Baker Kavanagh Architects v Sutherland Shire Council

CASES CITED: Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46; Architectural Property Services Pty Ltd v Rockdale City Council [1999] NSWLEC 83

APPLICANT Mr A Galasso, barrister SOLICITORS Lander & Co

RESPONDENTS Mr G Green, solicitor SOLICITORS Pike Pike and Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10082 of 2005 Baker Kavanagh Architects v Sutherland Shire Council

JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal of DA03/0325 by Sutherland Shire Council (the council) for a mixed commercial/residential development at 36 - 40 Brighton St., Bundeena (the site). The site and surrounding area 2 The site is Lot A in DP 360964. It is generally rectangular in shape with a frontage to Brighton St of 18.3 metres and a depth of 46.79 metres giving a total site area of 855.2 square metres. The site slopes approximately 5 metres from the rear south eastern corner to the north western corner adjacent to Brighton St.

3 A number of small trees and vegetation are located on the site with two large trees towards the Brighton St frontage. The site is currently vacant.

4 The site is located within the business and commercial centre of Bundeena. The proposal 5 The proposal seeks the construction of a mixed commercial/residential building comprising a part two-storey component at the Brighton St frontage and part three-storey component behind the two-storey section. The commercial area is located towards the Brighton St frontage and contains 3 separate tenancies with a nett commercial area of 189 square metres.

6 The residential component consists of 5 x 1 bedroom dwelling units and 2 x 2 bedroom dwelling units with a total floor area of around 492 square metres. Two dwelling units are orientated towards Brighton St (or west) and five dwelling units are orientated towards the north over an adjoining commercial property.

7 Car parking is provided at the rear of the site and consists of a total of 15 parking spaces at grade and with single and double vertical stacked parking platforms. Relevant planning controls 8 The site is zoned 3(b) Neighbourhood Business under Sutherland Shire Local Environmental Plan 2000 (LEP 2000). This zoning was effective from 12 September 2003 and was changed from a 3(a) General Business zone by way of a map amendment. LEP 2000 remained the effective planning instrument. The proposed development is permissible within both zones.

9 Clause 6(1) provides savings provisions and is relevant as the development application was lodged with council on 7 March 2003. The savings clause states local environmental plans, as in force immediately before the commencement of the new plan, apply to a development application that was made but not finally determined. The new plan is to the considered as if the plan had been exhibited but not been made.

10 The site is also located within a Foreshore Scenic Protection Area under LEP 2000. Clauses 19 and 20 provide requirements for sites within a Foreshore Scenic Protection Area.

11 LEP 2000 relevantly provides requirements for height (cl 43), floor space ratio (FSR) (cl 44) and proportions of residential and commercial floor space (cl 45). The FSR requirement varies between the 3(a) and 3(b) zones and is discussed in detail later in the judgement.

12 The Bundeena and Maianbar Development Control Plan also applies. This document came into effect on 16 March 1998 (the original DCP) but was amended and the revised version came into effect on 14 December 2004 (the amended DCP). The document provides primary objectives, specific objectives for Business Centres, standards for height and storeys, proportions of residential and commercial floor space, FSR and car parking. The relevant variations between the original DCP and the amended DCP are discussed later in the judgement.

13 Draft Sutherland Shire Local Environmental Plan 2004 (the draft LEP) also applies. This document zones the site Neighbourhood Centre and the proposed use is permissible within this zone. The most recent evidence on the status of the draft LEP was contained in a letter dated 6 February 2006 from the Minister for Planning. The contents indicated that the Minister intends to finalise the draft LEP quickly and that the LEP will include "critical DCP standards" for Bundeena into the draft LEP. I note the letter contains no explanation on the conflict between the FSR controls in the 3(b) zone and the amended DCP. Also, the letter provides no timetable for gazettal. On this basis, the draft LEP should not be considered imminent or certain and consequently should not be given any significant weight in the proceedings.

14 State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65) applies to the proposal by way of cl 4(1)(a) as the proposal is defined as "the erection of a new residential flat building". Part 2 provides design quality principles for residential flat development. These design quality principles seek to provide a guide to achieving good design and a means of evaluating the merit of proposed solutions. The issues 15 The council filed a Further Amended Statement of Issues containing 11 issues and a number of sub - issues although the breach of the overall height limit (Issue 2) and car parking and vehicular access (Issues 6, 7 and 8) were not pressed by council following the submission of further plans and information by the applicant. The remaining issues can be conveniently grouped into the following main areas: 1) whether the bulk, form and scale of the proposed building, including the proportion of residential floor space to commercial floor space, are appropriate within the Bundeena commercial centre (Issue 1, 3 and 4), 2) whether the proposed development creates unacceptable overlooking impacts (Issue 5), 3) whether an adaptable unit should be provided (Issue 11) and 4) whether any additional issues raised by local residents warrants the refusal of the development application (Issues 9 and 10).

