Avalon DA Pty Ltd v Pittwater C

APPLICANT Mr A. Galasso, barrister Instructed by: Mr K. Webber, solicitor of Wilshire Webb

LEGAL REPRESENTATIVES: RESPONDENT Ms G. Furness, barrister Instructed by Mr A. Stafford, solicitor of Mallesons Stephen Jaques

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10712 of 2005 Avalon DA Pty Limited v Pittwater Council

JUDGMENT 1 This is a Class 1 Appeal No. 10712 of 2005 between Avalon DA Pty Limited and Pittwater Council in regard to the refusal of a proposal to demolish two houses at Nos. 111 and 113 Avalon Parade, Avalon and to erect thereon four new dwellings under State Environmental Planning Policy Seniors Living 2004 with strata sub-division.

2 The parties had agreed that a Court-appointed expert should report on the proposal. Following that report amended plans were tendered without objection and amended issues were put forward. The amended issues are: 1 The overall character of the proposal is not consistent with the existing and likely character of the Avalon Parade area. Particulars (a) The proposal uses a large part of the site for car parking and maneuvering, which limits the unpaved open space and forces the dwellings into an arrangement on the site close to the boundaries configured so the garages surround the central driveway area. This is unlike the form of development elsewhere in the immediate locality. This also results in unnecessary loss of vegetation, including the large Banksia integrafolia located at the centre rear of the block. (b) State Environmental Planning Policy Seniors Living ("SEPP SL") cl 31(a). Urban Design Guidelines s 1 and 2. Pittwater 21 Development Control Plan ("P21DCP") s A4.1 and 01.3.

2 The proposal should not be approved given the number of multi-unit residential developments to which SEPP SL (or its predecessor) applies that have been approved in: the vicinity of Avalon Parade and the cumulative impact that these developments are having on the neighbourhood character. The neighbourhood is otherwise characterised by single-occupancy residential dwellings. Particulars (a) SEPP SL cl 31(a). Urban Design Guidelines sections 1 and 2. (b) The proposal is inconsistent with the desired character statement for the Avalon Locality contained in sections A4.1 and D1.3 of P21 DCP. Solar access 3 The proposal does not ensure adequate sunlight to the living areas for Unit 3. Information has not been provided to establish that the living rooms of Unit 2 receive adequate sunlight. Particulars (a) SEPP SL cl 33 (design Principle for solar access), cl 81(e) and Urban Design Guidelines s 2 and 5 (orient and design to maximize solar access to living areas). (b) P21 DCP cl C1.4. Rear setback 4. The rear set back fails to comply with cl Dl.9 Rear Building Line ofP21DCP, SEPP SL cls 31(b) and (c) and Urban Design Guidelines section 1. The rear set back is 3.004 metres, whereas the control requires 6.5 metres and the proposal does not respond to the predominant rear setback pattern in the neighbourhood. 5. There is insufficient space for deep planting in the rear setback to allow for substantial landscaping and a mature tree canopy, which are among the objectives of cl D 1.9 of P21DCP. Particulars (a) The proposal does not meet the minimum requirements of cl 81(d) of SEPP SL that two-thirds of the deep soil zone should be located at the rear of the site. (b) The subject site is in the vicinity of a heritage area and the wildlife corridor should be preserved: P21 DCP cl B 1.15 and D4.4; Pittwater Development Control Plan 15 - Heritage Conservation page 29; SEPP SL cl 31(b).

3 Mr G. Baker, Architect and Urban Designer is the Court-appointed expert. He had only seen the amended plans the day before the hearing, some of his recommendations had not been included. He gave oral evidence on that. 4 Appearing for the respondent were: + Ms. G. Furness, barrister instructed by Ashley Stafford, solicitor of Mallesons. 5 On-site evidence was taken from resident objectors: + Mr R. E. Surgeon of 115 Avalon Parade; + Ms S. Bicknell of 122 Avalon Parade; + Mr G. Clarke representing the Pittwater Residents Against Inappropriate Development. (PRAID). 6 There were a number of other written objections in evidence amongst them a very detailed objection by Mrs A. and R. Smith.

