Land and Environment Court New South Wales Medium Neutral Citation: Azzi v Sutherland Shire Council [2018] NSWLEC 1655 Hearing dates: 11 – 12 October 2018 Date of orders: 19 December 2018 Decision date: 19 December 2018 Jurisdiction: Class 1 Before: Walsh C Decision: The orders of the Court are: (1) The Applicant is granted leave to amend the development application and to rely on the amended plans referenced at Condition 1 at Annexure A. (2) The appeal is upheld. (3) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Council's costs thrown away as a result of the amendment of the application, as agreed or assessed. (4) Development application DA16/1539, for demolition of existing structures and the construction of three townhouses and two in-ground swimming pools at 6 Holt Road Taren Point is approved subject to the conditions of consent at Annexure A. (5) The exhibits, other than Exhibits 1, 3, 4, 5, 7, B, F and H, are returned. Catchwords: Multi dwelling housing, convenience of basement parking, streetscape, landscape, visual character compatibility, privacy Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Sutherland Shire Local Environmental Plan 2015 Cases Cited: Groeneveld v Wollongong City Council [2009] NSWLEC 149 New Century Development Pty limited v Baulkham Hills Shire Council [2003] NSWLEC 154 S J Connelly Pty Ltd v Ballina Shire Council [2010] NSWLEC 167 Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117 Texts Cited: Sutherland Shire Development Control Plan 2015 Australian/New Zealand Standard AS/NZS 2890.1:2004 - Parking facilities Category: Principal judgment Parties: Rony Azzi (Applicant) Sutherland Shire Council (Respondent) Representation: Solicitors: S Kondilios, Hall and Wilcox Lawyers (Applicant) J Amy, Sutherland Shire Council (Respondent) File Number(s): 2017/306970 Publication restriction: No Judgment 1. COMMISSIONER: This appeal, within Class 1 of the Court's jurisdiction, is made under the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). It is against the refusal by Sutherland Shire Council (Council) of a development application (DA-2017/325) for the demolition of existing structures and construction of three townhouses and associated development at 6 Holt Road Taren Point (site). 2. The application was the subject of a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act). I presided over that conciliation which commenced with the hearing of objections from local residents on site. The conciliation was ultimately terminated as the parties could not come to an agreement. At the commencement of the hearing, the parties consented to the Court considering the resident's objections made on site (at the conciliation) in its determination of the matter. Site and locality 1. I acknowledge the use of Exhibit 1 (Council's Statement of Facts and Contentions) for much of this descriptive material. The site is located near the northern tip of Taren Point peninsula, on the eastern side of Holt Road, approximately 140m south of the intersection of Old Taren Point and Holt Roads. The site is quite rectangular with area of 795.9m2 and a frontage to Holt Rd of 23.36m. The site depth varies between 33.58m and 35.12m. The land slopes approximately 2.7m from east to west (rear to street front). 2. The site accommodates a single storey tiled roof dwelling house with a detached garage and outbuildings. The site currently has two driveway accesses (kerb crossings) located adjacent to each of the side boundaries. 3. Surrounding development in the locality consists of detached dwellings of single and multi-storeys of various sizes and architectural styles. Immediately adjoining the site to the north is a dual occupancy development. To the rear of the site is what would now be defined as a multi dwelling housing development. Adjacent to the southern side boundary is a two storey single detached dwelling. 4. The site is zoned R3 Medium Density Residential under Sutherland Shire Local Environmental Plan 2015 (LEP) and the proposal (itself defined as a multi dwelling housing development) is a permissible development in the zone with development consent. The properties immediately south and east of the site are also zoned R3 Medium Density Residential whilst the properties to the north and west of the site are zoned E4 Environmental Living. 5. For the site and its environs, the LEP's maximum building height control is 9m, and maximum FSR control is 0.7:1. Issues 1. There has been considerable modification to the details of the proposal in the lead-up to the hearing, including as a consequence of conferencing between the experts. This resulted in amended plans being prepared by the applicant in an attempt to narrow the issues in dispute. At the commencement of the hearing leave was sought (and granted) for the use of a set of amended plans which were called Revision F. In the course of the hearing it was indicated that further revisions had been prepared in an attempt to narrow the issues further. Ultimately, leave was granted for the use of Revision G plans. 2. With the Revision G plans, Council's contentions had narrowed to two (somewhat) inter-related issues. The first was in regard to basement parking (in particular the plans for two separate driveways off Holt Road – with Council preferring a single drive). The second was in regard to street frontage landscaping (opportunities for which would be improved by removal of one of the driveways). 3. It needs to be further noted that with the changes incorporated in the Revision G plans (and associated changes to conditions and landscape plans) the expert evidence from both sides found the application satisfactory in regard to each of these two matters. That is to say that the Council did not bring expert evidence forward to support its contention that the proposal (as amended) should be refused. 