Ben Boyd Constructions Pty Ltd v Willoughby City Council

2. Being able to provide the preferred the vehicular access, as identified in DCP 4, to a street other than Archer Street or Albert Avenue, both of which experience greater traffic volumes than Bertram Street.

In relation to point 1, the current status of 34 Albert Avenue as a local heritage item makes the bonus floorspace provisions allowed under the LEP problematic, as whether No. 34 is included in the development site or not, additional floorspace close to the dwelling must be considered in terms of maintaining the necessary curtilage for the heritage item. In this regard, Council's heritage architect has objected to the current proposal, as per the comments above this report. Floorspace for townhouse development at the rear of No. 34, located above an access driveway to a basement, is potentially equally problematic in terms of building height and bulk relative to the building on the listed heritage property. (There may also be impacts on the adjoining property to the south in Bertram Street that would need to be assessed).

In relation to point 2, Council's traffic engineers have advised that the proposed vehicular access to Albert Avenue is acceptable, albeit less desirable.

In summary, it is accepted that the inability to acquire No. 34, or an access easement over part of it, and the status of No 34 as a heritage item, constitute the special circumstances, as allowed under DCP 4, to not force the site amalgamation requirement. 39 The Appeal was held on 12 and 13 July 2006 with final submissions to be held on 21 July 2006. The parties were encouraged to hold further discussions on site consolidation during this adjournment, in light of Mr Dundas' independent valuation of the property. This valuation can be can be summarised as:

i. $1,000,000 for a stand alone single dwelling ii. A maximum of $1,525,000 as consolidated development site if all risk is removed (ie the property is purchased as an option). iii. $1,250,000 as consolidated development site if risk is spread evenly between the purchaser and the seller. 40 On 21 July 2006 the parties advised the Court that they had reached in principle agreement on access over 34 Albert Avenue and requested a further adjournment to allow this to be progressed. Directions were issued and the parties were to advise by eCourt on 4 August 2006 whether the driveway option was to be progressed. During this period agreement was reached between the applicant and Hagino Pty Ltd that the rear portion of 34 Albert Avenue would be subdivided and sold for $550,000. The terms of this agreement were to be resolved. 41 A scheme which indicated the proposed development of the allotments was submitted to council for comment (the subdivision scheme). This scheme provided access to the site off Bertram Street and a townhouse on the new allotment at the rear of 34 Albert Avenue (townhouse 1). An additional townhouse (townhouse 13) was proposed on the site in the previous driveway location. The heritage cottage was retained on a separate allotment. Council advised that:

1. the access from Bertram Street was a positive outcome 2. the provision of townhouse 13 was supported in principle 42 Council raised concerns about other aspects of the subdivision scheme, particularly the lack of landscaping between the heritage cottage and townhouse 1, the car spaces adjoining the heritage cottage and the amount of private open space. 43 At the parties request the matter was relisted for a mention on 17 August 2006, at which time Mr Mckee, for the Applicant advised the Court, that despite reaching agreement with Hagino Pty Ltd on the sale of the rear portion of 34 Albert Avenue, the applicant would not proceed with the sale due to unresolved terms of the agreement, the time that a subdivision application would take and the holding costs. The matter was set down for final submissions on 1 September 2006.

Findings 44 In Melissa Grech, Brown C established the following three principles relating to the isolation of land through redevelopment:

Firstly, where a property will be isolated by a proposed development and that property cannot satisfy the minimum lot requirements then negotiations between the owners of the properties should commence at an early stage and prior to the lodgement of the development application.

Secondly, and where no satisfactory result is achieved from the negotiations, the development application should include details of the negotiations between the owners of the properties. These details should include offers to the owner of the isolated property. A reasonable offer, for the purposes of determining the development application and addressing the planning implications of an isolated lot, is to be based on at least one recent independent valuation and may include other reasonable expenses likely to be incurred by the owner of the isolated property in the sale of the property.

Thirdly, the level of negotiation and any offers made for the isolated site are matters that can be given weight in the consideration of the development application. The amount of weight will depend on the level of negotiation, whether any offers are deemed reasonable or unreasonable, any relevant planning requirements and the provisions of s 79C of the Environmental Planning and Assessment Act 1979.

45 In Cornerstone the three principles in Melissa Grech were extended as follows.

…. for applications which will result in an isolated site, particularly where the planning controls envisage a greater intensity and size of development than currently exists on the site, such as a single dwelling in an area identified for residential flat buildings.

Firstly, is amalgamation of the sites feasible? In determining the answer to this question the principles set out by Brown C are relevant.