7 Most of the objections were in regard to the proposal being out of character with the single lot, single detached house locality and the cumulative impact of this proposal along Avalon Parade that extends medium density housing and seniors living developments further into the detached single house western end of Avalon Parade.

8 The Smith objection went into technical details of alleged non-conformities of the proposal with SEPP Seniors Living Statute. The latter is the applicable planning instrument in this appeal.

9 The Pittwater Local Environmental Plan 1993 zones the land Residential 2(a) in which medium density housing is prohibited. The proposal becomes permissible with consent due to the overriding provisions of the SEPP.

10 Appearing for the applicant was: + Mr A. Galasso, barrister instructed by Mr K. Webber of Wilshire Webb. + Mr R. Fleming, consultant town planner + Mr P. Scrivener, landscape architect 11 Messrs Fleming and Scrivener explained the amended proposal on-site. The respondent objected to Mr Fleming giving oral merit evidence when the parties had agreed to a Court-appointed planning expert. The objection was upheld. Mr Fleming's written evidence was said to be only explaining why some of Mr Baker's recommendations had not been included in the amended plans. The applicant was permitted to use the letter in examination of Mr Baker.

12 Ms Bicknell said, in the west end of Avalon Parade there are 8 completed State Environmental Planning Policy Seniors Living (SEPP SL) dwellings existing, 6 presently under construction and 10 yet to be built plus the 4 in this development.

13 Also on the north side of Avalon Parade behind the houses fronting the street is a large 1980's retirement village of 167 dwellings.

14 Ms Bicknell said, in 2002 in approving a SEPP5 development at No. 83 Avalon Parade, Commissioner Nott acknowledged that there would be a point where the accumulation of medium density development could change the detached dwelling character of the locality.

15 She said, in 2004 Commissioner Moore in approving another SEPP5 development at Nos. 85 to 87 Avalon Parade, acknowledged there may be a threshold of unacceptable accumulation of medium density development yet to be reached.

16 Ms Bicknell felt this development crosses the threshold and should be refused. One reason is that it is the first medium density proposal west of the intersection of Avalon Parade and Ruskin Rowe. All the others are east of Ruskin Rowe.

17 The completed SEPP5 developments at No. 52 and 91 Avalon Parade, she said, only retain a few trees compared to the extensive mature canopy trees in the locality. They are significant in creating the leafy character of the area and providing habitat for fauna including koalas and other endangered species.

18 Ms Bicknell's experience is that the wild life used the exotic vegetation extensively even though it is the native specie vegetation that provides food.

19 She believes the mix of palms, flowering trees, deciduous trees and shrubs both native and introduced is part of the beauty of Avalon Parade.

20 The site has a magnificent liquid ambar near the front of No. 113 Avalon Parade. Its loss would impact the streetscape and no attempt to save it was made in the design proposal, she said.

21 Mr Surgeon, next door neighbour on the west side of the proposal, said the design had a faulty concept of a central driveway and car courtyard that necessitates the dwellings being too close to the side boundaries. This will cause shadows and enable first floor rooms of the proposal to see into bedrooms, bathrooms and family rooms of his own house. His house runs almost the length of his own allotment (except the front setback) set about a metre inside the boundary where there are windows to the rooms mentioned. 22 Mr Surgeon said the proposed dwellings are large. Each one has 3 bedrooms on the ground floor and in each roof is an attic "library" with its own en suite bathroom. Mr Surgeon said this is equivalent to 4 bedrooms per dwelling. A two car garage each for three of the units and one only for the fourth and one visitor's space giving eight total car parks on site would not be enough.

23 Cars will be parked in the street and due to a traffic calming device in Avalon Parade outside the site, cars will be in front of his house and those of the neighbours.

24 He agreed with Ms Bicknell's comments on accumulative adverse impact on the desired future character of the locality under the Pittwater Local Environmental Plan. He said the SEPP SL required consideration of the streetscape and future character of the locality and clearly this development would not fit in. If the other provisions of the SEPP SL prevailed he thought the attic rooms of the proposal should be deleted.

25 Mr and Mrs Edwards of No. 8 Ruskin Rowe were at the rear of the site. Ruskin Rowe is a conservation area under the Pittwater Local Environmental Plan. The area has large lots of 3000 sq m and more. Its particular character is the park like setting as one drives through its winding streets. Most houses are partly hidden from the road or completely hidden up long driveways. Fences are almost non-existent and the area is apparently part of a home range of local families of koalas. The absence of fences facilitates their movements through the locality.

