AVK Pty Limited v Baulkham Hills Shire Council

TUESDAY 16 SEPTEMBER 2003 AVK PTY LIMITED Applicant v BAULKHAM HILLS SHIRE COUNCIL Respondent JUDGMENT

1 HIS HONOUR: This is an application for the development of a property known as 404-416 Windsor Road and 1-3 Meryll Avenue, Baulkham Hills. The land is zoned Residential 2(a1) pursuant to Baulkham Hills Local Environment Plan 1991. Within that zone, residential development, relevantly described as apartment buildings, is permissible with the consent of the council. 2 The Development Application described the proposal as "the erection of seventy two-bedroom and fifteen one-bedroom apartments". The property description included number 404 Windsor Road, Baulkham Hills, being Lot 1 in DP 564845. Number 404 has an area of approximately 678.5 square metres. 3 Number 404 has been developed with a dwelling house which has been modified to enable its use as an orthodontist's surgery. The yard area of the property has been substantially covered with concrete which provides parking for a number of cars. Consent for its use as an orthodontist's surgery was given some years ago. 4 As I understand the current proposal, it is intended that 404 will continue to be used for its present use. No alteration to the house is proposed. However, it is proposed to provide a front fence to the property in the same form as the fence for the remainder of the site, the subject of the application. It is also proposed to provide some alteration in the drainage so as to affect the drainage of number 404 in a way which enables the water to be captured and carried with the water generated by the proposed residential development on the larger part of the site. 5 Apart from the Local Environmental Plan the site is controlled by State Environmental Planning Policy 65. The Policy provides design principles for a residential development. Those design principles, designed to achieve good design outcomes, must be considered along with the Residential Flat Design Code which was adopted by the Department of Planning in 2002. The Residential Flat Design Code provides a number of qualitative controls and also prescribes a number of quantitative matters which must be considered when making a decision in relation to the present application. 6 The site is a large site of which most was previously used as a commercial nursery. That part of the site which has frontage to Meryll Avenue is presently developed for modest residential cottages. Those cottages appear to have been erected in the 1960s. 7 The appearance of the general area suggests that it was also developed in the 1960s for single dwelling houses. However, the Local Environmental Plan, contains provisions which indicate an intention that much of the area will be re-developed with medium density housing of one form or another. Clearly that expectation exists in relation to the subject site, and irrespective of the outcome of this application, it is likely that a residential development, probably for apartments as defined in the Local Environmental Plan, will take place in the near future. 8 The site falls from Windsor Road to the rear. As a consequence, the development to the rear, which takes the form of townhouse and similar development, is at a level lower than the subject site. This will exacerbate any difficulties in relation to overshadowing and overlooking. As a consequence, care needs to be taken in the design of any proposal on the subject site to ensure that the impacts in those respects are not excessive. However, because of the fact that the land has been zoned to accommodate medium density dwellings, it is inevitable that some impacts usually associated with such development will occur. 9 The site is also controlled by Development Control Plan Number 23 which was apparently adopted by the council after this Development Application had been submitted. The Development Control Plan imposes controls in relation to the height and length of apartment buildings. It also provides controls in relation to density, setback, separation between buildings and other matters. 10 The council has provided an amended Statement of Issues in relation to the application. In the course of the hearing the issues have been further refined. Those which appear to me to require consideration fall into the following categories: firstly, whether or not the application is permissible having regard to the provisions of cl 43 of the Local Environmental Plan; secondly, even if permissible having regard to the provisions of cl 43, nevertheless, it is necessary to consider whether the application should be approved having regard to the ultimate form of the development on number 404 Windsor Road; thirdly, the separation between buildings identified as A1 and A2; fourthly, the length of building B; fifthly, the overshadowing impact particularly on unit 14 of the development at 17 Coney Avenue; sixthly, the impact of traffic; and finally, the impact of overlooking upon neighbouring properties. 11 Evidence was provided to the court from the council's planning officer. His report is comprehensive and details the council's concerns in relation to the matter. The applicant also provided evidence going to the town planning and architectural issues, together with a comprehensive traffic report. As it happened, neither party wished to cross-examine any of the experts. 12 The court commends the advocates for the manner in which the proceedings have been conducted which has enabled the Court to concentrate on the significant issues enabling an efficient resolution of the appeal. 