Bluestone Property v North Sydney Council

Bluestone Property v North Sydney Council - [2006] NSWLEC 449 - NSWLEC 2006 case summary — Zoe

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The objectors concerns 10 During the visit to the site the Court heard the evidence of 20 objectors, seven of whom were concerned about the proposal's economic impact on the Cammeray Village and/or other nearby centres, such as Northbridge Plaza and Crows Nest. 11 Mr J Griffin, who is the president of the Crows Nest Chamber of Commerce, said that he was concerned about the amount of retailing proposed on the site. It would have an adverse impact on trading at Crows Nest, which is 2km from the site. In his opinion, the area is already overprovided with shops. 12 Ms L Sheridan, the chair of the local precinct committee and the Vice-President of the Cammeray Chamber of Commerce, said that her concern was the impact of the proposal on Cammeray village, which has a retail floor space of about 3,000m2. In addition, she was against the traffic calming required by the development in Amherst Street. She noted that Amherst Street is an ambulance route. In her opinion, not enough parking is provided, the development requires excessive excavation, and there is not enough space for planting along the western boundary. She noted also that the non-residential uses have not been nominated. 13 Mr T Blyth, who is a representative of the AMP Society, the owners of Northbridge Plaza, was concerned about the supermarket and the lower level retailing. These were inconsistent with the zone objectives. He pointed out that North Sydney's retail hierarchy had three tiers, and Cammeray was in the lowest tier. 14 Ms L Bivona, who owns the fruit market at 447-449 Miller Street in the Cammeray Village, said that she was concerned about the impact of the proposal on the village. Ms A Werner, who own a clothes shop at 498 Miller Street in the Cammeray Village, said that the increased traffic would act as a barrier to accessing the Village. Mr J Kierath, who owns a pharmacy at 457 Miller Street in the Cammeray Village, said that the retail component of the proposal would destroy the viability of the village. Mr R Morris, who owns the news agency at 435 Miller Street in the Cammeray Village, said he was concerned about the proposal's impact on the Village. He thought that if the proposal did not provide sufficient parking for its customers, they would occupy the parking at the rear of the village shops. 15 Mr L Simmons, who represented the North Sydney Leagues Club, said that the proposal was too big and that the streets cannot cope with the additional traffic. Mr P Morgan, the president of the Cammeray Public School Council, said that the overdevelopment would generate traffic that would render the area unsafe for children. 16 The remaining objectors were nearby residents. Mr A Betros, a town planner who spoke on behalf of Ms L Moore of 7 Tarella Place and Mr T Bellew of 8 Tarella Place, whose properties adjoin the site, said that the proposed retail was inconsistent with the zone objectives. He believed that the site's parking capacity has been assessed at 84 cars. The non-compliance with the height limit was 3-4m, not 3m. The excavation of 12m depth was proposed within 1m of his clients' property. Mr Pindar had not taken into account the frequency of buses. He was concerned about an unspecified floor area of 2000m2 that was unlabelled in the drawings. The parking for the childcare centre was inadequate. 17 Ms L Moore spoke for herself as well, saying that when her family bought their property, they relied on the 10m-height limit on the site being upheld. She was against what she called "aggressive" traffic management of Amherst Street. 18 Mr R Commins, who lives at 15/2 Abbott Street across the road from the site, said he was concerned about loss of views and privacy and the increase in traffic. The proposal was one storey above other buildings in Amherst Street. Mr T O'Dea, who lives at 14 Amherst Street, said that the proposal was excessive and would cause traffic and parking problems. Mr H Papazian, who lives at 6 Amherst Street, said he was concerned about the single entry/exit into Amherst Street, as well as about the parking arrangements for the childcare centre. Mr J Fegan, who lives at 19/1 Amherst Street, said his concern was the single entry/exit from Amherst Street. The street cannot cope with it. Ms R Payne, who lives at 43 Palmer Street, said that the roads around do not support trucks. 19 Ms K Hall, who lives at 37 Abbott Street, said that she values the atmosphere of Cammeray Village and fears that the development might destroy it. Ms L Singleton, who lives at 5/9 Amherst Street, supported Ms Hall in her concern for the village. The proposal will destroy the village atmosphere of Cammeray Village. Mr A Partos, who is the secretary of the Plateau precinct, said that the development would cause traffic problems and adversely impact on Cammeray Village. Mr M O'Neill, who lives at 11 Lytton Street, said that the proposal "pushes the envelope"; ie it is too big. He added that she also enjoyed the atmosphere of Cammeray Village. 20 The objectors' concerns are similar to the council's issues, with the exception of the proposal's economic impact on Cammeray Village and other nearby centres.

