Land and Environment Court New South Wales Medium Neutral Citation: Merlin Financial Solutions v Pittwater Council [2012] NSWLEC 1222 Hearing dates: 26 and 27 June 2012 Decision date: 14 August 2012 Jurisdiction: Class 1 Before: Smithson AC Decision: 1.The appeal is upheld. 2.Application N0482/10 for a shop top housing development at 223 Plateau Road, Bilgola Plateau is approved subject to the conditions contained in Annexure A. 3.The exhibits are returned to the parties with the exception of Exhibits A and 3. Catchwords: DEVELOPMENT APPLICATION - shop top housing, public opposition, tree removal, onsite landscaping, neighbourhood character, height, bulk and scale, setback, desired future character, privacy, and public interest Legislation Cited: Environmental Planning and Assessment Act 1979 Pittwater Local Environmental Plan 1993 Pittwater 21 Development Control Plan Cases Cited: Project Venture Developments v Pittwater Council [2005] NSWLEC 191 Category: Principal judgment Parties: Merlin Financial Solutions Pty Ltd (Applicant) Pittwater Council (Respondent) Representation: Counsel Mr M Staunton (Applicants) Mr A Pickles (Respondent) Solicitors Tony Sattler, Sattler & Associates (Applicant) Kate Dean, King & Wood Mallesons (Respondent) File Number(s): 10025 of 2012 JUDGMENT 1This is an appeal against the refusal by Pittwater Council (the Council) to an application under the Environmental Planning and Assessment Act 1979 (the Act) for a shop top housing development at 223 Plateau Road, Bilgola Plateau (the site). 2The proposed development is located on the north-eastern corner of Plateau Road and Grandview Parade immediately adjacent to (and at the south western end of) the Grandview Parade neighbourhood commercial centre which comprise three shops and the site. 3The site is vacant but contains seventeen native trees. It is informally used as a parking area to service the existing adjacent shops. 4The proposed development comprises a three storey building above two levels of basement parking containing: 437m² of commercial/retail floorspace, five residential units, and 29 car parking spaces with associated servicing, storage and waste facilities. 5All of the existing trees are to be removed. Three replacement trees are proposed to be planted in the adjacent road reserve with onsite landscaping comprising five trees: three tuckeroos and two magnolias as well as upper level planter boxes. Modifications to the footpath are also proposed which facilitates the additional planting in the road reserve. 6The Council's concern with the development was primarily the excessive canopy tree loss with removal of all seventeen trees on the site and two in the public domain (that is, the road reserve), and inadequate onsite landscaping proposed to offset the impact which was contrary to the desired landscape setting for development contained in the Council's environmental planning instruments. 7The Council also considered that the development would result in a height, bulk and scale that was inconsistent with the existing and future character of the area. Site Details 8The subject site (the site) comprises three lots: Lot 336, 337 and 338 in DP 16327. The site immediately adjoins the existing shops to the west, a Right of Way and then a two storey dwelling to the south, and the two streets (with associated footpaths) on the remaining boundaries. Development in the locality is low rise one to two storey residential development generally in a landscaped setting and the adjacent three shops which are 2 storey in height. 9The site is 862.8 square metres in area and is relatively flat. It is vacant, although informally used for parking. The seventeen trees onsite comprise Red Bloodwoods (nine trees), Sydney Red Gums (seven trees) and one Scribbly Gum. They range in height from 6 metres to 20 metres. 10On the adjacent Grandview Drive road reserve there are a further seven native trees: four Sydney Red Gums and three Red Bloodwoods. Zoning and Objectives for the Area 11The site is zoned 3(c) Neighbourhood Business under the Pittwater Local Environmental Plan 1993 (the LEP). Shop top housing is a permissible use in the zone. The maximum permissible height under the Pittwater 21 Development Control Plan (the DCP) is 8.5 metres which is the height permissible in all of the neighbourhood centre 3(c) zones, irrespective of location. 12The desired future character for the locality is for it to remain a predominantly low density residential area characterised by dwellings of up to two storeys in a landscape setting but with supporting neighbourhood commercial centres. Any multi unit development is to be located within and around the commercial centres, public transport and community facilities. 13Mr Harvey Sanders appeared as an expert planner for the Respondent, Mr Greg Boston for the Applicant. Expert aboriculturalists also appeared for both parties to address tree loss and landscaping issues. Resident Opposition 14Both an earlier development application and modified applications were notified for public comment. The applications received numerous letters of objection and a petition with 484 signatures. 