4. The lay objections (those expressed at on-site on the day of the conciliation conference; and through oral evidence at the start of the hearing) concurred with the two concerns raised by Council (parking/access and landscaping), while also raising additional concerns which might be summarised as follows: proposal not in harmony with local character (height, bulk and boxy form), amenity impacts (overshadowing, visual privacy and noise). For convenience of connections with statutory provisions, I combine these issues under the heading "urban design concerns" in the analysis below. A further concern from immediate neighbours was the risk of damage to property as a result of excavation works, including in regard to the proposed basement parking and pools. 5. I will now consider these issues, commencing with the concerns raised by Council. Access and parking arrangements 1. For context purposes, I note proposed Townhouse 1 (TH01), the northernmost unit, would have its own driveway access, basement parking, car turntable, as well as stairs and lift to the residence above. That is, these facilities would be entirely separated from the other two townhouses. Moving from north to south, Townhouses 2 and 3 (TH02 and TH03) would share a driveway access (near the site's southern boundary). TH02 has stairs, only (in Version G plans), up to the residence above, while TH03 would have stairs and a lift. 2. The Council's Amended Statement of Facts and Contentions (Exhibit 1) indicates: "The proposal technically now complies with the (Australian Standard) and provides the required parking, vehicular access and manoeuvrability throughout the site. However, the isolation of the parking for TH01 results in two driveways which creates an inefficient and impractical stacked parking layout and an undesirable outcome for the future owners of TH02." 1. Exhibit 1 indicates Council's preference for a redesign wherein a single shared driveway to basement parking would be provided: "This will also enable vehicles to enter and exit in a forward direction as well as providing additional landscaping opportunities, creating a better streetscape appearance, minimising retaining walls and structures." 1. This change was also seen to help address suggested problems with turning manoeuvres, and visibility entering and exiting from TH02 especially. 2. Council relied on Sutherland Shire Development Control Plan 2015 (DCP) chs 5 and 36 as presenting the policy provisions in regard to this issue. Chapter 5.7 is concerned with parking for multi dwelling development and its objectives include: "... 3. Ensure development can provide vehicle manoeuvring and safe entry and exit. 4. Ensure vehicular access routes and parking areas are easily accessible and visible to motorists and pedestrians. 5. Ensure vehicle access, garages, carports and parking areas do not visually dominate either the development or the streetscape. 6. Minimise reliance on on-street parking." 1. The DCP controls (ch 5.7.2.10) require one single driveway per frontage, with provisions that if a variation to that control is proposed there is a need to satisfy Council of the following: "a. each access driveway provides safe access, and b. the availability of on street car parking is not diminished, particularly where on street car parking demand is high; and c. access facilitates retention of existing street trees, rock outcrops or natural features where they occur; and d. site design facilitates greater resident amenity and solar access, and e. development is consistent with the spatial and landscape qualities of the streetscape - in this regard wider lots are appropriate; and f. car parking and garages do not dominate the streetscape." 1. Chapter 36.2 of the DCP is concerned with the design of parking areas. Its objectives include: "1. Provide safe and easy access to and from the site for all vehicles and active transport modes. 2. Minimise pedestrian and vehicle conflicts. 3. Ensure access where pedestrians and/ or drivers may have a disability or mobility constraint (e.g., accompanied by young children). 4. Provide adequate turning areas for manoeuvring into and out of car parking spaces and/or garages. 5. Ensure minimal disruption of vehicles on public roads." 1. Objectors also raised concern about the potential for future occupants to prefer on-street parking where the basement parking was seen as difficult, and that parking was at a premium on the street. A further concern was raised in regard to local traffic safety, with movements out of the driveways, including potential reversing out, and the sight distances which were available for traffic given the curving nature of Holt Road in the site vicinity. Expert Evidence 1. The experts providing evidence relating to access and parking were Mr B Chen (for the applicant) and Mr G Rayner (for Council). 2. Briefly, Council's position in regard to the basement parking alone (ie setting aside landscape implications) was centrally that its DCP provisions make clear that it is looking for "easy" access to parking for new development. What are seen as the difficult turning movements, especially for TH02, mean this requirement is not met. It would be reasonable to think that if parking in the basement is not "easy", then residents might be more inclined to park on the street, increasing a current problem regarding parking availability. 3. However, and based on agreed amendments to the plans which addressed this question of the ease of parking for TH02, Council's expert evidence was that parking for the proposal is now satisfactory. The Revision G plans and subsequent agreed conditions removed a previously proposed lift from the TH02 parking area and provided for changes to the stairwell location. Turning paths were prepared which satisfied Council's expert that an appropriate degree of "ease" was available to those parking in TH02. The evidence on both sides was agreed that the proposal had already met the relevant requirements of Australian/New Zealand Standard AS/NZS 2890.1:2004 - Parking facilities, in regard to parking manoeuvrability. 