26 At the rear of the site on the Edwards' boundary is a band of trees about 4 to 5 metres wide within their allotment. There are some trees on the rear of the subject site. The proposal varies between 5.3 and 3.5 metres from the rear boundary.

27 Existing trees are intended to be removed but supplemented with considerable plantings in the proposal.

28 The Edwards are concerned about privacy in their back yard. At the moment there is a picket fence along the rear boundary and one can see to some extent through the trunks of the trees to lawn areas on the Edward's garden. 29 The Edwards regarded the band of trees on theirs and the subject site as part of the wild life corridor. Also they noted Ruskin Rowe is drained by natural overland floods, which is part of the conservation of the existing vegetation. The area near the site and the Edward's is relatively flat so that in heavy rain it floods. They said medium density development adjoining will increase run off and raise the flood levels. 30 Mr Clarke endorsed the other witnesses concerns and added: 1. The front setback is not consistent with the neighbours. 2. Structures in the front setback such as the bin enclosure adds to the clutter of the streetscape. 3. Privacy fences to street front courtyards of the dwellings are contrary to existing and intended streetscape. 4. The rear 25 per cent of the site even under SEPP SL must be single storey. Units 2 and 3 are part 2-storey. 5. Vehicle manoeuvring in the central car court is inadequate and will mean loss of more vegetation. 6. Inadequate solar access and size of the courtyard to unit 3. 7. Poor amenity to the other courtyards being located within narrow side setbacks. 8. No external clotheslines for energy efficiency. 9. No communal open space area for social mixing of residents. 10. The need for external night lighting under the SEPP SL will be out of character with the locality and disturbing to the neighbours. 11. The excessive amount of paved area due to the central car courtyard design is contrary to existing character. 12. Disabled accessibility needs to be examined on several counts both on-site and in its distance to the Avalon shops. 13. The garbage facility would have bins too large for disable or wheelchair persons to utilise. 14. Garages that will need to accommodate a disabled person's vehicle will not be able to house 2 cars. Due to the local dependency on private transport more cars will be on site than car spaces allowed and overflow to on-street parking will occur. 15. No carwash bay is provided on site. 16. On-site detention tanks are inadequate for the expected rainfall run off. 17. Exterior colours do not comply with the dark and earthy requirements of council controls on local character. 31 The objectors directed the Courts attention to 2 large billboards on Nos. 81-83 Avalon Parade and Nos. 85-87 Avalon Parade. They had coloured artist's impressions of the SEPP SL approved on them. They were both under construction. The respondent noted Nos. 81-83 is a Council approved development and Nos. 85-87 is a Court approved development. No. 91 Avalon Parade is another Court approved SEPP5 development that is completed. The objectors said they all illustrated the impact that such developments had on the existing character of the locality.

32 The approved drawings including landscape plans for all 3 developments were tendered. I noted that each showed extensive landscaping including trees in the wide front setbacks.

33 At Nos. 85-87 the front setback is about 15 metres. At Nos. 81-83 the front setback is about 16 metres. At No. 91 the front setback is about 16 metres to the front courtyard wall and 19 metres to the building. No. 91 and Nos. 81-83 are in the form of 2-storey detached dwellings sitting on a shared basement car park with 3 and 6 units respectively on each allotment. Nos. 85-87 has two 2-storey blocks of 5 units each sitting on a shared basement car park.

34 The objectors took me to No. 91 and said that the landscaping did not appear to have been done as approved. It had been completed a year or two before this hearing. An examination of the landscape plan and observation of the front setback revealed that in fact there were the correct number of trees planted in about the correct locations. They were still saplings and hard to distinguish from the shrubs around them. But they would in time produce the correct end result for canopy trees on the site. I did not check the shrub plantings but there is quite an amount of vegetation. 35 At the other 2 sites, which were still under construction, I came to the conclusion that the artist's impressions on the billboards did not show the intended vegetation because it will be almost completely obscure the buildings. Also the vegetation that is shown on the billboards is formal European garden style, whereas the landscape plans are Australian native bush style.

