Land and Environment Court New South Wales Medium Neutral Citation: Northcote Trust v Hornsby Shire Council [2012] NSWLEC 1327 Hearing dates: 13,14 November 2012 Decision date: 29 November 2012 Jurisdiction: Class 1 Before: Brown C Decision: 1. The appeal is dismissed. 2. Development Application No. DA/334/2011 for the erection of a part 2 and part 3 storey affordable rental housing development at 8A Northcote Road, Hornsby is refused. 3. The exhibits are returned with the exception of exhibit 2. Catchwords: DEVELOPMENT APPLICATION; erection of affordable rental housing development - whether compatible with the character of local area - the unsuitability of the access handle - unsuitable access for people with a disability from the basement car park - resident concerns Legislation Cited: Environmental Planning and Assessment Act 1979 Hornsby Shire Local Environmental Plan 1994 State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development State Environmental Planning Policy (Affordable Rental Housing) 2009 Cases Cited: Peninsula Development Australia Pty Limited v Pittwater Council [2011] NSWLEC 1244 Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191 Category: Principal judgment Parties: Northcote Trust (Applicant) Hornsby Shire Council Respondent) Representation: Mr I Hemmings, barrister (Applicant) Mr A Seton, solicitor (Respondent) Solicitors Whittens Lawyers and Consultants (Applicant) Marsdens Law Group (Respondent) File Number(s): 11109 of 2011 Judgment 1COMMISSIONER: This is an appeal against the refusal by Hornsby Shire Council (the council) of Development Application No. DA/334/2011 for the erection of a part 2 and part 3 storey affordable rental housing development containing 31 units and basement car parking for 37 vehicles at 8A Northcote Road, Hornsby (the site). 2The contentions raised by the council relate to whether the proposed development: * is compatible with the character of local area, particularly in relation to height, bulk and scale, * has an access handle that does not address the needs of residents and visitors, * provides insufficient access for people with a disability from the basement car park. 3The contention relating to the disposal of storm water was addressed through conditions of consent. 4A number of local residents provided evidence on site and the issues, not raised by the council, relate to: * light spill, * exhaust fumes, * overlooking, * overshadowing, * noise from vehicles using the access handle and entering and leaving the basement car park, * increased street parking, and * odour associated with garbage bin location. The site 5The site is Lot 2 in DP 1165114. It is an irregular shaped lot with an area of 3378 sq m. This area includes an access handle from Northcote Road that is some 113 m long and 6 m wide. The proposed development is located at the end of the access handle on a L- shaped area of land. The site is currently vacant and contains some vegetation. 6The surrounding development comprises single and 2 storey residential dwellings with an existing townhouse style development located on the eastern side of the access handle. A residential flat development of part 2 and part 3 storeys is located on the western side of the access handle. Relevant planning controls 7The site is zoned Residential A (Low Density) Zone under Hornsby Local Environmental Plan 1994 (LEP 1994). Multi-unit housing is permissible with consent within this zone. 8Hornsby Low Density Multi Unit Housing Development Control Plan (the DCP) applies to the site. 9The application is submitted under the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) as "In-fill affordable rental housing" pursuant to Part 2 Division 1. Clause 13 provides requirements for floor space ratio (FSR) and allows bonus FSR if the development is to be used for the purposes of affordable housing and exceeds 20 % of the gross floor area of a development. Clause 13(2)(ii) allows an additional FSR of 0.5: 1 if the percentage of the gross floor area of the development that is used for affordable housing is 50 % or higher. In this case, the development proposes a gross floor area for affordable housing that is greater than 50% and when combined with the 0.4: 1 FSR available under the Residential A zone, the available FSR under cl 13 is 0.9:1. There was no dispute that the proposed development satisfied this requirement having an FSR of 0.74:1. 10Clause 14 provides standards that cannot be used to refuse development consent. These relate to site area, landscaped area, deep soil zones, solar access, parking and dwelling size. There was no dispute that the proposed development satisfies these standards. 11Clause 16A states: 16A Character of local area A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area. 12Whether the proposed development satisfies the consideration required by this clause was a significant area of dispute between the parties. 13Clause 16 of SEPP ARH provides that State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP 65) applies. Clause 30 of SEPP 65 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)). Clause 8 states: 8 Introduction to the principles Good design is a creative process which, when applied to towns and cities, results in the development of great urban places: buildings, streets, squares and parks. Good design is inextricably linked to its site and locality, responding to the landscape, existing built form, culture and attitudes. It provides sustainable living environments, both in private and public areas. Good design serves the public interest and includes appropriate innovation to respond to technical, social, aesthetic, economic and environmental challenges. The design quality principles do not generate design solutions, but provide a guide to achieving good design and the means of evaluating the merit of proposed solutions. 