15An amended application lodged under section 82A of the Act following refusal of the Council to an earlier application was also opposed and resulted in further objections and another petition. 16There was therefore strong local opposition to the development also evidenced by numerous residents attending the onsite conciliation conference. The primary concern of local residents was the loss of all of the onsite trees as well at two trees in the adjacent road reserve and inadequate replacement landscaping. Residents also raised issues with bulk, height and scale relative to the surrounding area and potential overlooking of neighbours and the residence opposite. 17There was also a concern with pedestrian safety in Grandview Terrace, inadequate access, increased traffic and lack of parking. 18One resident spoke in favour of the development on the basis that it would see a vacant area used for informal parking redeveloped for a different form of housing and facilities than otherwise existed in the locality. Height, Bulk and Scale 19The Council was of the view that the development was inconsistent with the existing and desired future character of the area due to its height, bulk and scale and will thus be unacceptable when viewed from the public domain; an opinion shared by a number of the objecting residents. 20The development varies in height: at its highest element the lift tower it is 9.57 metres exceeding the DCP maximum of 8.5 metres. However at the street level the height is only 7 metres with the third level above ground level recessed with an increased setback. The Council also indicated that the issue was not so much the height, with the non-compliances minor, but the context of the development, the impact of the balcony massing and its projection into Plateau Road, and the lack of onsite screening vegetation. 21The Council referenced the Desired Future Character for the Bilgola locality outlined in the DCP which states that the locality "will remain primarily a low-density residential area with dwelling houses a maximum of two storeys...in a landscaped setting". 22Mr Sanders interpreted this to mean the development should have regard to its low scale landscape context. Mr Boston argued however, that the more relevant provision of the DCP specific to the Plateau Area in which the subject site is located is that which states "Any multi unit housing will be located within and around commercial centres...". 23The controls in the DCP which are said by the Council to lead to achieving the desired future character are that buildings should reinforce and preserve the bushland character of the area and are in scale with it (ie up to two storeys). Specifically section D3.4 of the DCP requires this and that buildings are developed below the tree canopy level so they do not dominate the natural setting and respond sensitively to the natural topography. At three storeys and with loss of all of the existing trees on the site, the Council does not consider the development meets this objective and will instead dominate the surrounds given its bulk and scale. 24The Council also argued that the setback to Plateau Road was inconsistent with the setback of the existing shops with the protrusion of balconies into the setback area, that the development does not comply with the minimum 3 metre eastern setback in terms of the planter boxes and terraces on Levels 4 and 5 (this setback is to a Right of Way and a residential property) and that the setback does not allow for tree planting within the setback area which could offset bulk and scale through screening. 25It was also argued by the Council that the development did not display design elements compatible with the design themes in the area and would therefore create an undesirable precedent for redevelopment in the adjacent 3c) Neighbourhood Business zone, which is a low scale local neighbourhood shopping strip. 26The Applicant argued however, that the development replaces a number of the trees in the adjacent reserve and that it is not possible to develop the site without total tree removal given their location. Furthermore, the form of development now permitted by the DCP was appropriate for a centre in transition and allowed the type of development that was proposed. 27The parties agreed that there were no amenity concerns in terms of the development's impact on adjacent residences - the issue related to the impact on the character of the streetscape and the locality. 28The parties also agreed that this was the first site to be developed in any of the neighbourhood centres since the current DCP controls were adopted and that the existing development in the subject centre therefore pre-dated these controls. Tree Loss and Landscaping 29The primary issue of concern to the Council and the residents associated with the development was the loss of all trees on the site and two on the adjacent reserve arguing the replacement landscaping was inadequate, comprising three trees in the verge and five small trees on site with the balance of the landscaping to be by way of upper level planter boxes. 