Secondly, can orderly and economic use and development of the separate sites be achieved if amalgamation is not feasible? 46 Karavellas adds that:

Inherent in the concept of whether amalgamation is feasible is whether it is also reasonable. ….I do not see it is the role of the Court to enter into negotiations on a final purchase price but rather to be satisfied that a reasonable offer has been made…… 47 Adopting and applying those principles to the present case, I note that these principles were dealing with proposals which would result in a site being isolated by not being incorporated into an adjoining development site, whether required by planning controls or not. In this case DCP 4 aims to ensure orderly development by the delineation of lots to be consolidated and to rationalise access. 48 DCP 4 identifies the site and 34 Albert Avenue as a consolidated site, primarily to prevent vehicular access off Archer Street and Albert Avenue to minimise traffic impacts. The key question to answer is whether "special circumstances" exist to vary the site consolidation. These circumstances would include whether the purpose of consolidating the site can be achieved and whether consolidation is reasonably feasible. 49 The planning and traffic evidence is that consolidation would achieve a better planning outcome, but that separate development of the separate sites is still an acceptable planning outcome. 50 The valuation evidence and the history of negotiations indicate that it is feasible to consolidate the sites but there may be circumstances that make it unreasonable. I reach this conclusion based on the length and extent of negotiations that have occurred but have not resulted in a final agreement that can be reasonably implemented as part of this development application. 51 In examining the history of negotiations, a satisfactory arrangement between the owners of the sites may have been achieved if both parties had acted in a different manner. The negotiations prior to the hearing would have been greatly assisted by a joint valuation which was offered by the applicant but not agreed to by Hagino Pty Ltd. I do not accept Hagino Pty Ltd concern that it would be bound by the valuation to be a reasonable basis to reject the course of action. Clearly the independent valuation had no power to bind either party. I note that the initial offer made by the applicant, although not based on an independent valuation, was consistent with the subsequent valuation of Mr Dundas. 52 The negotiations after Mr Dundas valuation, although initially promising have not been successful, largely due to the applicant's withdrawal from the process. While this process demonstrates that it is clearly feasible to amalgamate at least part of the sites, given the stage in the application, I do not consider that the collapse in negotiations should of itself be fatal to the application. 53 The Land and Environment Court website provides the following useful definition:

statement of a desirable outcome from; a chain of reasoning aimed at reaching; or a list of appropriate matters to be considered in making a planning decision.

While planning principles are stated in general terms, they may be applied to particular cases to promote consistency. Planning principles are not legally binding and they do not prevail over councils' plans and policies. Planning principles assist when making a planning decision - including: where there is a void in policy; or where policies expressed in qualitative terms allow for more than one interpretation; or where policies lack clarity. 54 The principles in Melissa Grech are provided to assist in determining what are reasonable steps that need to be taken where the amalgamation of sites is potentially an issue. However, they should not be interpreted as being that an application must fail simply if it cannot be demonstrated that a reasonable offer has been made. The key question (irrespective of any planning principles that may be relevant) is whether the objectives of amalgamating the site will be able to be achieved even if the sites are developed separately. 55 In this appeal I find that the separate development of the sites, while not optimal, is reasonable, and achieves the objectives of DCP 4 relating to the orderly development, preservation of heritage items and provision of residential accommodation for the following reasons: 56 Firstly, the agreed traffic evidence is that vehicular access off Albert Street is acceptable, preferably with the provision of a median strip. The Traffic Committee will determine the final details or need for a median and will further consider the concerns of the Police. The absence of a median is not fatal to the application. 57 Secondly, the amalgamated site, largely due to the heritage incentive, can achieve greater development potential. However, the sites are both capable of achieving a reasonable level of development if developed separately. This needs to be considered within the context of 34 Albert Avenue being a heritage item under LEP 1995. The appropriateness of providing an access driveway to a basement car park within a few metres of the rear of the heritage cottage is a fundamental consideration as an appropriate curtilage for the cottage needs to be provided. The subdivision scheme indicates that it would be feasible to provide a townhouse development at the rear of 34 Albert Avenue. However, without the need to provide an access driveway across the site there would be an opportunity to provide separation between the heritage cottage and the townhouse, thereby providing an appropriate landscaped curtilage while still enabling reasonable development of site of the heritage item. 58 Thirdly, separate development of the sites will not leave 34 Albert Avenue as an isolated site with no development potential. Nor will it result in the bulk and scale of the development on the site being incompatible with development on 34 Albert Avenue. This is one of the key concerns articulated in the planning principles that deal with this issue. 59 The development of the separate sites therefore meets the objectives of DCP 4 for development in an orderly fashion. It will preserve identified heritage items while still achieving the objective to Maintain residential accommodation in this accessible location. 60 For the above reasons I find that "special circumstances" exist and that the application should not fail on the basis that the site is not consolidated with 34 Albert Avenue. The application should therefore be considered on its merits.