14The relevant principles are: 9 Principle 1: Context Good design responds and contributes to its context. Context can be defined as the key natural and built features of an area. Responding to context involves identifying the desirable elements of a location's current character or, in the case of precincts undergoing a transition, the desired future character as stated in planning and design policies. New buildings will thereby contribute to the quality and identity of the area. 10 Principle 2: Scale Good design provides an appropriate scale in terms of the bulk and height that suits the scale of the street and the surrounding buildings. Establishing an appropriate scale requires a considered response to the scale of existing development. In precincts undergoing a transition, proposed bulk and height needs to achieve the scale identified for the desired future character of the area. 11 Principle 3: Built form Good design achieves an appropriate built form for a site and the building's purpose, in terms of building alignments, proportions, building type and the manipulation of building elements. Appropriate built form defines the public domain, contributes to the character of streetscapes and parks, including their views and vistas, and provides internal amenity and outlook. 15The site is also subject to Draft Hornsby Local Environmental Plan 2011 (the draft LEP). The site is zoned R2 Low Density Residential where residential flat buildings are a prohibited use although it was generally agreed that the draft LEP was not imminent or certain. Is the proposal compatible with the character of local area? 16Expert town planning evidence was provided by Mr Neil Kennan, for the council and Mr Tom Moody, for the applicant. Mr Kennan and Mr Moody agree that cl 16A requires consideration of the following matters: * what is the "local area"? * what is the character of the "local area"? * is the design of the proposed development compatible with the character of the "local area"? The evidence - what is the "local area"? 17Mr Kennan adopts the approach in Peninsula Development Australia Pty Limited v Pittwater Council [2011] NSWLEC 1244 where" local area" is described as: ....principally the visual catchment in which the development will be viewed.... The wider catchment is also relevant.... 18Mr Kennan states that the visual catchment of the development is different to that which might ordinarily apply because the part of the site where the building is to be constructed does not have a street frontage. Consequently, the proposed development would not be visible to any significant extent from either Northcote Road or Pullbrook Parade. In this case, Mr Kennan concludes that the visual catchment is the area that generally adjoins the main body of the site where the building is to be located. 19Mr Moody also adopts the approach in Peninsula Development, but disagrees that it should be restricted to the area that adjoins the main body of the site. He states that the visual catchment should be extended to include the area able to be viewed from the access handle and also the block in which the site is located, being the block bounded by Northcote Road, Sherbrook Road, Palmerstone Road and Pullbrook Parade. The evidence - what is the character of the "local area"? 20Mr Kennan states that the local area comprises of: * a majority of low density residential development in the form of detached dwellings which are mostly single storey, * 2 storey detached dwellings to the south of the site, * a 2 storey townhouse style development, where the majority of the units do not have a sightline to the main body of the site where the proposed development is to be established, * a residential flat building adjoining the access handle to the proposed development although the development was originally approved for resident medical and nursing staff in October 1971 as an adjunct to the nearby hospital. 21Overall, Mr Kennan describes the character of local area as being of detached single and 2 storey dwellings with some two storey multi-unit housing. The predominant character being detached dwellings. This character also applies to the wider area within which the site is located. 22Mr Moody states that the local area contains a wide range of developments and could be described as an eclectic mix of heights up to maximum 3 levels with a range of residential and medical related buildings of varying bulk and scale. The range of developments include: * numerous examples of battle axe lots, * detached single and 2 storey residential dwellings, * 2 storey townhouse developments and other multi-unit projects, * medical consulting rooms, * cluster housing, * a child-care centre, and * a part 2 and part 3 level residential flat building adjoining the access handle to the proposed development. The evidence - is the design of the proposed development compatible with the character of the "local area"? 23Mr Kennan states that the word "compatible" has the meaning attributed to it within Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191 where it states (at 22): 22 There are many dictionary definitions of compatible. The most apposite meaning in an urban design context is capable of existing together in harmony. Compatibility is thus different from sameness. It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve. 24In relation to the likely maximum form of development in the local area, Mr Kennan states that the existing controls permit development for multi-unit housing with a maximum FSR of 0.4:1 and a maximum height of two storeys. The draft LEP prohibits residential flat buildings and contemplates a character largely made up of dwellings and other land uses. 25The proposed development significantly exceeds the predominant bulk and scale of existing development in the local area and other permissible development and contains design elements which are foreign to the local area that include: 3 storeys of residential development that provides a scale which is in stark contrast to other development in the local area, particularly on the eastern boundary, basement car parking; the access for which is to be excavated into the site and in close proximity to the boundary of an adjoining detached dwelling houses with little or no landscaping to protect the visual and acoustic amenity of the property, and facilities such as the garbage collection area which will have an adverse impact on the amenity of adjoining development. 