30The following summarises the Council's concerns in terms of the landscape elements: (a)The site and the adjacent road reserve contain a number of significant canopy trees with a high streetscape value, the majority of which will be lost by this development (17 onsite, two in the adjacent reserve). (b)The tree loss will have an unacceptable impact on the environmental and scenic quality of the area and is contrary to the provisions of the DCP. (c)The development only proposes 50.5 square metres of landscaping for the commercial component whereas the DCP requirement is for 150 square metres. This level of compliance is unacceptable particularly given the tree removal proposed. (d)The proposed landscaping will not contribute to reducing the bulk and scale impacts of the development. (e)There are various non-compliances with the required landscaping of the residential components of the development including lack of seating, no ability for long term tree canopy retention and encroaching planter boxes. (f)Reliance on the public domain for replacement and key landscaping elements. The type and density of proposed trees do not compensate for the trees lost in terms of scale, species or streetscape impact. (g)The built form will dominate over the landscape setting. (h)Excavating for basement parking will alter the topography and create a hard edged development and level changes which will give the appearance of privatised landscaping in terms of the trees in the public reserve. 31The Aboriculturalists appearing for both parties agreed that the streetscape value of the existing trees was high but that a number were not suitable for retention. They also agreed it was not possible to sustainably replace all of the trees in developing the site and that the planter boxes on upper floor balconies would assist in screening the development providing there were appropriate conditions on how they were planted out. What was not agreed was whether the proposed landscaping compensated for the substantial loss of canopy trees. 32Both parties agreed that Red Bloodwoods were recognised feed trees for sugar gliders but that the vegetation on the site did not comprise threatened or endangered ecological communities as defined by Federal legislation and that the site was mapped as the lowest grade of wildlife corridor by the Council. 33The Applicant argued that the site could not reasonably be developed in accordance with its zoned purpose and at the same time retain any of the trees given their location and required Tree Protection Zone areas as specified under the DCP. 34Furthermore in the Applicant's view: (a)The DCP only requires retention of canopy trees where reasonable. Given the location of the trees, the requirement to provide setbacks of buildings to provide adequate Tree Preservation Zones and the zoning of the site (which was for it to be developed for Neighbourhood Business purposes), requiring retention of any trees was not reasonable. (b)There is a conflict in the DCP provisions for the landscaping of shop top housing in terms of complying with both the residential and commercial components of the DCP. (c)The development met the DCP requirement for replacement canopy trees in the road reserve. Where proposing that the replacement canopy trees be provided in the road reserve the DCP allowed the Council to determine the merits of the proposed landscaping for any shop top housing development, meaning other landscaping provisions could be waived. (d)The requirement for shop top housing to have 4 square metres of landscaping for each dwelling had been met and the requirement for 20% of the site area to be provided in landscaping had or could be met but there was inconsistency in the DCP as to whether this should be provided at ground level or at upper levels. (e)The DCP only required landscaping to be provided to soften the impact of the development. (f)The three Tuckeroo trees proposed on site were canopy trees and met the requirement for onsite provision of replacement canopy trees. They were capable of growing to heights of up to 7 metres and could therefore ultimately be taller than (or at least screen) much of the development which was only 7 metres at the street frontage. (g)The landscaping of the verge would largely screen the development from the adjacent Grandview Parade and house opposite. (h)The development could be conditioned to meet the requirements of the Council's aboriculturalist in terms of the number and species of plants in the planter boxes. 35The parties could not agree on the interpretation and therefore requirements of the landscaping controls contained within the Council's Development Control Plan (DCP). The parties did agree that a minimum of 175 square metres of landscaping needed to be provided if DCP variation provisions did not apply but could not agree whether this all had to be provided at ground level, whether planter boxes constituted landscaping, or whether in fact the requirement could be waived under the DCP because of additional street tree plantings as provided for in the DCP. 36The DCP contains different landscaping requirements for residential and commercial development under parts C1 (1.2) and C2 (2.2) respectively. Shop top housing is the only use covered under both parts although Part C1 refers to applicability to top shop housing only in terms of the residential component whilst Part C2 refers to applicability only in terms of the commercial component. Both parts seek a different outcome from landscaping provision but have a similar albeit importantly slightly differently worded requirement for shop top housing landscaping. 