Land and Environment Court New South Wales Medium Neutral Citation: Albert v Kiama Municipal Council [2018] NSWLEC 1178 Hearing dates: 29 January 2018 and 9 April 2018 Date of orders: 01 May 2018 Decision date: 17 April 2018 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders: (1) The appeal is upheld. (2) Development consent (DA 10.2017.1.1) is granted for the construction of a mixed use two storey building comprising a ground floor medical centre and first floor residential units at 35 Jupiter Street, Gerringong, subject to the conditions in Annexure A. Catchwords: APPEAL – development application – consent orders - medical centre – permissibility – consistency with zone objectives – parking – traffic – height and floor space ratio – compatibility – tree loss – streetscape and setbacks – overshadowing – view loss – amendments required to achieve view sharing Legislation Cited: Environmental Planning and Assessment Act 1979 ss 8.7(1), 4.15(3A) Kiama Development Control Plan 2012 Kiama Local Environmental Plan 2011 Practice Note – Class 1 Development Appeals State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Infrastructure) (ISEPP) 2007 State Environmental Planning Policy No. 71 - Coastal Protection State Environmental Planning Policy No.55- Site Remediation Cases Cited: Fabcot Pty Ltd v Hawkesbury City Council (1997) 93 LGERA 373 Kentucky Fried Chicken v Gantidis [1979] HCA 20; (1979) 140 CLR 675 Nessdee Pty Limited v Orange City Council [2017] NSWLEC 158 Category: Principal judgment Parties: George Albert (Applicant) Kiama Municipal Council (Respondent) Representation: Solicitors: G Green, Pikes and Verekers Lawyers (Applicant) S Nevin, Sparke Helmore Lawyers (Respondent) File Number(s): 2017/244877 Publication restriction: No Judgment 1. Mr Albert seeks development consent for the construction of a mixed use two storey building comprising a ground floor medical centre and a first floor residential development comprised of three residential units, at 35 Jupiter Street, Gerringong. The development application was refused by Kiama Municipal Council ("the Council") on 5 May 2017. Mr Albert appeals against that refusal pursuant to the former s 97, now s 8.7(1), of the Environmental Planning and Assessment Act 1979 ("EPA Act"). 2. On 19 December 2017, leave was granted to Mr Albert to amend the plans the subject of the application. The amendments result in a proposal that is compliant with the height of building development standard and provides additional landscaping than that in the plans the subject of the original application. The Council now agrees to development consent being granted. 3. In circumstances where such an agreement has been reached, I am nonetheless required to carry out an assessment under the former s 79C, now s 4.15, of the EPA Act to determine if it is lawful and appropriate to grant consent. In doing so, I am also required to consider the evidence and submissions of the objectors. The Practice Note – Class 1 Development Appeals sets out the procedural requirements at paragraph 99: "Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following: (i) the content of the proposed orders (including the proposed conditions of consent); (ii) the date of the hearing by the Court to consider making the proposed consent orders; and (iii) the opportunity for any such person to be heard, or that, in the circumstances of the case, notification is not necessary." 1. The Statement of Environmental Effects dated January 2018 describes the development as: "• Construction of a two (2) storey building comprising: - Ground floor medical centre with outdoor parking; - Three residential units; - Basement carpark; and • Associated landscaping" 1. The medical centre is proposed to operate from 8:00am to 6:00pm Monday to Friday, and 8:00am to 1:00pm on Saturdays. A total of 12 parking spaces are provided at the site, with 7 for the medical centre, 3 for residents, and 2 visitor spaces. 2. The proposal also includes landscaping with a mix of trees, shrubs, and ground covers in the deep soil zones and planter boxes. The proposal seeks to remove a poplar tree located within the road reserve. 3. For the reasons set out below, I have determined that it is appropriate to grant development consent subject to some changes being made to the proposed plans. A medical centre is permissible in the zone, the proposal meets the objectives of the R3 zone and it complies with the relevant development standards. I have also found that the parking provided on the site complies with the relevant controls, and, based on the evidence, that there is no unreasonable impact on the local traffic caused by the proposal. Further, the evidence supports the removal of the tree. 4. However, the impact of the proposal on the ocean views from the balcony of 37 Jupiter Street was not made known to the parties and to the Court until the day of the hearing. After the hearing, I invited Mr Albert to consider whether there are any design solutions that could be proposed as an amendment to the proposal to reduce the potential view loss from 37 Jupiter Street. An amendment to the plans was proposed as a result, in Revision C and D with the south-west corner revised ("proposed amended plans"). In considering the impact of the proposal on the views from 37 Jupiter Street, I have considered those proposed amended plans and determined that it is appropriate for directions to be made for some further amendments to those plans prior to development consent being granted. The site and locality 1. The site is located at 35 Jupiter Street, Gerringong, on the corner of Jupiter and Coal Streets. It is legally described as Lot 1 DP 1203416, and is rectangular in shape with an area of 660.8m2. Access to the site is available from both Jupiter Street and Coal Street, with a 17m frontage to Jupiter Street and a 41m frontage to Coal Street. It is located approximately 300 metres from the Gerringong town centre, and approximately 1.1km east of Gerringong train station and the Princes Highway. 2. The topography of the site falls from the north-west corner to the south-east corner by between 4m and 5m. The large poplar tree that is proposed to be removed is located in the road reserve on the Coal Street frontage. The site is vacant, with the exception of an old well. Although the site is identified as comprising a watercourse, the watercourse is not evident on site and the site has been filled in the past. The site is serviced by water, sewer, electricity and telecommunications. 