Archiworks Architects v Ryde City Council

Zhang v Canterbury City Council [2001] 115 LGERA ; Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 ; CASES CITED: Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46; Aldi Foods Pty Limited v Holroyd City Council [2004] NSWLEC 253

APPLICANT Mr P Clay, barrister SOLICITORS - LEGAL REPRESENTATIVES: RESPONDENT Mr C Leggat, barrister SOLICITORS Pike, Pike and Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10269 of 2005 Archiworks Architects Pty Limited v Ryde City Council

JUDGMENT Introduction 1 This is an appeal against the refusal by Ryde City Council (the council) of Development Application LDA 757/2004 for the erection of a part 1-storey and part 2-storey retail and commercial building with basement car parking at 297 - 307 Victoria Rd., Gladesville (the site).

2 I record that and inspection of the site was undertaken on the morning of the hearing with representatives from both parties. The owner of three units within an adjoining residential flat building provided her evidence at the site view.

3 For the reasons set out in the judgement I have concluded that the appeal should be upheld and development consent granted subject to conditions. The site 4 The site is generally rectangular with a frontage of approximately 53 metres to Victoria Rd and 32.5 metres to Stansell St, giving a total site area of 1979 square metres. It falls approximately 2.3 metres from the south eastern corner to the north western corner adjacent to Victoria Rd.

5 The site was previously occupied by a service station but has since been cleared of all buildings, structures and vegetation.

6 The site is located to the north of Gladesville town centre and is more specifically identified as North Gladesville. Generally the surrounding area is characterised by linear retail/commercial/industrial development along both sides of Victoria Rd with residential properties located behind. The proposal 7 The proposal provides for the erection of a part-1 storey and part-2 storey retail and commercial building with basement car parking. The ground floor and retail component of development will comprise a floor area of 1350 square metres. The application seeks consent for the use of this area as a carpet store operating from 7 a.m. to 7 p.m. weekdays and 8 a.m. to 4 p.m. on weekends.

8 The first floor commercial component of the development will comprise a floor area of 475 square metres with external balconies fronting Victoria Rd and Stansell St and a roof terrace of approximately 500 square metres at the rear. The office space will be capable of being divided into a number of tenancies.

9 Access to the basement car parking and loading facilities is along the eastern boundary of the site. The basement provides for three levels of parking with 77 marked spaces and loading /unloading and turning areas. Relevant planning controls 10 The site is zoned Business 3(c1) - Business Automotive under the Ryde Planning Scheme Ordnance (the Ordnance). The proposed use is permissible within this zone as a purpose specifically identified in Schedule 10. Clause 51(2) provides for a maximum floor space ratio (FSR) of 1.0:1 for this zone. The Ordinance provides no other relevant development standards.

11 Development Control Plan 6 - Retailing within the Business Automotive Zone (DCP 6) also applies and provides objectives and land use requirements.

12 Development Control Plan 29A - Car Parking (DCP 29A) also applies and provides parking requirements for specific land uses.

13 The Draft Gladesville Master Plan (the Master Plan) seeks to provide strategies to accommodate future growth in the Gladesville Town Centre and along Victoria Rd. It is a relevant document as the site falls within the area of the Master Plan. The issues 14 The council filed an Amended Statement of Issues containing 23 separate issues. These can be conveniently grouped into the following main areas: 1) whether the requirements in DCP 6, relating to the availability of other land are satisfied (Issue 1), 2) whether the proposed development exceeds the permitted FSR, and if so, whether the SEPP 1 objection is well founded (Issue 2, 3, 15), 3) what weight should be given to the Master Plan and whether the proposed development will likely prejudice the implementation of the Master Plan (Issues 4, 5, 6, 7, 8, 9, 16, and 17) 4) whether the proposed development will impact on the amenity of neighbouring residents (Issues 10, 11, 12, 13, 14, 19 and 23). 15 The council accepted that vehicular access (Issue 18) and waste management (Issue 22) could be addressed by conditions of consent. Energy efficiency (Issue 20) was not pressed by the council following the submission of further information. I accept that the sizing of the on-site detention tank and orifice plate (Issue 21) can be suitably addressed as a condition of consent. The evidence 16 The parties agreed to the appointment of Mr Neil Kennan as the Court appointed town planning expert and Mr Graham Pindar as the Court appointed traffic expert.