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Inconsistency with zone objectives 21 The council contends that the proposed supermarket of 1,500m2 and the fruit market of 800m2 are inconsistent with the zone objectives because they are too large and because they are underground. The Court-appointed planning expert, Mr R Chambers, agrees. 22 Clause 14(1) and (2) of LEP 2001 state as follows: Consistency with aims of plan, zone objectives and desired character (1) When considering a development application, the consent authority must take into account the aims and objectives stated in this plan. (2) Consent must not be granted to the carrying out of any development that, in the opinion of the consent authority, is inconsistent with the specific aims of this plan, the objectives of the zone or the objectives of controls. " 23 The specific aims of the Plan, the objectives of the Residential D (Neighbourhood Business) zone are as follows: Specific aims of the Plan The specific aims of the Plan are contained in Clause 3 and, in relation to "the character of North Sydney's neighbourhoods", "residential development", and "non-residential development" state as follows:- "3. Specific aims of this plan The specific aims of this plan are. (a) in relation to the character of North Sydney's neighbourhoods, to (i) promote the character of the neighbourhood and development which is compatible with neighbouring development in terms of bulk, scale and appearance, and (ii) maintain a diversity of activities while protecting residential accommodation and local amenity, and (iii) ensure that development on foreshore lands or land visible from the harbour or any public place does not adversely affect the appearance of that foreshore land, or the views of that land from the harbour or public place, and (b) in relation to residential development, to: (i) protect and enhance the residential use and amenity of existing residential neighbourhoods and new residential development, and (ii) maintain and provide for an increase in dwelling stock, where appropriate, and (iii) prevent the expansion of non-residential uses in residential neighbourhoods ( c) in relation to non-residential development, to: (i) maintain a diversity of employment, services, cultural and recreational activities, and (ii) ensure that non-residential development does not adversely affect the amenity of residential properties and public places, including adverse affectation by reason of the use, design, bulk, scale or appearance of the development, or the traffic generation and parking associated with the development, and (iii) maintain waterfront activities and ensure that these activities do not adversely affect local amenity and environmental quality, and (iv) minimise adverse effects of all permitted non-residential development and non-conforming uses or development, and …" Reference in Aim 3(a)(i) to the "character of the neighbourhood" must be considered in the context of the relevant terms of NSLEP 2001. 24 The term character is defined in Schedule 2 of LEP 2001 as follows: Character of a neighbourhood within the North Sydney Local Government Area means the combination of features (including environment, built form, landscape, community and function) that makes the neighbourhood distinctive. " 25 Neighbourhood is defined in Schedule 2 of LEP 2001 as follows: (a) a locality within the local government area of North Sydney, except as provided by paragraph (b), or if there is a character statement that identifies land including that locality as a neighbourhood, the land so identified. "