4. In regard to the DCP, it is noteworthy that the proposal has more than "one single driveway access per frontage" (see DCP ch 5.7.2.10 referenced above). Mr Kondilios for the applicant provided evidence of a number of development approvals by Sutherland Council where more than one driveway access was provided per frontage (Exhibit G). Council's submission in response was that these approvals related to dual occupancy developments (rather than Multi Dwellings to which different controls applied). 5. In evidence, the exclusionary provisions at DCP ch 5.7.2.10 were examined (see [18]). Relevantly here, the expert evidence was that the access as proposed was safe, with Council's expert satisfied in regard to Holt Road sight distances. It was also agreed that that there were already two driveways available to the site, with the changes to the driveway detailing as now proposed of no consequence. The availability and now satisfactory ease of use of on-site parking was not seen to place unreasonable pressure on on-street parking. 6. Still on the exclusionary provisions at DCP ch 5.7.2.10, there was a difference in regard to subcl (d) or the question of residential amenity effects of the dual driveway arrangements. Ms Amy of Council submitted that it was the ambition of achieving a "private want" for the future occupant of TH01 (through provision of private car access arrangement for that resident) that would directly cause the decreased amenity to local residents (in particular through reduced landscaping opportunity when compared to a proposal which had a single driveway only). Mr Kondilios responded with the submission that subcl (d) of ch 5.7.2.10 of the DCP could also be reasonably construed as requiring attention to the additional amenity benefits provided to the future resident of TH01 through this provision of the private car access. 7. The expert parking and access evidence is one way. I have considered this evidence in the context of the applicable policy. I conclude that I am satisfied with the access and parking arrangements as now proposed. 8. Other provisions of ch 5.7.2.10 of the DCP, in regard to residential amenity (subcl (d)), are better addressed below where evidence of planners and streetscape presentation factors are considered. . Urban design concerns 1. I wrap the rest of the issues under the broad heading urban design concerns to assist me to link the LEP-related provisions which need to be taken into consideration in this part of the evaluation. Here in particular I note the R3 Medium Density Residential zone objectives, relevantly: • 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 encourage the supply of housing that meets the needs of the Sutherland Shire's population, particularly housing for older people and people with a disability. • To promote a high standard of urban design and residential amenity in a high quality landscape setting that is compatible with natural features. • To allow development that is of a scale and nature that provides an appropriate transition to adjoining land uses. 1. Clause 6.16 and 6.17 of the LEP include particular provisions relating to urban design. I reproduce each below: 6.16 Urban design—general (1) In deciding whether to grant development consent for any development, the consent authority must consider the following: (a) the extent to which high quality design and development outcomes for the urban environment of Sutherland Shire have been attained, or will be attained, by the development, (b) the extent to which any buildings are designed and will be constructed to: (i) strengthen, enhance or integrate into the existing character of distinctive locations, neighbourhoods and streetscapes, and (ii) contribute to the desired future character of the locality concerned, (c) the extent to which recognition has been given to the public domain in the design of the development and the extent to which that design will facilitate improvements to the public domain, (d) the extent to which the natural environment will be retained or enhanced by the development, (e) the extent to which the development will respond to the natural landform of the site of the development, (f) the extent to which the development will preserve, enhance or reinforce specific areas of high visual quality, ridgelines and landmark locations, including gateways, nodes, views and vistas, (g) the principles for minimising crime risk set out in Part B of the Crime Prevention Guidelines and the extent to which the design of the proposed development applies those principles. ... and 6.17 Urban design—residential accommodation In deciding whether to grant development consent for development for the purposes of residential accommodation the consent authority must consider the following: (a) the extent to which recognition has been given in the design of the development to the needs of the diverse and changing population of Sutherland Shire, (b) the extent to which any adverse impacts of the development on adjoining land and open space, in terms of overshadowing, overlooking, views, privacy and visual intrusion, will be minimised, (c) the extent to which the quality of the streetscape concerned will be improved by the development, (d) the extent to which there will be private open space of a sufficient area and dimensions to enable proposed and required activities, (e) the extent to which any adverse impacts of the development on adjoining land, in terms of size, bulk, height, scale and siting, will be minimised, (f) the extent to which the residential accommodation concerned integrates with a well-designed landscaped setting, (g) any opportunities for the provision of affordable housing. 