As indicated at the meeting should Council resolve to proceed with the draft plan, the issues of appropriate zonings, together with the need to include a savings clause, will require to be addressed by Council to allow the Minister to consider whether to make the plan or take other action ….
46 From the site inspection with the parties it could be seen that other medium density developments have recently been constructed in the area with large numbers of dwellings that provide a distinctive built form amongst the lower density single residences. Apartment buildings of a higher medium density form on the subject site would read as a more intensive residential form of development but would clearly provide a choice in housing for this growing planned sector where it would be anticipated and appropriate to provide the opportunity for a variety and choice in housing including apartment style units.
47 Mr Lester was engaged by the respondent to undertake a qualitative review of the development application against urban design principles and council's planning documents. From his statement it is noted that he was instructed that the relevant land use zone is as under the adopted draft Baulkham Hills Local Environmental Plan for the subject site. That is 2(a2) which permits townhouses and villas and prohibits apartments and there is no reference to the 1991 LEP zoning of the land.
48 The joint statement of Mr Lester and Mr Menzies identified the areas of disagreement when the proposed development is assessed in terms of the design quality principles contained in SEPP 65.
49 For the principle of context Mr Lester comments that the proposal is inappropriate with the adopted draft LEP whereas Mr Menzies considers it is appropriate for land zoned Residential 2(a). I am satisfied that the proposed development is appropriate for its context and would not be out of character with the area having regard to its proximity with the Norwest Business Park. The character of the local area is varied albeit that the majority of housing is large single detached dwellings on moderate size allotments, the majority being of two-storey construction. However, as can be seen from the aerial photo with cadastral information at Fig. 1. there is a complex of a large number of townhouses one block removed from the subject site. Also to the east of the subject site on the corner of Windsor Road there is a recent developed complex with a significantly large number of townhouses. I am satisfied given the size of the site that the proposed development would not be out of character but sit comfortably in the context of the area. Prohibition of the proposed development in terms of a draft plan does not provide a comprehensive assessment of the principle of context having regard to the key natural and built features of the area. The adjoining Norwest Business Park forms part of the context for the proposal and will continue to do so irrespective of future zonings.
50 On the principle of scale the SEPP relates this to "the bulk and height that suites the scale of the street and the surrounding buildings". Mr Lester considers that the closely spaced townhouses adjacent to single dwellings are inappropriate as is the excessive scale of the apartment buildings whereas Mr Menzies is of the opinion that the overall scale of the buildings compliment the existing two-storey residential housing in the area and that the natural slope of the site … compliments the overall character of the building form throughout the site and that this presents well in the streetscape. I am satisfied that the proposal will provide a satisfactory relationship with the adjoining development of dwelling houses and the Norwest Business Park.
51 The Policy states that:
Appropriate built form defines the public domain, contributes to the character of streetscape and parks, including their views and vistas, and provides internal amenity and outlook.
In my assessment when the proposal is viewed from the public domain, outside the site, this would not warrant refusal of the application. However, I agree with Mr Lester that the juxtaposition of the townhouses on the periphery to the apartments opposite the internal Circuit Road is less than adequate for environmental amenity. I do not accept that providing a private internal road justifies an inappropriate relationship and presentation of dwellings, that is townhouses to the apartments such that separation distances with minimum setbacks reduce the opportunity for appropriate landscaping.
52 The road system whether public or private and the configuration of dwelling units must allow the relationship of the built form to provide a level of presentation commensurate with streets within the public domain. I agree with Mr Lester that the computer generated views serve to reinforce the inappropriate relationship between the townhouses and apartments without the opportunity for landscaping to compliment the built form. The applicant's experts focussed on the appropriateness of providing townhouses on the perimeter to provide the transition to the residential dwelling houses to the east and west of the site. I do not accept that this is an appropriate design philosophy for the site as the amenity within the site is less than satisfactory.