17 Mr Barry Murray and Mr Howard Gwatkin, both acoustic experts provided a joint statement.

18 Additional evidence was provided by Ms Sue Weatherley, the Group Manager Environmental Planning with the council, Mr Andrew Nixey a senior town planner with the council and Mr Peter Annand, a consultant town planner.

19 Mrs Farmer, the owner of three units in the adjoining residential flat building provided evidence on site. Availability of other land 20 Clause 6(2) of DCP provides: (2) Council will not consent to the carrying out of development permitted by subclause (1) unless the Council is satisfied that: (a) suitable land for development is not available with any nearby Business General Zone; and 21 Mr Leggat, the council's advocate submitted that the applicant has failed to provide sufficient evidence to enable the Court to make the required finding in cl 6(2)(a). He cites Zhang v Canterbury City Council [2001] 115 LGERA where it states that the DCP must be treated as a "fundamental element" in the decision-making process. Mr Leggat submits that the appeal should be dismissed for non-compliance with this requirement.

22 Mr Clay, the applicants advocate rejects the submission and relies on the of evidence of Mr Kennan who indicates that he was unaware of any suitable nearby land for the proposed use in the City of Ryde and within the Business General zone. 23 The role of a DCP is set out in some detail in Zhang and Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 however I am not convinced that these authorities support Mr Leggat's submission that the application should be refused. Even though Mr Kennan's evidence was based solely on his observations of the area, the council provided no evidence to refute these observations. Additionally, the Court was not taken to any site on the view that would contradict Mr Kennan's evidence.

24 Consequently I accept Mr Kennan's evidence that there is no suitable land for the proposed development in any nearby General Business zone. Floor space ratio 25 Clause 51(2) of the Ordnance provides that the FSR of the proposed development shall not exceed 1.0 : 1. Mr Pindar calculates that 48 car parking spaces are required for the ground floor carpet use based on 1 space/ 25 square metres from DCP 29A for a retail area of 1196.72 square metres. Mr Pindar further calculates that 15 car parking spaces are required for the commercial area of 429.4 square metres from DCP 29A based on the rate of 1 space/30 square metres. This provides for a total of 63 spaces.

26 He notes that 77 car parking spaces are shown on the application plans and he states that the surplus of 14 spaces should be either deleted or physically secured and made unavailable for use. In the event that this is not done, the additional area occupied by the surplus car spaces should be considered as floor space.

27 He further states that the layout of car parking within the basement levels is generous and contains extensive areas that could potentially be used for additional parking. He calculates the theoretical capacity of the basement car park at 104 spaces. If the surplus 41 spaces are physically secured and rendered unavailable, the area occupied by these spaces should not be seen as floor space and form part of the calculation of FSR.

28 He suggests that the surplus spaces should be regarded as a dormant investment (at the applicants commercial risk) which would only become available in the event that a new development application were to be made in the future that required additional parking. This would be subject to council's assessment of any subsequent development application and would likely be related to the redevelopment of the site under the Master Plan. He notes this provides for a much larger development, incorporating residential units up to 5 storeys. 29 Mr Nixey disagrees with the Mr Pindar's approach and states that the area occupied by the surplus car parking spaces should be counted as floor space, notwithstanding that the spaces can be physically secured and rendered unavailable for use. The inclusion of the spaces as floor area would result in an FSR of 1.22:1 for the proposal.

30 In balancing the differing views of Mr Nixey and Mr Pindar, I am more persuaded by Mr Pindar's practical approach. There is some merit in the applicant's approach of providing additional parking at this time when it can be constructed with less cost and in a more efficient manner than at a later time when additional basement levels would need to be provided. Notwithstanding the obvious benefits to the applicant, the provision of the additional parking is a commercial risk that the applicant is willing to take. I accept that the restriction on the number of parking spaces, as suggested by Mr Pindar can be appropriately addressed through a condition of consent. In the event that the additional spaces are not required in the future the condition restricting their use can be maintained. 31 If I am incorrect in the conclusion that the FSR requirement is not exceeded through the unavailability of the surplus car parking spaces, I will consider the SEPP 1 objection lodged by the applicant.