26The proposed development would be unique and its appearance is not in harmony with other buildings in the local area. It does not respond to the essential elements that make up the character of the local area, that being predominantly single and 2 storey residential development. 27Mr Moody comes to a different conclusion. He states that SEPP ARH is a state-wide planning document that contemplates development that is not necessarily the same as that found in, or contemplated for the local area by local planning controls. This is clearly anticipated by SEPP ARH through provisions such as the availability of the bonus FSR and the standards that cannot be a reason to refuse a development application. 28Mr Moody considers that the proposed development is compatible with the character of the area based on the comments in Project Venture. He notes that the proposed development satisfies all the numerical requirements in SEPP ARH and that there are many positive aspects of the proposed development such as: * the proposed FSR is less than the maximum under SEPP ARH, * the site area is significantly greater than the minimum required SEPP ARH, * the landscaped area and deep soil zones are significantly greater than the minimum required SEPP ARH, * the solar access provision for the proposed units is highly desirable given the north-east to north-west orientation, and * the proposed parking complies with the SEPP ARH requirements and in fact satisfies the council's requirements for multi-unit housing. 29Other positive aspects of the design include: * a building form that is predominantly 2 storeys with a flat roof, * the 3 storey component of the development adjoins the 2 storey component of the adjoining residential flat building, * the U-shaped building form provides significant communal open space in the middle of the site which breaks up the building mass, * significant setbacks to all boundaries, * there is strong articulation in both horizontal and vertical planes, and * proposed landscaping will provide the opportunity to substantially improve the existing landscaping on the site. 30For these reasons, Mr Moody states that the proposed development will be compatible with the character of local area. Findings 31Mr Kennan and Mr Moody adopt the meaning of local area as set out in Peninsula Development, being principally the visual catchment when viewed from the location on the site of the proposed building. Mr Moody also includes the access handle and the block where the site is located. 32With the benefit of the site inspection, I accept that the local area is best defined as the area that can be viewed from the L- shaped area of land where the development is proposed and the access handle as it forms part of the development. The access handle provides the only access to the proposed development and people using this access will have an understanding that the proposed development has an association with the adjoining developments and collectively will form part of the local area. In my view, the wider area is not that significant in this case because of the relatively isolated nature of the site, although the wider area generally has a consistent single and 2 storey residential character. 33In answering the question of whether a proposed development is compatible with the character of the local, I have adopted the following approaches to assessing compatibility. First, the greater distance from the site, the lesser the weight that should be given to the form of development in that location. Second, land that is within a different zone that may contemplate a different form of development or the same development but of a different density or scale, even though it may be close to the site, should not be given significant weight in the determination of compatibility. Third, isolated, one-off or unique forms of development or developments that have elements that are uncharacteristic of the general form of development should not be given significant weight in the determination of compatibility. While different forms of developments may exist in the local area, they should not skew the assessment of the character of the local area required by cl 16A. 34If considered in this context, the character of the local area is best described as being predominantly single and 2 storey detached dwelling residential development with some 2 storey multi-unit housing. Based on the approaches identified in the preceding paragraph, I have not given any significant weight to the medical consulting rooms as they are in a different zone and the 3 storey component of the residential flat development on the western side of the access handle at the Northcote Road frontage as it is an isolated element in a development with a particular history and is not representative of the general form of development in the local area. 35While Mr Kennan refers to the form of development anticipated in the R2 Low Density Residential zone under the draft LEP; this evidence should be given no weight because of the agreed position that the draft LEP is not imminent or certain. 