3. Development within the surrounding area is characterised by residential dwellings varying in size and type, including multi-dwelling housing, detached dual occupancies, and single dwellings. The dwellings range in size from two-storey with basement, two-storey and single storey. Some vacant lots exist in the area but are the subject of proposed development. Jupiter Street slopes away from the main street of Gerringong to the east coast, and a public recreation area is located at the end of Jupiter Street where it meets the coast, approximately 200m from the site. A number of the dwellings along Jupiter Street between Coal Street and Morrow Street to the west of the site are double storey dwellings of recent construction, with an orientation to the south and second storey balconies on the road frontage to take advantage of coastal views across the road reserve and side boundaries. Planning controls 1. The former s 79C(1)(a), and now s 4.15(1)(a), of the EPA Act requires that the Court, in exercising the functions of the consent authority, consider the provisions of any applicable environmental planning instrument, development control plan, planning agreement, and regulations. Amongst other things, s 4.15(1) also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest. 2. The site is zoned R3 Medium Density Residential under the Kiama Local Environmental Plan 2011 ("KLEP 2011"). It is on the edge of the R3 zone boundary, with the opposite sides of Coal Street and Jupiter Street otherwise zoned as R2 Low Density Residential. 3. Clause 2.3(2) of the KLEP 2011 requires the Court to "have regard to the objectives for development in a zone when determining a development application in respect of land within the zone". The zone objectives for the R3 zone are: "• To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To provide opportunities for multi-storey residential accommodation in locations close to shops, transport nodes, commercial services, public open space and employment opportunities. • To provide increased housing choice particularly housing suited to older people and people with a disability. • To increase the supply of affordable housing." 1. Residential accommodation is an innominate permissible use within the R3 zone under the KELP 2011, whereas medical centres are a nominated prohibited use. However, the State Environmental Planning Policy (Infrastructure) (ISEPP) 2007 ("ISEPP 2007") applies to the site and provides a planning regime for infrastructure and the provision of services consistently across NSW. The ISEPP 2007 operates to permit health services facilities in prescribed zones. Specifically, cl 57(1) of ISEPP 2007 provides: "(1) Development for the purpose of health services facilities may be carried out by any person with consent on land in a prescribed zone." 1. Clause 56 of ISEPP 2007 identifies the R3 Medium Density Residential as a prescribed zone and a defines a health services facility to include a medical centre, as follows: "health services facility means a facility used to provide medical or other services relating to the maintenance or improvement of the health, or the restoration to health, of persons or the prevention of disease in or treatment of injury to persons, and includes the following: (a) day surgeries and medical centres, (b) community health service facilities, (c) health consulting rooms, (d) facilities for the transport of patients, including helipads and ambulance facilities, (e) hospitals." 1. Clause 8 of ISEPP 2007 provides that if there is an inconsistency between ISEPP 2007 and another environmental planning instrument (such as KLEP 2011), ISEPP 2007 overrides that other planning instrument. This is set out at cl 8(1) as follows: "(1) Except as provided by subclause (2), if there is an 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." 1. This means that despite the fact that medical centres are prohibited in the zone pursuant to the local instrument, KLEP 2011, they are made permissible with development consent pursuant to ISEPP 2007, which is a state instrument. 2. In considering an application for a health services facility made permissible by cl 57 of ISEPP 2007, cl 57(4) applies to allow a consent authority to consider the site and design features, and the compatibility of the development with the surrounding land uses, as follows: "(4) Nothing in this clause: (a) prevents a consent authority from: (i) granting consent for development on a site by reference to site and design features that are more stringent than those identified in a site compatibility certificate for the same site, or (ii) refusing to grant consent for development by reference to the consent authority's own assessment of the compatibility of the development with the surrounding land uses, or (b) otherwise limits the matters to which a consent authority may have regard in determining a development application for development of a kind referred to in subclause (2)." 1. The provisions of the State Environmental Planning Policy No. 71 - Coastal Protection ("SEPP 71"), the State Environmental Planning Policy No.55- Site Remediation ("SEPP 55") and the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 also apply to the site. 2. Clause 4.3 of the KLEP 2011 establishes an 8.5m building height development standard in accordance with the Height of Buildings Map, and cl 4.4 establishes a maximum floor space ratio of 0.7:1 in accordance with the Floor Space Ratio map. The proposal complies with both controls, with the maximum height of 8.42m over the lowest point of the site and a floor space ratio of 0.64:1. This floor space ratio will further reduce with the proposed amended plans, which are discussed below. 3. The proposal seeks consent to excavate to construct the basement level, and as such cl 6.2 of the KLEP 2011 applies regarding earthworks. The objective of cl 6.2 is to ensure that the proposed earthworks will not have a detrimental impact on the environment and neighbouring uses, and the clause provides at (3): "(3) Before granting development consent for earthworks, the consent authority must consider the following matters: (a) the likely disruption of, or any detrimental effect on, existing drainage patterns and soil stability in the locality, (b) the effect of the development on the likely future use or redevelopment of the land, (c) the quality of the fill or the soil to be excavated, or both, (d) the effect of the development on the existing and likely amenity of adjoining properties, (e) the source of any fill material and the destination of any excavated material, (f) the likelihood of disturbing relics, (g) the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area, (h) any measures proposed to minimise or mitigate the impacts referred to in paragraph (g)." 