Zervos v Sutherland Shire Council [2012] NSWLEC 1262

Land and Environment Court New South Wales

Medium Neutral Citation: Zervos v Sutherland Shire Council [2012] NSWLEC 1262 Hearing dates: 14 and 15 August 2012, 7 September 2012 Decision date: 07 September 2012 Jurisdiction: Class 1 Before: Moore SC Decision: Catchwords: DEVELOPMENT - Streetscape; privacy Legislation Cited: Sutherland Shire Development Control Plan 2006 Sutherland Shire Local Environmental Plan 2006 Cases Cited: Goldin & Anor v The Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 Category: Principal judgment Parties: Mr B Zervos (Applicant)

Sutherland Shire Council (Respondent) Representation: Mr G McKee (Applicant)

Mr G Green (Respondent) McKees Legal Solutions (Applicant)

Mr J Fan Pikes Verekers Lawyers File Number(s): 10447 of 2012

EX TEMPORE Judgment 1SENIOR COMMISSIONER: Flora Street at Kirrawee to the west of Oaks Road can be characterised as an almost entirely residential precinct (with the exception of a commercial development on the corner of Oaks Road at the northern end of the Kirrawee Shopping Centre). 2Almost the entirety of the northern side of this portion of Flora Street is multi-unit residential development of three storeys with an Anglican retirement village of four storeys at the north-western end on the junction of Flora Street and Acacia Road - a road that forms part of the main road between Sydney and Wollongong. 3On the southern side of this portion of Flora Street, there are a number of existing, somewhat rundown, single residences on single allotments. There are, relevant to this application, two townhouse developments separated by two of the somewhat rundown residential development allotments. 4It is to those two rundown dwellings (and the land upon which they are situated) that the development application made to redevelop that site attaches. 5This area was zoned by Sutherland Shire Local Environmental Plan 2006 (LEP) to render permissible on the site development of three storeys for residential flat buildings, that being the nature of the application that has been considered by the council and which comes to me for determination. 6When the proceedings commenced, as they usually do, with an onsite inspection, I heard evidence from residents of the townhouse development to the west and from and on behalf of the residents of the two single residential dwellings immediately to the south. 7The council's bundle of documents also contains a variety of submissions of objection including objections from residents in the townhouse development immediately to the east. Notes of the onsite evidence were presented and formed part of the tender of evidence in the proceedings. 8As also occurs frequently in these proceedings, the project has evolved as a result of the concurrent evidence that has taken place, firstly in discussions in the witness box between Mr Fletcher (the town planner giving evidence on behalf of the applicant) and Mr Nash (the town planner giving evidence on behalf of the council). In the latter phases of the proceedings concurrent evidence given by Mr Prsa, the applicant's architect, and Mr Nash on behalf of the council. 9There have been several stages of amendment during the course of the proceedings, the result of all of which have been that the originally proposed scale of development has been lowered; it has had a significant rearrangement made to its uppermost level; and, to the extent that it is necessary to note it at this stage in the proceedings, hand annotated plans (at least with respect to the most recent amendments to the upper level) have been tendered and form exhibit J. Revision of details for privacy treatment of some balconies that originally comprised exhibit H have been hand amended during the course of the negotiations. 10The result of all the amendments (which were not opposed by the council and are acknowledged as entirely ameliorative) have resulted in an application that the council says still falls short of that which is required for the site. It presses that on four separate bases (some of which I venture the opinion are not pressed as strongly as originally in the unamended form but nonetheless remain pressed). 11The first is the fit of the proposed development in the streetscape of the southern side of Flora Street and the potential, in the council's view, adverse precedent that would be created if the present streetscape presentation as amended were to be permitted. 12The second is whether or not the amenity issues of a particularly privacy nature to the more forward of the townhouses immediately to the west of the site have been resolved adequately or not. 13Third, whether the open space at the rear on the ground level should be given over to communal use rather than being divided between the two ground floor units. 14Finally, whether the number of parking spaces provided is appropriate or not. 15Having set out that context, it is appropriate to note that with respect to numerical controls, save for a minor non-compliance with site coverage, a matter that I understand is not pressed as a basis for refusal or contribution to refusal, the only numerical matter that requires my consideration is that which relates to the adequacy or otherwise of parking, that not being put in the Development Control Plan as a requirement but as to a maximum limit for development of this nature. 16I turn to the four bases that are put by the council as being unsatisfactory. The first relates to the streetscape on the southern side of Flora Street. I have had the benefit during the course of these proceedings of the advice that was provided to the council by its staff, by the council's architectural review advisory panel and by the independent hearing and assessment panel that has assisted the council in determining the matter. 17The process leading up to the development application was an iterative one, it has undertaken a considerable period of time and effort not only by the council's officers but by the applicant and those who have been advising him. In essence, although it is not determinative in any sense in these proceedings, the council staff were satisfied that the proposal in the form that it had at the commencement of the proceedings warranted approval. 18The independent hearing and assessment panel however came to a contrary view saying, amongst other things in their report, that the height and densities control map for the area, particularly the provision as they considered it for a two storey height on the land surrounding the development site, meant that it would be difficult for a three storey building to be in keeping with the existing streetscapes. 