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33 Clause 6(d) in LEP 2001 establishes the status of Explanatory Notes as follows: Definitions and interpretation In this plan: (d) explanatory notes provided within the text are explanatory only and do not form part of this local environmental plan. They are provided to assist understanding. 34 In Mr Chambers' opinion, when the above plethora of objectives, character statements and explanatory notes is read as a whole, it becomes clear that the basement supermarket and fruit market are antipathetic to zone objective (b) (to permit a range of small-scale businesses which serve local needs), and to (c) (to encourage active street life). On cross examination the applicant's counsel, Mr C McEwen, asked Mr Chambers whether he understood the term to permit in objective (b) to mean to permit exclusively or to prohibit anything else. Mr Chambers said that, in view of all the additional material relating to zone Residential D and the Cammeray Village, that was the correct meaning. 35 The applicant's argument, that the supermarket and fruit market were not inconsistent with the zone objectives, may be put as follows: · The proposal provides several small shops and a small to medium sized supermarket and fruit market. The small shops clearly meet the zone objectives. The supermarket and fruit market are on the borderline. · If the objectives are met by part of the development, additional parts, which do not fully meet them, are not antipathetic to those objectives. · The character statements and explanatory notes ought to receive less weight than the statutory parts of the LEP, such as the zone objectives. 36 I do not think that the above arguments are sound. The supermarket is about fifteen times bigger than the majority of retail tenancies in Cammeray Village. It may not be large for a supermarket, but it is certainly not a shop or a service that provides for daily needs, such as chemist, butcher, small goods, doctor's surgery, and recreation, such as cafes and restaurants. When the controls/provisions quoted above are read as a whole, it is clear that the intent of the zone objectives is to prevent large-scale businesses from establishing in the village, even if they are in conjunction with small ones (which they invariably are). The character statements are for the purpose described, namely to assist understanding. They are therefore given neither more nor less weight than the statutory parts of the LEP. Where terms like small-scale business and small-scale neighbourhood shop need to be applied to specific proposals, the Explanatory Notes are useful in clarifying their meaning. 37 I accept Mr Chambers' evidence that the supermarket and the fruit market are inconsistent with and antipathetic to the objectives of the Residential D zone. They can therefore not be approved. I note that the applicant has indicated that it would prefer to amend the proposal by removing the supermarket and fruit market to a refusal. The amendment, which would occur all underground, would be easily achieved. The removal of these two elements would also resolve the council's and the objectors' main issue with the application.

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Parking and traffic generation 38 The proposal provides 65 residential spaces and 147 non-residential spaces. There is no issue about the number of residential spaces. The proposal also provides ten spaces for the childcare centre. There is no issue about the number of childcare spaces, though there is an issue about their arrangement. Mr G Pindar, the Court-appointed expert on traffic and parking, told the Court that the proposal's traffic generation would exceed the environmental capacity of Amherst Road unless traffic calming was introduced. The number of non-residential spaces that Amherst Street could absorb without traffic calming is 56. The council's position was that only 33 non-residential spaces could be provided without traffic calming. However, in my opinion on this issue Mr Pindar is on sounder ground. 39 According to Mr Pindar, traffic calming in Amherst Street would be beneficial. However, he agreed that traffic calming could be installed only after long community consultation, consideration by the local Traffic Committee, and with the agreement of the Roads and Traffic Authority (RTA). The nature of calming devices or the time for their installation cannot be known at this stage. While I do not think that the requirement for traffic calming would justify the refusal of the application, it would be better if the requirement could be avoided. The main reason for this is that there are unavoidable uncertainties about future traffic calming that do not sit easily with the requirement for certainty in development consents and their conditions. To draft a condition relating to traffic calming that balances these conflicting requirements would not be easy. 40 There is further uncertainty about traffic in Amherst Street. The new off-ramp from the Expressway to Military Road at Falcon Street is likely to change the driving habits of those who now use Amherst Street as a "rat run" to Mosman. This is likely to reduce traffic volumes in Amherst Street. The question is: by how much? 41 There was a great deal of debate during the hearing about the number of spaces required. This is because the application proposes over 2,000m2 of undefined non-residential floor space, and the parking rate for such space varies depending on what the actual use will be. There was also debate about the rate for retailing space, some of which may be cafes and restaurants, which attract a higher rate than shops. 42 I do not think that it would be useful to record the debate, because with the removal of the supermarket and the fruit market, which require 94 of the 147 non-residential spaces, the parking requirement for the proposal changes significantly. For example, if the 56 non-residential spaces suggested by Mr Pindar are accepted as the limit for the site, then the 34 spaces that remain after ten are provided for the childcare centre and twelve for the gymnasium, would allow a non-residential floor space of 3,400m2, as long as the it is put to a use that generates one space per 100m2. With the removal of the supermarket and the fruit market the proposal would include only 3,100m2 of such undefined non-residential floor space. This would allow some of the 3,100m2 to be used for a purpose that has a higher parking generation than one space per 100m2. 43 I return to the likely reduction of traffic in Amherst Street, a proposition with which Mr Pindar agreed, though he did not put a figure on it. It seems to me that a highly conservative estimate of reduction would be 3%. Mr Pindar relied on a survey that showed the weekday volume between 3pm and 5pm to be around 460 vehicles/hour, so 3% would be a reduction of about 14 vehicles/hour. This suggests that 70 non-residential spaces would provide the applicant with sufficient flexibility for future non-residential uses, while at the same time 70 spaces would not require traffic calming. 44 I was unable to test the above assessment with Mr Pindar during the hearing, since the applicant did not indicate until the very end that it might accept a decision that excludes the supermarket and fruit market. It is therefore open to the applicant to accept my finding that the proposal may contain 70 non-residential spaces, or, alternatively, to apply for a further short hearing at which the finding may be tested with Mr Pindar.