Parking 61 The proposal provides 18 car spaces. The traffic experts agreed that DCP 2 requires 15 resident parking spaces, but that there should be some flexibility in the application of the DCP rates in circumstances where the development is on the perimeter of the precinct and where impacts on on-street parking conditions is a competing objective of the council. 62 Mr Pindar and Mr Hallam considered that 16 resident spaces is supportable, whereas Mr Nettle initially considered the 18 spaces to be acceptable but accepted a reduction in one space to 17. Mr Nettle considered the exceedence to be acceptable on basis that the block is not wholly within the radius referred to in cl 1.10 of DCP 2 and therefore the parking rates for the Railway Precinct could be varied. Mr Nettle also considered that Council had not consistently applied DCP 2. 63 The experts also disagreed on whether the 5.2mm garage width was acceptable. Mr Hallam considered that the width did not comply with AS 2890.1 and should be increased to 5.4m. Mr Nettle and Mr Pindar considered 5.2m to be acceptable.

Findings 64 Under Clause 1.10 of DCP 2 the whole block is within the Railway Precinct if any part of the block is within the radius. I am satisfied that there is no evidence to justify that council has inconsistently applied DCP 2 to warrant a greater variation than that found to be acceptable by Mr Hallam and Mr Nettle. The reduction in car parking will also reduce the FSR exceedance and enable the car spaces to be increased to the more acceptable width of 5.4m thereby further reducing the FSR.

Floor Space Ratio 65 The proposal has an FSR of 0.82:1 which exceeds the control under cl 23 of WLEP 1995 of 0.7:1. The breach of the FSR development standard is wholly attributable to areas within the basement car park, including parking in excess of Council's requirements. The above ground FSR is consistent with the 0.7:1 FSR development standard. 66 Clause 23 of WLEP 1995 does not include objectives for the standard. Ms Laidlaw considered the SEPP1 objection submitted by the applicant and stated that the underlying purpose of the FSR standard is to control visual bulk and intensity of use. In relation to the visual bulk Ms Laidlaw stated that the proposal does not "offend the objective of visual bulk, because that which is apparent from the public domain is no greater than 0.7:1" 67 Ms Laidlaw did not accept that the proposal was consistent with the objectives relating to intensity of use because of the provision of car spaces in excess of council requirements. However, she recognised that the traffic experts agreed that an additional car space above council requirements was reasonable and on this basis she accepted that excess FSR met the objectives of the standard. Further Ms Laidlaw stated that there were no amenity impacts that resulted from the FSR non compliance. 68 For these reasons Ms Laidlaw concluded that the SEPP1 objection was well founded, provided parking numbers were what is required to meet the demand generated by the development, and that Council's policies had been consistently applied.

Findings 69 As stated above, the car park number should be reduced as agreed by Mr Hallam and Mr Pindar and the size of the car spaces increased. The FSR of the proposal would therefore be reduced but there would remain a none compliance with cl 23 of WLEP 1995. I accept Ms Laidlaw's evidence as to the objectives of the standard and that the proposal, as amended would meet these objectives and that the SEPP 1 objection is well founded.

Landscape area and setback 70 Mr Czeref was concerned about the proximity of the development to the southern boundary and the access to the units along this boundary due to potential noise and overshadowing impacts with the adjoining properties. He considered that a "mews" development to be more appropriate. Ms Laidlaw recognised that the relationship was not optimal but considered that as the proposal complied with the setback and height controls and that the impacts were consistent with a "compliant " development and not a reason for refusal. Findings 71 I accept Ms Laidlaw's evidence. The townhouses are set back a minimum of 4m from the southern boundary with landscaping between the boundary, the access path and the townhouses. Providing access along the boundary enables the townhouses to orientate the indoor and outdoor living areas towards the north and eliminates potential conflict between the outdoor living areas and adjoining properties. The impacts of the proposal are acceptable and not a reason for refusal. Orders 72 For the above reasons the Orders of the Court are:

2. The development application (DA 2005/809) to demolish three existing dwellings and construct twelve townhouses with underground parking at 57-61 Archer Street, Chatswood, is approved subject to the conditions in Annexure A.

3. The exhibits, except exhibits 8, A and B, may be returned.

      Annelise Tuor
      Commissioner of the Court

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