Land and Environment Court New South Wales Medium Neutral Citation: Chidiac v Pittwater Council [2012] NSWLEC 1118 Hearing dates: 29 March 2012 Decision date: 02 April 2012 Jurisdiction: Class 1 Before: Brown ASC Decision: 1. The appeal is dismissed. 2. Development Application N0093/11 for the construction of a part two and part three storey infill affordable housing development containing 10 dwellings over basement car parking at 21 Bungan Street, Mona Vale is refused. 3. The exhibits are returned with the exception of exhibit 2. Catchwords: DEVELOPMENT APPLICATION: construction of a part two and part three storey infill affordable housing development - the design and whether compatible with the character of the local area - the likely conflict with the adjoining Mona Vale Public School Legislation Cited: Environmental Planning and Assessment Act 1979 Pittwater Local Environmental Plan 1993 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development Cases Cited: Peninsula Development Australia Pty Limited v Pittwater Council [2011] NSWLEC 1244 Project Venture Developments Pty Limited v Pittwater Council [2005] NSWLEC 191 Category: Principal judgment Parties: Wally Chidiac (Applicant) Pittwater Council (Respondent) Representation: Counsel Mr G McKee, solicitor (Applicant) Mr M Staunton, barrister (Respondent) Solicitors McKees Legal Solutions (Applicant) Malleson Stephen Jaques (Respondent) File Number(s): 10392 of 2011 Judgment 1ACTING SENIOR COMMISSIONER: This is an appeal against the refusal by Pittwater Council (the council) of Development Application N0093/11 for the construction of a part two and part three storey infill affordable housing development containing 10 dwellings over basement car parking at 21 Bungan Street, Mona Vale (the site). 2The contentions raised by the council relate principally to: * the design and incompatibility with the character of the local area, and * the likely conflict with the Mona Vale Public School that adjoins the site. 3An inspection of the site, nearby school buildings and parts of the Mona Vale commercial centre was undertaken with representatives of the parties on the morning of the hearing. The relevant planning controls 4The site is zoned 2(a) Residential under Pittwater Local Environmental Plan 1993 but is the only residentially zoned site in the general area. It is rectangular in shape with a frontage of 14.885 m, a depth of 48.16 m and an area of 707.2 sq m and is currently vacant. The land surrounding the site on three sides is zoned 5(a) Special Uses - School and is occupied by the Mona Vale Public School. The land on the opposite side of Bungan Street is zoned 3(a) General Business and forms part of the Mona Vale commercial centre. 5The application is submitted under the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (the Policy) and applies by way of cl 20 of the Policy. The Policy was amended on 20 May 2011 and as the development application was lodged with the council on 29 March 2011, cl 54A applies and provides for the following: (3) If an existing application relates to development to which Division 1 or 3 of Part 2 applied, the consent authority must not consent to the development unless it has taken into consideration whether the design of the development is compatible with the character of the loca area 6Relevantly, cl 8 of the Policy states: (8) Relationship with other environmental planning instruments If there is any inconsistency between this Policy and any other environmental planning instrument, whether made before or after the commencement of this Policy, this Policy prevails to the extent of the inconsistency. 7Clause 14 provides standards that cannot be used to refuse consent. These standards relate to site area, landscaped area, deep soil zones, solar access, car parking and dwelling size. There was agreement that the proposed development satisfies these numerical standards. 8Pittwater 21 Development Control Plan (the DCP) applies insofar as the question of character of the local area needs to be considered. 9State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65) applies as the proposed development is three storeys in height, if only for part of the building. Clause 30 requires consideration to be given to the design quality principles in Part 2 (cl 30(2)(b)) and the publication Residential Flat Design Code (cl 30(2)(c)). Design and compatibility with the character of the local area 10The character test in cl 54A requires a determination of: * what constitutes the local area?; * what is the character of the local area? and; * is the proposal compatible with the character of the local area?. 11Evidence on these questions was provided by Mr Greg Boston, a town planner, and Ms Gabrielle Morrish, an architect and urban designer for the applicant and Mr Gordon Edgar, a town planner and Mr David Chesterman, an architect and urban designer for the council. What constitutes the local area? 12The experts agree that the visual character of the south-east section of Waratah Road is not a relevant consideration. They also agree that the character of the side of Bungan Street, where the site is located, is dominated by landscaping and the character of the opposite side of the street is dominated by built form. Both sets of experts also adopt the approach in Peninsula Development Australia Pty Limited v Pittwater Council [2011] NSWLEC 1244 where the description of local area states: ...principally the visual catchment in which the development will be viewed... The wider catchment is also relevant.. 