37In C1.1 (Design Criteria for Residential Development) the requirement for shop top housing is that "a minimum landscaped area of 20% of the site area, or 35 square metres per dwelling, whichever is greater, shall be provided". However, in C1.2 (Design Criteria for Business Development) the words "at ground level" are added in brackets after "site area". 38Mr Sanders argued that this meant that all of the minimum landscaping area has to be provided at ground level. Mr Boston argued this can't be the intent as C1.1 also requires that above ground gardens are to be incorporated into each dwelling at all levels (other than ground floor) and that a minimum 4 square metres of planters or landscaped area is to be provided as a feature at the ground level of the front building façade - neither of these controls would be imposed if all of the required landscaping had to be provided at ground level. 39Mr Staunton argued that as C1.1 and C1.2 stated that each part only applied to the relevant use aspect of the development and it could not be the intent that all of the standards and controls for each part applied to the entire development. Further that the landscaping should be assessed on its merits which was allowed as a Variation under the DCP "where street trees are provided" given that three street trees are proposed. 40The Applicant's argument was that 20% of the site area could be landscaped (at least grassed) if the footpath wasn't deviated into the site to take advantage of awning protection and provide a courtyard seating area, design features sought by Council officers. Further that Part C2.3 of the DCP also encouraged footpaths to be provided under awnings in the 3(c) zone to provide weather protection for pedestrians which could not be achieved if the building was to be setback and adjacent landscaping provided rather than the footpath. Finally, that no better outcome would be achieved in terms of softening the impact of the development by providing all the landscaping at ground level. 41There was some discussion with regard to the necessity for removal of an existing canopy tree in the road reserve to facilitate the proposed driveway to the development (Tree 22). In terms of this issue, the parties agreed that a condition could be imposed which required an assessment of Tree 22 to determine the viability of its retention with this being the preferred outcome for both parties along with suitable protection. However, if the assessment concluded that Tree 22 needed to be removed, the condition could require it to be replaced with a native tree to the satisfaction of the Council. Adjustments to the driveway location could be undertaken as required for whichever outcome occurred should the development be approved. Findings 42The proposed mixed use development incorporates permissible multi unit housing and commercial components on a zoned commercial centre site with a permissible height limit of 8.5 metres (which can facilitate up to three storeys). In my view it is clearly not the DCP intent that the development would be of the same character as low density dwelling houses in a residential zone. Development of shop top housing up to three storeys in a neighbourhood centre zoned 3 (c) is therefore not in my view contradictory to the DCP broader objectives that the Bilgola locality remain primarily a low density residential area with houses in a landscaped setting. The objective is simply not relevant to what is intended for the balance of the locality that is not low density residential, including the neighbourhood centre in which the subject site is located. 43Whilst I accept Mr Sanders' view that the development has to have regard to the nature of adjacent low density development in its form and scale, I accept Mr Boston's advice that there are examples elsewhere in Bilgola of up to three storey shop top development in a similar context, and this is what the DCP facilitates. 44The existing adjacent 3(c) development in Grandview Parade is of varying height and age and at least two storeys albeit below the 8.5 metre height limit now permissible in the DCP. There is no discernible character or form evident in the centre which the proposed development should be encouraged to emulate. The subject site will comprise part of this centre and adjoins a Right of Way and two public streets. In the absence of more definitive design controls for development in the 3(c) zone, in my view the development in bulk, scale and height is not an unreasonable design response to the site's zoning or its context. 45All parties agreed that it would be preferable to retain as many of the onsite trees as possible, particularly given their number and that they are all native canopy trees. However, I accept the Applicant's argument that their location and requirement for a preservation zone to facilitate their survival along with the DCP requirement that no structure be within 5 metres of any of them, severely impacts the ability to retain the trees and also develop the site, to an extent that is unreasonable. 