The evidence 16 The parties agreed to the appointment of Ms Deborah Laidlaw as the Court appointed town planning expert. Mr Andrew Darroch provided additional town planning evidence for the applicant.

17 Mr Andrew Morse and Mr Graham Pindar, traffic consultants, provided a joint report on traffic and parking issues.

18 The following local residents provided a written statement and oral evidence on site or in Court in support of the council: + Mr Jeffrey Tarrant of 12 Loftus Street Bundeena, + Mr Neil de Nett on behalf of the Bundeena Progress Association, + Mr Donald Boden of 34 Brighton Street Bundeena, + Ms Anne Jack of 42-44 Brighton Street Bundeena, + Mr Peter Merret of 72 Scarsborough Street Bundeena, + Ms Moya Turner of 4 Neil Street Bundeena, + Ms Inger Marchant of 52 Brighton Street Bundeena and + Dr Tamsin Clarke of 80 Eric Street Bundeena. 19 Further residents, both opposing and supporting the proposal, provided additional oral evidence on site. Those opposing the application raised the following main issues beyond those raised by the council: + insufficient parking, + oversupply of retail space, + loss of trees, + overshadowing, + excessive excavation, + traffic safety and + drainage. 20 Those supporting the application generally expressed the view that the existing commercial facilities need to be upgraded and that if the proposal satisfied the council planning requirements then approval should be granted. Bulk, form and scale 21 Ms Laidlaw raised a number of concerns over specific elements of the design. The applicant prepared amended plans during the hearing to address these concerns. As I understand, the amendments were accepted by the council however the council still maintained its overall objection to the proposed development based largely on its non-compliance with the planning controls and the consequent inconsistency with the future character of the Bundeena commercial area. The planning controls in dispute are: Height and number of storeys 22 Clause 43 of LEP 2000 provides the same control for the 3(a) and 3(b) zones at 7.2 metres to any point on the uppermost ceiling and 9 metres to the highest point of the roof. The clause states that the controls apply, except where a maximum height is specified in a development control plan applying to the land. In this regard, the original DCP and the amended DCP contain an identical requirement of 7.2 metres to any point on the uppermost ceiling. Both DCP's also contain a maximum two-storey limit.

23 There was no disagreement that the proposed development satisfied the overall 9 metre requirement in LEP 2000. There was also no disagreement that the two units at the Brighton St frontage satisfied the 7.2 metre and 2-storey requirement. Where the parties differed was the five units towards the rear of the site. These units breach the 7.2 metre and 2-storey requirement because of the use of an attic level or room in the roof layout.

24 An objection under State Environmental Planning Policy No.1 - Development Standards (SEPP 1) was provided with the development application to show why strict compliance with the development standard would be unreasonable and unnecessary.

25 The appropriate manner of dealing with a SEPP 1 objection is found in the judgment of Lloyd J in Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46, at par 26, where a number of questions are posed. The first question asks whether the subject planning control is a development standard. In this regard there was no dispute that the answer to this question was yes. The second question asks what is the underlying object or purpose of the standard. The third question asks whether compliance with the development standard is consistent with the aims of SEPP 1. The aims state: 3. This policy provides flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable and unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act. 26 This question also asks does compliance with the development standard tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EPA Act. These objects state: 5.The objects of this Act are: (a) to encourage - (i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment; (ii) the promotion and coordination of the orderly and economic use and development of land. 27 The fourth question asks whether compliance with the development standard is unreasonable or unnecessary in the circumstances of case. The fifth, and final question asks whether the objection is well founded.

28 The SEPP 1 objection notes that there are no specific objectives relating to the 7.2 metre height control standard. In the absence of any specific objectives, the SEPP 1 objection adopts the objective of controlling the bulk and scale of development. On this basis, the variation to the development standard can be supported as the design is well articulated and with the choice of materials, breaks up the scale and bulk of the development. Significant setbacks are provided and the proposal is well below the FSR required by the 3(a) zone in LEP 2000. Also, the height of the proposal will not adversely impact on existing views, privacy or overshadowing. For these reasons, the SEPP 1 objection states that the proposal reasonably satisfies the underlying objective of the development standard.