13The council experts state that the relevant area for defining local character is the south-west portion of Bungan Street from the Waratah Street roundabout. The applicant's experts agree with this definition but also include that part of Bungan Street beyond the Waratah Street roundabout where the site can be viewed. What is the character of the local area? 14Mr Edgar and Mr Chesterman state that the character of the local area comprises a low scale single storey street-edge character for the Mona Vale commercial centre frontage and an open landscape setting of the school grounds on the opposite side. The contrast between the different characters of Bungan Street reflects the disparate zoning of the land in this street. Mr Edgar and Mr Chesterman state that this is a positive feature of the visual catchment that contributes greatly to its visual quality. The open parkland character of the school is attractive and creates high visual amenity for the users of the retail/commercial land uses opposite. 15While considering both sides of Bungan Street, the greatest weight in defining local character should be given to the open landscape school grounds immediately surrounding the site as this is the primary context in which the site will be viewed. 16Mr Boston and Ms Morrish state that the proposal will be seen in the context of both sides of Bungan Street, including the area of Bungan Street on the opposite side of the roundabout. This context will include both the school and the retail/commercial development on both sides of Bungan Street. Both land uses are integral parts of the Bungan Street streetscape and the visual catchment. It is not appropriate to ignore one entire side of the street or one entire end of the main street. In considering local character it must be remembered that the site is vacant and the construction of any permissible form of development will change the existing character of this part of Bungan Street. Is the proposal compatible with the character of the local area? 17On this question, the council experts conclude that it is not. As the site is located outside the Mona Vale town centre, based on the defined area in the DCP, it cannot be seen to be part of the retail core of Mona Vale. The proposed building will intrude as a unique event, into the Bungan Street frontage and block the views of trees that establish the character of the visual catchment. The siting, design and bulk of the proposed building, which cannot be concealed by landscaping, results in the total incompatibility with the visual catchment of Bungan Street. The completeness of the lawn and canopies of the trees provided by the school contributes greatly to the amenity of the public domain. The visual integrity and completeness of this school frontage that is made up of the lawns and existing vegetation are essential to the existing and desired future character of the local area. 18Mr Boston and Ms Morrish come to a different conclusion. They state that a town centre is more than just retail and commercially zoned land, but includes key destinations and community uses, such as the school. To respond to the visual catchment, the site needs to respond to the school but also to the scale and character of the commercial side of the street, both now and into the future. A line on a zoning map is meaningless when considering the visual catchment of the street, as a street comprises both sides and its functions, uses and built form. Mr Boston and Ms Morrish further state that the 2(a) zoning of the site is incongruous given its location and the absence of any similarly zoned land in the vicinity. 19The proposed design is seen by the applicant's experts as having a balanced form through its setbacks so that it does not feel totally out of place as a main street building form. The building is also in scale with the form of the school buildings behind the site, given that it is softened by existing and proposed landscaping. 20In response to the council's expert's opinion that a single dwelling and secondary dwelling could be reasonably constructed on the site, the applicant's experts are of the view that this form of development would be incongruous in the Bungan Street streetscape because it contains major commercial and retail uses with the consequent noise levels and activities that are expected in a main street location. A dwelling would be isolated and would bear no relationship with the building typology seen at the school or in the commercially zoned parts of Bungan Street. Findings 21In considering the question of what is the local area, the opposing experts were generally in agreement with Mr Boston and Ms Morrish seeking to extend the area beyond the roundabout at Waratah Street. I am untroubled in including this area up to the point where the site can be viewed as this is consistent with the approach adopted in Peninsula Developments. 