19The difficulty in taking that in the form that the statement was made by the independent panel is that in 2006 the site was in fact zoned for the potential of a three storey development with, on the evidence that is before me, the knowledge at the time (of those who prepared the rezoning, not being the council as I understand it but the Department) that the sites to the east and the west had existing two storey townhouse developments on them. Nonetheless this site was zoned for a maximum of a three storey development. 20There are, to the east, a number of further sites that have, from our view during the site inspection, potential for redevelopment to a scale of some similarity to that which is proposed for this site. Indeed, Mr Fletcher prepared a schematic that showed what he considered was the broad potentiality of those on the basis of site aggregation. 21Although this site is non-compliant with the area and frontage requirements in the LEP, that is not fatal to the application as there is an exculpatory clause which, it is accepted, is satisfied as a consequence of the fact that the site is book-ended to the east and the west by sites that are unlikely to be available for redevelopment in either the short or long term, given the fact that they are multi dwelling strata titled sites. 22I am left to consider, at least in the first instance, the major issue (as I see it) and that is whether the presentation of the development, as presently proposed, is acceptable in the streetscape, both in its precedential sense and in the context of the two sets of townhouses that abut it. 23I am satisfied that, as modified, it is appropriate to be permitted in that sense and that is unnecessary to require a further narrowing, as Mr Nash proposed, or the removal of one unit from the front of the top level of the proposal. 24I have reached that conclusion because the nature of the amendments that have been proposed during the course of the proceedings (and which now form part of the application) have receded the development at the upper level in two quite significant fashions. 25The first is that it has, in general terms, set back the roofline, from the major front façade a distance that would be obviously recessive and second, it has also set back the built form on the outer corners by the flipping of the originally proposed dining and terrace areas, so that the terraces are now outboard and the dining rooms inboard, rather than the other way around. 26That alters, in my view, quite significantly the presentation of the upper level of the development in the streetscape. The fact that the zoning envisages permissibility of a third level, knowing at the time the zoning was made, that there were the townhouse developments on either side, in my mind means that it is realistic to expect that some form of three level development might be contemplated for the site. 27Clearly such a three level development will be quite distinctly different and cannot mimic the two level pitched roof townhouse development that is the characteristic of the two adjoining developments. Nonetheless, the less confronting nature of the façade that is now proposed is, in my view, acceptable in the context of that streetscape setting. 28I interpose to note that, had that softening and receding not occurred, I would not have considered that the development was acceptable - acceptability that is a bare pass being the test that I am obliged to assess the development against rather than design nirvana (as I observed during the course of the proceedings). 29Thus I am satisfied that, in the context of this site, this development as now modified is appropriate. 30Whether that should be taken as a precedent for the sites that are to the east of the townhouses that are located to the immediate east of the site is a different matter. The case of Goldin & Anor v The Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 to which I was taken by Mr Green, effectively says, as I have always understood it to do - if something is unacceptable in itself, it would create an unacceptable precedent for anything else of a similar nature in the general locality. 31It does not say, as I understand it, that if something is considered acceptable in its particular context, it necessarily provides a precedent for the broad acceptability of any other developments in the area. It simply does not provide a stumbling block to the consideration of such developments. 32The particular site that I am dealing with is constrained, both in its site area and by the book-ending of the developments immediately adjacent to it. The other potential redevelopment sites are not so constrained and may be able to be subject to greater design scrutiny as they have available to them greater design flexibility than is available in this instance. 33I am not concerned that, by approving this development, I am creating a precedent that would cause damage or difficulty in a streetscape sense in the development sites to the east. 34With respect to the questions of amenity, there has been a significant redesign of the elements of the uppermost proposed level. The result of all of that, together with the balustrading and privacy treatments agreed to by Mr Prsa and Mr Nash and that have been adopted by the applicant means that it was Mr Nash's expert opinion that the amenity impacts on the neighbouring properties had been satisfactorily addressed. I concur in that view. 35Particularly, the relocation of the balconies of the rear two units at the uppermost level (to make them further inboard and further to the north), increases the separation distances between the private open spaces of the adjacent townhouse developments and also removes some of the direct conflict between those terraced areas and bedroom windows. 36I am satisfied that the combination of separation distances and the forward movement to the north adequately resolves those - as Mr Nash himself had concluded. 37I do not have a concern about the lower level, that is the intermediate level of the proposed development, on a privacy basis as a combination of the landscaping, the separation distances and the layout of the developments adjacent render it acceptable as far as I am concerned. 