1. The direct references to the promotion of a high standard of urban design, residential amenity and landscaping (both generally and in regard to the streetscape) in the LEP; both in zone objectives and at the provisions at cll 6.16 and 6.17 are noted. 2. I also mention here the experts providing evidence in regard to the remaining issues were Mr J Mead (for the applicant) and Ms D Pinfold (for Council). Landscape and streetscape 1. Council's concern here was principally that the proposed dual driveway arrangement would not result in sufficient landscape within the front setback. A consideration here was what was seen as a missed opportunity to provide a better transition to the E4 zoned areas. 2. The Revision G plans, included: (1) relocation of the driveways to positions closer to the side boundaries (which meant a larger central area was available for landscaping), and (2) notable improvements to front landscaping (including provision of an additional tree), something now more practical as a consequence of the above. 3. According to Council's planning expert this additional landscaping would result in the development providing, on balance, for an appropriate streetscape outcome. In taking this "on balance" position Council's planning expert specifically acknowledged the position in regard to access and parking arrangements. That is, that the relevant experts had come to an agreement that access and parking was satisfactory with the Revision G plans. Character compatibility 1. The resident objectors raised concern about the "boxy" appearance of the proposal and that this form was incongruent and incompatible with the local setting, in particular given the zone boundary interface. This concern was raised not only in regard to the neighbourhood level (and this "lovely" street setting experienced by locals at present), but also in regard to the appearance of this residential area from the water. 2. The proposal's flat roof form does present as more of a rectangular form than does the existing dwelling on site and many of the other dwellings in the street with their angular roof structures. The experts provided an explanation for this change referring to a change in the approach to controlling building height with the 2015 LEP, which does not differentiate between roof and ceiling height controls. It was indicated that new development in the area was commonly adopting the approach adopted with the subject proposal, including flat roof forms. The suggestion in the expert evidence is that this development form should be seen as "anticipated", or as coming about as a result of the applicable planning controls. 3. The further expert evidence was that the massing of a number of nearby buildings was already of similar form to the subject proposal; with 23 Holt Road, directly across the road (and within the E4 zone), nominated as an example. Relatively high proportions of hardstand and lack of prominent landscaping was also suggested as locally characteristic at present. Amenity 1. The resident objectors also raised concern about overshadowing, visual privacy and noise. 2. The expert analysis of the drawings prior to the hearing had not resulted in perceptions of adverse impact in regard to the overshadowing of neighbouring properties. Concerns had been raised in regard to solar access to units within the development. This contention was addressed through the Revision G plans and the reduced size of upper storey rooms. 3. The issue of visual overlooking and privacy to immediate neighbours was examined in the evidence and I am satisfied that this is adequately addressed through privacy screens at the balconies, proposed obscured glazing, or high sills for critical windows and through privacy planting in the rear yards. In regard to proposed front balconies and potential impacts across the road to bedroom windows at 23 Holt Road (as raised by an objector), I do not see the proposal as bringing unreasonable privacy impacts given the distance mitigation factor (suggested in evidence as over 30m). 4. In regard to acoustic privacy, I note this was not a concern evident from expert evidence. I find that it would be unreasonable to conclude other than this proposal would bring similar acoustic privacy levels that might be expected, generally, in residential settings of this kind. Excavation 1. Immediate neighbours raised concerns in regard to the required excavation (including in regard to basement parking and pools) and the potential for future property damage. When I asked the experts to respond to this question they referenced the compliant side boundary setbacks (1.5m). I also note proposed Condition 18 requires dilapidation reports be prepared for the adjoining properties (side and rear boundaries). Conclusion 1. I acknowledge Ms Amy's reference in her final submissions to the Court's planning principle on development at zone interfaces in Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117 (Seaside). One of the points in Seaside, at [25], is that in locations at the interface between zones "any development proposal in one zone needs to recognise and take into account the form of existing development and/or development likely to occur in an adjoining different zone", and that: "… in considering the likely future character of development on the other side of the (zone) interface it may be that the development of sites such as this may not be able to achieve the full potential otherwise indicated by applicable development standards and the like." The point being made was that the subject proposal was both: (1) at the zone interface and, (2) essentially, right at the maximum FSR and height controls in the LEP and maximum hard surface control applied in the DCP (ch 5.4). That is the proposal seemed to be achieving the full development potential despite being at the zone interface. 