22On the question of what is the character of the local area, I agree with the approach of the council experts for a number of reasons. First, the different zonings on each side of Bungan Street contemplate a different character. Often in considering the question of character it is an argument over different forms of the same land use, for example single dwellings and multi-unit housing development. In this case however, the distinction is much clearer and I agree that the transportation of a character that reflects a retail/commercial character to an educational or institutional character consisting of sparse built form in a landscape setting with little built form near the street frontage is inappropriate. 23Second, Mr Boston and Ms Morrish described the isolated residential zoning of the site as incongruent on a number of occasions. While they may be correct, the Court must presume that the zoning has a purpose and must base any considerations on the council's planning controls that apply to the site. It is not the role of the Court to second-guess the council on the appropriate zoning for a specific site. 24Third, Mr Boston and Ms Morrish also describe the potential construction of a single dwelling and secondary dwelling on the site as incongruent. Again, their evidence can be given little weight given that residential dwellings are a permissible use in the zone and currently high-density forms of residential development, such as residential flat buildings are a prohibited use on the site. 25Fourth, and for reasons set out earlier on character, I do not accept that the site forms part of the Mona Vale commercial centre. In terms of Council's planning controls, the DCP clearly identifies the boundaries of the Mona Vale commercial centre and which excludes the site. 26Fifth, I give no weight to the suggestion that the area of the school fronting Bungan Street is to be rezoned for retail or commercial use on the basis that the land is surplus to the school's needs. The undisputed evidence was that the application to rezone part of the school site was made more than 10 years ago and the land in question is not surplus to the schools needs as the school population is likely to increase from its existing 900 students to around 1,500 students within the next 5 years. 27In my view, the correct approach to determining the character of the local area is set out in the joint report by the council's experts where it states: Without ignoring either side of Bungan Street as they are both relevant, the greatest weight in defining local character should be given to the character of the open landscape school grounds immediately surrounding the site on the north-west side as this is the primary context in which the site will be viewed. The character of each site at Bungan Street at this location is very different, thus the more visually compatible the proposal is with the nearby commercial development the less compatible it will be with the immediately surrounding visual context of the open landscape school grounds. 28The third and final question asks whether the proposal is compatible with the local area. The experts adopt the meaning of compatibility as set out in Project Venture Developments Pty Limited v Pittwater Council [2005] NSWLEC 191 at pars 21 to 29. I accept that it is not necessary that development under the Policy should slavishly follow the form of development anticipated by the council's planning controls, as the test required by cl 56A is about compatibility and not replication. The Policy is a Statewide planning document and clearly allows for a form of development that may not necessarily reflect the exact form anticipated by a local government authority in their planning controls. This is highlighted by cl 8 that gives primacy to the Policy over any other environmental planning instrument but, importantly, only so far as any development is compatible with the character of the local area. The words in Project Venture about compatible developments being "capable of existing together in harmony" and "generally accepted that buildings can exist together in harmony without having the same density, scale or appearance are relevant in the consideration of the question of compatibility" are fundamental to the resolution of the character test required by cl 56A. 29If the proposed development is considered in this context, I accept the conclusions of the council experts that the proposal is not in harmony with the surrounding development. Adopting the comments in Project Venture that identify the most important contributors to character as the relationship created by building height, setback and landscaping, I am satisfied that the proposal has an unacceptable impact if the built form is compared to principally the side of Bungan Street where the school is located. Any comparison of the proposal with the school will be seen largely against the landscaped setting to Bungan Street. Even the existence of the school tennis courts near the street frontage does not alter this relationship in any meaningful way. The predominant features are lack of built form and the existence of natural vegetation. Where the school buildings can be observed they are some distance from the Bungan Street frontage and are generally of single storey construction with some scattered two-storey buildings. These buildings have an institutional character compared to the retail/commercial character on the opposite side of Bungan Street. 