Auspacific Equity Investments Pty Ltd v Pittwater Council

11 May 2004 Auspacific Equity Investments Pty Ltd Applicant

v Pittwater Council Respondent Judgment

1 . This is a verbal judgment for an appeal under s 97 of the Environmental Planning and Assessment Act (the Act) against Pittwater Council's refusal of a development application for the redevelopment of the property known as 343-345 Barrenjoey Road Newport. The site is approximately 2370 sq m with a frontage to Barrenjoey Road of 27.4 m and a frontage to Foamcrest Avenue of 24.4 m

2 . The proposal is for a retail ground floor component at the Barrenjoey Road frontage with two levels of residential above. There is the larger portion of the site fronting Foamcrest Avenue, Newport, which has three levels of residential above basement carparking. The basement car parking is for the residential component of 33 units as well as the retail development.

3 . The site aligns generally on a north-south axis and comprises two offset rectangular parcels linked mid-point. The site has a relatively gentle gradient falling approximately 5% from Foamcrest Avenue to Barrenjoey Road. The existing development on the site for the rectangular parcel of land fronting Barrenjoey Road comprises a single storey retail arcade linking to a ground level parking area accessed from Foamcrest Avenue. The subject carpark site on Foamcrest Avenue is adjoined on both sides by council carparks. Together with the subject site they are currently used as the one parking area with no distinction and the subject site provides the vehicle access from Foamcrest Avenue to the total carparking area.

4 . The subject site is within the retail strip of Newport and is zoned General Business 3(a) under the Pittwater Local Environmental Plan . There are very few controls in the Pittwater LEP for the subject site. The Local Environmental Plan permits shop-top housing and there is no dispute in the proceedings that the proposed development is one that is permissible with consent as shop-top housing.

5 . The nexus or function of the basement retail parking which serves the retail component is under the rear portion of the site that fronts Foamcrest Avenue. The original development application was for some 34 units with the existing retail space to remain at approximately the same level. It has been amended prior to and during the proceedings and is now for 33 units.

6 . The issues in the proceedings relate to: whether the proposed development is appropriate because of its height, bulk and scale having regard to council's controls; whether the landscaping of the proposed development satisfies council's controls and requirements in both a numeric and a qualitative sense; whether the proposed development when assessed under SEPP 65 is appropriate or satisfactory; whether the future amenity for the residents of the subject building would be satisfactory with respect to the possibility of development flanking the proposed site on the Foamcrest Avenue adjoining sites; and the council also maintains that the provisions of its development control plan for carparking are not satisfied. Another issue relates to the impact of the development in terms of the functionality of the council carparking areas either side of the Foamcrest Avenue rectangular portion of the site that are zoned Special Uses - Carparking. Another issue raised was whether the proposal is appropriate in view of the potential redevelopment of adjoining sites and the impacts created.

7 . The issue of flooding was one that was not contested. The proposed development has been set above the flood planning level and this is not in dispute.

8 . The proposed site is zoned 3(a), and there are a number of development control plans that apply to the subject site. These include: the Pittwater Development Control Plan No. 17 Newport Commercial Centre Development Control Plan ; the Residential Development Control Plan known as R4 Shop-top Housing. Shop-top housing is described in the DCP as "a dwelling, group building or residential flat building attached to and integrated with premises used for a non-residential purpose that is permitted in the relevant business zone". Shop-top housing can vary from being a single flat above a shop to larger scale residential apartments attached to retail and/or commercial developments, the latter being the part of the definition under which the proposed development relies on.

9 . This DCP also has controls with respect to height limitations with an 8.5 m height limitation as well as controls regarding setbacks and landscaped area. Landscaped area is defined as "that part of the site not covered by any building, carparking or access which is predominantly landscaped by way of planting, gardens, lawns, shrubs or trees, common facilities such as pools, barbecue areas, … Pathways and permeable surfaces may be included provided they are suitably treated to council's satisfaction" There are a number of other provisions within the DCP that are also applicable to the assessment of this development application.

10 . Development Control Plan No. 2 relates to carparking for the Pittwater area. This is known as the Local Approvals Policy as well as the DCP and it sets out the requirement for carparking. There is no dispute that the parking with respect to the residential component of the development is satisfactory. In issue is the parking provided for the retail component of the development.