32 The appropriate manner of dealing with a SEPP 1 objection is found in the judgment of Lloyd J in Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46, at par 26, where a number of questions are posed. The first question asks whether the subject planning control is a development standard. In this regard there was no dispute that the answer to this question was yes.

33 The second question asks what is the underlying object or purpose of the standard. While the Ordnance does not provide specific objectives for the development standard, Mr Kennan states that the objective is to control the visual bulk and scale of a building and to control the intensity of use of a development. Mr Nixey agrees with Mr Kennan on the intensity of use objective however adds further objectives relating to parking and traffic impacts, limiting the distribution of office and retail space along this part of Victoria Road and ensuring that the scale of development in the automotive zone is secondary to a mainstream business zone.

34 The third question asks whether compliance with the development standard is consistent with the aims of SEPP 1. The aims state: 3. This policy provides flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable and unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act. 35 This question also asks does compliance with the development standard tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EPA Act. These objects state: 5.The objects of this Act are: (a) to encourage - (i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment; (ii) the promotion and coordination of the orderly and economic use and development of land. 36 The fourth question asks whether compliance with the development standard is unreasonable or unnecessary in the circumstances of case. The fifth, and final question asks whether the objection is well founded.

37 Mr Kennan states that the additional floor space in basement area is created by the applicants desire to plan for future development envisaged by the Master Plan. As the additional floor space is contained below ground level, there will be no increase in visual bulk or scale of the built form. Additionally, and as the parking created by the additional floor space is not to be made available to the current proposal there can no argument that the intensity of the proposed use will increased. For these reasons, the objectives of the development standard are not offended by the proposed development and it would be unreasonable and unnecessary to require strict compliance with the development standard in this instance. On this basis, the SEPP 1 objection is well founded.

38 Mr Nixey takes a different view. He rejects the approach of the applicant and states that while the excess spaces are located in the basement, the non-compliant FSR is a result of the overall form of the proposed development. Additionally he considers that by permitting a non-compliant speculative development on the basis that it will potentially save the developer money is inconsistent with the relevant sections of the EPA Act. There is no way to know exactly what planning controls will govern development of the site in the future or subsequently what form or size of development may ultimately be achieved on-site. Considering the matters, Mr Nixey concludes that the applicant has not demonstrated that compliance with the development standard is unreasonable or unnecessary in this instance and that the SEPP 1 objection should not be supported. 39 In balancing the different views of Mr Kennan and Mr Nixey. I have little trouble in agreeing with Mr Kennan. The additional floor space created by the surplus parking has no affect on the bulk and scale of the proposed building. A condition restricting the proposed use to 63 car parking spaces can be readily achieved and would suitably address the objective relating to intensity of use (see condition 56). The risk in creating the additional spaces rests solely on the applicant. The council is in a position to limit the use of the car parking with any use of the site irrespective of what may happen to the Master plan in the future. In my view, strict compliance with the development standard would tend to hinder the attainment of the objects specified in s 5(a)(I) and (ii) of the EPA Act, particularly relating to the promotion and coordination of the orderly and economic use and development of land.

40 I find that strict compliance with the development standard in this instance is unreasonable and unnecessary and that the SEPP 1 objection is well founded. The Master Plan Status 41 Ms Weatherley provided evidence on the status of the Master Plan. She stated that in 1995 the council resolved to prepare an LEP in conjunction with Hunters Hill Council for the Gladesville shopping area. The planning study titled the Gladesville Shopping Centre Environmental Enhancement Plan (the Enhancement Plan) to support this resolution did not commence until the 1998/1999 financial year. In addition to consultation during its preparation, the Enhancement Plan was placed on public exhibition and information sessions were conducted with relevant persons and groups. It was adopted by the council on 21 March 2000.