13 Turning then to the issues, it is necessary first to consider whether or not the application can be approved. Clause 43(1) of the Baulkham Hills Local Environmental Plan provides as follows: "The Council must not consent to the development of land in the Residential 2(a1) zone for the purpose of apartment buildings, townhouses or villas if the carrying out of the proposed development would, in the opinion of the Council, render any allotment adjoining the site of the proposed development incapable of development for the purpose of town houses because the allotment would not meet the requirements of clause 41." 14 Clause 41 of the Local Environmental Plan makes provision for a minimum area of different forms of development. Apartment buildings require a minimum area of 4000 square metres, townhouses an area of 1800 square metres and villas an area of 1000 square metres. 15 In the present case cl 43(1) operates by reference to the area provided for townhouses. Accordingly, the clause contemplates that a relevant development will not be permitted unless the allotment adjoining the site has an area of 1800 square metres. 16 The council submits that the development for the purpose of apartment buildings proposed in this application is confined to the land other than number 404. Accordingly it submits that number 404 becomes an adjoining site of the proposed development and, because it has an area of only 678.5 square metres, it falls far below the minimum area contemplated by cl 41. 17 Accordingly, it is submitted that the allotment which is comprised of number 404 would not meet the requirements of cl 41 and would remain as a site not capable of development for townhouses. 18 The applicant submits that the Development Application, for the purposes of apartment buildings, should be understood as incorporating number 404. The applicant points to the fact that there will be fencing on number 404 which will be a continuation of the fencing proposed for the bulk of the site. Emphasis is also placed upon the fact that there will be some modest landscaping on number 404 as part of the proposal and, as I have indicated, there will also be some alteration in the drainage to accommodate the run-off from number 404. 19 The applicant also emphasises cl 42 of the Local Environmental Plan. That clause operates to modify the absolute consequence of cl 41 in circumstances where the council is satisfied that various planning objectives can be met notwithstanding the fact that the site for the proposed development does not meet the minimum requirements in cl 41. 20 In the present case there is no indication of the form of townhouse development which could be provided on number 404 and, of course, there is no proposal to provide it. Accordingly, even if cl 42 was able to be considered when a decision was being made in relation to the application of cl 43, there is nothing before the Court which would enable its consideration in the present case. 21 The council's submission requires the determination in any particular case of what constitutes the site of the proposed development. In my opinion, that site will be the area of land upon which it is proposed to develop the apartment buildings, townhouses or villas referred to in the clause. Where, as is occurring in the present case, the Development Application incorporates an area of land which is used for a purpose other than apartment buildings, townhouses or villas and it is proposed to continue that use for those purposes, it would be inappropriate to describe that other area of land as forming part of the site of the relevant proposed development. It is the site of an existing development which is proposed to be continued. 22 Accordingly, if it were necessary for me to determine whether or not this application could be approved, I would come to the view that it could not. However, there are other reasons why in my opinion this application should be refused. 23 The clear purpose of cl 43 is to ensure that in the area of Baulkham Hills which has been identified as appropriate for redevelopment for medium density housing, isolated sites are not left behind which are incapable in the future of being redeveloped for medium density residential purposes. No doubt one planning objective of the provision is to ensure that the infrastructure which has been provided to service medium density housing, is used most efficiently so that all of the land zoned for that purpose will ultimately be developed as the plan intends. Leaving isolated sites without providing a capacity for their redevelopment will defeat this objective. 24 Beyond those matters, however, significant issues of streetscape will often exist if it is proposed to leave a small site as part of an area undergoing redevelopment for a different form of housing. 25 In the present case, the site proposed for this development is prominent. It is located on Windsor Road. To the south of number 404 is a large apartment development which presents a built form which contrasts significantly with the built form of the existing single-dwelling house. That single-dwelling house would contrast very significantly with the proposed apartment buildings on the remainder of the site the subject of this application. 26 Windsor Road is a major road with the consequence that the streetscape is one which will be viewed by many people on a daily basis. The site is also opposite a major shopping facility which is provided as part of the Baulkham Hills commercial area. 27 In my opinion, leaving aside the question of whether or not the application is permissible, the evidence which the council tendered describing the streetscape which would emerge from the current form of this proposal as inappropriate should be accepted. In forming that conclusion I have had regard to the evidence brought by the applicant, particularly that of Mr Gilder, but in my view the applicant's evidence in this respect cannot be accepted. 28 In part the incongruity of what is proposed comes from the fact that the apartment buildings proposed on the frontage to Windsor Road in this application are themselves significant buildings. Although they will be landscaped, which would soft their impact, nevertheless the buildings identified in the plans as A1 and A2 will have a length of forty metres and forty-one metres respectively. 