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47 The applicant submitted an Objection under SEPP 1 to the 10m-height standard. (It also submitted an Objection to the Building Height Plane, but this was not in contention.) In Mr Chambers' opinion, a height of 13m is appropriate for the site and the Objection is well founded. The council's planner, Mr G Mossemenear, whose planning reports were in evidence, also accepted the 13m-height, so long as the basement areas were used only for parking. I do not think that this is a logical position. The increase of height is either acceptable or not; the presence of an underground supermarket does not change what one sees above ground. I note from the council's bundle of documents that its Urban Design Advisory Panel also accepted the 13m-height as appropriate. 48 In my opinion, there is one major flaw with the above evidence, namely that it is based on an assessment of the privacy impacts on 7 and 8 Tarella Place that are wrong in fact and in approach. It is wrong in fact because the sightline diagrams tendered by the architect show sightlines from people sitting at a dining table, rather than standing on the balcony, which would be far more disturbing. It is wrong in approach because it applies the same criteria to the complying and the non-complying elements of the proposal. In Pafburn v North Sydney [2005] NSWLEC 444 I established the principle that non-complying parts of a building should be subject to a stricter test for overshadowing and overlooking than complying parts. 49 In this case, the fourth floor of Building D is a non-complying element that can be seen from, and overlooks 7 and 8 Tarella Place. The applicant has indicated (Exhibit K) that a setback of 4.5m from the face of the building would make the fourth floor invisible from the centre of the courtyard of 8 Tarella Place. A privacy zone on the terrace of 1.3m from the edge would ensure that a person with eye height of 1.6m could not see the courtyard. The setback would need to be introduced only for the length of the three southern apartments, ie D04, D05 and D06. Subject to the above amendments, the SEPP 1 Objection becomes acceptable, and the variation in height may be approved. 50 The applicant has indicated that, in the event of the Court reaching this finding, it would prefer an opportunity to amend the proposal to a refusal.