38With respect to the communal open space as to private open space at the rear, I am satisfied that the visual separation between that open space, however used, and the Price residences fronting Fauna Street to the south can be satisfactorily dealt with by both the general landscaping proposed and by the two conditions that have been accepted by the applicant for the planting of a substantial canopy tree species in the south-eastern corner of the development site and the requirement that should the camphor laurel that is proposed to be retained on the site (which currently provides a good deal of shielding between the Price residences and the site) ever be removed that it be replaced by a similar canopy tree. 39As to the nature of the use of that space, I am satisfied that it is more appropriate to be used as private open space for the two rear ground floor dwellings. I have reached that conclusion for two reasons. First, it would provide, in my view, significantly better amenity for the residences at that level on the site. 40Second, I am satisfied that the likely intensity of the use of that private open space (if it is to be the private open space for individual dwellings) is likely to be less intense than if it were to be communal open space and that provides a privacy benefit, particularly of an aural nature, both between those two divided spaces and with the two Price residences to the rear and to the private open spaces of the townhouse developments immediately adjacent to the east and the west and, finally, although we did not visit the premises, to the partial frontage with the private open space at the rear of the property adjacent to the Price residences in Fauna Street but to the west, which partially overlaps the development site. 41Finally, I turn to the question of parking. I have, as the evidence about parking matters, observations made by Mr Nash in his statement of evidence and an aerial photograph that is incorporated as fig 2.7 in his statement of evidence which shows the parking density, as it were, on Flora Street in May 2012. 42Quite serendipitously, as it turns out, I also have, in the evidence tendered by the council, an aerial photograph shown as having been flown in October 2011 which appears behind tab 6 in the council's bundle and which shows, with greater clarity than that provided by Mr Nash, the parking position as at the date of that photograph. 43I have no notice as to whether it is on a weekday or a weekend. It does, however, show a considerable number of vacant parking spaces in the vicinity of the development site. To some extent the photograph constitutes an admission against interest by the council. 44I also observe that Mr Nash's evidence on this point, although he is a well known and well respected town planner in this jurisdiction, would not normally have satisfied the requirements for a traffic and parking study - it being a modest serendipitous dipping into a personal observation of the parking conditions in the vicinity and, as I observed during the course of the proceedings, observations not borne out by what I observed when I attended the site, where I saw a number of vacant parking spaces at the time I arrived and then a greater number at the time of my departure. That forms the factual basis upon which I can turn my attention to the parking issue. 45The parking controls are set out in ch 7 of the Sutherland Shire Development Control Plan 2006, a development control plan developed at the time of the 2006 LEP. Particular relevant provisions are contained in ch 7 1.B.40 paras 3, 6 and 7 and the map for the parking zones that form part of it. 46I indicated to the parties prior to adjourning to consider my decision that I would investigate the annotation on other maps. I came to the conclusion during the course of considering the evidence that I did not need to do so because the matter was capable of being dealt with on the documents that were in evidence. 47The first of the overarching provisions relating to parking provides that, for this area, what is required is a maximum limit on parking. It is not a floor, it is a ceiling. The circumstances that Mr Green says should cause me to regard the maximum as also to be imputed as a minimum under the circumstances of this development application is the evidence of the residents, that I accept both in written and in oral evidence, of congestion and parking difficulties. As I indicated Mr Nash gave some written and oral evidence on that point as well. 48However, I am satisfied that the parking that is provided on the site should be regarded as adequate for two quite separate reasons. The first is that the photographic evidence, in fact, shows that there are vacant parking spaces available opportunistically at various times of the day and that that accords with my observations. 49It is obvious that the location of the site is very close to Kirrawee Station, has significant access to public transport and is a not unreasonable distance from Sutherland Station (but one might have to be rather fleet of foot to cross Acacia Road if seeking to take advantage of that). 50However, setting access to Sutherland Station aside, I am satisfied that the parking onsite, coupled with the proximity to Kirrawee Station, means that I should treat the parking requirement for the site as a maximum and not as an inflexible, immutable number required to be met. The deficiency, in my view, is not major and is not one that would warrant refusal of the proposal. 51As a consequence of all of that, the proposal warrants approval but I do not propose to make orders at this stage because I think it is in the interests of both the council and the applicant that properly amended architectural plans be prepared to reflect the matters that are contained in exhibits J and H and that conditions should be prepared to reflect that. 52As a consequence, although I foreshadow that the orders will be that the development is approved, I propose to adjourn the matter on the basis that I have regularly engaged in in the past and that is that if settled architectural plans are filed and settled conditions of consent are filed electronically then I will deal with the matter in chambers and vacate a mention date that I propose to set down. Note:Amended plans and revised conditions were subsequently filed and orders approving the amended proposal subject to conditions were made in Chambers. Tim Moore Commissioner of the Court 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: 20 September 2012