42 A key outcome of the Enhancement Plan was to amend councils planning controls to ensure consistent planning controls for the centre. The Enhancement Plan was the precursor to the Master Plan and was to be undertaken in conjunction with Hunters Hill Council. The process commenced in 2003 and involved consultation with relevant stakeholders but no public exhibition.

43 The Master Plan was the subject of a workshop with the council on 6 July 2005 with a report to the council on 2 August 2005. Ms Weatherley anticipated that the council would adopt the Master Plan in the form considered at the workshop. The Master Plan would then be publicly exhibited over August and September 2005 and potentially adopted in October 2005. The LEP and DCP would follow the adoption of the Master Plan and would potentially be exhibited by December 2005. Ms Weatherley was confident that the LEP would be gazetted in July/August 2006. Relevant provisions 44 The site is within the North Gladesville precinct. One of the aims of the Master Plan is to ensure that there is a clear break in the character between the Town Centre and the smaller retail area around Monash Road. The Master Plan describes the future of this precinct as: …change this area into a lushy planted residential address transforming the image of Victoria Road into a great street, which redirects commercial investment into the Town Centre where it is needed 45 The Master Plan specifically recommends residential development with a 5-storey height limit for sites that provides a meaningful public benefit, such as a rear lane way to provide access to the site and other sites. In this case, the purpose of the rear lane access is to provide safe access and to assist in making the frontage to Victoria Road more pedestrian friendly by allowing street trees and removing vehicle crossings. 46 The goals for the North Gladesville precinct are: + transform Victoria Road from a bland commercial strip into a memorable green boulevard over time, + improve the development potential of land and increasing real estate value by replacing strip format with better quality development, + direct commercial and retail investment back into the Gladesville Town Centre, by targeting residential development as the preferred development type, + improve gateways into existing residential neighbourhoods, and long-term preservation of the amenity of those neighbourhoods in all respects. Planning principles - Master Plan 47 Aldi Foods Pty Limited v Holroyd City Council [2004] NSWLEC 253 establishes planning principles for a Master Plan. These state that regard should be given to the following matters:- The quality of the Master Plan. Is it based on sound planning and urban design principles? Will it lead to a better outcome for the environment and the local community? The public exposure that the Master Plan has received. Have the relevant landowners, stakeholders and the wider community been consulted? The time frame for and likelihood of implementing the Master Plan . How long will implementation take? Is it likely that it can be implemented? The impact of the Master Plan on the development potential of the site. Does the Master Plan unreasonably delay the development of the site? The extent of inconsistency between the proposal and the Master Plan. Would approval of the proposal frustrate the implementation of the Master Plan? The evidence 48 Mr Kennan addresses the Master Plan through the planning principles established in Aldi Foods. He describes the Master Plan as an incomplete document with strategic planning options that are not based on sound urban design principles. He questions the proposal to remove retail and commercial development from the precinct and replace it with predominantly residential development because of the frontage to Victoria Road, its high volume of traffic and consequent potential amenity impacts.

49 He notes that the Master Plan has yet to be the publicly advertised and having regard to the strategic planning process that needs to be undertaken for a LEP and DCP, is of the view that the implementation of the Master Plan will, at best, the several years away. For this reason, he concludes that limited weight should be given to the Master Plan in the determination of this appeal, as it will unreasonably delay the development of the site.

50 In relation to the extent of inconsistency between the proposal and the Master Plan, Mr Kennan reiterates his concerns that residential development is an unsuitable land use for a site with a frontage to Victoria Road although he accepts that residential development could potentially be located above or at the rear of the retail and commercial development. He states that the proposed rear access to the development could be amended in the future to accommodate access to the rear of adjoining lands and as such the integrity of this part of the Master Plan would not be compromised by the proposed development. 51 Ms Weatherley states that the development is not consistent with the future form development of 3 to 5 storeys of residential development. As an interim form of development, it is not likely to lead to future residential development, as the ground floor layout is not consistent with this form. It is likely that the ground floor will always be used for larger footprint retail activities.

