Castlenorth Pty Limited v Hunters Hill Council

APPLICANT Ms S Hill, solicitor SOLICITORS Susan Hill & Associates LEGAL REPRESENTATIVES: RESPONDENT Mr J Cole, solicitor SOLICITORS Abbott Tout

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10205 of 2005 Castlenorth Pty Limited v Hunters Hill Council

COMMISSIONERS : This is an appeal against the deemed refusal of Development Application No. 04-1070 by Hunters Hill Council (the council) for the demolition of the existing buildings and the construction of a three-storey retail/commercial and residential development at 63-67 High Street, Hunters Hill (the site). 1 We record that we inspected the site and surrounding areas on the morning of the first day of the hearing with representatives from both parties. A number of local residents provided their evidence at this time.

The site 2 The site comprises three lots, being lots 2, 3 and 4 in DP 395730 and is located on the southwest corner of Park Street and High Street. It has a frontage of 27.4 metres to Park Street and 27.9 metres to High Street with a total area of 942 square metres. There is a cross fall from the east to west of 2.15 metres.

3 The existing buildings comprise two single storey semi-detached shops fronting High Street, each with a two-bedroom unit and garage to the rear. A larger two-storey building is located on the corner with two shops and garaging at ground floor and a large apartment above. The shops are currently vacant.

4 The surrounding area is mainly low-density housing. Boronia Park is on the opposite side of Park Road. The proposal 5 The proposal involves the demolition of the existing structures on the site and the construction of a mixed retail/commercial and residential development with a basement car park. The building is to be three-storeys high, constructed of face brick with a pitched tiled roof. The upper level is designed to be within the roof form, and is referred to in the drawings as the Attic floor.

6 The building comprises 11 residential units, made up of 10 x 2 bedroom units and 1 x 1 bedroom unit distributed over the three levels. The retail/commercial component is located at ground level near the corner. Access to the 24-car basement car park is off Park Road. Relevant planning controls 7 The site is zoned Business Neighbourhood 3(c) under the Hunters Hill Local Environmental Plan No. 1 (LEP 1). The proposed use is permissible as "shops with housing" under this zone. Clause 15(3) provides requirements for the height of buildings. There was agreement that the proposed development exceeds the maximum height of 8.0 metres. To address this departure the applicant provided an objection under State Environmental Plan Policy No. 1 - Development Standards (SEPP 1) to show why strict compliance with the height standard was unnecessary and unreasonable in the circumstances.

8 Clause 19(3) provides requirements for development in the vicinity of heritage items. The site is opposite Boronia Park and in the vicinity of 62 Park Street, both of which are listed as heritage items in Schedule 6 of LEP 1. Other heritage items are located at 39, 41, 58 and 60 High St. The houses to the south of the site are listed as contributory items in LEP 1. Clause 19B provides that in making an assessment for certain heritage matters, the council may consult with the Conservation Advisory Panel (the CAP), a committee appointed by the council.

9 Development Control Plan No. 21 - Commercial Development (DCP 21) applies to the proposed development. It provides requirements for floor space ratio (FSR), height, car parking, residential density, commercial density and setbacks. Part B, cl 5 provides for a maximum FSR of 0.6: 1. The FSR of the proposed development is 1.33:1.

10 State Environmental Plan 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 principles for residential flat development. These principles seek to help achieve good design solutions and they provide a means of evaluating the merit of residential flat proposals. Under SEPP 65, consideration must be given to the publication Residential Flat Design Code (the RFDC). The issues 11 The council filed a Statement of Issues containing six main issues and a number of sub-issues. These can be grouped into the following themes: 1. whether the proposal's bulk and scale is acceptable in the context of the streetscape and the character of the surrounding area (considering the FSR, setbacks and height); 2. whether the SEPP 1 objection to the height development standard is well founded; 3. whether the internal amenity of the proposed dwellings is acceptable; and 4. whether adequate landscaping and private open spaces are provided. Evidence 12 Mr Terence Byrnes, a town planner and architect, and Ms Jennifer Hill, an architect and heritage consultant, gave evidence for the applicant. Mr Joe Vescio, a town planner, gave evidence for the council. Additionally, a number of local residents provided evidence on site. The Court also had the benefit of a bundle of documents containing written submissions in response to the notification of the development application. Impact on the streetscape and character of the area 13 DCP 21 provides a number of requirements that address streetscape and character. One of the plan's aims seeks to " provide a high standard of innovative architectural and landscape design that fits into the context of, and is sensitive to, the existing surrounding locality particularly any adjoining residential or open space areas" (Pt A, cl 2).