29 It is proposed to soften the impact of those buildings by a variation in roof form and this form will undoubtedly enhance the appearance of the proposal from Windsor Road. However, the buildings are to be separated by a minimum distance of 6.8 metres. That distance will not enable the buildings to be read from many locations other than as a single, continuous built form. Accordingly, the visual impact of those two buildings will often appear as one and would be a very significant contrast to the single dwelling which exists on number 404. 30 I should not be understood as indicating that the built form of buildings A1 and A2 would themselves be inappropriate. The difficulty which emerges is the form of those proposed buildings in contrast to the existing single dwelling on the adjoining allotment. 31 The council raises issues in relation to a number of other matters. It is necessary for me only briefly to comment upon them. Firstly, the separation provided between buildings A1 and A2 is significantly less than that required by the Development Control Plan. The Development Control Plan requires a separation of twelve metres pursuant to cl 5.5. As I have already indicated, the consequence of the proximity of the buildings as proposed in the current plans reinforces the impact of those buildings in the context of number 404. It may also be that in order to achieve an ultimate resolution of a satisfactory proposal for this site a greater separation should be provided between buildings which front Windsor Road. However, as my decision will require thought to be given to a re-design of this proposal, I should not be understood to be suggesting that the DCP must be applied to provide a satisfactory resolution of any proposed development. 32 Building B is designed with a length of sixty-eight metres. The Development Control Plan provides a maximum length of fifty metres. The applicant points out that this control was provided after the Development Application had been prepared and lodged with the council. An endeavour has been made to soften the impact of the building but it has been kept at its original length. It is submitted that it would be unfair to impose the Development Control Plan parameters upon this development given the sequence of the relevant events. 33 In my opinion the maximum length of building is a significant matter in relation to this site, notwithstanding the fact that the control was imposed after the Development Application had been lodged. The visual impact of building B upon its neighbours to the south and west is a significant matter. Although, as I have already indicated, the neighbouring properties, being also medium density or proposed for redevelopment for that purpose, must accept impacts of other medium density development, those impacts should be ameliorated in accordance with contemporary development standards. 34 The council has adopted the 50-metre length no doubt to ensure that proposed development is not excessive in its visual impact and in my view that control should be accepted as appropriate for any development on this site. 35 The proposal generally achieves a satisfactory shadow impact but for unit 14 at number 17 Connie Avenue where the impact on the rear yard of that dwelling is severe. Whereas, at the moment, the evidence indicates that the rear yard enjoys sunshine in the winter from approximately midday throughout the rest of the afternoon, almost all of that sunshine will be lost. Accordingly, the outdoor area of that property, if this proposal was to go ahead in its present form, would be virtually cast into shadow for the whole of the day in the middle of winter. 36 In my opinion this would not be an acceptable impact and if this proposal was to go ahead, some modest design changes would be necessary to ameliorate the impact upon that unit. 37 The evidence does not enable me to say whether there is a further impact on the intrusion of sunshine within the dwelling. However, this would appear likely from the shadow diagrams, further exacerbating the adverse nature of the shadow effect upon that unit. 38 With respect to traffic matters, a number of local people have given evidence and raised concerns about the impact of traffic, particularly in Meryll Avenue. Their concerns also extend to the necessary re-configuration of the intersection between Rembrandt Drive and Windsor Road to accommodate more residential traffic. That rearrangement will make it more difficult for residents to enter Windsor Road and proceed to the south. The consequence will be a noticeable change in the traffic conditions existing in Meryll Avenue in the future. 39 Apart from the residents who have given evidence, a number of others have placed submissions before the council raising traffic concerns. 40 It is plain from the analysis which has been undertaken by traffic consultants that the proposed development will increase the level of traffic on Meryll Avenue significantly. There is no doubt that the existing residents who use that street, some of whom of course live in medium density development, will notice a change in the volume of traffic, particularly in the morning and evening peak times. However, the traffic expert's evidence makes plain that the street system is capable of safely accommodating the increased traffic. 41 Even though the residents will notice a change and from time to time will no doubt be inconvenienced, there is nothing to suggest that this application should be refused having regard to its traffic impacts. 42 Overlooking and privacy matters have also been raised by local residents. Efforts have been made by the applicant to modify the proposal to accommodate many of those concerns and conditions would be imposed on any development ensuring that appropriate landscaping is provided. 