Land and Environment Court of New South Wales CITATION : Martin and Sporke Pty Ltd v Wingecarribee Shire Council [2007] NSWLEC 598 APPLICANT Martin and Sporke Pty Ltd PARTIES : RESPONDENT Wingecarribee Shire Council FILE NUMBER(S) : 10254 of 2007 CORAM: Murrell C KEY ISSUES: Development Application :- Retail and Commercial development, impact on heritage conservation area, solar access, height, bulk and scale, noise and traffic, streetscape and landscaping Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Wingecarribee Local Environmental Plan Wingecarribee Development Control Plan CASES CITED: BJP Properties v Lake Macquarie City Council (2004) NSWLEC 399; Stockland Development v Manly Council (2004) NSWLEC 472, DATES OF HEARING: 9/08/2007 and 10/08/2007 EX TEMPORE JUDGMENT DATE : 13 August 2007 APPLICANT Ms Wheelhouse, SC Instructed by Neil Lawson and Co. LEGAL REPRESENTATIVES: RESPONDENT Mr B. Bilinsky, solicitor of Bilinsky and & Co. Solicitors JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 13 August 2007 10254 of 2007 Martin and Sporke Pty Ltd v Wingecarribee Shire Council JUDGMENT 1 This is an extempore judgment for an appeal under s 97 of the Environmental Planning and Assessment Act, 1979 against Wingecarribee Shire Council's refusal of a development application for a retail commercial development on the south-eastern corner of Victoria Street and Mittagong Road, Bowral. 2 By way of background, the Court inspected the site last Thursday morning and also met with the parties and the resident objectors, of whom there were approximately 20, and a number of resident objectors also gave evidence on site. The Court then proceeded to the Moss Vale Courthouse and heard evidence from the experts on Thursday afternoon and Friday. 3 The site inspection included viewing adjoining properties and the district in terms of the character and nature of the area. I note the subject site is in a conservation area and the zoning of the subject site is 3(a) under the Wingecarribee Local Environmental Plan ("the LEP"). 4 To the east of the subject site there are properties that are also zoned 3(a). These are residential dwelling houses and the property at 5 and 7 Victoria Street is a semi-detached property circa 1880's. Then further to the east is a dwelling house with a swimming pool at the rear in Victoria Street also zoned 3(a) and then there is the school site and then further to the east again past this the residential zone of Victoria Street commences. 5 Opposite the subject site there is a site-specific LEP for the property on the north-eastern corner of Mittagong Road and the purpose of the rezoning of the LEP is to permit commercial purposes and a motel. I note that the site is currently vacant apart from the old dwelling house which sits on the very corner of the subject site and there are two approvals for the subject site. One is an aged persons or a seniors living development and the is a motel and office development. Both developments are two storeys with attics in the roof and the retention of the old dwelling house on the corner is proposed in both proposals. 6 The properties then in Victoria Street to the east of the corner site under LEP 11, amendment No. 11, are zoned Residential A. The dwelling houses within Victoria Street are generally old dwelling houses and there is a special character in terms of the single storey dwelling houses within these streets. I note that with the exception of some two properties, most are not listed as heritage items but are within the conservation area. 7 The proposal before the Court is for ground floor retail of approximately 1690 square metres and on the ground floor also approximately 155 square metres of office space. On the first floor a commercial area of 2035 square metres is proposed and on the second floor, or the third level of the building, on the corner both of Victoria and Mittagong Road is 80 square metres of office space. The proposal contains 137 car parking spaces on an upper and lower level. Access to the proposed development is confined to Victoria Street, this being a requirement of the RTA. 8 The floor space ratio (FSR) of the proposal is some 0.78:1. That includes the atrium or the void area within the middle of the commercial retail space, and excluding the atrium there is an FSR of 0.65:1. 9 The Court heard expert evidence from Mr Figgis, an architect planner, on behalf of the respondent council. Mr Staas, consultant heritage architect, and Mr Blythe, consultant town planner, both gave evidence for the applicant. 10 It was agreed between all the experts that the DCP for the town centre does not apply to the subject site. However, the experts have been informed by the provisions of the DCP even though it does not cover the subject site. 11 The LEP provisions are those contained within the 1989 Wingecarribee Local Environmental Plan. As I stated, the site is zoned Business 3(a). The relevant objectives of the zone are to: (a) recognise and maintain Bowral's predominance as the prime business and retail centre of the tablelands subregion; (b) to recognise and maintain and support functions performed by the smaller business centres in Mittagong and Moss Vale; (d) is to set aside by means of development control plans specific areas for other types of business uses and also to identify by means of a development control plan performance standards for areas in the zone related to FSR, building height, car parking provisions and the like. 12 The other provisions which the Court must have regard to in the LEP are the standard heritage provisions of the LEP. 13 Clause 31(c) provides: before granting consent for the erection of a building within a heritage conservation area, the consent authority must be satisfied that the features of the building will be compatible with the heritage significance of the heritage conservation area, having regard to the form and materials used in buildings that contribute to the heritage significance of the heritage conservation area ." 