11 . Development Control Plan No. 21 is a development control plan that was adopted by council following the lodgment of this application and came into force from 1 February 2004. The DCP contains a description of the Newport area and while it is not a matter of particular importance for these proceedings, it does refer to the Newport commercial centre where the outcome is to achieve the desired future character of the locality and provide a sense of place.

12 . The other relevant instrument is State Environmental Planning Policy No. 65 - Urban Design and the quality of residential flat developments. The subject development application falls within the ambit of SEPP 65 because shop-top housing or apartment/residential flat buildings associated with retail development or commercial development are included. At the end of the proceedings the matter was adjourned and the applicant provided additional information with respect to satisfying the requirements of SEPP65 and the respondent also provided a statement.

13 . During the proceedings evidence was given to the Court on behalf of the applicant by: Mr John Coady, a consultant traffic engineer/town planning; and Mr Ross Flemming, a consultant town planner. On behalf of the council, expert evidence was given to the Court by: Mr Christopher Hallam, a consultant traffic engineer; Miss D Robertson, council's senior assessment officer, and Mr S Raw, council's manager of business and administration.

14 . A number of residents also gave evidence to the Court on the view and included Ms Varley of 341 Barrenjoey Road that adjoins the subject site to the south. She considered the proposed development is an overdevelopment of the site - going from boundary to boundary, with a lack of landscaping. She was also concerned about the pedestrian access through the subject site and the height along the boundary of the walls.

15 . Ms Quaglia of Unit No 11, 16 Foamcrest Avenue, a residential flat building to the south of the subject site, was concerned about the setbacks of the proposal, the blank walls that were presented, and the tree loss created by the development of the carpark which has a number of substantial trees. She was concerned that the proposed development would also prevent appropriate disabled access through the site that currently is provided.

16 . Mrs Wilshire was also concerned about parking and access in particular for disabled persons and strollers.

17 . Mr Gale from 343 shop 4 was concerned about the pedestrian access through the site and his concern is that easy access be provided to the rear of the retail shops along Barrenjoey Road that rely on parking at the rear in Foamcrest Avenue and the adjoining or associated carparks of council's and the subject site.

18 . I have considered all the evidence to the Court, including that of the experts, the site inspection and the comments made by objectors. I have also had regard to the relevant provisions contained within the instruments that I have cited.

19 . The Barrenjoey Road presentation of the proposed development is satisfactory as agreed by the experts. And the Court considers the development provides a satisfactory presentation to Barrenjoey Road. The development will be higher than some of the development along Barrenjoey Road but clearly there will be opportunities for redevelopment of other properties and the height certainly is acceptable in the Court's assessment.

20 . On the issue of the public pedestrian access through the site, this is of concern to the objectors and the applicant has provided pedestrian access through the development such that it facilitates access to the adjoining carparks and to the carparking within the proposed development. It is noted that the development of the site will clearly lead to perhaps a less accessible thoroughfare. However, this is not the responsibility of the applicant in the Court's opinion and appropriate access has been provided even though it will not provide the same level or degree of access as there currently is.

21 . I should preface my further assessment by saying it is noted the applicant had discussions with the council about co-development of the subject site, in particular for the Foamcrest Avenue portion, and the adjoining council carparks. As I stated the adjoining council carparks are zoned "Special Uses" and the one to the south is approximately the same width as the Foamcrest Avenue site, the one to the north of the site is slightly wider than the Foamcrest Avenue rectangular portion of the subject site. The negotiations or discussions with the council however did not lead to any joint redevelopment proposal of the subject land and the applicant chose to submit the development application now under assessment by the Court.

22 . The issues in the proceedings include the potential redevelopment of the adjoining carparking sites and I have had regard to and I accept the submission of the applicant that one cannot assume that the council carpark sites zoned "Special Uses" parking would be rezoned. On the other hand I cannot assume that those carparks will remain at grade for the life of the proposed development either. I will comment on this further but it becomes critical in the Court's assessment.

23 . On the issue of landscaping there was discussion about what areas could be regarded as landscaping. Mr Flemming was of the opinion that many of the balcony terrace areas should be included in the percentage of landscaped area. Miss Robertson took a slightly different view and considered that the balcony terraced areas should be included where they are within a landscaped setting and meet the objectives of council's development control plan. The proposal is for a development which is basically boundary to boundary. There is a front setback to Foamcrest Avenue which will provide for some landscaping.

