Artmade Architectural Pty Ltd v Central Coast Council

Cases Cited: Gales-Kingscliff Pty Ltd v Tweed Shire Council (No.2) [2007] NSWLEC 817
Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191
Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115

Texts Cited: Department of Planning, Industry and Environment, Child Care Planning Guideline 2021, September 2021

Category: Principal judgment

Parties: ArtMade Architectural Pty Ltd (Applicant)
Central Coast Council (Respondent)

Representation: Counsel:
T Poisel (Applicant)
M Fraser (Respondent)
Solicitors:
Project Lawyers (Applicant)
MBM Legal (Respondent)

File Number(s): 2024/161798

Publication restriction: Nil

JUDGMENT

1. This Class 1 appeal is about the design response of a proposed centre-based child care facility in an area where the existing character reflects a low density residential character but now benefits from significant uplift.

2. ArtMade Architectural Pty Ltd (Artmade) appeals the deemed refusal by Central Coast Council (Council) of DA/363/2024. The development application seeks development consent for demolition of the existing structures, removal of 33 trees, and construction of a part 2, part 3 storey 76 place centre-based child care facility (child care centre) with ground floor car parking (DA).

3. In considering the evidence and submissions of the parties, I accept that both the existing and future character are relevant considerations. However, the proposed design has not appropriately responded to either, namely as a result of the incongruous car parking area across the front setback and the building’s site coverage.

Procedural matters

4. Since the filing of the appeal, ArtMade was granted leave by the Court to amend the DA twice, on 21 August 2024 and 13 December 2024.

5. Foreshadowed on the first day of the hearing, ArtMade sought leave to amend the DA. The amendments were opposed by Council, on the basis of multiple prior amendments and that these amendments would require an adjournment to consider the changes. ArtMade submitted that the amended DA primarily sought to remedy inconsistencies but did also introduce other changes address the issues raised. The Court indicated that if the amended DA required an adjournment, leave would not be granted to further amend during the hearing. As the new changes could not be readily removed, ArtMade ultimately did not press the oral motion to amend.

6. Later on day two, the Applicant through an oral motion further sought to amend the DA to resolve the previously identified inconsistencies. As further inconsistencies and new changes were identified when hearing the motion, the motion to amend was not granted.

7. Also on the second day of the hearing, Council sought leave to raise an issue about sewer access on the basis that previous amendments to the DA had previously resolved the issue as originally raised. The most recent amendment to the DA before the hearing included inconsistent documentation and now proposed landscaping was located in the sewer access area. ArtMade submitted that the new issue would be a fundamental change in the case, on the basis of possible impacts on the landscaping and visual impacts from the building already contended by Council. Mr Poisel submitted that the parties are bound by their statement of facts and contentions and require leave to amend (see: Gales-Kingscliff Pty Ltd v Tweed Shire Council (No.2) [2007] NSWLEC 817 at [20]) and that leave was not sought when the DA was amended in December 2024 (just prior to the hearing). Mr Poisel submitted that evidence would need to be adduced to address this new issue and required an adjournment. On the basis of the lateness of the issue and the need for an adjournment by the Applicant, leave was not granted to raise the issue.

The site and context

8. The site is known as 13 Byron Street, Wyong, legally known as Lot 32 Section 1 DP 4361. The overall site area is 1,416m2, with a frontage of 20.115m and depth of 70.41m. The site slopes to the rear by around 7.13%.

9. Commencing on site, the site viewing included an inspection of the site and walking observation of the block with the parties. Attention was drawn to certain development’s including the older low scale detached dwelling character of most of Byron Street, low scale multi-dwelling developments in the block, development with expansive site coverage directly adjoining and located to the rear facing Leppington Street, and a boarding house on Leppington Street with a similar parking presentation and side setbacks. The multi-dwelling developments and boarding house appear to be more recent development. Parking in driveways and cars parked on the landscaped front setbacks was observed.

10. The site is located in close proximity to Wyong Train Station, being in walking distance of approximately 500m as stated in the Statement of Environmental Effects prepared by Think Planners dated 12 December 2024. The Wyong Town Centre is located close to the train station.

11. The site is zoned R3 Medium Density Residential under the Central Coast Local Environmental Plan 2022 (CCLEP). The allowable height under cl 4.3 of CCLEP is 13m and floor space ratio (FSR) under cl 4.4 is 0.9:1. At the end of Byron Street and part of Leppington Street, the zone changes to R2 Low Density Residential.