14 In satisfying itself about these features, the consent authority must have regard to at least the following: the pitch of the roof and the form; the style; size; proportion and position of opening of windows and doors; colour; texture; style; size; and type of finish of the materials to be used on the exterior of the building. 15 Clause 26 of the LEP states that: "consent is required for buildings above two storeys." Consent is required for the subject proposal, that is, the use is permissible subject to consent. 16 In my assessment I have considered the provisions of the LEP. The Development Control Plan No. 46 for the Bowral Subregional Centre, as I stated, this does not cover the subject site, although it is noted that the experts did have regard to it. The plan objectives are: o to maintain and enhance Bowral's historic role as a subregional centre, o maintain and enhance the existing visual character of the built form and elements of Bowral town centre, o ensure that new or in-fill development is sympathetic to the existing built forms whilst allowing and encouraging high quality contemporary architectural solutions, o ensure where possible that sustainable development principles are applied to site development design and in particular with reference to solar access, use of natural light, reducing the impact on adjoining properties. 17 Section 3 of this DCP refers to in-fill building design criteria and states that: despite the pressures of growth and change in Bowral over the last 20 years, there have been a number of older buildings retained which contribute to a relatively consistent and characteristic townscape. Bowral town centre is worthy of conservation and careful change through the provision of sensitive and appropriate in-fill development. The local community is increasingly concerned about the loss of the friendly country town atmosphere, however, if the role of Bowral as a retailing and commercial centre of the subregion is to continue, then change is inevitable. New buildings will be constructed and existing buildings redeveloped. The challenge is to accommodate these changes and to provide guidance for new development which will be sympathetic with the existing buildings and streetscapes, and enhance and complete the existing urban character. 18 The DCP also contains a height limit of some 10 metres and I also note it states in terms of scale that: "the towns with a sense of unity usually have a consistent scale. To achieve an appropriate scale, the predominant height in the street should be used to determine height limits. Generally buildings in Bowral town centre are one or two storeys in height." In terms of building mass, the DCP states that long walls should be broken up into smaller elements and bays by using appropriate repetitive parapet elements and roof shapes. There are also guidelines in terms of materials, finishes and details in the DCP. 19 As I stated, the Court in its assessment has had regard to the objections heard on site, and when the Court resumed last Thursday I stated for the Court record those persons that gave evidence. There were some 10 persons in all including: o Mrs James of 20 Victoria Street, o Mr Lewis of 10 Victoria Street, o Mr Nicholls of 34 Victoria Street, o Mrs Jan Stephens King of 11 Victoria Street, o Mrs Rae Bromham of 8 Victoria Street, o Katherine Stulberg of 38 Wattle Street, o Mrs Clare Daggett, Mount Ashbury Road, o Mr Keith Crittenden of 8 Warenda Street, o Mr Athol Hendrick and o Mrs McLaughlin. 20 The concerns of the residents are about the size and height of the proposed development and concern for the residential amenity of Victoria Street and the need for traffic lights generated by the proposed development the residents consider is inappropriate. They are also concerned about noise and traffic, and the safety of school children within the area, and to maintain the country feel of the town. 21 Mr Figgis considers that the proposed development is inappropriate and that 'faux' heritage style is not sympathetic to the town of Bowral. He does not consider that the mass and height of the corner tower is appropriate. 22 The experts further conferred during the course of the hearing and the Court asked the experts to identify design change details many respects clearly the form and mass of a building must be appropriate for the streetscape and in particular for the Bowral area itself, but it is also important, and this is confirmed in terms of council's controls, that the material details and finishes and the details in the design, attention should be given to such matters. As a result, Mr Staas and Mr Figgis came up with a number of design issues in terms of the context of the proposed development to the Bowral town centre. This included the need to provide a more simplified fenestration to address Mr Figgis's concerns about, the 'faux' architecture of the proposal, and it was agreed that with modifications these concerns could be overcome. At the end of the day Mr Figgis was still concerned about the height and mass and size of the proposed development of the conservation area. 23 On the other hand, Mr Staas for the applicant considers the proposed development is of an appropriate height mass and scale. 24 Prior the proceedings commencing the experts agreed, that there were a number of points which would provide for improved presentation of the proposed development, and this was provided in a joint report of July 30 wherein the experts stated that: o a further one metre setback to Mittagong Road would provide the area required for the planting of the appropriate street trees in the footpath area. o A diagonal plane could be created facing the intersection and that is the splay corner of Mittagong and Victoria Street. o The detailing of the Victoria Street façade should be the same as shown on the Mittagong Road frontage, o The horizontal awnings of the first floor deleted, o The first three bays of the south-eastern elevation be redesigned to match those of the south-western façade. 