29 No objection was taken to the adopted objective for the development standard. I agree that the breach of the 7.2 metre development standard in this case can be supported for the reasons mentioned in the SEPP 1 objection. I would also add that compliance with the 9 metre maximum height requirement is an important factor in supporting the SEPP 1 objection. Compliance with this requirement supports the conclusion that the proposal is consistent with the bulk and scale anticipated by the councils planning controls. 30 If the variation to the development standard is tested against the underlying objective, I accept that compliance with the development standard would be inconsistent with the aims of SEPP 1 and would tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EPA Act. Consequently, strict compliance with the development standard is unreasonable and unnecessary in this instance and it follows and that the SEPP 1 objection is well founded.

31 I also accept that the variation to the two-storey requirement in both the original DCP and amending DCP is appropriate in the circumstances. The variation only occurs to the units at the rear of the site and is contained within the roof space. It has little if any impact on the presentation of the development to Brighton Street. Importantly, the overall height requirement is not breached. Floor space ratio 32 Clause 44 of LEP 2000 provides for a maximum FSR for the 3(a) zone of 2:1 and for the 3(b) zone of 1:1. The original DCP contained no FSR control and the amended DCP has an FSR control of 0.7:1. No savings provisions are provided in the amended DCP.

33 The amended plans (Exhibit A) indicate an FSR of 0.88:1 although Mr Galasso referred to an FSR of 0.95:1 in his submissions. For reasons set out later in the judgment the difference is not material.

34 The parties differed on what was the appropriate FSR standard. The council maintained that the amended DCP requirement of 0.7:1 was the appropriate standard whereas the applicant maintains that an FSR of 1:1 was the appropriate standard based on the multiple changes to the planning controls over the life of the application with the council.

35 At the time lodgement, the relevant FSR in LEP 2000 for the 3(a) zoning of the site was 2:1. The savings provisions provide that the requirements of the 3(a) zoning apply. The current 3(b) zoning still provides for an FSR of 1:1 although the amending DCP FSR requirement is 0.7:1 and must be taken into consideration. In balancing the range of FSR requirements, including the original DCP, which applied at the time of lodgement of the development application and contained no FSR controls, I accept that an FSR of 0.88:1 (or 0.95:1) is appropriate.

36 Even though the appeal must be determined by reference to the facts as they exist when the appeal is heard, consideration can be given to previously repealed development control plans as indicative of standards and controls which applied when the development application was made (Architectural Property Services Pty Ltd v Rockdale City Council [1999] NSWLEC 83 at par 16). Commercial area/ residential area ratio 37 Clause 45 of LEP 2000 provides for a maximum 50% residential floor area of the gross floor area of the building for business zones except that the consent authority must consider any maximum amount of residential floor space specified in any development control plan applying to the land. In this regard the amended DCP provides for a maximum residential floor area of 70% of the total gross floor area of the development. The original DCP provides that the residential floor area shall not exceed 50% of the total gross floor area.

38 The amended plans (Exhibit A) indicate a residential floor area of 70% of the total gross floor area of the development. The council maintained that the amended DCP requirement of 50% is the appropriate standard whereas the applicant maintains that 70% is the appropriate standard based on the original DCP.

39 Using the tests in Winten, the SEPP 1 objection notes that there are no specific objectives relating to the amount of residential development. In the absence of any specific objectives, the objection refers to the objectives for the 3(a) zoned land. The SEPP 1 objection also makes reference to ensuring that the commercial nature of business centres is retained and is not dominated by residential development. Considering these matters, the SEPP 1 objection states that the variation to the development standard can be supported as the standard is unrealistic because the business centre does not exhibit the same characteristics as other 3(a) zoned land. The site is used largely for local day to day shopping needs and visitor needs, similar to corner shops. Also, the area does not have a population large enough to sustain a high level of business development. The residential floor area of 70% of the total gross floor area of the development will maintain the character of the business precinct with commercial tenancies on the street front and residential units above and behind.

40 No objection was raised to the adopted objective for the development standard. I agree that the amount of residential floor space in this case can be supported for the reasons mentioned in the SEPP 1 objection. Like Ms Laidlaw, I agree that the ratio of commercial and residential floor space is acceptable. The proposal satisfies the original DCP requirements that were in force when the development application was lodged (see Architectural Property Services).

41 No evidence was provided to the Court on the reason for the reduction in residential floor space from the original DCP to the amending DCP. This has some importance particularly considering the relatively large area of the 3(b) zoned land in Bundeena, the limited catchment for commercial activities and the evidence from a number of local residents who maintained that there was insufficient demand for additional commercial floor space. 42 The provision of any additional commercial floor space (to satisfy the higher ratio) would need to be located towards the rear of the site or at first-floor level because the existing street frontage is already fully utilised for commercial activities. These locations do not have direct access to public thoroughfares and could be seen to be inconsistent with the objective of providing a sustainable neighbourhood commercial centre.