52 She further states that the proposal will prevent a significant component of the Master Plan being achieved. This includes future land use and enhancing to the amenity of Victoria Road. The building is proposed to the built to the front boundary and there is no provision for the rear lane way.

53 Mr Annand, who is the author of the Master Plan, agrees with the comments of Ms Weatherley. He states that proposed development does not represent the optimum form of development. The underground parking structure provides a very inefficient parking system for any future residential use that may be approved. In his opinion, the proposal will prejudice the Master Plan by: + preventing the construction of a rear lane way, + preventing the deep soil planting associated with a 5 metre setback along Victoria Road and + failing to qualify for height and floor space bonuses proposed to encourage residential development in this part of Victoria Road.

Findings The quality of the Master Plan. 54 I am not convinced that the Master Plan is not based on sound urban design principles or that it will not lead to a better outcome for the environment and the local community. In an optimal situation, Mr Kennan's evidence about of the unsuitability of residential development along a main arterial road has some merit. However it is not always possible or practicable to plan for this eventuality. Even though the use of residential development along the Victoria Road frontage raises issues such as noise and amenity for future residents, it is consistent with the overall philosophy of encouraging retail development into the Gladesville town centre. Clearly, future designs of residential development will need to carefully address the constraints of locating on Victoria Road. These are not insurmountable if the existence of other shop-top housing along other major roads is any guide.

The public exposure that the Master Plan has received. 55 The undisputed evidence is that the Master Plan has not been advertised to the general public although the preparation of the Master Plan has involved input from stakeholders as has the earlier Enhancement Plan The time frame for and likelihood of implementing the Master Plan . 56 There was disagreement between Ms Weatherley and Mr Kennan on the likely time to have an LEP and DCP in place. Ms Weatherley suggests that an LEP and DCP could be in place in approximately 12 months. Mr Kennan suggests a longer time frame based on his dealings with the Department of Infrastructure Planning and Natural Resources (DIPNR). In accepting that it is likely that the Master Plan will ultimately form the basis of an LEP and DCP, the timeline adopted by Ms Weatherley must be must be seen as optimistic, at best, based on the progress to date. Additionally, and in the absence of any general public exhibition it is difficult to conclude that the Master Plan will be adopted in its current form.

The impact of the Master Plan on the development potential of the site. 57 Based on the relative infancy of the Master Plan any delay to allow the progression of the Master Plan would be unreasonable.

The extent of inconsistency between the proposal and the Master Plan. 58 Having found that the Master Plan is still in its early stages of development there are two significant elements of the Master Plan that were addressed by the applicant in the design of the proposed building prior to the hearing and during the hearing.

59 Firstly, the Master Plan seeks to "transform Victoria Road from a bland commercial strip into a memorable green boulevard over time". This is achieved, in part, by a 5 metre setback to Victoria Ave to create a formal landscape setting organised as a double row of trees. While the proposed development does not provide the 5 metre setback at ground level, amendments were made to the first basement level to setback the wall along the Victoria Road frontage by 5 metres. With any redevelopment of the site in the future, the basement level will now provide sufficient soil depth for the planting required by the Master Plan along Victoria Road without the need to modify the basement car parking level.

60 Secondly, the Master Plan seeks the dedication of a rear lane for access to the site and adjoining sites in return for increased development rights in the form of two additional floors of residential development. The applicant proposes that the access can still be achieved although not at grade. 61 Mr Annand identified three specific aims for the rear lane access. These are: + to provide individual site access rather than access from Victoria Road, + to provide garbage collection services with as little as on-site inconvenience as possible, and + to provide a capacity for loop circulation for vehicles. 62 I accept that the aims of the rear access lane can still be achieved through the extension of the ramp to the basement car park. Access to the site and adjoining properties can be obtained by extending the ramp along the rear boundary but rather than being at grade, as proposed by the Master Plan, the access will be one level below ground. While opposed by the council experts, I agree with Mr Kennan that this does not overly prejudice the Master Plan. On this basis, I see no reason why this access arrangement should prejudice the bonus floor space provisions in the Master Plan.