25 As a result of the above the applicant then submitted an amended elevation to depict an elevation of the third storey. I note that the council objected to Exhibit H, which shows a reduction in the height of the building such that it is a maximum of two storeys. That is the corner element and extensions on Victoria Street and Mittagong Road has been modified in Exhibit H such that it presents as a two storey building for the entire elevators of Mittagong Road and then for Victoria Street also. 26 I also note that there is a 20 metre separation between the eastern part of the building where there is the car park entry and service entry for the proposed development, providing a 20 metre separation to the adjoining dwelling houses at 5 and 7 Victoria Street. 27 The Court also has had regard to the Strategic Plan, Wingecarribee, Our Future. I note this is a strategic plan, but there is little detail of its status. It would appear it was prepared some five years ago but there has been no further action to implement same. I note in the strategic plan that the Bowral town centre is recognised as the Shire's subregional centre. 28 The Strategic Plan states that for the business centre there are a number of recommendations to amend the statutory Shire Plan including to restrict new development fronting Bong Bong Street, to which Mittagong Road is an extension, to no more than two storeys, with a third storey in the roof space elsewhere in the business centre, subject to an assessment of the scale of development on the heritage significance of the precinct and individual buildings. 29 Also the Strategic Plan aims to restrict development within the existing 3(a) zone located along the southern side of Victoria Street between the school and the rear of the properties fronting Mittagong Road to commercial offices only, on the condition that development is restricted to single storey with a FSR of 0.5:1, to encourage the retention of existing cottages and their use for professional offices. 30 Whilst Mr Figgis did not say that any of the individual dwellings warranted retention on heritage grounds, he is of the opinion that the use of the dwelling houses would be more in keeping with the conservation area and scale of the residential area. 31 Mr Staas, on the other hand, considers that the proposed development is one that would be contemplated in terms of the commercial 3(a) zone and he is satisfied the proposed development, with the amendments as agreed prior to the hearing would be appropriate. He also considers that in terms of the compatibility of the development with the adjoining conservation area and in terms of it marking the beginning of the commercial zone, that it is appropriate for a building to punctuate or to accentuate the beginning of the zone. At the same time he does not consider that it is necessary for a three storey structure to define the commencement of the commercial area. 32 Mr Blythe is of the opinion that the development of the site is in keeping with the commercial zone and it also respects the residential area in that there are no adverse environmental effects on the adjoining area. 33 In my assessment of the residential area of Victoria Street, the driveway entrance of the proposed development is such that it is west of the dwelling house on the northern side of Victoria Street. In my opinion the development will sit comfortably in the context of the area having regard to the zone opposite with the additional uses of commercial office and motel and the residential zone commencing to the east. In my assessment I agree with Mr Blythe the 20 metre separation to the adjoining residential scale buildings in the commercial zone is appropriate in the context, and the landscaping provided is adequate. A condition of consent will be for a landscape plan to be submitted to the council for the species in particular the canopy trees and the hedge planting along the driveway. 34 One of the issues was raised by the residents is noise and I note that the council has proposed a 'without prejudice' condition on noise generated. This was also commented on by the traffic engineer, although it is noted he does not have expertise in acoustics. 35 I am satisfied that noise and the residential amenity of the area will not be significantly adversely affected to warrant refusal of the development application. The development of this commercial site will represent change in the area, but I am satisfied the change is contemplated by the zone, and the design of the building with deletion of the third storey is appropriate in the context. It provides for a clear marker or indicator that this is the beginning of the commercial zone within Bowral but it also provides for with the deletion of the third storey an appropriate fit with what would be anticipated for the Bowral town centre. 36 The proposal as amended to two storeys complies with the provisions of the development control plan, apart from parts of the atrium. The deletion of the third storey reduces the height from approximately 12.5 to 9.5, well within council's DCP, even though it does not apply to the subject site. 37 On the issue of the size, height and bulk of the building, assessed against the council's DCP, I am satisfied that the bulk or mass of the building with a two storey development is appropriate and it will sit comfortably not only in the streetscape of Mittagong Road and Victoria Street, but also with a significant separation to the nearest residential and also having regard to the adjoining properties being zoned for commercial, it will also sit comfortably in terms of not being an architectural statement that is out of context with the existing significant buildings in the Bowral town centre. 