36 The objectors took me to 2 other retirement unit developments at Nos. 3-5 Central Road and Nos. 63-65 Central Road. The files on these developments were not tendered. They have been built a few years ago. They are quite different to the Avalon Parade developments. They have courtyard fences right up against the front boundary. There are entry gate houses and garbage enclosures within the front setbacks with the consequence of little room for trees or shrubs to soften the built form from the street. The front setbacks themselves are about 6 to 8 metres wide.

37 The developments are 2-storey and I suspect possibly a third in places above a basement car park. They look so different to the Avalon Parade developments they appear to have been approved under different planning controls. 38 I concluded that if the objectors formed their opinions on the impact on character based on the Avalon Parade billboards and the Central Road developments they would be under a false impression. Nevertheless an objective assessment of the proposal, and the existing and the desired future character of the Avalon Parade locality, is necessary in determining this appeal.

39 The proposal has a 10 m front setback to the building and a 7.2 m front setback to the front courtyard wall of unit 1 and 6.6 m to the front courtyard wall of unit 2.

40 The garbage enclosure has a 4.6 m front setback.

41 The buildings are mainly single-storey and each house is detached from the others with a 1 m separation. 42 The central car court retains an existing cheese tree in the middle but another coastal Banksia is to be removed. That tree was thought to be a habitat or food tree for avifauna. An Eight Part Test under the Environmental Planning and Assessment Act had been carried out on the vegetation and site to determine if the local endangered species used it.

43 The Eight Part Test by Julia Stanton, Bachelor of Science in environmental and urban horticulture was tendered. She was not required for cross-examination.

a. No endangered plant species or vegetation communities are on the site. b. Of 17 trees proposed for removal 15 are exotic imported species and their removal does not effect the endemic local vegetation. c. Trees on Lot 21 and 22 are native but not endemic to the area. They are swamp paper barks. d. Tree 23 is a coastal Banksia that is endemic. This is the one proposed to be removed in the car court. e. Existing residential development on the site and near the site has resulted in loss of any substantial indigenous vegetation or ecological community that may have been there originally. f. Habitat trees for food shelter and nesting are very limited on the site. The group of trees Nos. 1, 2, 3, 4, 5, 5A and 6 that may provide habitat are to be retained. They are located in the north-east corner of the site in the front setback. g. Long nose bandicoot diggings were found on site but no hollows in trees that might provide shelter. As a result the site is used for foraging only. The bandicoot is not in danger. h. Trees 21, 22 and 23 are potential food trees for the squirrel glider a known local endangered species. They are to be removed but trees 1, 2, 3, 4, 5, 5A and 6 are food trees that are to be kept and extensively added to by the proposed new plantings. i. Some of the retained Eucalypts could produce food for local koalas but the limited and fragmented nature of them on the site, their isolation from core koala bush land make it unlikely that the site is currently used by either koalas or the squirrel glider which are the two endangered species known to be in the area. j. The proposed landscape vegetation will actively create additional habitat for indigenous fauna it may be local fauna will use this vegetation and it will in the future contribute to the generation of urban green corridors linking core bushland through residential areas. 45 The extension of habitat vegetation along the boundaries of the site, connecting the rear vegetation on the Edwards property to the group of habitat trees in the north-east street corner of the site, is an example of this green corridor creation. 46 This uncontested evidence prompts me to the conclusion that the site does not activate any of the factors in s 5A(2) of the Environmental Planning and Assessment Act that would require a species impact statement and mitigate against the proposal.

47 Mr Baker had only seen the amended plans the day before the hearing. He had recommended clerestorey lantern skylights above the kitchen on units 2 and 3 be removed. This had been done, but not similar lanterns above units 1 and 4. He had sought to reduce visual bulk of all the buildings. He had wanted the roof pitch lowered as well, but it remained the same.

48 The "libraries" in the roof of each unit are achieved by raised sections of the roofs similar to large lantern skylights using clere storey windows. The two on units 2 and 3 are set just beyond the 25% line at the rear of the site so the developments are single storey now at the rear and comply with the statute.

49 Units 1 and 4 at the front also has lanterns skylights over their kitchens and bedroom No. 1 ceilings. They are retained in the subject amended drawings also contrary to Mr Bakers suggestion.