14 One of the DCP's streetscape objectives seeks to "provide attractive streetscapes that reinforce the functions of the street, enhance the amenity of buildings, and are sensitive to the built form, landscape and environmental conditions of locality" (Pt B, cl 2).

15 The objectives for height are "to integrate new development into the context of surrounding development, maintaining a domestic scale" and "to minimise visual dominance, …" (Pt B, cl 3).

16 An objective for setbacks seeks to "accommodate substantial landscaping and mature tree canopy, to provide visual and acoustic privacy, and for an attractive streetscape". A design requirement for front setbacks requires "setbacks particular to residential streets should be consistent with the established building alignments in that street" (Pt B, cl 4). An objective for density seeks to "ensure an appropriate density which respects surrounding residential amenity and landscape character" (Pt B, cl 5). SEPP 65 complements DCP 21, in that it also requires that new buildings respond to their context in relation to scale, built form and density (Principles 1, 2, 3 and 4).

17 In addition to the above planing instruments and policies, two judgments of the Court are also relevant. Project Venture Developments v Pittwater Council [2005] NSWLEC 191 establishes a test for the assessment of compatibility in the urban environment. It identifies the main contributors to urban character as building height, setbacks and landscaping. In Seaside Property Developments v Wyong Shire Council [2004] NSWLEC 117, Bly C stated that:

As a matter of principle, at a zone interface as exists here, any development proposal in one zone needs to recognise and take into account the form of existing development and/or development likely to occur in an adjoining different zone. 18 We agree that Mr Byrnes correctly identified the fundamental issue as whether or not the appearance of the proposal is appropriate in its context, when judged against the character of the area and the expectations under the planning controls. Mr Byrnes and Ms Hill concluded that the development is appropriate, whereas Mr Vescio came to the opposite conclusion. With the benefit of the site inspection we agree with the conclusions of Mr Vescio for the following reasons.

19 The character of the area is largely determined by the low-scale, predominantly single-storey residential development surrounding the site and also Boronia Park. Even though the site with a 3(c) zoning is in isolation to the surrounding Residential 2(a1) zoning, DCP 21 and SEPP 65 require an appropriate relationship to be established with the surrounding development.

20 Accepting that the planning controls in LEP 1 and DCP 21 bestow a greater development potential on the site than low-density residential, the proposal has gone a long way beyond the legitimate potential. The key to this finding is the amount of floor space in the development. It exceeds the maximum FSR in DCP 21 by more than double. In our view, this is the main reason that it appears so large and alien in the streetscape and the surrounding area.

21 While the proposal presents an articulated facade to the street frontages, the bulk and massing of the building is at odds with the general form of development around it. In coming to this conclusion we have given consideration to the potential future redevelopment of residential properties to include two storeys. However, as the residential planning controls promote first floor additions to be designed as rooms in the roof or setback from the front elevation (DCP 15, cl 2.2.2), the perception of a single storey character is unlikely to change to any significant degree.

22 The upper level (Attic floor) contained within the roof is not sufficiently recessive to avoid adding to the perceived bulk of the building. The expansive roof form limits the ability of the proposal to minimise its overall bulk.

23 Mr Byrnes placed some emphasis on previous discussions with the CAP and the ongoing evolution of the plans. The proposal was submitted to the CAP on three occasions, with the minutes of the most recent meeting indicating that the CAP had "reacted positively to the sketches". In our view, little weight can be given to the minutes of meetings with the CAP. They are brief and do not provide the assessment required by s 79C of the Environmental Planning and Assessment Act 1979. We understand the role of CAP to be limited by cl 19B to advice on "items of the environmental heritage and on conservation areas". We note that the appeal is a deemed refusal and the council officers have not prepared a report on the development application. 24 We reject Mr Byrnes evidence that this particular proposal (or another proposal with similar floor space) is essential to achieve the redevelopment of the site. The site's value is determined either by the planning controls (ie FSR of 0.6:1 and a height of 8m) or by the existing use, which in this case is vacant retailing. Even though it is arguable that there is an inconsistency between the 8-metre maximum height and the permissibility of three storeys, the FSR control is unambiguous. In our opinion, the 0.6:1 FSR is more likely to achieve a level of development that is sensitive to the surrounding residential development.