12. The site is located one property south of higher density controls permitted under recent changes to State Environmental Planning Policy (Housing) 2021 (SEPP Housing) for the Wyong transit orientated development area. Chapter 5 of the Housing SEPP permits development up to 22m in height, FSR up to 2.5:1 and requires a frontage of 21m (Tab 2, Ex F).

Issues

13. Council raised the following contentions in the amended Statement of Facts and Contentions (Ex 1).

14. Character.

15. Amenity.

16. Overdevelopment.

17. Essential services. Council confirmed at the hearing that this issue was resolved.

18. Public interest.

19. Insufficient information. Council confirmed at the hearing that this issue was resolved.

20. The remaining issues can be distilled to if the proposed development is an overdevelopment of the site and if it is consistent with the character of the area.

Community objections

15. The DA was notified to the community from 5 April 2024 and 29 April 2024. Tab 9 of Ex 2 of Council’s bundle contains the written objection received, which I have considered (s 4.15(1)(d) of the Environmental Planning and Assessment Act 1979 (EPA Act)). The concerns raised are as follows:

16. Impacts of the proposed child care centre on the family owned and operated preschool in Byron Street, Wyong, only 40m away.

17. Other new child care centres which have opened within 500m and 700m of the premises. Concerns included a decreased demand for child care services if the proposed development is approved and that there is currently enough child care centres to cater to the community.

18. The proposed development is large, modern and will appear out of place in the street.

19. In relation to concerns about nearby operators and demand, the planning controls applying to the development do not allow consideration of proximity between child care centres (subsection 3.26(2)(a) of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI)) or demand (subsections 3.27(1)(b) and (c) of SEPP TI).

20. I address the proposed development’s response to the character of the area under ‘Is the development compatible with the character of the area?’ further below.

Expert evidence

18. Expert evidence for the planning issues was submitted in a joint expert report (Planning JER) (Ex 3) by Jonathon Wood (Town Planner) for the Applicant and Jenny Tatum (Town Planner) for Council. The town planning experts provided oral evidence at the hearing.

19. Expert evidence on landscaping matters (landscaping JER) (Ex 4) was submitted in a single expert report by Craig Glynn for Council.

Is the development compatible with the character of the area?

20. Council contends that the proposed development’s side setbacks, site coverage, topography response, lack of mature landscaping, amenity impacts and commercial presentation represent an overdevelopment of the site and are not compatible with the character of the area.

21. The relevant Central Coast Development Control Plan 2022 (CCDCP) controls and objectives are set out below.

2.10.3 SITE REQUIREMENTS

OBJECTIVES

• To minimise impacts on the privacy, amenity and solar access of adjoining properties and the amenity of the area

• To ensure the site is of sufficient size to meet the minimum area requirements for indoor and outdoor play spaces and car parking

REQUIREMENTS

2.10.3.1 Residential Zones

a The site must have a minimum width of eighteen metres at the building line setback.

b Buildings are to have a maximum 40% site coverage excluding playground and shade structures.

c Building setbacks:

i side and rear – 3 metres;

ii side street for corner allotments – 3 metres.

d proposals will not be supported on battle axe allotments or an land with a gradient in excess of 1:20

22. Site coverage is defined in the dictionary of the CCDCP as:

Site coverage means the proportion of a site area covered by buildings. However, the following are not included for the purpose of calculating site coverage:

(a) any basement,

(b) any part of an awning that is outside the outer walls of a building and that adjoins the street frontage or other site boundary,

(c) any eaves,

(d) unenclosed balconies, decks, pergolas and the like.

For the purpose of this Chapter, swimming pools are excluded from any site coverage calculation.

23. It is common ground between the parties that the proposed development seeks to vary the setbacks (side setbacks for the carparking portion of the ground floor), site coverage and gradient controls of 2.10.3.1 of the CCDCP.

24. I am required to be flexible in applying these controls and consider if the DA proposes reasonable alternative solutions that achieve the stated objectives (subsection 4.15 (3A)(b) of the EPA Act).

25. Not reproduced in full, but Council contends that the proposed development is inconsistent with the provisions of the Child Care Planning Guideline 2021 (CCPG).

Evidence

26. Mr Glynn, Tree Expert for Council, gave written evidence that whilst the selection of trees and shrubs were appropriate, the conditions may not allow them to reach their full growth potential. The limited areas for growth in the planter boxes and shading in areas along the southern and northern boundaries would limit growth and the landscape plan is therefore not suitable for the scale of development.