43 If the variation to the development standard is tested against the underlying objectives, I accept that compliance with the development standard would be inconsistent with the aims of SEPP 1 and would tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EPA Act. Consequently, strict compliance with the development standard is unreasonable and unnecessary in this instance and it follows and that the SEPP 1 objection is well founded. Desired future character for Bundeena 44 LEP 2000 provides little guidance in establishing the desired future character for Bundeena. The relevant zone objectives for the 3(a) and 3(b) zones apply across the whole local government area and are clearly more applicable to denser urban areas. The original DCP and amended DCP provide a specific description of the character of Bundeena, objectives, standards and actions. There is little significant difference between the two DCP's.

45 Bundeena is described in the amending DCP as an "eclectic collection of shops". It further states to enhance the success of commercial opportunities and image; a more attractive shopping environment would be helped by improving its physical appearance and providing more services within the commercial centre. The amending DCP states the community does not support "monolithic style developments" but a relaxed low scale commercial centre, which fits in and reflects the local townscape character.

46 The relevant objectives seek to establish "diversified and sustainable neighbourhood commercial centres that provides a service to residents and visitors" (Objective (a)), "improved visual appearance of the neighbourhood commercial centres while reflecting the local character, scale and heritage of Bundeena" (Objective (b)) and "encouragement of a wide range of commercial activities to sustain the primary needs of the community and visitors" (Objective (e)).

47 Ms Laidlaw describes the desired future character of Bundeena in the following statement: Taking the statutory and policy (ie DCP) framework for Bundeena, some clear themes are emerging, including most particularly an intent to secure a low, two-storey scale of development, with architectural design and configuration consistent with distinct "village feel" that is characteristic of the local shopping strip, and with an emphasis on maintaining an accessible and inviting pedestrian environment. 48 On the question of character and accepting that the statutory assessment framework for the proposal is highly complex, Ms Laidlaw concludes that the proposal is suitable for approval. The scale and bulk of the proposal is, in broad terms, appropriate and not inconsistent with the objectives of the height and FSR controls that currently apply and applied since the application was lodged. Ms Laidlaw expresses no particular concern with the proposed ratio of commercial and residential floor space. She states that the most important consideration is the creation of an active retail frontage to the pedestrian thoroughfares.

49 Overall, Ms Laidlaw states that the proposal presents a sympathetic development and one that strikes a good balance being between contemporary design and the objectives of councils planning controls to maintain a distinctive low key, village feel.

50 The council submits that the character of Bundeena will be maintained and enhanced through compliance with the controls in the amended DCP. The applicant submits that some consideration must be given to the planning controls in place at the time of the lodgement of the application and in any event, the proposed development satisfies the relevant objectives for the future character of Bundeena.

51 In balancing the proposed development against the various requirements for height, storeys, FSR and the commercial/residential floor space ratio and the resultant form of development, I concur with the conclusions reached by Ms Laidlaw.

52 I have taken into consideration the physical form of the development and its general consistency with the desired character envisaged by the amended DCP. I agree with the Ms Laidlaw that the design, with its most recent amendments, will sit comfortably in the Brighton Street streetscape through its active street frontage, two-storey appearance and uncomplicated design that is consistent with the particular characteristics of the Bundeena neighbourhood commercial centre.

53 For the reasons mentioned in the preceding paragraphs I see no conflict with Principle 1: Context, Principle 2: Scale, Principle 3: Built form, Principle 4: Density and Principle 10: Aesthetics of SEPP 65.

54 Consequently, I find no inconsistency with objective(c) of the 3(a) zone or no inconsistency with objective(c) of the 3(b) zone of LEP 2000. I also find the proposal to be consistent with the relevant objectives in cl 20 of LEP 2000. Overlooking 55 The issue of privacy relates to the existing and future opportunities for overlooking from the north facing balconies of the units 3, 4, 5, 6 and 7. With the benefit of the site view, I am not convinced that an overlooking problem currently exists. I agree with the Ms Laidlaw that in the event that the property to the north is redeveloped, any residential development would be orientated in a similar manner to the proposed development i.e., to the north and away from the balconies on the proposed building. Adaptable unit 56 The need to provide an adaptable unit was not an issue raised by the council in the Statement of Issues but was raised late in the proceedings. There was general agreement that Unit 1 could be adapted with some amendments including the widening of the stair to provide for a stair climber.