Mr Lester describes the SEPP 65 density criteria to include compatibility with existing or desired future density as well as compatibility with public transport, infrastructure, environment and community facilities. And he concludes that the density is inappropriate and excessive because of the adopted draft LEP that provides for a density of 95 persons per hectare whereas the proposal is 113 persons per hectare. I do not accept this analysis for the reason that the proposed density must be considered in the context of the site not only in terms of the adjoining dwelling houses but other medium density developments in the area and the Business Park together with the opportunity a large site presents for higher density as described in the "Better Urban Living Guidelines".
53 SEPP 65 for the principle of 'Resource, Energy and Water Efficiency' states that "good design makes efficient use of natural resources, energy and water throughout its full life cycle and sustainability is integral to the design process including layout and built form, passive solar design principles and re-use of water". There is little evidence available to fully assess the proposal against this principle. While assessment against this principle may not warrant refusal of the application, it would appear however, that a project of this scale does present the opportunity for proactive sustainability measures to be incorporated in the design process such as consideration of the re-use of water and EDP principles.
54 For the principle of landscape SEPP 65 recognises that "together landscape and buildings operate as an integrated and sustainable system resulting in aesthetic quality and amenity for both occupants and the adjoining public domain". Mr Menzies comments that the proposed landscaping will be a dramatic improvement whereas Mr Lester is of the opinion that the landscaping does not build on the natural features of the site and that the communal open spaces are poorly located and inadequate. It is noted that the council has approved the removal of the existing trees on the subject site and the landscaping plan provides for landscaping commensurate with other development in the area. However, for a site of this size where apartment buildings are proposed vegetation to compliment the built form in terms of providing sufficient dimensioned spaces for canopy trees and an appropriate setting for the apartments would not be achieved in my assessment having regard to the footprint of the basement parking, the internal Circuit Road and the perimeter of the site dominated by the footprint of the townhouses.
55 The principle of amenity requires appropriate consideration of room dimensions, access to sunlight, natural ventilation, visual and acoustic privacy, indoor and outdoor space and ease of access. Mr Menzies comments that the small discrepancies can be easily remedied while Mr Lester is of the opinion that there are significant privacy and amenity issues. Despite the fact that the minimum separation distances may be capable of being achieved for each individual unit and townhouse at the same time I am not satisfied that the relationship of the apartment buildings of 3 and 4 storeys to the Circuit Road and the perimeter townhouses of 2 and 3 storeys is an appropriate design layout concept. While the townhouses may provide an appropriate transition to the residential dwellings to the east and west at the same time the dominance of garages with two storeys above and minimal setbacks to the Circuit Road and of apartments not because of adverse amenity impacts to adjoining residences.
56 The Policy states that:
Good design optimises safety and security, both internal to the development and for the public domain.
Mr Lester is of the opinion that the design and random distribution of elements of the communal open space rather than consolidation together with the garage dominated environment of the internal Circuit Road are not supportive of an effective passive surveillance framework for the proposed development and that a formal crime risk assessment has not been prepared. Mr Menzies comment on the latter was that this was not required at the time the application was submitted and in the circumstances such details could be provided if the Court was minded to grant approval. Given the large number of dwelling units, a formal crime risk assessment would be prudent despite the fact that there was not a formal requirement.
57 For the principle of social dimensions the Policy states:
New developments should optimise the provision of housing to suite the social mix and needs in the neighbourhood or, in the case of precincts undergoing transition, provide for the desired future community.
58 Mr Lester comments that the proposal is not consistent with the adopted draft LEP which is taken to reflect community expectations and desired future character. However, in my assessment the proposal is consistent with the general aims and objectives of the draft Plan in that amongst other objectives it provides for housing choice within the area. Furthermore, I agree with Mr Menzies that given the close proximity of the site to the Norwest Business Park and shopping centre, that apartment buildings per se are appropriate for the site.