38 I note that the Bowral Town Centre generally is of a two storey nature with some single storey retailing as well. The significant buildings within the Bowral Town Centre being the Empire Theatre and the Bong Bong Hotel and these will remain the more significant landmark buildings. With the appropriate proportion of a two storey building of a design to reflect the recommendations of Mr Staas and Mr Figgis will provide for an appropriate fit not only in the conservation area of Victoria Street but also marking the northern entrance to the Bowral Town Centre. 39 There was a great deal of discussion during the proceedings about whether it is appropriate to replicate or mimic, and that is in some respects a subjective matter comment in that some architects consider the architecture should not in any way mimic. I am satisfied that the proposed development does not 'mimic' but respects the heritage architecture of Bowral in a simplified form and provides for an appropriate fit. and should sit comfortably with the community in terms of its aspirations of being consistent and compatible with the 'feel' of the Bowral town centre. Communities are understandably often desirous of architecture that respects a town, as opposed to making an architectural statement. 40 The respondent provided a Statement of Issues, but at the end of the day the issues can be crystallised the to height, bulk and size of the proposed building. The council provided particulars for the statement of issues, that relates to the character of the conservation area, the three storey proposal dominating the single storey residential development in Victoria Street. 41 On the issue of traffic generation I note that council did not press this issue. The Court raised questions about the traffic after hearing the resident objectors' concerns, and in this regard it is noted that there was a report from Mr Hallam, an independent traffic consultant, who verified that the traffic generation and the design of the development is satisfactory on traffic. The applicant submitted a traffic report by Mr Nettle. I also note that council's engineer expert considers that the proposed development is satisfactory. 42 I note that road widening is required in terms of the splays of the corners to accommodate the vehicles to service the development. I also note that there will be traffic lights installed as a direct result of the demands of the subject. 43 Victoria Street does not have through traffic, there being a bridge at the end of the street which is for pedestrians only, which is now closed to vehicles. I am satisfied, based on the expert evidence that the proposed development should not be refused on traffic grounds. The need for lights to accommodate this commercial development of the subject site is necessary and could be contemplated in terms of the commercial zoning. 44 While the site is zoned to permit the proposed development, this does not negate the need for a merits assessment, and I have carried out a comprehensive merits assessment. This includes the appropriateness of the built form and the generation of traffic demands in the context of the subject site and its location. I am satisfied overall that the proposed development warrants approval. 45 In terms of the zoning, one is also guided by the judgment of his Honour McClellan J in BJP Properties v Lake Macquarie City Council (2004) NSWLEC 399. His Honour speaks about certainty in terms of the zoning and the fact that particular use is permissible is a neutral factor in planning decisions. The zoning must generally reflect an assumption that in some form development, which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened. In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts. 46 Having regard to the above judgment I am satisfied the design of the proposal does result in acceptable environmental impacts. 47 I appreciate that residents do not necessarily embrace change, but the role of the Court is to assess whether the impacts are reasonable or unreasonable. The impacts in my assessment are not unreasonable having regard to the zone. In some respects the residents' objections concern the zoning of the subject property, however, these proceedings are not an inquiry into the zoning of the property and I must assess the application in the context of the statutory planning framework. 48 The Court must assess the development application in the context of the controls and council's local planning regime of a 3(a) zone. Whilst there are no other controls, I have not considered it in a vacuum but I have assessed what is appropriate in terms of the context of the area, which is another reason why the Court enquired as to what the proposed developments or what the zone on the opposite side of the road to understand context for the assessment of this development application. 49 In terms of Stockland Development v Manly Council (2004) NSWLEC 472, his Honour McClellan CJ, provides guidance as to the weight to be given to policies and the weight to be given to DCPs. Whilst the site is not covered by the DCP, I agree with the experts that it does provide a framework or does inform the assessment of this application in the decision-making process, although clearly in a statutory sense the DCP is not a formal consideration under 79C for the subject site. Nonetheless, it is in the public interest to consider the provisions of DCP 46 and also in terms of the strategic plan, although it is clear that the strategic plan does not appear to have been implemented in terms of a change to specific controls as identified within that plan. 50 The Court in its assessment, as I stated, considers that the three storey component is not necessary to provide a statement as to the commencement of the commercial area of Bowral and considers that the two storey depiction shown in exhibit H is an appropriate built form for this corner entry to Bowral. Whether one considers it a gateway site or whether one considers it the beginning of the commercial zone, exhibit H is an appropriate form of development for the subject site. 51 The Court is also of the opinion that a wider footpath of one metre would be appropriate in the context of the juxtaposition of Mittagong Road, the entry to Bowral. The wider footpath would be appropriate in the context of the built form such that the pavement would be widened to allow for an additional metre, and this is appropriate in terms of the proportions of the building and its setback recognizing that block edge development is appropriate and characteristic of the Bowral town centre. 