36On the important question of whether the design of the proposed development is compatible with the character of the local area, it must be accepted that development lodged under SEPP ARH should not slavishly follow the form of development anticipated for Residential A (Low Density) Zone. The test in cl 16A is compatibility and not replication. SEPP ARH is a state-wide planning policy and clearly allows for a form of development that may not necessarily reflect the exact form anticipated by local planning controls. This is highlighted by cl 8 that gives primacy to the SEPP ARH over any other environmental planning instrument (but only so far as any development is compatible with the character of 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 important considerations in assessing the character of the local area. 37The predominantly single and 2 storey detached dwelling residential development with some 2 storey multi-unit housing character needs to be compared to the proposed building that is part 2 and part 3 storey. The southern elevation is 3 storeys except at the eastern and western ends where small setbacks are provided for Levels 2 and 3. The eastern and western elevations are part 2 storey and part 3 storey, with the 3 storey form in that part of the building that joins the southern elevation. 38Mr Moody's evidence was that he could not support the development that originally was all 3 storeys however with the reduction to 2 storeys for part of the eastern and western elevation, he considered that the development was compatible with the character of the local area. The 2 storey height, the large setbacks and the highly articulated facade of the southern elevation were seen by Mr Moody as been instrumental in the suitability of the development. As I understand, Mr Kennan's principal concern, on the question of character, related to the 3 storey component of the proposed development. 39With the benefit of the site inspection and an understanding of the application, I am not satisfied that the proposed development is compatible with the character of local area for a number of reasons. 40First, I do not accept that the proposed 3 storey component of the building is appropriate in its context. While the gross floor area of the building cannot be a reason to refuse the application, the distribution of the floor area has resulted in a building that displays excessive height when viewed from adjoining residential properties. The general character of the local area is predominantly single and 2 storey detached dwelling residential development with some 2 storey multi-unit housing. The large amount of 3 storey form is incompatible with this predominant character. I do not accept that the small area of the adjoining residential flat building adjoining the access handle that is 3 storeys (2 levels of accommodation and a level of parking) supports, in any way, the proposed 3 storey form over such a large proportion of the built form. Mr Seton, for the council, not unreasonably asked rhetorically why the floor area of the development needed to be concentrated on a relatively small area of the site when other areas were set aside for landscaped open space well beyond the levels required by SEPP ARH. 41If some part of the development was suitable for 3 storey (as suggested by the council staff in their discussions with the applicant) then the third level would need to be more subtle in its appearance (such as a room in the roof construction) or have greater setbacks at this level so the level is less obvious and unobtrusive when viewed from adjoining residential properties. 42Second, and while the issue of bulk and massing was not raised in any meaningful way by Mr Kennan, I am of the opinion that it is a significant negative aspect of the development. The southern elevation has an unbroken length of around 50 m. It is a full 3 storeys in height with no setbacks for these levels with the exception of the small setbacks at the eastern and western ends of this elevation. I do not accept that even the generous setbacks that range from 8.6 m to 13.0 m, reduce the bulk and massing of this elevation to any noticeable level. Similarly, the articulation also does not reduce the bulk and massing when viewed from properties directly behind this elevation. 43Third, the western and eastern elevations also do not adequately deal with the issue of bulk and massing. While each elevation has a component that is 2 storeys in height, the western 3 storey component still represents around 17 m of an unbroken 42 m length of building but with considerably smaller setbacks than the southern elevation. The setbacks range from 3.1 m to around 7 m. The eastern elevation is smaller in length at around 25 m but has a larger proportion of 3 storey form at around 16 m. In my view, the limited setbacks on both elevations on Levels 2 and 3 are inadequate to address the bulk and scale of the building when viewed from the adjoining residential properties 44Pursuant to cl 16A, I find that the design of the proposed development is not compatible with the character of the "local area" and the degree of incompatibility is such that the development application should be refused for this reason alone. 45I also accept that the proposal does not satisfactorily address Principle 1, 2 and 3 in SEPP 65. For the reasons mentioned earlier in the judgment, I do not accept that the proposed development "responds and contributes to its context" (Principle 1: Context), "provides an appropriate scale in terms of the bulk and height that suits the scale of the street and the surrounding buildings" (Principle 2: Scale) and "achieves an appropriate built form" (Principle 3: Built form). 