59 The final principle to be addressed is aesthetics. The Policy states that:
Quality aesthetics require the appropriate composition of building elements, textures, materials and colours and reflect the use, internal design and structure of the development. Aesthetics should respond to the environment and context, particularly to desirable element of the existing streetscape … .
In Mr Lester's opinion the design of the proposal is less than optimal in terms of aesthetics. Mr Menzies on the other hand considers that the details, materials, finishes and colours and design features and the general form of the development are sympathetic to the precinct. I do not dispute that the proposed development picks up common elements, roof forms, colours, materials, finishes of the adjacent adjoining buildings, but I agree with Mr Lester. While my observations may not be fatal to the application nonetheless on a holistic view of the development complex, the configuration on the built form does not respond to the natural topography and the concentration of density in the centre of the site flanked by townhouses in my assessment will not present as an aesthetically pleasing development from the internal road. The presentation of dwellings with minimal setbacks and garages dominating the streetscape (albeit internal road) is not reflective of good design.
60 During the proceedings in March a conclave of the four experts: Mr Lester; Mr Menzies; Mr Hurley; and Mr Swan conferred on a number of issues including not only the extent of amendments and the identification of inconsistencies in the plans but also to provide the respondent with the opportunity to visit the architect's office to view the computer model for the proposal.
61 Mr Lester made the following comments to the Court on the views simulated by the computer model. He identified a number of difficulties and inaccuracies in the views provided. In particular the lack of ground planes and road alignments required a number of assumptions to be made and in that regard he was of the opinion that the views depicted by the model were a misrepresentation and this was explained in Court by reference to the simulated views. I was persuaded by Mr Lester's evidence that the computer model has inadequate inputs to provide confidence in the 'views' and they should not be relied upon to give a reliable indication of the final built form on the ground. I agree with Mr Lester's evidence that despite their deficiencies the simulated 'views' do however, serve to reinforce that the proposed development would be an unacceptable built form.
62 In my assessment I am also of the opinion that when viewed from within the site the internal configuration of the buildings and their inter-relationship is not satisfactory. In this regard I do not accept the applicant's submission that the internal roads are private roads and from the public domain the proposal is satisfactory. From the external boundaries the proposal may be satisfactory but it is the juxtaposition of buildings and the presentation to the narrow internal road of 2-storey townhouses above garages opposite 4-storey apartments that would not result in good urban design.
63 The proposal is for 90 dwellings and the internal environment created must be suitable when assessed in terms of urban design criteria and in this regard I am persuaded by Mr Lester's assessment that the proposal does not warrant approval and that it is an inappropriate solution to the site to provide "a wall of townhouses to the apartment buildings". I do not accept the proposal provides an appropriate relationship for dwellings within the site even though it may provide a transition to the existing housing as submitted by the applicant.
64 Mr Lester is of the opinion that: "the scale and density of the 2 to 3-storey townhouses together with the 3 to 4-storey apartments located in close proximity to the narrow Circuit Street is not compatible with good urban design practice and will result in a substandard urban environment and in a number of locations apartments are located within several metres of the internal road. The importance of establishing a street setback to enhance the setting for an apartment building is identified in the Residential Flat Design Code and a minimum setback from the street frontage of 10 m is required under DCP 23 to help secure the objective" … to ensure sufficient space in front of the building to permit landscaping that will compliment the building form and enhance the landscape character of the street".
65 While the minimum separation distances between dwellings is generally satisfied there are several non-compliances and while this may not be fatal to the application, nonetheless it is symptomatic of the restricted nature of the design approach in locating townhouses around apartment buildings separated by a relatively narrow internal road dominated by garage doors that provides vehicular access to the majority of the town houses.
66 In the earlier statement of Mr Lester and Mr Gelder, it was agreed the potential to extend the basement carparking under the townhouses would diminish the visual dominance of carparking access and garage doors and enhance the streetscape. However, the subsequent amended plans provided for only about a quarter of the townhouses to have basement parking.