52 I am also satisfied that the landscaping on the eastern boundary adjoining Nos 5 and 7 both the width of that landscaping and in terms of the diamonds provided for canopy trees, is appropriate, and whether in fact an attenuation fence in terms of noise is required will be a matter for the applicant because of the need to comply with the condition in council's without prejudice conditions about noise emanating from the subject site. That is condition 52, which says that noise from the subject site shall not exceed more than 5 dBA above background noise level when measured at the boundary of the site so as to ensure the amenity of the adjoining residential area is maintained. 53 Neither the Council or the applicant could confirm or otherwise whether the adjoining property at 5 to 7 was used for residential purposes or a business commercial activity. It would appear that either way this condition is appropriate. That is, if it is or is not used for residential purposes this will dictate whether compliance of the noise requirement and the attenuation of a fence is or is not necessary depending on the use of the dwellings. 54 It was clear when on the site that there is a background noise from Mittagong Road, but the properties further to the east, that is those that are zoned residential, clearly enjoy a much quieter environment in terms of background noise than the sites west of the school on Victoria Street. 55 With respect to the conditions about the monetary contribution to the council, I note that the applicant's development application incorporates measures best practice drainage in terms of the re-use of certain waters, et cetera. Nonetheless that does not negate the fact that the council's stormwater infrastructure is still required and therefore it would be inappropriate for the Court not to impose the standard conditions with respect to s 94 which are laid out in council's s 94 plan. 56 Similarly with respect to the road contribution, this development triggers the need for lights at the intersection and those associated works in terms of widening and splays but the s 94 contributions plan is in terms of council's road infrastructure generally. Therefore it is appropriate that the applicant make the necessary contribution as set out by the council which is approximately a total $80,000 for the proposed development. 57 However, with respect to condition 50 and given the fact that the applicant will be undertaking works for roads, et cetera, I consider that it is appropriate that the payment be made either prior to the issuing of an interim occupation certificate and if an interim occupation certificate is not applied for it would be prior to the issue of the occupation certificate for the proposed development. Given that commercial developments sometimes take a longer time frame in their building, it is appropriate that the timing be at the (interim) occupation certificate stage and not the construction certificate stage. 58 Therefore on the basis of my merits assessment and in terms of the planning regime established by the council, I am satisfied that the proposed development warrants approval. The provisions of the LEP and the objectives of the zone are satisfied by the proposed development and I am also satisfied in terms of the heritage provisions that the proposed development will be compatible with the heritage significance of the heritage conservation area having regard to "the need for the form and materials used in buildings that contribute to the heritage significance of the heritage conservation area". 59 I am also satisfied in terms of cl 31C(1) and (2) of the LEP that the proposed development is one that is compatible and it will co-exist harmoniously in terms of the heritage conservation area and in terms of defining the entry to the commercial centre for Bowral as one approaches from the north. 60 I impose a deferred commencement condition. This means that the development cannot operate until the applicant has submitted an amended plan to the council to show those agreed points identified by Mr Figgis and Mr Staas in terms of details, and also the third storey of the building to be deleted as generally depicted in Exhibit H. The applicant shall also submit a landscape plan by a suitably qualified person to show the details of the trees, hedges and other plants for council's approval. The building shall be set back a further one metre from the boundary along the Mittagong Road frontage to provide for a wider footpath. If the RTA raises no objection, the applicant shall plant suitable canopy trees to council's satisfaction and approval. However the widening is required irrespective of whether trees can be planted as advised by the RTA's response. 61 All of the other conditions are as generally agreed to between the parties. 62 Accordingly on the basis of the Court's assessment the formal orders of the Court are: 1. The appeal in respect of the property on the south-eastern corner of Victoria Street and Mittagong Road, Bowral, is upheld in part. 2. The development application for a commercial building submitted to Wingecarribee Shire Council and as amended is determined by the granting of a deferred commencement consent for a two storey development and the other conditions contained in Annexure A. 3. The exhibits are returned to the parties except for Exhibits 5, 7, 8, 10, A, F, H and J. ___________________ 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.