57 The inclusion of an adaptable unit would necessitate the loss of one car parking space through the need to increase the width of a space to 3.8 metres in accordance with the appropriate Australian Standard. The widened space would to be allocated to the adaptable unit. The loss of one space would see the application being one space below the requirements in the councils Car Parking Development Control Plan.

58 The Court was advised that the councils planning controls do not specifically require the provision of an adaptable unit for mixed use developments in 3(a) and 3(b) zones although it is a requirement for residential flat buildings in the 2(c) Residential and 9(a) Mixed Residential Business zones.

59 Mr Green, the councils advocate, submitted to the Court that it would be preferable to reduce the number of car parking spaces and provide the adaptable unit rather than maintain the existing level of car parking and not provide the adaptable unit.

60 I agree with the submission of Mr Green and find that Unit 1 should be designated an adaptable unit together with an appropriately sized car parking space, notwithstanding the loss of a car parking space. Issues raised by local residents Insufficient parking 61 Car parking is provided in accordance with the councils Car Parking Development Control Plan with the exception of the loss of one space through the need to provide an adaptable unit. For the reasons set out in the preceding paragraphs on the adaptable unit, I accept that adequate car parking is provided.

62 A number of residents expressed concerned over the use of single and double vertical stacked parking platforms although none of the traffic experts or the council officers raise any objection. In the absence of any expert evidence to suggest this form of parking is unsuitable, I accept that off street parking can be provided in this form.

Oversupply of retail space 63 The potential oversupply of retail space is not a normal consideration in the assessment of development applications. The planning process is to identify opportunities, through the zoning land, to facilitate development. Even accepting that there are other development applications in the vicinity of the site, is not appropriate for the Court or council to make judgements on the suitability or otherwise of competing applications. Loss of trees 64 One large tree will be lost through the development of the site. This tree is located in a position that would seriously affect the orderly development of the site and limit any future redevelopment, even with designs different to that proposed in this application. I accept that reasonable attempts have been made to retain other vegetation on-site and that the loss of the large tree would be an inevitable consequence of any reasonable development of the site. Overshadowing 65 Ms Laidlaw indicates that the shadow diagrams show the residence to the south would not be affected by shadow, between 10 am and 2 p.m, and therefore it would continue to receive reasonable solar access. I accept this conclusion and find that adequate solar access is provided to the residence to the south.

Excessive excavation 66 As I understand, a significant concern with the proposed excavation is the potential conflict with excavation vehicles and vehicles of people driving to and from Bundeena. It was not a matter addressed by the respective traffic experts or council officers. In accepting that unsafe road conditions could be a valid concern, the Court has no evidence apart from the general concerns of a number of residents, on which to base any particular findings. Issues associated with any local impacts of excavation can be appropriately addressed through conditions of approval. Traffic safety 67 The residents concerns related to the access point and its proximity to the intersection of Brighton Street and Bundeena Drive. This concern was a matter specifically addressed in the joint report of Mr Morse and Mr Pindar. They agreed that the location of the driveway satisfies Australian Standard AS 2890.1, in that it is located at a distance greater than 6 metres from the intersection. As compliance is achieved with the relevant Australian standard the driveway location is acceptable. Drainage 68 A number of residents expressed a concern at the existence of an underground creek or spring that may impact on the excavation. The Court had no specific evidence on this issue apart from the observations of the local residents. I note the council officers report indicates that the application, survey plan and the council's records indicate no underground creek. The council officers address this issue by stating that if an underground creek is found, then it is the responsibility of the applicant to address the issue, possibly through the employment of a geotechnical engineer to assess any impact on the proposed development. 69 While the approach suggested by the council officers is not optimal, the Court, in the absence of any technical evidence to support the residents concerns, has little option but to adopt this approach. The observations of the residents are not a sufficient reason to refuse the application or adjourn the proceedings for further evidence. Conditions 70 Conditions 1(a), 1(b), 103 and 111 were originally in dispute between the parties however the applicant accepted condition 1(a) and a re-drafting of condition 103. Condition 1(b) deals with the provision of an adaptable unit and this has been dealt with earlier in the judgement.

71 The remaining condition 111 relates to the creation of an easement for support in favour of the adjoining property. The applicant submits that this is a matter between the respective owners and not necessarily a matter for the council. I accept this submission and delete the condition. Orders 72 For the foregoing reasons, the Orders of the Court are: 1) The appeal is upheld. 2) DA03/0325 for the construction of a mixed commercial/residential development at 36 - 40 Brighton St., Bundeena is approved subject to the conditions in Annexure A. 3) The exhibits are returned with the exception of exhibits 1, 2, and A.

      G T Brown
      Commissioner of the Court

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