1. Clause 6.5 of the KLEP 2011 relates to the protection and maintenance of riparian land and water courses. Whilst the riparian land and watercourses map identifies that the site is affected by a Category 3 watercourse, the evidence is that the site has been filled and has historically been used for agricultural purposes. As a result, there is no watercourse evident on the site and nor is there any associated banks or vegetation. In light of the mapping, a controlled activity approval from the Department of Primary Industries ("DPI") is required under the provisions of the Water Management Act 2000. The DPI provided advice to the Council raising no concerns with the proposal, and did not require terms of approval to be imposed on any consent. 2. The Kiama Development Control Plan 2012 ("KDCP 2012") also applies to the site, and establishes controls for the setbacks, cut and fill, apartment size, room sizes, orientation, open space, ceiling height, landscaping, car parking requirements and waste requirements, amongst other things. Section 5 of Chapter 2 sets out the controls relating to the maintenance of views and vistas, and include the following: "C6 Any development in Kiama should incorporate view sharing principles into the design and siting of development to ensure that where possible with that existing view lines are not detrimentally impacted. C7 Development should maintain where possible of views from public places. C8 Development should ensure, where possible, that there is no unreasonable loss of existing view lines from existing development. C9 No one dwelling should be sited to maximise the views for its occupants to the exclusion of nearby resident or neighbours. C10 Building design should have regard to the topography of the site and avoid unnecessary bulk or alteration of natural ground levels. C11 Where there is a potential for view loss Council may require a maximum building height of less than the maximum allowable for part of the proposed building to ensure view sharing. C12 Council may consider varying setbacks and building lines where variance would result in a positive view sharing outcomes C13 Reference is to be made to principles handed down in the Land and Environment Court with regard to view sharing." Expert evidence 1. Ms McCabe, a town planner, prepared a Statement of Environmental Effects and gave expert opinion evidence in support of the proposal. Her evidence is that the proposal is consistent with the zone objectives, meets the requisite development standards and controls, and, in relation to any aspect of the proposal that does not meet a control, meets the objectives of that control. Her evidence is considered in more detail below. Resident evidence and submissions 1. The development application was advertised and notified for a period of 14 days, in accordance with the notification provisions of the KDCP 2012. The Council received 23 submissions objecting to the proposed development. After the commencement of the appeal proceedings and following the Council's decision to agree to the grant of development consent, the Council's solicitor notified the objectors in writing by letter of 30 November 2017 of the consent orders hearing and provided a copy of the draft conditions of consent. Following the amendment of the plans, they were again notified by letter of 20 December 2017. Upon being aware in a change in the time for commencement of the hearing onsite, the Council's solicitor advised the objectors in writing of the change in time by letter dated 16 January 2018. 2. As a result, a number of residents who object to the proposal attended the site inspection, gave evidence and made submissions expressing their concerns. Those concerns can be summarised as follows: * The permissibility of a medical centre in the zone. * That the proposal does not meet the objectives of the R3 zone. * That there is insufficient demand for another medical centre. * That there is insufficient parking to accommodate the patients of the medical centre. * That there will be additional traffic generated by the proposal which will not be accommodated by the existing road and will create a risk to pedestrian safety. * That there is non-compliance with the applicable controls, particularly in relation to streetscape, setbacks and floor space ratio. * That the application does not accurately reflect the work required and cost involved in excavating the land and establishing a drainage system that accommodates the watercourse. * That the proposal seeks to remove a tree that has local significance. * That there will be a loss of private views. 1. The concerns of the residents, together with the issue of compatibility with surrounding land uses, are considered below. Permissibility 1. Mr Ward, one of the resident objectors who gave evidence on site, expressed that a medical centre should not be allowed because it is a use that is specifically prohibited by the KLEP 2011. 2. As set out above, whilst medical centres are prohibited in the KLEP 2011, the ISEPP allows health services facilities in the R3 zone, which includes medical centres. Despite this inconsistency, the provisions of the state planning instrument introduced by the NSW government, the ISEPP 2007, prevail over the provisions of the local instrument, the KLEP 2011. Medical centres are therefore permissible with development consent in the R3 zone. Consistency with the zone objectives 1. In a written objection lodged with the Council, one of the residents contended that the proposal does not meet the objectives of the zone, on the basis that the day to day needs of the residents are already met through the provision of equivalent services in Gerringong town centre. 2. Ms McCabe's evidence is that the proposed development is consistent with the objectives for the following reasons: * The proposal will provide 3 residential apartments, which provide for the housing needs of the community within a medium density residential environment. * The provision of the 3 apartments provides both one and two bedroom apartments, which is consistent with the objective to provide a variety of housing types. * The provision of a medical centre will meet the day to day medical needs of the local community. * The proposal provides both medical services and residential apartments in a location that is close to the Gerringong town centre, and is therefore consistent with the objective to provide opportunities for multi-storey residential accommodation in locations close to shops, transport nodes, commercial services, public open space and employment opportunities. * The provision of 3 apartments of differing sizes will contribute to affordable housing through the increased provision of housing within Gerringong. 