50 The second storey "libraries" on units 1 and 4 are designed differently to each other so they are not symmetrical as seen from the street. The overall "Australian Beach House Design Style" said Mr Baker is retained. He says the matching style of all the four dwellings does make the site look like a multi-unit development rather than detached houses. He thought units 1 and 4 should be designed in different styles to foster an appearance of continuing the single house, single lot character of Avalon Parade. 51 Mr Baker said he withdrew his comment about the proposal being more than 400 m from the shopping centre, rendering it too far for frail or disabled persons to reach without a vehicle. A closer reading of SEPPSL showed a site only had to be within 400 m of public transport suitable for frail or disabled persons with an acceptable footpath. The terrain near the site is flat with a footpath and bus stops near the site. Numerous aged persons, some using electric tricycles, were seen on the day of the hearing going to and from the shops at the east end of Avalon Parade. Mr Baker noted that Mr Relf the access expert in his report found the proposal acceptable with perhaps some work needed at the speed control device in Avalon Parade near the site in order to make it also a refuge type crossing for frail and disabled.

52 Mr Baker said he now realised that SEPPSL would make this type of development permissible further along Avalon Parade and elsewhere in the single dwelling single lot zonings. However, he maintained his position that this proposal should not be approved for a number of reasons:

53 SEPPSL cl 2(1)(c) and cl 31(a), (b), (c) and (d) requires good design and recognition of desirable elements of the locations current character or the desired future character so that new buildings contribute to the quality and the identity of the area.

54 The councils controls state that the desired future character as low density residential, one and two storey residences in a natural landscape setting and they should reflect the predominant scale and setbacks of existing development. 55 He said although the proposal at FSR of 0.43:1 and site coverage of 57% can be classified as low density, the form and other elements of the buildings will not convey that character.

56 The scale of the proposal exceeds it's neighbours particularly as seen from the street. Using very similar roof forms with raised lantern skylights with steep pitched roofs and having the same pallet of materials, finishes and colours in the buildings breaks the one house per lot streetscape character.

57 Fences, gates and screening devices, the garbage enclosure element are stretched across the full frontage further emphasising that the development is units. The front units 1 and 2 are closer to the street than neighbours houses (ignoring the small carport at No. 109). The front courtyards, the screen walls and the garbage enclosure are within the front setback. These will emphasise the different character of the proposal in the streetscape. Mr Baker had recommended changes to avoid these impacts but many had not been done in the amended plans. He thought SEPPSL developments could be designed to fit comfortably into desired future character, but the proposal would not. 58 It was put to him a new large house at No. 79 Avalon Parade is the future character not the older beach style cottages. He said Exhibit 3 pictures in Figure 7 and 8 is the streetscape and there are some recent houses amongst them that retain the character. The proposal would not. The large house may be the exception.

59 He had seen the intended colour and materials changes in Exhibit 1 tab 2 and said that they did not achieve the changes necessary.

60 SEPPSL cl 33(b) required living and dinning area windows to have northerly aspects. Unit 2 living and dining had only western and eastern windows into the side setbacks in one case and into the visitors carpark in the other. The kitchen is internal and with the deleted lantern would need a standard skylight in the roof plane.

61 Unit 3 Living had only eastern windows into the side setback. It's dining had northern windows.

62 Also Mr Baker added it was not good design to have the visitor parking bay next to the windows of bedroom 3 of Unit 2. He had suggested changes that the applicant had not included in the amended plans.

63 And under SEPPSL cl 32(a) the winter sun court for unit 3 outside it's dining room is actually open to the central car courtyard and is the path to unit 3's front door. It is not very good design for privacy of the courtyard or the dining room or the kitchen. At night all car headlights entering the site would shine directly into those rooms.

