Braedan Riley v Gosford City Council

Braedan Riley v Gosford City Council - [2007] NSWLEC 166 - NSWLEC 2007 case summary — Zoe

[12]

4 The Forresters Beach residential area is located on the opposite side of The Entrance Road and comprises predominantly of single dwellings and a neighbourhood shopping centre. A seniors living development is located directly to the north of the site and will ultimately contain 285 villa units. The first stage has been completed and a number of dwellings are occupied. The land to the west and south of the site is densely vegetated and contains an endangered ecological community. The proposal 5 The proposal provide for a seniors living development to contain the following accommodation: o 40 single storey villas, o 34 x 2-storey townhouses, o 104 self-care apartments, o 125 hostel care rooms and o 166 residential care rooms 6 On-site facilities will include: o a 25 metre outdoor swimming pool, o community gymnasium, o entertaining lounge and bar, o community dining facility and community area, o cafe and restaurant, o internal walking paths, o community garden and o consulting and treatment rooms for visiting medical practitioners. 7 The proposal is to be constructed over 7 stages. The stages are: o Stage 1 - main internal roads, gatehouses, 125 hostel units, 166 residential care units, on-site detention and nutrient controls, o Stage 2 - 30 self-care units, central facilities and café, o Stage 3 - 7 villas and 4 townhouses, o Stage 4 - 10 villas, o Stage 5 - 23 villas and 3 townhouses, o Stage 6 - 27 townhouses and o Stage 7 - 74 self-care apartments. Relevant planning controls 8 The site is zoned part 1(c) Rural (Rural Purposes) and part 7(a) Conservation under Gosford City Council Interim Development Order No. 122 (IDO 122). The majority of the site is within the 1(c) Rural zone with the proposed development falling totally within this zone. Dwelling houses are a use that needs consent in the 1(c) Rural zone. The area of the site containing the 7(a) Conservation zoned land located in the south west corner of the site is not affected by the proposed development. Clause 70 provides that the site may be used for a tourist complex notwithstanding any other provision of IDO 122.

[22]

24 As I understand, the submission by Mr Fraser is principally that the 1(c) Rural zone objectives and the requirements of DCP 89 and DCP 159 are relevant considerations and the character anticipated by these controls is so different to the character of the proposal that the application should be rejected. 25 The character anticipated by the local planning controls is found in a number of locations. The permissible residential type uses in the 1(c) Rural zone are limited to development such as bed and breakfast accommodation, dwelling houses and attached dual occupancies. The 1(c) Rural zone objectives are: (a) to control the use and development of rural land, not being prime agricultural land, to allow a range of agricultural and other appropriate uses which do not detract from the rural landscape and character, and (b) to provide an opportunity for extensive and low intensity land uses which are suitably located in a rural landscape. 26 The site falls within the Forresters Beach - Wamberal Land Unit of the North Coastal Geographic Unit in DCP 89. This section of DCP 38 provides details on the landscape character, scenic conservation issues, absorption capacity, visual sensitivity, a statement of significance and development objectives. Relevantly, Development Objective (2) states, in part, Opportunities for increases in densities and scale are available in areas not subject to visibility constraints or other physical constraints. Visibility constrained areas include land along the beachfront,…. and as well as along main roads with the scenic protection and conservation zoned areas and within scenic protection zoned areas and conservation zoned areas. 27 The site falls within Forresters Beach 7: Recreation Centre in DCP 159. The Desired Character states, in part: Ensure that new developments (including alterations to existing buildings and infrastructure works) do not dominate natural landscape settings or their predominantly low-rise residential surroundings. Surround buildings with landscape settings that maintain the scenic quality of prominent bushland backdrops or existing corridors of planted trees. Ensure that the height and siting of new structures also preserves levels of privacy, sunlight and visual amenity that are enjoyed by neighbouring dwellings and their private open spaces. Complement the bush land canopy by planting all setbacks, courtyards and parking areas with shrubs and trees that are predominantly indigenous. Along front boundaries, provide for surveillance and safety by planting hedges or using fences that are lower or see-through." 28 The character anticipated by SEPP SL can be found in Part 7. This part provides development standards that cannot be used as grounds to refuse consent. The intensity of development depends on the type of the facility to be provided under SEPP SL. Division 4 provides requirements for self-contained dwellings. This form of development is the least intensive of those forms of development available under SEPP SL and allows for a building height of 8 m and a floor space ratio (FSR) of 0.5: 1 in Part 7.

[27]

35 Clause 30 of SEPP SL states that consent must not be granted unless the consent authority is satisfied that adequate regard has been given to the design principles set out in Division 2. The relevant design principle is found in cl 31 and relates to neighbourhood amenity and streetscape. This clause relevantly states that a proposed development should (a) recognise the desirable elements of the location's current character (or, in the case of precincts undergoing a transition, where described in local planning controls, the desired future character) so that new buildings contribute to the quality and identity of the area, and (b) …. (c) maintain reasonable neighbourhood amenity and appropriate residential character by: (i) providing building setbacks to reduce bulk and overshadowing, and (ii) using building form and siting that relates to the site's land form, and (iii) adopting building heights at the street frontage that are compatible in scale with adjacent development, and (iv) considering, where buildings are located on the boundary, the impact of the boundary walls on neighbours, and (d) be designed so that the front building of the development is set back in sympathy with, but not necessarily the same as, the existing building line, and (e) embody planting that is in sympathy with, but not necessarily the same as, other planting in the streetscape, and (f) retain, wherever reasonable, major existing trees, and (g) be designed so that no building is constructed in a riparian zone. 36 GPC No 5 (Wombarra) Pty Ltd v Wollongong City Council [2003] NSWLEC 268 establishes four principles for the specific case of medium density housing for older people fitting into the streetscape in a low-density housing area. These are: o the medium density development does not have to be single-storey to be compatible with the streetscape even where most existing buildings are single-storey; o the scale of the medium density should be visually broken up; o existing site characteristics that reduce visual dominance should be retained; o where new materials and forms are introduced, this should be done with sensitivity to the existing forms and materials.

At a glance

Court

Decision date

Source

Judgment (48 paragraphs)

Parties

Cases Cited (3)