1. Ms McCabe's evidence is also that, whilst the alleged lack of demand is not a planning matter, the facilities are needed to respond to the growth of Gerringong, including an aging population. She noted that Gerringong has been identified by the Australian Department of Health as an area where there is a distinct workforce shortage, which means that the area has less access to Medicare-subsidised medical services when compared to the national average. Ms McCabe says that this development will assist in reducing this gap. 2. I accept the evidence of Ms McCabe that the proposal is consistent with the objectives of the R3 zone. The provision of both three apartments allows for residential dwellings consistent with the medium density environment in close proximity to Gerringong town centre, and the medical centre is a use that meets the needs of the local community. 3. The existence of other medical centres in Gerringong, or the perceived lack of demand for another medical centre, is not a basis upon which I could refuse the proposal. It is well established that the existence of other developments of the type that is proposed is not a reason for refusal (see Kentucky Fried Chicken v Gantidis [1979] HCA 20; (1979) 140 CLR 675), and it is not part of the assessment of a proposal under the EPA Act for a consent authority to examine and determine its viability (see Fabcot Pty Ltd v Hawkesbury City Council (1997) 93 LGERA 373). Parking 1. A number of the residents were concerned about the parking provided for the medical centre, and whether it would be sufficient to accommodate the number of persons likely to need parking at the centre, particularly given that patients waiting for appointments need to also be accommodated and there is proposed to be pathology services provided. 2. In considering the adequacy of car parking, I am restricted to considering only what is required under the Council's controls, contained in the KDCP 2012. My assessment of the proposal is carried out by exercising the functions of the consent authority pursuant to the former s 79C, now s 4.15, of the EPA Act. Section 4.15(3A) of the EPA Act prevents me from requiring anything more onerous than the standards established by the KDCP 2012. It provides as follows (emphasis added): "(3A) If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority: (a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, …" 1. Chapter 9 of the KDCP 2012 provides that for 1 and 2 bedroom units, 1 space is to be provided for each unit, and 1 visitor space is to be provided for every 2 units. It also requires, for medical centres, 1 parking space to be provided for each 25m2 of gross leasable floor area. The gross leasable floor area excludes amenities, and is therefore 174m2 for the present proposal. This results in a requirement of 4.5 spaces for the residential units, and 7 spaces for the medical centre, which is met through the provision of 12 spaces. 2. Given that the number of car parking spaces proposed on the site achieves compliance with what is required under the KDCP 2012, pursuant to s 4.15(3A)(a) of the EPA Act I cannot require more onerous standards with respect to the provision of parking spaces. That is, I am required to consider that the number provided is adequate. 3. Those 12 spaces include some stacked spaces for medical centre staff which will be managed in accordance with recommendations of a traffic consultant. Control C40 of the KDCP 2012 indicates that whilst the Council does not favour the use of stacked parking, it is prepared to consider such parking where the applicant can demonstrate that the proposal: "• will not adversely affect use of the site; • only requires the removal of one vehicle to enable another vehicle to exit and occurs wholly within the site; • allows for a change of use/occupancy of a building without impacting on parking needs of other tenants/users; and • No more than 10% of parking required in a commercial development will be stacked; will be for the use of employees of the same organisation or inhabitants of the same household" 1. The evidence is that the stacked car parking arrangement is for the medical centre employees only, with the three (3) inner spaces to be used by medical staff who will be parked in those spaces all day. The outer spaces will be utilised by medical centre visitors, as too the disabled space. The practice operates on appointments. Both the traffic consultant and Ms McCabe have indicated that cameras and an intercom system will be implemented to manage these spaces in the event that a medical centre employee needs to leave the premises whilst a visitor is parked, and the arrangement only requires the removal of one vehicle to enable another vehicle to exit. As a result, I am satisfied that the use of the stacked parking is satisfactory. Traffic 1. A number of the residents also expressed concern about the impact of the proposal on the surrounding road network, particularly in circumstances where both Coal Street and Jupiter Street are quite narrow. They are concerned also about the safety of pedestrians in the area given the additional traffic and street parking, and whether the streets can accommodate the additional traffic, especially during Summer periods when the recreational area at the end of Jupiter Street is busy. 2. Despite the provisions of the Practice Note requiring a consent authority at a consent orders hearing to "demonstrate that… any objection by any person has been properly taken into account", there was nothing put before the Court from the Council regarding these concerns. As a result, following the hearing and on my request that the parties address me on this issue, an analysis was carried out by Terrafic Pty Ltd on whether the impact of the additional cars on the surrounding road network would be acceptable. The report, dated 28 March 2018, sets out observations made concerning Jupiter Street and Coal Street as well as the results of a traffic count and a parking survey. The report concludes that there is spare parking capacity along both Jupiter Street (Coal Street to Morrow Street) and Coal Street (Jupiter Street to Cook Place) and that vehicles parked on either street do not obstruct the free flow of traffic on these roads. 