27. Ms Tatum, Town Planning Expert for Council, says that the proposed development has not properly considered the constraints of the site or the qualities of both the existing and future desired character of the visual catchment. The proposed development is not compatible with the existing and future character of the area. Ms Tatum’s evidence is that the local area is primarily residential and characterised by older detached single storey dwellings with landscaped front and rear yards. The multi-dwellings that exist generally provide some built form breaks, acknowledging a set of multi dwellings in Leppington Street that are attached. Ms Tatum says that this development provides generous side and rear setbacks of 4.5m.

28. Ms Tatum’s evidence is that existing car parking is provided within garages attached to dwellings or at the rear. Part of the character includes large–medium canopy trees to the rear of properties.

29. Regarding the future character and development under the Housing SEPP, Ms Tatum’s evidence is that redevelopment for residential flat buildings would take up a larger footprint but would be subject to the side and rear setback requirements of the Apartment Design Guide (ADG) of between 3m to 6m. Ms Tatum says that these setbacks could accommodate substantial landscaping to mitigate the impacts of the development including visual bulk, overlooking and solar access. Residential flat buildings would likely include basement car parking and minimise streetscape impacts. Ms Tatum’s evidence is that multi dwellings under the Central CCDCP would be required to provide 25% soft landscaping and 45m2 open space per dwelling.

30. Ms Tatum says that the proposed development will have solar access and overlooking impacts to the southern neighbours. Both adjoining neighbours will be visually impacted from the bulk and scale of the proposal and the car parking area, including loss of trees. In oral evidence, Ms Tatum’s evidence about the site coverage was ultimately approximately 62.5% (though expressed more areas that might be included), where the CCDCP allows up to 40% for child care centres. The site coverage results in a 63m long development across the length of the boundary. Ms Tatum says that the proposed site coverage is inconsistent with existing development, but acknowledged in cross examination the existence of several multi dwelling developments with similar lengths but increased rear and side setbacks.

31. Ms Tatum’s evidence is that the CCDCP’s gradient control seeks to minimise impacts from development on adjoining neighbours. The gradient is exceeded and the design does not respond to the slope of the site, with visual impacts to the adjoining neighbours and reliance on artificial play areas. Ms Tatum’s evidence is that the southern adjoining property does not receive 3 hours of solar access to the private open space, and that the overshadowing diagrams show only 2.5 hours is received.

32. Ms Tatum says that the large carpark in the front setback is a dominant element not found within the locality and adversely affects the streetscape, including the hardstand space in the front setback. Ms Tatum’s evidence is that the combination of the site coverage, reduced setbacks, proposed height, site gradient and lack of landscaping visually impacts on the adjoining neighbours.

33. Mr Wood, Town Planning Expert for ArtMade, says that the area is characterised by large residential lots with dwellings and vegetation. Mr Wood’s evidence is that there are a number of sites in the area with limited vegetation from more recent multi dwelling and historical smaller apartment developments. The future character of the area is characterised by recent changes through the Housing SEPP for heights up to 22m and FSR’s up to 2.5:1. The current zoning, height and FSR controls of the CCLEP also anticipate redevelopment and the existing character should be given little weight. Future development in the local area under the Housing SEPP will be in the order of 6-7 storeys with ADG separation between 3m-6m. The CCLEP allows 3-4 storey apartments or 2-3 storey multi dwellings. Further proposed Housing SEPP reforms may allow increased height and FSR controls up to 16m and 2:1 within 800m of a train station (including the subject site). Properties to the southern edge of the block (zoned R2) should be excluded given that the sloping topography excludes these sites from the visual catchment. Mr Wood also notes that the side setback controls for residential flat buildings in the CCDCP are approximately 2.3m for a 8-10m building and 6m for buildings over three storeys, with the controls seeking wider setbacks as buildings rise in height.

34. The proposed development presents as a two storey building, with a three storey component, and proposes compatible side setbacks through a lower built form that is well below the maximum height limit.

35. Relying on Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191 (Project Venture), Mr Wood says that the proposed development does not need to adopt the appearance, built form or scale of surrounding developments to be compatible. The proposed child care centre does not need to adopt the form of a residential building and has requirements that differ from residential development. Mr Wood’s evidence is that more weight should be given to the future character of the area and that the development is compatible with that character and intent of the CCDCP controls.