63 It would seem that it if the area is to redeveloped for residential flat buildings up to five storeys in height, then parking for a development of this density car parking would need to be in basement levels. Access to basement car parking would be more convenient and less disruptive to the design of a building if access were obtained by extending the proposed ramp below ground level. I do not accept that this would place any significant burden on the collection of waste from any future residential flat buildings if this requirement were part of the design of the basement car park.

64 Mr Annand maintained that the proposal denied the opportunity for vehicles to circulate if they entered the car park only to find that there were no spaces available. While this is correct, a similar event would occur if the access were provided at grade. The benefits of Mr Annand's circulation proposition can only occur with the redevelopment of adjoining sites and the dedication of the land for the access way. There is no practical reason why the circulation proposition cannot be achieved at the lower level rather than at grade, in the longer term. 65 Ms Weatherley states that the development is not consistent with the future form development of 3 to 5 storeys of residential development. I note that the Master Plan for the North Gladesville area identifies "a limited amount of mixed use development should be permitted within the transition areas from the two centres" although the area identified for this type of use is located between Pittwater Road and Stansell Street or finishing on the opposite corner to the subject site.

66 Considering the relatively early stage of development of the Master Plan and the fact that the proposed development is permissible under the current zoning I am not prepared to give any significant weight to the Master Plan in this regard. I am also mindful that the proposed building is not so significant in its construction that it could not be redeveloped for residential flat buildings in the future, particularly considering the additional car parking proposed in the application.

67 Overall, and considering the early stage of consideration of the Master Plan and the timing of any consequent LEP and DCP, I find that the proposed development is acceptable. Two significant elements of the Master Plan relating to the landscape treatment of Victoria Road and the rear access lane have been addressed in the development application and allow for the longer term implementation of the strategies identified in the Master Plan although not necessarily with this development or strictly in accordance with the Master Plan. Impact on the amenity of neighbouring residents 68 The amenity impacts relate to privacy, outlook, noise and overshadowing of the adjoining residential flat building at 2 Stansell Street.

69 Noise impact from vehicles using the rear access lane was raised as an issue in the proceedings and resulted in a joint report from Mr Barry Murray and Mr Howard Gwatkin. They agreed there would be no noise impacts associated with the driveway or mechanical plant at the development subject to a number of conditions. One condition required the drive way to the basement of the building to be fully glazed from the Stansell Street boundary to the entrance to basement level. Plans showing this structure were provided to the Court.

70 The objector from the adjoining residential flat building, Mrs Farmer expressed some concern at the physical bulk of this structure when viewed from the building however the plans do not show an overly bulky structure as the majority will be below ground or behind the common boundary fencing. The full height of the enclosure is only viewed at the Stansell Street boundary. Based on the agreed position of the acoustic experts and the benefits of noise attenuation, I accept the structure is acceptable.

71 I also understand the adjoining neighbour to express concern over bulk of the proposed building. In this case, the building has a maximum of two storeys above ground level with the upper level closer to Victoria Road. The building form is relatively unobtrusive particularly when compared to the five-storey residential flat building contemplated by the Master Plan. 72 In terms of privacy, the area adjoining the office component is shown as a roof terrace on the proposed plans and while this may be occasionally used by occupiers of the building it could not be seen as a significant source of overlooking, particularly considering the provision of planter boxers on the terrace and landscaping along the common boundary with the adjoining residential flat building.

73 Based on the orientation of the site and the adjoining residential flat building Mr Kennan concludes that the proposed development would not cast a shadow on the adjoining land until approximately 1.00 p.m. in midwinter. He describes the impact as insignificant and I concur with his conclusion.

74 Overall, there are no amenity impacts on the adjoining property that would support the refusal of the development application. Orders 75 For the foregoing reasons, the Orders of the Court are: 1) The appeal is upheld. 2) Development Application LDA 757/2004 for the erection of a part 1 storey and part 2 storey retail and commercial building with basement car parking at 297 - 307 Victoria Rd., Gladesville is approved subject to the conditions in Annexure A. 3) The exhibits are returned with the exception of exhibits 1, 2, 14, 19, A and F.

      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.