3. The report also observes the construction of the footpath along Jupiter Street and Coal Street, and notes that narrow roads can have the benefit of reducing travel speeds. 4. Using projected traffic generation rates of 13 additional traffic movements per hour in peak periods on Jupiter Street, and 7 on Coal Street, the report also concludes that the traffic generated by the development is relatively minor and "will not have any noticeable or unacceptable effect on the road network serving the site in terms of road network capacity or traffic-related environmental effect". The report also concludes that the widths of Jupiter Street and Coal Street are acceptable and can accommodate the additional traffic generated by the proposal. 5. I accept that the evidence contained in the report of Terrafic Pty Ltd answers the concerns of the residents. It is clear, from this evidence, that the traffic generation created by the proposal can be accommodated by the existing street network and will not have any noticeable effect on the road network serving the site. Building height and floor space ratio 1. Mr Bryce, one of the resident objectors, also expressed concern about the building height and floor space ratio. However, as set out above, the proposal complies with both controls, with the maximum height of 8.42m over the lowest point of the site and a floor space ratio of 0.64:1. The floor space ratio was reviewed by Ms McCabe following the resident evidence, and her evidence is that it is 0.64:1. I accept this evidence and that the proposal complies with both the floor space ratio control and the building height control, and that the floor space ratio will be further reduced if consent is granted on the proposed amended plans. Compatibility 1. Clause 57 of ISEPP 2007 allows the consent authority to consider "the compatibility of the development with the surrounding land uses" and to refuse to grant consent by reference to its assessment of that compatibility. 2. The evidence of Ms McCabe is that the development is compatible both in terms of the building typology and its proposed use. Specifically, she says that the bulk and scale of the proposed development is consistent with the bulk and scale of development envisaged for a medium density residential zone, and is compatible with the nature of the surrounding area. Further, the Statement of Environmental Effects prepared by Ms McCabe outlines that the scale and density is one that is anticipated by the controls, and that the proposal has landscaped space around the building and building street setbacks consistent with that of the surrounding development. 3. In relation to the proposed use, Ms McCabe's opinion is that the proposal, being a mix of residential units and the medical centre, is in keeping with the surrounding land uses. She points out that the development to the north and west support dual occupancy dwellings and townhouse form of development, and that the residential units are in keeping with that development. Further, her evidence is that there are no adverse impacts caused by the medical centre. Ms McCabe's view is that the proposed medical centre is not unlike medical treatment rooms that have historically operated from part of a dwelling house in older established residential areas. Ms McCabe also says that, in comparison to permissible uses in the zone, such as childcare centres, the medical centre is a use that is of lower impact and does not attract people as patients only attend the centre out of necessity. Specifically, her view is that noise and car-parking issues that may arise with other permissible uses do not arise with medical centres. 4. I accept the evidence of Ms McCabe. There is nothing about the proposal or its use that makes it incompatible with the surrounding land uses. That it comprises residential units contributes to its compatibility with the surrounding residential uses and the medical centre use does not result in adverse impacts on the surrounding residential uses. Tree removal 1. Mr Ward and Mr Barracluff, two of the residents who gave evidence on site, were also concerned about the removal of the poplar tree, and expressed that it was a significant tree for the area that should not be removed. 2. In a tree assessment report dated 13 December 2016, an AQF Level 5 Arborist, Mr Mark Bury, sets out his assessment of the health of the tree. The tree is a Populus alba, and at that time was 24m in height with a canopy spread of 20m. The report demonstrates that: * The tree has outgrown its useful life expectancy for the site and does not have any room to further develop. * If the tree continues to mature, its branch and root system will impact significantly on surrounding infrastructure. The root systems of this species of trees are invasive and have a documented history of causing damage to infrastructure. * The root zone of the tree has been significantly affected by recent works, and the trunks have significant decay. * The tree is not indigenous to Australia and does not have cultural significance. * The tree has a high tree risk rating of failure, and has had branch failures recently and will continue to do so due to being pruned in an incorrect manner and due to a weak wood strength. * There are serious concerns about the ability of the remaining root system to continue to support the load of the tree even in normal weather conditions, and in circumstances where there is a 3m incursion into the structural root zone by the adjacent footpath. * The tree is likely to impact a target due to failure, and the consequence of failure is severe (including serious personal injury or death, damage to high value property or disruption of important activities). 1. Therefore, I accept that the removal of the tree is required. Mr Albert has provided a landscape plan that meets the Council's requirements for the provision of landscaping, including the planting of an Angophora floribunda, which grows to a mature height of more than 10m. I am of the view that this is a sufficient replacement for the poplar tree. Streetscape and setbacks 1. Chapter 5 of the KDCP 2012 applies to development that contains 3 or more dwellings or units. It sets out controls for development up to 2 storeys and 8.5m in height, and requires that there be a front setback of 4.5m, a secondary street setback of 3.5m, and side setbacks of 6m for habitable rooms and balconies at the ground floor and first floor, 0.9m for non-habitable rooms at the ground floor, and 3m for non-habitable rooms at the first floor. 