36. Mr Wood’s evidence is that the proposed development includes new trees in the street (verge), front setback and rear setback. Hedging is proposed along the southern boundary and a portion of the northern boundary, which is contextually appropriate.

37. Mr Wood says that the changes made to the front setback, fencing and parking area are consistent with what is expected from built forms in this location. The screening provided to the car parking area will mean this element does not dominate the streetscape.

38. To mitigate privacy issues, conditions of consent have been suggested for the acoustic fencing to be opaque to a height of 1.6m to overcome the overlooking issue.

39. On site coverage, Mr Wood’s evidence is that despite the site coverage exceeding control 2.10.3.1, and mostly agreeing with Ms Tatum’s oral evidence figure of 62.5% for the building itself, the objectives are achieved. Mr Wood says that the extended building coverage has minimised visual and acoustic impacts from the play spaces to all adjoining dwellings through shielding by the building. Play spaces in a traditional rear yard would have increased impacts to the adjoining properties, which have been minimised by the design of spaces within the building. There are only some play areas that require additional acoustic and privacy treatments, which have been proposed. The private open spaces to the adjoining dwellings exceed the three hour requirement for over 50% of the open space, on the basis of the CCDCP’s private open space requirement of 24m2. The play spaces themselves are sufficiently sized to meet the CCPG requirements and the proposed number of car spaces meet the TfNSW requirements.

Submissions

40. The Applicant submitted that the character of the area can be informed by what exists and the desired future character informed by the planning controls, approved development and potential future development (Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115 (SJD DB2) at [52], [54], [56]-[57]). Relevant key changes that inform the character have occurred through recent amendments to the Housing SEPP which significantly increase the height and density controls north of the site up to 6-7 storeys.

41. Mr Poisel submits that the R3 Medium Density residential zone permits a range of commercial development such as child care centres, shop top housing, health care facilities and other similar uses.

42. Mr Poisel submits that the tree evidence of Mr Gynn supports the landscape plan, detailing the good selection of trees and shrub species. Mr Poisel submits that the evidence is that the trees may not grow to their full height, and there is no requirement for them to do so.

43. Council submits that the future character should be considered, but the lack of demand for redevelopment over the past 30 years in the local area should also be given weight. The proposed development will be quite different in nature to existing development in the street. The car parking platform and its setbacks do not meet the minimum building separation requirements of the future character, relied on by the ArtMade. The car parking area imposes restrictions on its neighbours when considered against the ADG.

44. Mr Fraser submits that the building elements that warrant refusal are the car parking area, non-compliant side setbacks, site coverage exceedance (on the more generous calculation of 62.5%), site gradient and the uncontested landscaping evidence. The gradient control of the CCDCP is seeking to achieve natural play areas for children in a real environment. Most of the child care play areas are located on artificial areas, including the raised ground floor areas and are not a natural environment.

Findings

45. For the reasons set out, I find that the proposed development’s design, in particular its ground floor car parking area, side setbacks associated with the car parking area and site coverage warrant refusal.

46. I have place little weight on the previous consent for townhouses on the site, which has expired and was for a different type of development.

47. I accept that the proposed development has not adequately considered its context and has not responded with an appropriate built form (Principles 1 and 2 of the CCPG). I accept Ms Tatum’s evidence and Mr Fraser’s submissions that the ground floor car parking area dominates the presentation of the child care centre as viewed from the street. The extent of the car parking across the frontage, two way driveway, depth of the car park up to half of the site’s width and 1m setbacks results in a presentation that is unlike anything in the streetscape or may be likely in the future.

48. Consistent with the submissions of ArtMade and the generally agreed methodology of the planning experts (though with differing considerations and outcomes), I accept that the proposed development should consider both the existing and future desired character of the area (Principle 2 of the CCPG). I agree that the recent changes made to the Housing SEPP to adjoining properties form part of the character of the area, as do the properties who will retain the current CCLEP planning controls, existing approvals in the area and to a lesser extent, the R2 properties at the southern end and rear of the block.

49. The car parking component, covering the front setback and first approximately 30m depth of the development, and the only component of the built form with variations to the side setbacks, is unlike anything in the streetscape and unlikely to be replicated by future development. The zone permits a range of different development types, including residential flat buildings, shop top housing and commercial development forms, however a car parking structure dominating the entire frontage on the ground floor is not typical from contemporary buildings within a residential zone.