30In accepting that any development will have an impact on the open landscape character, the suitability of the proposed development must be compared to a form of development that could reasonably be contemplated on the site. I did not understand there to be disagreement that this form of development would most likely be a dwelling house and secondary dwelling. Even accepting that the Policy contemplates a built form that may exceed that of a dwelling and secondary dwelling, in my opinion, there are a number of elements of the proposed development that results in a built form that has an unacceptable impact on the character of the local area. 31First, the length of the building, at around 35.5 m, compared to the side boundary length of 48.16 m. While the elevation has variations to the side setback to provide some relief from an unbroken elevation, the mass of the elevation will be clearly visible from both directions along Bungan Street. 32Second, and while the applicant, through the evidence of Ms Sonter, a landscape expert, argued that the proposed landscaping would screen the building, I however prefer the evidence of the council's landscape expert, Ms Mackenzie, that given the small setbacks and limited growing environment for the landscaping (largely the result of the need to use planter boxes above the basement car park) the proposed landscaping would potentially fail. Even if the landscaping was properly maintained, I also accept Ms Mackenzie's evidence that the built form of the proposal will still dominate any landscaping. Given its prominent location, this is an unacceptable outcome, particularly considering the open and landscape context in which it is located. 33Third, and even though the side elevations have a two-storey form, the Bungan Street elevation has a three-storey form because of the need to access the basement car park. This elevation relates poorly to the character set by the school on this side of Bungan Street and highlights the incompatibility of the proposed development with the local character. 34Fourth, and for the reasons mentioned later in the judgment, the incompatibility of the proposed development with the local character is further exacerbated by the need to construct acoustic fending around the site, even though part of the proposed fencing is clear material. 35In accordance with cl 54A and considering the design of the development against the character of the local area, I am satisfied that it is incompatible and the extent of the incompatibility is such that the development application should be refused. 36For completeness I will briefly deal with the contention relating to the relationship with the school. The likely conflict with the Mona Vale Public School 37On this issue, evidence was provided by the School Principal, representatives of the Department of Education and Communities and the Parents and Citizens Association from the school. Expert acoustic evidence was provided by Dr Tonin for the council and Mr Gross for the applicant. 38The concerns expressed by the school representatives related to the potential restrictions on the existing operation of the school and potential school expansion because of likely complaints from future occupants of the proposed development over noise from the school activities, such as the constant bell ringing during the day and activities in the nearby auditorium where activities can commence at 7.20 am for band practise. 39As I understand, Mr Gross and Mr Tonin ultimately accepted that fencing around the proposed development would need to be solid and 2.5 m in height. The side fences were proposed to be the same as the 2 m high palisade fencing around the school but with clear material to a height of 2.5 m. The rear fencing and some of the fence return was to be 2.5 m high lapped and capped fencing. 40In considering the impact on the school, I am not satisfied that the proposed development adequately addresses the future relationship with the school. In my view, further consideration needs to be given to the future development of the school. While some indication was given to the Court on the site inspection of the likely location of any future expansion of the school by the School Principal, I am not satisfied that it was sufficient to properly address this issue. There is a significant public interest consideration in ensuring that a public facility that uses a large amount of public money is not overly restricted in fulfilling its role and necessary functions. Clearly, planning for the future expansion of the school would be easier for a dwelling and secondary dwelling rather than 10 individual dwellings. As stated by the representatives of the school, and which I agree, the potential impacts relate to both the school and the future occupants of any development on the site and that these impacts must be fully considered so that the two uses can operate with minimal impact on each other. Orders The orders of the Court are: 1. The appeal is dismissed. 2. Development Application N0093/11 for the construction of a part two and part three storey infill affordable housing development containing 10 dwellings over basement car parking at 21 Bungan Street, Mona Vale is refused. 3. The exhibits are returned with the exception of exhibit 2. _______________ G T Brown Acting Senior Commissioner 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. Decision last updated: 14 May 2012