2. Mr Bryce's submission was that the proposal is for a 3 storey development due to the basement. However, the parties agree that the appropriate controls are the two storey controls, and I accept that the reference in the KDCP 2012 to "controls for development up to 2 storeys and 8.5m in height above existing ground" relates to the number of storeys above ground. Accordingly, they apply to the present proposal. 3. Contrary to the controls, the basement car park encroaches into the 4.5m setback of the building to Jupiter Street. However, this is below the street level and has no adverse impact. A balcony and awning also encroach into the Jupiter Street setback, providing articulation to the building. This encroachment is within what is permitted by the controls, which allow at C11 a "cantilevered deck, balcony, patio, terrace or verandah" to encroach "for a maximum depth of 1.5 metres". 4. There is also an encroachment into the 3.5m secondary street setback for 2m to provide screening to the garbage store areas. This is at the lower ground level only behind a landscape screen, and reads as a landscaped terrace. 5. Also contrary to the controls are the proposed side boundary setbacks. The proposed ground floor medical centre has a side boundary setback of between 1.05m and 1.3m, with the proposed first floor apartments on a 1.05m setback from the building adjoining the site to the west. These setbacks do not meet the requirement for there to be a 6m side boundary setback to habitable rooms and balconies, 0.9m to non-habitable rooms at ground floor level, and 3m to non-habitable rooms at first floor level. 6. The DCP identifies that an encroachment of up to 3m into side setbacks may be acceptable if minimum daylight, ventilation and visual and acoustic privacy requirements can be demonstrated. 7. Ms McCabe's evidence is that whilst the proposal does not strictly comply with the required side boundary setbacks, the design ensures that the development meets the objectives of the controls. In the Statement of Environmental Effects, Ms McCabe indicates that the development has been designed so as to ensure that there are no privacy impacts on the neighbouring property to the west, through the following measures: "• Non-habitable rooms have been located along the western side; • No windows are proposed within the western elevation i.e. a blank wall presents to the western boundary; • All windows are at 90 degrees to the boundary to avoid overlooking and ensure that the outlook is either to the north or south; and • Balconies are sited on the eastern elevation to ensure the outlook is over Coal Street to the east." 1. Ms McCabe's opinion is that the proposed setback to the western boundary is consistent with the character of two storey developments, and will not result in an unacceptable impact on neighbouring properties. 2. I accept this evidence, and I accept that the proposed setback to the western side boundary is consistent with the character of the locality and with other two storey residential developments. Similarly, I accept that the front setback complies with the controls. I also accept that the encroachments at and below ground level have negligible adverse impact. 3. Whilst the proposal complies with the controls for the front setback contained in Chapter 5 of the KDCP 2012, Chapter 2 of the KDCP 2012 envisages at C12 that Council "may consider varying setbacks and building lines where variance would result in a positive view sharing outcome". I consider the controls regarding view maintenance, and how they relate to the proposal, further below. Overshadowing 1. Mr Bryce, the owner of 37 Jupiter Street, gave evidence of his concerns about the proposal overshadowing his newly constructed dwelling to the west and adjacent to the proposed development. The dwelling is one of two that comprise an attached dual occupancy on the site to the west of the proposal. 2. The shadow diagrams demonstrate that the proposed development would cause some morning overshadowing of 37 Jupiter Street, which will affect the windows on the eastern elevation. Those windows include to two of the bedrooms, the bathroom and the upstairs living room. The Council's position, and Ms McCabe's evidence, is that the overshadowing is not unreasonable. Ms McCabe's evidence is also that, in accordance with the shadow diagrams, the proposal meets the control in the KDCP 2012 that requires at C21 of Chapter 5: "A minimum of 3 hours of direct sunlight is to be retained to north facing living room windows and/or doors and primary private open space of existing development adjoining proposed medium density development. Where this standard is not met by predevelopment conditions, any proposal should not decrease current levels of solar access" 1. The shadow diagrams demonstrate that even on 21 June the proposal causes only minimal overshadowing of the rear building line of 37 Jupiter Street, and therefore of the north facing windows. Similarly, the proposal causes only minimal overshadowing of the private open space to the rear. That overshadowing only occurs before 12noon. Further, I note that on 21 June the proposal will cause only minimal morning overshadowing of the front balcony of 37 Jupiter Street, yet due to the orientation of the balcony to the south and the topography of the land, it is likely to be overshadowed by the built form of 37 Jupiter Street. On that basis, I accept the evidence of Ms McCabe that the overshadowing complies with the KDCP 2012 and is not unreasonable. The overshadowing of the east facing windows in the morning is unfortunate but is not discouraged by the controls. The amenity of residential units 1. C19a, C21 and C22 of the KDCP 2012 each set controls in relation to the amenity of residential units. Unit 2 is a one bedroom unit with a proposed internal floor area of 48m2, which is a shortfall of 2m2 from the minimum apartment size of 50m2 for one bedroom apartments established by C19a. 2. Ms McCabe's evidence is that whilst the proposed unit size would require a slight variation to the minimum apartment size control, it does not compromise the layout or the amenity of the apartment, with the apartment enjoying good access to sunlight. She points out that the unit benefits from an outdoor balcony of 18m2, which provides ample amenity to the unit. 3. C21 and C22 set out the controls for solar access and orientation. All living areas and private open space areas of the 3 residential units are proposed to be oriented predominantly toward the east overlooking the Coal Street frontage of the site and toward the coastal views. Ms McCabe's evidence is that whilst this is contrary to C22 which seeks for apartments to be oriented toward the north, the orientation towards the east is considered preferable and delivers a greater amenity in terms of outlook, views and access to coastal breezes. It also reduces outlook and potential privacy impacts by looking toward the north and north-west being the adjoining residential properties. 