1. Ms Amy also referenced the local residents as "experts in this street", and their evidence of the incompatibility of the proposal in the street, as currently proposed (ie while maximising development potential here at the zone interface), should hold significant weight. 2. I do take account of the lay evidence from objectors, but also note the findings of New Century Development Pty limited v Baulkham Hills Shire Council [2003] NSWLEC 154. In particular at [61] – [62], Lloyd J cautions about the weight which might be given to lay evidence in instances where there is a lack of availability of objective measures for this evidence to be tested. 3. Based on the expert evidence before the Court, which does run through the objective policy measures which are applicable, I find that the proposal is generally well aligned with the objectives of the R3 Medium Density Residential zone. 4. As indicated above, I am satisfied with the agreed expert evidence that the proposal is satisfactory in regard to access and parking. 5. Mindful of the provisions at cll 6.16 and 6.17 of the LEP, and again having regard to the evidence, I am also satisfied that the proposal will make a positive contribution to the streetscape in its setting, as a consequence of: (1) the building form which suggests considerable visual articulation to break up the massing; and (2) the landscape design (included the particulars contained at agreed Condition 13) which suggests a superior final presentation to the street in landscape terms than the majority of nearby properties. Given the above, I am also satisfied that the visual amenity aspects of the control at ch 5.7.2.10 of the DCP (concerning driveways per frontage) are addressed. 6. Having heard the evidence and reviewed the Version G plans, based on the analysis above I also take the view that the proposal does not bring unreasonable amenity impacts for the adjacent properties. Considering payment of costs thrown away as a result of the amendments 1. Upon the determination that the Court would grant leave for the applicant to rely on amended plans, the Council sought orders for the payment of costs thrown away as a result of the amendments. The applicant did not agree that a costs order should be made. 2. Section 8.15(3) of the Act makes provisions in regard to costs of this kind: If the Court on an appeal by an applicant under this Division allows the applicant to file an amended application for development consent (other than to make a minor amendment), the Court must make an order for the payment by the applicant of those costs of the consent authority that have been thrown away as a result of the amendment of the application for development consent. ... 1. Ms Amy submitted that the amendments were not minor and had occupied considerable time by experts. Mention was made that revisions had been worked on by experts since "middle of September" (with plan sets varying from Revision C through to Revision G), with Council spending considerable time and money in responding. Mr Kondilios submitted that the changes were minor and didn't require significant re-assessment by experts in joint conferencing. 2. The following points can be made in regard to this contested issue: * Section 8.15(3) of the Act requires costs to be ordered other than in instances of a "minor amendment". That is, to say there is no discretion available to the Court here. * The statute does not define the term "minor" and the onus is on the applicant to show that the amendments are minor (S J Connelly Pty Ltd v Ballina Shire Council [2010] NSWLEC 167 [5-6]. 1. In Groeneveld v Wollongong City Council [2009] NSWLEC 149 at [29] – [32] two factors are raised by the Preston CJ to assist in determining whether the amendments in this case are minor or not. The first factor is concerned with contextual significance. Contextually, it is clear to me that the amendments went beyond "matters of detail" and were of considerable significance in the context of the proposal. The amendments were central to the two critical questions of whether or not the proposal was satisfactory, and met relevant LEP and DCP requirements, in regard to access and parking; and in regard to streetscape presentation and landscape; among other matters concerned with residential amenity. 2. The second factor is concerned with the substance of the re-assessment which was required. It is clear to me that the amendments required significant re-assessment of these issues of parking/access and streetscape and landscape presentation in particular, with this re-assessment involving some degree of complexity. Other changes to points of detail including in regard to solar access also involved re-assessment. 3. It seems to me that the amendments were both of significance in the context of the proposal and warranted considerable re-assessment. For these reasons, these amendments are not able to be classified as minor, and in that case there is no discretion and an appropriate order as to costs thrown away by the Council is required. Orders 1. The orders of the Court are: 1. The Applicant is granted leave to amend the development application and to rely on the amended plans referenced at Condition 1 at Annexure A. 2. The appeal is upheld. 3. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Council's costs thrown away as a result of the amendment of the application, as agreed or assessed. 4. Development application DA16/1539, for demolition of existing structures and the construction of three townhouses and two in-ground swimming pools at 6 Holt Road Taren Point is approved subject to the conditions of consent at Annexure A. 5. The exhibits, other than Exhibits 1, 3, 4, 5, 7, B, F and H, are returned. ____________ P Walsh Commissioner of the Court Annexure A (359 KB, pdf) Plans (7.72 MB, pdf) 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: 19 December 2018