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Excavation 51 The proposal seeks to excavate most of the site to a depth of about 13m. In Mr Chambers' opinion, this brings it into conflict with cll 17(1)(f), 39(1)(c), (2)(a) and (2)(d) of LEP 2201. 52 Clause 17(1)(f) states, as one of the specific objectives of the building height controls: (f) to prevent the excavation of sites for building works, other than for garages and car parking. 53 Clause 39 deals specifically with excavation of land. Clause 39(1) lists the objectives. Objective (1)(c) is: Minimise excavation and site disturbance so as to retain natural landforms, natural rock faces, sandstone retaining walls and the like and to retain natural water runoff patterns and underground table and flow patterns… 54 Subclause 2(a) states that development that includes excavation must not be carried out unless it is in accordance with and promotes the objectives in subclause (1). Those objectives, of course, include 1(c). 55 Subclause (2)(d) requires adverse effects on other properties to be avoided or minimised. 56 The applicant submits that the purpose of cl 17(f) is to explain the reason for the definition of height rather than to say what it actually says. I do not accept this. The reasons why LEP 2001 contains the intention to minimise excavation are set out clearly in cl 39(1)(c). They are environmental reasons. If the council is concerned about the adverse environmental consequences of excessive excavation, it is logical for it to reduce excavation to the minimum. It is generally accepted that in medium and high-density development (commercial and residential) cars cannot be accommodated at natural ground level, so some excavation is necessary to accommodate cars. What cl 17(f) says is that cars are the only legitimate reason for the undesirable activity of excavation. 57 The applicant also submits that the meaning of minimising excavation in cl 39(2)(d) is that there should be no excavation that is not necessitated by whatever and applicant proposes. If this were true, the clause would be unnecessary. Given the huge cost of excavation, no applicant is likely to propose more than necessary to achieve what it wants. 58 I accept Mr Chambers' opinion that a development that requires three levels of basement for a four-storey development in order to accommodate a supermarket and fruit market is inconsistent with the above-quoted parts of LEP 2001. 59 The large amount of excavation proposed in this proposal strengthens me in my conclusion that the supermarket and fruit market should be removed from it. If they are removed, two levels of basement would be sufficient, and the excavation would reduce by one-third.

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Conclusions 61 Two elements of the proposal justify refusal: · the supermarket and fruit market at basement 1 and 2; and · that part of the fourth floor in Building C that can be seen from the centre of the courtyard in 8 Tarella Place. 62 A third element, traffic generation, requires traffic calming in Amherst Street. While this alone does not justify refusal, given the consultation requirements and uncertainties of implementing traffic calming, it would be preferable if the proposal would keep within the environmental capacity of Amherst Street without traffic calming. With the removal of the supermarket and fruit market this is easily achievable. 63 The applicant indicated that it would prefer to amend the proposal to comply with the Court's findings to a refusal of the application. In my opinion, the proposal would be acceptable if the following amendments were incorporated: · Remove supermarket and fruit market and all ancillary spaces, without replacing them with other uses; · Set back the western side of the fourth floor of Building D, for the length of Apartments D04, D05 and D06, by 4.5m from the face of the building. Provide a 1.3m wide privacy setback on the balconies (ie a zone in which people cannot stand). (The above dimensions are based on the applicant's Exhibit K.) · Reduce the number of basement levels from three to two. · Reduce the non-residential parking to 70 spaces. If the applicant wishes to argue this number, it may apply for a further half-day's hearing at which Mr Pindar may give evidence. (The applicant is to pay Mr Pindar's fees arising out of any additional work.) 64 Following the reading of the above findings on 22 June 2006, the case was adjourned until 20 July 2006, when the applicant presented amended plans that incorporated the above amendments, without the need for Mr Pindar's further evidence. It was common ground that since the amendments reduced impact and arose out of community objections, there was no need to re-notify the amended drawings. However, the council notified Ms Moore and Mr Bellew, who lodged a further comment that came to the Court as Exhibit 12. The council did not support either the objections or the proposed further amendments in the comment. Mr Chambers reported that the amended plans complied with the Court's findings. Nothing therefore stands in the way of approval of the proposal. The appeal is upheld in relation to the amended drawings.

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Judgment (31 paragraphs)

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