46From the site view it is evident that the surrounding residential area has many native trees and the DCP objectives that the locality remain primarily an area of low density dwelling houses ... in a landscaped setting is still achieved, notwithstanding this development. 47I find that, on balance, and with the modifications proposed by the Applicant as a condition of approval to break up the massing by removal of the northern blade walls to the balconies on Levels 4 and 5, the bulk and scale is acceptable given the immediately adjacent commercial use and the site's location in a neighbourhood centre. The building has been setback more than the DCP requires from Plateau Road and the adjacent residence and the height reduced at the street frontage albeit there are some minor height infringements elsewhere on the site. In my view such infringements are not material. 48Furthermore it cannot be said that the adjacent commercial development is representative of the desired future character of the centre given its age and the scale and form of development now permissible in the zone. 49The desired future character for Bilgola specified in the DCP clearly relates to its residential area and will not be compromised by this development which by its location in a commercial centre on commercially zoned land for a use not permitted in the Residential zone will and, could reasonably expect to, vary in character from the majority of Bilgola. 50Whilst providing additional ground level landscaping may help to further soften the building, in my view the existing and additional trees proposed within the Grandview Parade verge will largely achieve this in any event. Any additional benefit gained would be offset by the loss of a covered footpath and forecourt area which can be controlled by the Council to ensure it is available for public seating and use where it is located on public land. 51In my opinion, whilst the loss of trees is regrettable it is necessary to achieve a reasonable form of development on the site in accordance with its zoning and intended use. 52Providing a number of replacement trees in the adjacent road reserve to allow the provision of a covered footpath and public courtyard area, and providing much of the onsite landscaping at upper levels is, in my view, an acceptable design response given the location and commercial zoning of the site and the mixed use nature of the development. 53In terms of the issues raised by the residents as to safety for pedestrians using Grandview Parade this is an existing concern with current usage and is a matter for the Council to address, irrespective of the development. I note that the proposed footpath adjacent to the Grandview Parade frontage of the site is in a location proposed by Council officers and will meet the DCP objective of providing weather protection for pedestrians. Further that the footpath adjacent to the Bilgola Road frontage is already located on the subject land and on adjacent private land associated with the commercial centre. 54The Applicant indicated, and it was not argued, that the footpath's relocation was at the request of Council's officers and will enable a consolidated area of landscaping to be provided on the adjacent reserve facilitating the planting of additional canopy trees and a public forecourt area. 55In terms of the remaining issues raised by residents, I find as follows: (a)In terms of overlooking, I note the advice in the Council officer reports that the location of the development and the trees on the adjacent reserve will minimise the likelihood of any overlooking or privacy impacts for the residence opposite and that the building has been setback from the adjacent Right of Way to the east more than is required by the DCP to minimise adverse impacts on the only adjacent residence. (b)In terms of traffic and parking, the development is located within a commercial centre where some parking is provided and where traffic is expected. The development meets the required parking provision and the access locations have been negotiated with the Council having regard to safety considerations and tree retention. There was no expert evidence provided to support the validity of these concerns. As with the concerns regarding pedestrian safety in the vicinity, any existing concerns with traffic and parking are not as a consequence of the development and should be separately raised with and addressed by the Council. (c)The fact that the owner of the site has allowed the site to be informally used for casual parking in the past which will now be lost is not a basis for refusal of the application. 56Accordingly, the appeal is upheld subject to the conditions agreed between the parties. Orders 57The orders of the Court are that: 1.The appeal is upheld. 2.Application N0482/10 for a shop top housing development at 223 Plateau Road, Bilgola Plateau is approved subject to the conditions contained in Annexure A. 3.The exhibits are returned to the parties with the exception of Exhibits A and 3. J L Smithson Acting Commissioner of the Court ANNEXURE A 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 August 2012