50. The impacts of the car parking area dominating the front setback and front portion of the built form also results in a development that lacks a meaningful street address, as the pedestrian front entry is located through the carpark to the lobby or down the narrow pathway along the side of the car parking area to the same lobby entry. The ‘front’ lobby entry is located approximately 37m into the site, or approximately halfway into the site.

51. I agree that compatibility is not sameness (see: Project Venture). Relevantly, the Senior Commissioner considered the importance of front and side setbacks to the rhythm and urban character of the streetscape. Consideration of both the expert planners’ evidence is that the likely future residential character for side setbacks would be in the order of approximately 3m-6m, informed by the ADG and CCPG. The proposed 1m side setback across both sides of the approximately 30m long car park area is antipathetic to that desired building rhythm. The same is true of the car park across the extent of frontage and its lack of public domain interaction.

52. The domination of the ground floor by the car park, lack of pedestrian engagement with the public domain and introduction of a new undesirable element into the streetscape is inconsistent with Principle’s 1 and 2 of the CCPG. Whilst I accept that this development is not residential, does not need to appear residential in form and has different requirements that shape its built form, that does not change my view that the ground floor design facing the street is a starkly contrasting element to the existing streetscape and likely future development as envisaged by the permitted land use table in the CCLEP’s R3 Medium Density Residential zone and suite of planning controls considered by the planning experts. The example of a development with a similar ground floor car park arrangement along Leppington Street demonstrates the lack of interaction between the development and the streetscape and public domain. I do not accept that the existing driveways with parked cars, or cars parked in their front setback are the same in character as the proposed car park area, which would present across the entire front setback and will always be used for car parking or present as an empty, gated, large car park area. For these reasons, I find that the design of the car parking area is contrary to section 3.2, objectives C5, C7 and C9 of the CCPG, section 3.3 objectives C11, C12, C14 and C15 of the CCPG.

53. The car park design causes flow on impacts to the other issues. With some elements of disagreement, the general consensus from the planning experts in oral evidence is that the proposed site coverage is approximately 62.5%. I accept Ms Tatum’s evidence that the site coverage variation expressed through a building length traversing across most of the site will have unreasonable visual bulk impacts to the adjoining dwellings from the rear of their properties. I accept Mr Glynn’s evidence that the landscaping may not reach its full growth given its limited soil areas along the northern boundary and southern boundary and overshadowing of vegetation along the southern boundary, thereby reducing the extent of the built form that would be softened. I find that the proposed built form has not adequately considered its siting to minimise visual bulk impacts or adequately integrated the car parking area within in a residential area (section 3.2 objective C5 and section 3.5 objective C21 of the CCPG).

54. I find that the proposed variations to the site coverage and side setbacks are not reasonable alternative solutions that achieve the objectives of 2.10.3.1 of the CCDCP, at 2.10.3. The reduced side setbacks for the car parking area increase the development’s impact on the amenity of the area through an undesirable ground floor car parking interface with the public domain along the full extent of the frontage. The proposed site coverage extends the length of the building beyond what is anticipated with associated visual bulk amenity impacts to the adjoining north and south dwellings, particularly their private open space areas.

55. Finally, these impacts are somewhat accentuated by the non-compliant site gradient. I accept Ms Tatum’s evidence and Mr Fraser’s submissions that the development’s response to the topography have led to a number of artificial ground floor play areas that do not create adequate play areas that use natural environmental features. I accept that the minimum indoor and outdoor play area requirements have been met, but that these spaces rely too much on artificial enhancements contrary to the design guidance under 4.10 natural environment of the CCPG, Reg 113 of the Education and Care Servies National Regulations. This is a consequence of the design of the development through the extent of the car parking area, site coverage and response to the site’s topography.

Conclusion

56. Council’s contentions raised a number of built form and amenity related issues from the proposed development. Many of these stem from the design of the car parking area and response to the site and context. The design of the car parking area (internal and external of the building) across the frontage and half way down the site, and the building’s overall site coverage across the majority of the length of the site warrant refusal of the application on the basis of the visual impacts to the street and adjoining neighbours. The outcome of the proposed car parking design would be the introduction of an undesirable and incongruous element into the existing and future streetscape.

Orders

57. The Court orders that:

58. The appeal is dismissed.

59. Development application DA/363/2024 for demolition of the existing structures, tree removal, construction of a part two, part three storey centre based child care facility at 13 Byron Street Wyong is determined by refusal of consent.

60. The exhibits are returned except for A, B, E and 1.

S Porter

Commissioner of the Court

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