24 . For the Barrenjoey Road elevation one would not expect landscaping or setbacks to provide landscaping and indeed block edge development is encouraged in terms of providing a continuous facade along the retail centre and this is appropriate. The issue of landscaping is that, even if one includes planter boxes, there should be some 20% landscaped area. The proposal (as I stated even accepting that some of the planter boxes may be included) provides a little over 10% in terms of landscaped areas. The issue is whether not just on a numeric basis the proposal complies in terms of council's guidelines in its development control plan but more particularly whether it satisfies the requirements for landscaping as provided in its DCP, that is the objective of a landscaped setting.

25 . Clearly Newport is an area that does provide natural amenity in terms of vegetation of the area and there is an expectation that residential development will enjoy a landscaped setting leaving aside the Barrenjoey Road Portion or the site because it is seen in a different context. I am not satisfied that the proposed development on the Foamcrest Avenue portion of the site could be regarded as satisfying council's objectives of its landscape controls. I do not believe that the proposed development will be one that will be seen within a landscaped setting. I have assessed the rectangular site on Foamcrest Avenue as requiring a greater degree of a landscaped setting than one would expect in terms of the 'shop-top' housing on the Barrenjoey Road elevation.

26 . The landscaping in my assessment is one that will not, as I stated, provide for the necessary setting. Many of the terraces, the private open space terraces, will not be within a landscaped setting and while there is provision for some canopy trees and a setback to Foamcrest Avenue the intent of council's provisions are not satisfied in terms of the internal amenity of the development. I do not believe that the future residents of the proposed development, in particular that portion onto Foamcrest Avenue, will be provided with a residential amenity that is envisaged by council in its controls for the Newport area.

27 . I also accept that for the description of 'shop-top' housing, numerous canopy trees would not be provided. However the lack of setbacks on the northern and southern boundaries for the large rear portion do not provide for a landscaped setting.

28 . The issue of solar access is one that was ventilated during the Court proceedings. The proposed development currently is one where some two-thirds of the units satisfy the solar access requirements and SEPP 65 recommends 70%. The actual number is not critical however having regard to the fact that the majority of units, that is 20 of the 33, have orientation over the rear lot side boundaries I am not satisfied that the solar access will continue to be provided in a reasonable way in the development.

29 . The reasonable development potential of adjoining sites and the impact on solar access for the proposed development is in the Court's assessment fatal to the application. I agree with the applicant that one cannot assume that there would be a rezoning of the adjoining council carparks even though a hypothetical exercise was looked at in terms of if one assumed similar development on adjoining sites. However, leaving aside such a hypothetical exercise but having regard to the fact that the carparks have the potential of being further developed with the current zoning, one cannot assume that they will remain 'at grade' carparking lots and further development of the adjoining lots will potentially impact on the proposed development.

30 . Clearly any future development of the adjoining council carparks potentially must have regard to the proposed development but at the same time the limited setbacks allowed along the northern boundary of the proposal would unreasonably constrain and prejudice development of those adjoining sites. And the setbacks of the proposed development would not provide satisfactory amenity for the occupants of units that face over the side boundaries of the large rear portion of the subject site. In this regard the development as proposed excessively borrows and relies on its future amenity for privacy and solar access from the adjoining sites.

31 . While one would expect the development assessment of adjoining carparking lots to have regard to this particular development, nonetheless, just as the adjoining carparking sites cannot sterilise the development of this land similarly the development of this land cannot excessively borrow to the point that it would significantly reduce any development on the adjoining carparking sites.

32 . The other issue that the Court considers is fatal to the application is the carparking provided. There was a great deal of discussion about what the development control plan provides for in terms of its requirements and whether it is 'redevelopment' of the subject site or whether it is a change of use of the subject site. Development control plans are not primary legislation, nor secondary legislation, and a common sense interpretation or meaning must be given to development control plans.

33 . Clearly if one accepted the evidence of the applicant's expert the shortfall in carparking of the current development would be perpetuated in any redevelopment of the subject site and I use the word "redevelopment". The applicant claims that the proposal is a change of use/redevelopment and therefore one should have regard to the existing provision of carparking and the fact that it is currently deficient would justify a perpetuation of that deficiency. I do not accept this but rather I accept the evidence of Mr Hallam in this matter when he says that one should assess the development against the carparking required in council's DCP.