4. Her evidence is also that because of the orientation of the balconies, unit 2 receives two hours of sunlight but living rooms of all units and remaining balconies receive 3 hours, meeting solar access requirements. In the Statement of Environmental Effects Ms McCabe makes it clear that the balconies are well sized, and provide good amenity and outlook. Her opinion is that given the preference for orientation towards the east, the amenity afforded by the development is reasonable. 5. I accept the evidence of Ms McCabe, and I accept that the residential units are afforded a reasonable level of amenity with a desirable outlook to the east. View loss 1. At the site view, I attended the dwelling at 37 Jupiter Street adjacent to the site of the proposed development, which forms part of an attached dual occupancy. The dwelling has a north/south orientation, with the primary living area located on the second storey and oriented to the south with highlight windows to the east. Glass doors lead from the living area to the balcony. The balcony presently enjoys views to the coast across the side boundary and road reserve, and has a setback of 5m. The properties to the west are designed in a similar manner, with second storey balconies on the street frontage. Views can also be enjoyed at present from the living area if a person was to stand with their eye level at the highlight windows. 2. Mr Bryce is concerned that he will suffer significant view loss from the dwelling adjacent to the site by reason of the proposed development. Mr Bryce asserts that his dual occupancy development has been designed to enable neighbouring development to the west to retain their views from their balconies to the coast, but that the proposed development has not been so designed. He is concerned that the large blank wall that presents to the boundary between the properties will remove the views from the highlight windows and much of the balcony. 3. On the current proposal, Ms McCabe is of the opinion that, whilst there will be view loss, that view loss is not unreasonable and views will be maintained to the coast from the furthermost point of the balcony. The Council and Mr Albert both say that the view loss is not unreasonable, and Mr Albert submits that Mr Bryce cannot expect to retain views across a side boundary. 4. In response to my invitation for Mr Albert to consider whether there are any design solutions that could be proposed to reduce the potential view loss from 37 Jupiter Street, Mr Albert provided the proposed amended plans which revise the south-west corner on level 1 of the proposal. The amendments pull back part of the bulk of the first floor from the front façade by 2m, creating an additional balcony of 2m depth on the western corner and reducing the size of the internal habitable area of unit 1. The current design, and the design in the proposed amended plans, can be seen at Figures 1 and 2. 1. In support of those plans, Mr Albert also filed a site analysis which demonstrates that the view is to the south and south-east. He also provided a view loss analysis which gives the balcony view from 37 Jupiter Street resulting from the proposed amended plans and compares it to the current proposal, as demonstrated in Figure 3. 1. On the proposed amended plans, Ms McCabe is of the opinion that the amendments achieve a balance between the retention of views for 37 Jupiter Street and the ability to develop 35 Jupiter Street within the scope of the applicable controls. The impact of the current proposal 1. I accept that it is unreasonable to expect views across the side boundary from the highlight windows in the living area to be retained. On the current design of the proposal, however, I cannot accept the parties' position at the hearing that the view loss that will be suffered from the balcony of 37 Jupiter Street is reasonable. The dual occupancy at 37 Jupiter Street has been orientated with both balconies and first floor living areas to the south, so that the balconies of both dwellings take advantage of the easterly aspect over the road reserve and side boundaries toward the coast. Mr Bryce's evidence at the site view was that the houses along Jupiter Street, including his dual occupancy, have been designed so that the adjacent properties retain views to the coast. This is achieved by the topography of the road, which slopes down to the east toward the coast, and by the design of some of the dwellings with front balconies at the first floor so that the bulk of the first floor is set well back from the street. The current design of the proposal is not sympathetic to this design, and the views from the balcony of 37 Jupiter Street will be significantly obstructed by the 4.5m setback of the built form at the first floor, and the architectural features around the first floor balcony that encroach into that setback. The result is that only views to the south-east will be retained, and only when standing within around 0.5-1m of the edge of the balcony. Such an outcome for the proposed development is not acceptable and does not comply with the control to "ensure… that there is no unreasonable loss of existing view lines from existing development" in accordance with C8 of the KDCP 2012. The impact of the design in the proposed amended plans 1. The proposed amended plans present a design that demonstrably increases the views retained from the balcony of 37 Jupiter Street. The view analysis demonstrates that pulling back the first floor at the south west corner allows more of the view corridor from the balcony to the east across the road reserve to be retained. By setting back the bulk of the first floor at the western edge and placing an uncovered balcony within, the design is sympathetic to the design of the dwellings to the west and allows a much greater retention of their views east to the coast. 