that its upper levels will be little apparent. However its major impact involves its appearance when viewed from Pittwater by the many users of that waterway. This neighbourhood character consideration emerges from the planning controls and is, in the public interest a relevant and important consideration. In my assessment when viewed perpendicular from the site (disregarding landscaping for the moment), all of the levels of the building will be variously apparent to a viewer on Pittwater from about 50 m beyond the shoreline. Also, some oblique views of much of the building from Pittwater will be available from closer and distant viewpoints. Notwithstanding its strict compliance with the two-storey height limit the building will have a visual appearance of more than two storeys. Dr Lamb is correct that the 3 m site setbacks allow deep soil plantings along the site is boundaries and that such plantings will be able to provide some screening of the proposed development. Also these plantings will, together with existing vegetation including the retained canopy trees and including those on the accessway, contribute to the proposed building's landscaped setting. This landscaping will certainly soften the visual appearance and provide some screening of the building but as a matter of principle landscaping should not be used to disguise an inappropriate built form. 43 In my opinion the two courtyards as presently proposed will not be sufficient to provide a generous break in the building which I accept is necessary, taking into account the planning controls that require a sensitive response to the existing character of this area. The size of the side indents into the building is not sufficient, recognizing that between these indents the connection between the upper and lower parts of the building is 7.5 m wide. Conceptually, I accept that the provision of landscaping between built forms can assist in breaking up these forms, however I have not been persuaded that the two proposed bloodwood trees can overcome this deficiency. There is too much reliance on these trees and I am concerned about the likelihood of these trees being successful. I am not convinced that the contrived sloping of the soil (some of which is underneath the building) will be able to be maintained so as to meet the volumetric and other requirements of Ms McKenzie. I also have some doubts as to how this will be integrated with the soil profile beyond the basement. I am also concerned that the necessary pruning regime to develop the shape of these trees may not be a successful and that views, including those from the terraces, will be restricted, with possible adverse consequences for them. 44 I do not accept that the failure of the design to meet the need to break the building into separate elements necessarily arises as a result of the size of the basement car park, although it seems that changes to it will be necessary if the applicant is to proceed with this development. As noted earlier, I agree with the submissions made on behalf of the applicant that it is not inappropriate for a development of this standard to provide two car parking spaces per dwelling. I am also not concerned, as a matter of principle, with the extent of excavation here proposed, to the extent that I have few concerns (leaving aside the building separation concerns) with the building's footprint. Nor am I concerned with the approach involving backfilling over constructed basements especially where that backfilling is of sufficient depth for appropriate plantings and is interconnected with surrounding deep soil areas. The configuration of the proposed basement (and the habitable rooms adjacent to the courtyards) does however provide a constraint in relation to the soil depth and surface levels where the red bloodwood trees are proposed to be planted. 45 Finally, it is to be noted that the requirements of SEPP SL in effect do not require that seniors housing needs to be the same as that which surrounds it. Indeed it is not necessary to pretend that this is not a residential flat building development. It is nevertheless necessary to take into account the low-density nature of surrounding development that mainly comprises built forms in the manner of detached housing in a landscaped setting. This development in some ways exhibits the necessary sensitivity but in my opinion it does not meet the test of responding to the desirable elements of this location's character and providing a new building that contributes to the quality and identity of the area. A reduction in the apparent bulk of the building by providing a more effective landscaped break between the upper and lower parts of the building is necessary. As a result of the failure to do this I have decided that the appeal should be dismissed and the development application refused. ___________________ T A Bly 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.