34 . Mr Hallam also indicated that this requirement is less than what would be required by the Roads and Traffic Authority's Guidelines and he considers that redevelopment or change of use is not relevant to the current proposal, as the proposed development involves the complete demolition of the existing shops on the site and in that regard it should be assessed in those terms and provision of carparking should accord with current parking provisions and requirements contained in Council's Development Control Plan No. 2 .

35 . At the end of the day the shortfall was somewhat narrowed. Mr Coady was of the opinion that at the most there is a shortfall of some four spaces and in his assessment this is not fatal to the application. On cross-examination he agreed that there would be no impediment to providing an additional basement level of carparking or additional carparking. On the other hand Mr Hallam considers that at the minimum there would be a shortfall of some six carparking spaces.

36 . There are 28 carparking spaces provided for the retail component, the RTA guidelines require a provision of some 50 spaces, the development control plan would require provision of some 41 spaces. As I said, at the end of the day the difference was narrowed but in the Court's assessment there is no reason why the proposed development should not provide for the requisite amount of carparking in terms of Council's DCP. The shortfall, as I stated, should not be perpetuated.

37 . There was discussion about what had been approved, what current consents provide for, but at the end of the day I am of the opinion that the proposal is a redevelopment, a new development for the subject land, it is not a change of use of the existing retail area, it is a new/redevelopment of the front portion and a total new development of the rear carpark. The fact that council has not previously enforced the approved number of carparking spaces is not a matter for these proceedings.

38 . The issue of the proposal having the effect of reducing carparking on council's land because separate access would have to be gained from Foamcrest Avenue for the adjoining council carparks (that would be split by the proposed development) is not a matter that is relevant to these proceedings. The Court must assess this development application and it cannot prejudice this application because the site provides access to council's carparks.

39 . The issue of privacy, together with the solar access that is relied upon by the excessive borrowing from the adjoining sites, having regard to the number of units that are oriented over the side boundaries on the Foamcrest Avenue side of the site, also results in the proposed development not being satisfactory in the Court's assessment. I have concluded that the proposal excessively borrows from the adjoining properties for both privacy and solar access by not providing adequate side boundary setbacks to ensure appropriate future amenity.

40 . Clearly developments mutually borrow in terms of amenity and where a setback is proposed one may expect also a setback on an adjoining development site so that there is mutual amenity gained for each developments. But this particular development seeks to build to the envelope (so to speak) without regard to the future amenity. And it would be short-sighted of the Court to approve the proposed development on the expectation that the at grade council carparking sites either side of the subject development would remain.

41 . As I said, I do not consider the issue of pedestrian access is one that would warrant refusal of the application. In short, the reason why the Court does not think the application warrants approval is because of the large number of units that rely on their orientation over the side boundaries of the rear lot. This does not sit well with the provisions of State Environmental Planning Policy No 65 and the residential flat design code "where buildings can be split such that there is not an over-reliance on side boundaries, in particular, where there may be redevelopment of sites".

42 . Therefore in combination the application fails because of a lack of side boundary setbacks and this does not allow for appropriate landscaping of the proposed development together with the amenity issues of solar access and privacy, resulting in over-reliance and dependence of the adjoining sites. A different configuration of the units or of the built form may achieve a more reasonable and satisfactory development for the rear portion.

43 . Mr Flemming was of the opinion that the way the units are configured was reasonable in his opinion because of the northerly orientation. However, as I stated, this cannot be relied upon for the solar access or privacy and amenity. In this regard I agree with the council officer's reasons as to why the development application should be refused that is because of the orientation of the units.

44 . In terms of future development of the adjoining sites, as I stated, I am not assuming there would necessarily be a rezoning in my assessment of the subject development application. In my merits assessment I have assessed the proposal under s 79C of the Act as I am aware that the applicant has concerns about the future development of the adjoining sites when assessed in terms of SEPP 65. However, I do not need to rely on SEPP 65 in my assessment to conclude the subject proposal is an inappropriate design with the building form and orientation of a large number of units to the side boundaries for the rear portion of the site. Therefore the development is not satisfactory in terms of the likely impacts and the suitability of the site for the development under s 79C(1)(b)and (c) of the Act.

45 . On the basis of my assessment above, the orders of the Court are:

1. The appeal in respect of the property known as 343-345 Barrenjoey Road, Newport, is dismissed. 2. The development application submitted to Pittwater Council, and as amended, is determined by the refusal of consent. 3. The exhibits are returned.

  J S Murrell
  Commissioner of the Court
  rjs

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