46For completeness I will briefly deal with the other issues in dispute. The access 47The proposal provides access to the units via an access handle that is some 113 m long and 6 m wide. The carriageway is 4 m wide with a 1 m wide pedestrian path and screen planting for the remainder of the width. The screen planting is generally shared between both sides of the access handle except where there is a passing bay. Two of the three 6 m long passing bays are shared zones between pedestrians and vehicles. 48Mr Kennan maintained that access handle is not an acceptable response to the needs of both residents and visitors to the development. The local residents raised concern over the safety issues associated with the shared zones, the sight distances for vehicles leaving the access handle, the general increase in traffic and on-street parking. 49The council provided no expert evidence to support their concerns or sought to question the conclusions in the Traffic and Parking Report prepared by gtk consulting for the applicant and submitted with the development application. This report concluded that: * the on-site parking provision exceeds the requirements in SEPP ARH, * the proposed internal layout and access driveway meet the requirements of AS2890:1 2004 and the RTA's Guide to Traffic Generating Developments, and * the traffic generated by the proposed development will not present any unsatisfactory traffic, safety or capacity issues on the existing road network. 50In the absence of any expert evidence to refute the conclusions of the Traffic and Parking Report, I accept that there are no traffic, parking or access issues that would warrant the refusal of the development application. Access for people with a disability 51The contention provides that the convoluted ramping system from the basement is inappropriate for people with a disability. The council provided no expert evidence to support their concerns or sought to question the conclusions in the Access Assessment Report prepared by Access and Mobility Solutions for the applicant and submitted with the development application. The Access Assessment Report addresses AS1428.1 - 2001 Design Guidelines, and specifically Circulation space (cl 5.1.1),Continuous path of travel (cl 5.1.2), Walkways (cl 5.2), Ramps (cl 5.3) and Landings (cl 5.7) and states that "Compliance can be achieved". 52In the absence of any evidence to refute the conclusions of the Access Assessment Report, I accept that there are no disability access issues that would warrant the refusal of the development application. Resident issues Light spill, exhaust fumes and noise 53The concerns over light spill, exhaust fumes and noise associated with the basement car park entry are related. As originally proposed, access to the basement car park was to be obtained from the eastern side of the building after vehicles entered the site from the access handle. Concerns were expressed by residents on the eastern side of the development site and the access handle over light spill, exhaust fumes and noise, particularly associated with vehicles accelerating or decelerating on the ramp to the basement car park. An alternate location for the access to the basement car park from the southern side of the building was provided during the hearing although it does not address the concerns of Mr Kennan over the eastern access. 54I note that the concerns relating to light spill, exhaust fumes and noise associated with the basement car park entry were not raised as contentions by the council although Mr Kennan sought to include noise associated with the basement car park entry under the general considerations of SEPP 65. I do not accept that it is helpful to include a specific contention, such as noise, in the manner suggested by Mr Kennan. If this contentions was of such importance, as suggested by Mr Kennan, it should be identified separately to allow the contention to be fully addressed by both parties. 55The council provided no expert evidence to support their concerns or sought to question the conclusions in the noise assessment report prepared by RSA Acoustics for the applicant and submitted with the development application. There was disagreement whether this report specifically addressed noise associated with the use of the ramp to the basement car park and I would accept that it is not clear however I am satisfied that this uncertainty could have be addressed through additional acoustic evidence, if there were no other reasons why the application should be refused. 56I accept that the issue of light spill can be addressed by way of a condition of consent and that exhaust fumes from vehicles using the basement car park would not be reason to refuse the application, given the relatively small peak traffic generation (18 vehicles trips per hour) identified in the gtk consulting report. Overlooking, overshadowing and odour 57Given the setbacks and the orientation of the site, I accept that there are no overshadowing issues that would warrant the refusal of the application. Also, given the amendments at the hearing that provided screening to some balconies that were seen by the council to potentially create overlooking issues, I accept that there are no overlooking issues that would warrant the refusal of the application. 58In accepting that the location of the proposed garbage area could potentially create odour issues, l acknowledge that the applicant has sought to relocate the garbage storage areas to the basement area in which would overcome any odour issues. Orders 59The orders of the Court are: 1. The appeal is dismissed. 2. Development Application No. DA/334/2011 for the erection of a part two and part three-storey affordable rental housing development at 8A Northcote Road, Hornsby is refused. 3. The exhibits are returned with the exception of exhibit 2. ________________ G T Brown 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: 29 November 2012