2. Whilst the current proposal was compliant with the front setback controls, the controls allow for a variation to the setbacks in order to achieve positive view sharing. At C12 of the KDCP 2012, they provide: "C12 Council may consider varying setbacks and building lines where variance would result in a positive view sharing outcomes" 1. The proposed amended plans are largely consistent with C12, in that they vary the building line of the proposal in order to achieve a better view sharing outcome. However, I am of the view that one further change is required to achieve a positive view sharing outcome. The view from the balcony of 37 Jupiter Street remains obstructed by the architectural timber slats around the first floor balcony of bedroom 2 of unit 1 of the proposal, which encroach into the front setback. Those features, which are above, below and in front of the balcony and consist of both horizontal and vertical slats, cause an obstruction to the views, the impact of which varies depending on the location of a person standing on the balcony of 37 Jupiter Street. In my opinion, that obstruction is not a necessary part of the balcony encroachment, and contrary to with C8 of the KDCP 2012 causes unreasonable obstruction to the views. As a result, for the purpose of achieving a positive view sharing outcome, that obstruction should be removed in order to achieve a better outcome for view sharing between 35 and 37 Jupiter Street. The removal that I consider necessary includes the timber slats and other elements above and in front of the balcony but does not include the balustrade or the ground floor canopy. If those additional changes are made to the proposed amended plans, then I accept that the design in the proposed amended plans achieves the best outcome for view sharing, consistent with the provisions of the KDCP 2012. Other resident concerns 1. A number of the residents were of the view that there are alternative locations that would be more suitable for a medical centre, and Mr Bryce submits that therefore the proposal is not in the public interest. However, that there is some other site that would be more suitable for the development is not a basis on which to refuse the development as sought in the present location. Preston CJ makes this clear in Nessdee Pty Limited v Orange City Council [2017] NSWLEC 158 at [81]: "…the mere existence of an alternative site that has capacity to accommodate a proposed development does not make it unreasonable to grant consent to that development at the proposed site. A consent authority's obligation is to consider and determine the development application that has been made for the identified development on the identified land. If development on that land is permissible and acceptable (having regard to all the relevant matters), it should be approved. Development on that land does not become unacceptable because the development could also be carried out acceptably on other land." 1. Mr Bryce also says that the proposed development is out of character with the surrounding development, as it is 3 storeys rather than consistent with the prevailing 2 storey character of the area. Contrary to this, observations at the site view included that there are a number of dwellings in the vicinity that have basement parking and a second storey above the ground floor. Further, the proposed development presents as a two storey development with basement, in keeping with the character of the local area. 2. Mr Bryce also raised concerns about potential noise from the centre in operating hours outside of business hours. However, given the proposed operating hours of the medical centre and the nature of the use as one that does not attract large numbers or generate loud noises, I am not persuaded that there is likely to be an adverse impact on adjoining residents from the noise of the medical centre. In any event, the acoustic impact has been dealt by a proposed condition of development consent limiting the noise from the premises and equipment to 5dB(A) above the background noise level when measured at the boundaries of the site. 3. A number of the residents raised issues regarding the watercourse and related concerns with the excavation of the site for the purpose of constructing the basement. Those concerns include that Mr Albert has not taken into account the cost and effort involved in carrying out that work, given the low notified cost of the development. I am of the view that the cost associated with carrying out that excavation is something that is borne by the person carrying out the development, and is not something I need to consider in determining whether to grant development consent. An amendment to the proposal is required 1. As a result of my findings on the issue of view loss, a further amendment to the design is required. I accept that the site is suitable for the development and that, once the final amendment to the design is made, consent should be granted subject to conditions. The amended design must utilise the proposed amended plans (DA-002 Rev B, DA-102 Rev C, DA-103 Rev D, DA-201 Rev D, DA-202 Rev D, DA-302 Rev D) with an additional change to remove the architectural features above and in front of the balcony of bedroom 2 of unit 1 that encroach into the front setback. The result will be that the only elements that encroach into the front setback from the first floor is the balcony floor and the balustrade (and any element that comprises the ground floor canopy). Once those amended plans are prepared, the parties will need to agree on conditions of consent, which include those contained in exhibits 5 and F. Final orders will then be made in chambers. 2. The Court directs that: 1. The applicant file and serve final amended plans by 24 April 2018 that reflect the findings summarised in paragraph 87 of this judgment. 2. The parties confer and file agreed conditions of consent by 30 April 2018. 3. Exhibit 1 is returned. 4. Liberty to restore is granted on 3 days notice. Addendum made on 1 May 2018 1. In accordance with the terms of directions in paragraph [88] of my judgment of 17 April 2018, the applicant has prepared amended plans and the parties have provided me with the agreed conditions of consent. The amended plans were filed on 23 April 2018 and the conditions of consent were filed on 30 April 2018. I am satisfied that the amended plans respond to my findings and that consent to the application should be granted on the basis that the development be carried out in accordance with those amended plans. Accordingly I make orders in chambers as follows: 1. The appeal is upheld. 2. Development consent (DA 10.2017.1.1) is granted for the construction of a mixed use two storey building comprising a ground floor medical centre and first floor residential units at 35 Jupiter Street, Gerringong, subject to the conditions in Annexure A. __________________ Joanne Gray Commissioner of the Court Annexure A (92.2 KB, pdf) ********** Amendments 02 May 2018 - Addendum added 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: 02 May 2018