64 In regard to the car parking concerns of the objectors Mr Baker agreed that under SEPPSL cl 81(h) the proposal has 12 bedrooms and 0.5 of a car space is needed for each bedroom, therefore only six cars are required on site. Even if the "libraries" are counted as a bedroom it would only add two more cars to the total required and the site has eight car spaces. Under SEPPSL if the parking is complied with it cannot be a reason for refusal. 65 Mr Baker admitted the SEPPSL required up to 70% of units to have three hours of direct sun in mid winter to a living space. Unit 2 DOES barely achieve that and the other units do achieve 3 hours so it did not become a statutory reason for refusal, but it is not good design. The garages of units 2 and 3 appear to occupy the most favourable opportunities for northern sunlight to living rooms. A re-design of the units could achieve much better solar access and internal amenity..

66 Mr Baker said SEPPSL cl 31 (b) and (c)(i) required the proposal to compliment the Ruskin and Rowe Heritage Conservation Area behind the site, and maintain amenity and residential character with appropriate building setbacks.

67 The SEPPSL cl 81 (d) also required 15% of the site to have deep soil areas for vegetation and preferably two thirds of that should be located at the rear of a site with the minimum dimension of 3 m.

68 Bearing in mind the conservation area and the needs of the local fauna and bushland habitat it seemed to Mr Baker a rear setback is important and yet the design has rear setbacks that do not achieve the two thirds proportion of deep soil. He calculates that means a minimum 5.5 m rear setback on the proposal. 69 The proposal has a variable rear setback between 4.4 m, 3.6 m, 5.3 m and 3.4 m. Mr Baker agreed that the statute only said "preferably two thirds" but it is desirable. The heritage area bushland is not there to benefit the proposal with reduced setbacks. He acknowledged the proposal achieved the 15% of the site area in deep soil landscaping and a total of 30% site area landscaped elsewhere on the property. He pressed for the 5.5 m minimum rear setback or an average of 5.5 m to achieve the deep soil vegetation.

70 It was put to Mr Baker that none of the other SEPPSL developments along Avalon Parade achieved the rear setbacks required for deep soil planting. He said none of those developments had a conservation area at the back fence.

71 The significance of the conservation area in Pittwater Development Control Plan No. 15 is stated to be a subdivision pattern of large lots and the one house per lot density that enables vegetation to dominate and the wildlife corridor to be maintained. Mr Baker said the statement of significance did not identify where the corridor is located. 72 Due to the koala population moving around in its territory following habitat trees I believe it is reasonable to assume the whole conservation area is the wildlife corridor.

73 Mr Baker in his report considered that the council's Development Control Plan No. 21 rear setback requirement of 6.5 m may not be necessary. However, he put some weight on it achieving the 5.5 m setback of SEPPSL to support deep soil and endemic trees and shrubs to supplement the habitat. This seems a reasonable position to take given the conservation the area adjoining.

74 In regard to privacy issues Mr Baker had prepared sight line drawings in Exhibit No. 11. From that he recommended that the library in dwelling 2 should be re-designed or deleted in order to maintain privacy to the eastern windows of Mr Surgeon's house. This had not been incorporated in the amended plans.

75 Overall I have concluded that Mr Baker is correct in his professional opinion that it is possible to design SEPPSL development on the site to fit in with the desired future character of locality, but this design does not achieve it. It's front setback, structures within the front setback and "unit style" identity of the design does not reflect the existing setbacks and streetscape. 76 It is notable the other SEPPSL and SEPP 5 developments in Avalon Avenue have significantly greater front setbacks and extensive landscaping to screen the buildings and maintain the dominance of vegetation in the streetscape. In this proposal such screening will not occur and its greater visibility justifies Mr Bakers position that units 1 and 4 should be designed to retain the detached housing character and variety as the desired planning outcome of the area in the future.

77 By implication, the cumulative impact on local character that successive SEPPSL developments may create, may be avoided by better design than this proposal.

78 These and the internal amenity shortcomings of the design could be rectified but it needs a redesign including units 2 and 3 that is beyond the scope of conditions. The redesign could potentially effect the whole layout of the proposal.

79 Therefore I find the proposal does not achieve SEPPSL cl 2 (1)(c), cl 2(2)(b), cl 31(a), (b), (c) and (d). In this case also cl 81 (d) is not satisfactorily complied with. 80 The orders of the Court are: 1. The appeal is dismissed. 2. The exhibits are returned to the parties except Exhibits A, C, 3, 5, 6, 7, 8, 9 and 10.

      K G Hoffman
      Commissioner of the Court
      ljr

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