43 As I have previously indicated, the topography of this site and the fact that it sits above many of its neighbours has the consequence that privacy and overlooking problems may be exaggerated unless careful thought is given to those matters in the design. However, the area, which includes the subject site, has been zoned for medium density housing with the consequence that persons will live in closer proximity to one another than might occur in conventional dwelling house areas. This will have the consequence not only of proximity but also opportunities for overlooking which might not otherwise occur in single-dwelling areas. 44 In general terms, I am satisfied this proposal has adequately addressed the questions of privacy and overlooking and, if otherwise appropriate, this would not be a reason for its refusal. This is not to say that the concerns expressed by the residents are not genuine and reflect a real concern that their current privacy may be intruded upon by a development on the subject site but, as I have indicated, this is an inevitable consequence of the redevelopment process which needs to be sympathetically considered in any design. 45 There was an issue between the parties at an earlier stage in relation to the proposed density of this proposal. However, that issue was not ultimately required to be resolved by the court. No doubt this reflects the fact that the council accepts that by zoning this site 2(a1) it should be redeveloped with medium density housing at an early date in order to provide additional dwellings within the Baulkham Hills area. 46 Finally, I should address the question of number 404 and the future development potential of the whole of this site. It is not uncommon when an area is undergoing redevelopment for problems similar to that which appears to have emerged with number 404 to require to be addressed. 47 In many areas, for personal reasons, or commercial reasons, individuals will hold out and refuse to come to accommodate a developer who seeks to amalgamate a site suitable for medium density redevelopment. This can also happen when an area of broad acres has been gradually redeveloped for single-dwelling purposes. In the ordinary course these problems are worked out by commercial solutions. In some cases some people, by reason of their commercial skill and capacity to negotiate, may do better than others. 48 The planning system operates upon the fundamental assumption that private commercial arrangements will be made in relation to possible development sites. Inevitably in making those arrangements some parties will do better than others. In some cases the court will be sympathetic to a developer who has sought to amalgamate an appropriate site but one, or a limited number of, landowners unreasonably holds out from participating in the redevelopment project. 49 That problem was addressed by Lloyd J in Architectural Property Services Pty Limited v Rockdale City Council, [1999] NSWLEC 83. In that case his Honour had before him evidence of endeavours made by the applicant to negotiate with one landowner for the purpose of redevelopment for medium density residential purposes. His Honour found that the developer had acted reasonably, the individual landowner otherwise and, notwithstanding the ultimate impact upon the streetscape, approved the development. 50 In the case of land controlled by Baulkham Hills Local Environmental Plan, different considerations arise. As I have indicated, cl 43 operates as a constraint upon the council granting development consent in the event that the relevant factual circumstances exist. If those circumstances do exist, there is simply no capacity in the council or the Court, notwithstanding the unreasonable position adopted by an individual landowner, to intervene and grant consent. 51 Presumably when the Local Environmental Plan was made this possibility was contemplated and it was determined that, notwithstanding the impediment which the clause may represent to the development of some potentially large sites, those problems should be tolerated in order to achieve the satisfactory redevelopment of all land included within the relevant zone. 52 Beyond the question of legal capacity to approve an application, however, is the very strong indication given by cl 43 that matters of efficient utilisation of land for medium density housing purposes and questions of the ultimate form of the streetscape are of great significance. 53 In the present case there is no evidence before the court from which any view of the reasonableness of the position adopted by the owner of number 404 could be assessed. No doubt the persons with control of that site have their own commercial objectives for it and it would appear, at least at present, would prefer to maintain their business on the site notwithstanding the redevelopment of the adjoining land. 54 It will be important that the present applicant and the owner of number 404 participate in discussions in an endeavour to find a solution, both to their commercial aspirations and the efficient redevelopment of all of the land which they control and which has been rezoned for the purpose of medium density housing. Perhaps the solution will involve a staging of development on the site, or it may be that the orthodontic facilities can be incorporated within a proposed comprehensive development. 55 It is of course not for the court to speculate in relation to these matters but it is important to emphasise that, if possible, a solution should be found which enables the objectives of the Local Environmental Plan to be met in a manner consistent with all of the parties' fair and reasonable commercial expectations. 56 The appeal is dismissed and I make no order as to costs. The exhibits may be returned.

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