25 We note that Part A, cl 4 of DCP 21 provides the opportunity for applicants to seek variations to the planning controls subject to certain criteria. We do not see these provisions as an incentive to redevelop beyond the requirements in DCP 21, as suggested by Mr Byrnes. Moreover, Mr Vescio did not suggest that strict compliance with the requirements in DCP 21 was necessary, but rather that any variation should be tested against fitting into the surroundings and impacting on neighbouring properties. We agree with Mr Vescio that the large variation to the FSR requirement did not satisfy this test.

26 The Court was taken to a number of recent developments that were seen to support the proposition that the council had not consistently applied the requirements in DCP 21. However, our reading of the development application assessment report for 100 Woolwich Rd, Woolwich supports the council's position that variations are considered on their merit. In this case, a FSR of 0.9 1 was accepted because the adjoining buildings had comparable FSRs. As this was the only example presented to the Court with the same zoning as the subject site, there is no benefit in considering other examples.

27 In our opinion, the proposed development has an unacceptable impact on the streetscape and the character of the area. It is inconsistent with the requirements of DCP 21 identified in pars 13 to 16 and the design quality principles in SEPP 65 identified in par 16.

SEPP 1 objection to height development standard 28 Clause 15(3) states:

A person shall not erect a building on a site within Zone No 3(a), 3(c): (a) containing more than 3 storeys; or (b) having a height greater than 8 metres measured vertically from any point on ground level to the uppermost ceiling, or both. 29 The proposal has a maximum height of 9.5 metres. 30 The applicant's SEPP 1 objection adopts the objectives for height from DCP 21 as LEP 1 has no specific objectives for the height development standard. The DCP 21 objectives are: + to integrate new development into the context of surrounding development, maintaining a domestic scale; + to minimise visual dominance, impacts from overshadowing and loss of privacy. 31 When compared to these objectives Mr Byrnes stated that the proposed development would appear on both street frontages as a two-storey building, with rooms in the roof and be a transition in the height between the site and adjoining low density housing. In his opinion, the complementary height relationship is a positive contribution to the streetscape and landscape qualities that define the locality. A corner site opposite a large park has the potential to absorb some intensification within the limits of the surrounding context. He considered that the bulk of the proposal was reasonable and would relate to the existing general height and character of the more substantial houses in the locality.

32 Mr Byrnes further stated that the proposal would not result in any significant additional overshadowing, privacy impacts or view loss that is detrimental to the amenity of the adjoining residential dwellings. A complying development is unlikely to result in reduced impacts. For these reasons the granting of consent would be consistent with the aims of SEPP 1. It would be unreasonable and unnecessary in the circumstances of the case to require strict compliance with the height development standard.

33 The appropriate approach 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. In the absence of any specific objectives for the development standard, we agree with Mr Byrnes that the objectives contained in DCP 21 are appropriate. 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. 34 This question also asks whether compliance with the development standard would hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EPA Act. The relevant objects are: 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. 35 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.

36 The objectives, in part, seek "to integrate new development into the context of surrounding development, maintaining a domestic scale" and "to minimise visual dominance,…." 37 We do not accept that the proposed development satisfies the objectives relating to context and visual dominance. The height of the proposed development is a significant contributor to the unacceptable impact on the streetscape and character of the area. The height could not be seen, under any test, to integrate with the surrounding residential development or maintain a domestic scale.

38 There is no reason why compliance with the development standard could not be achieved. We do not think that compliance would be unreasonable and unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the EPA Act. When considering whether the proposed development encourages the promotion and coordination of the orderly and economic use and development of land, any assessment must be based on the existing planning framework and not as if no planning framework existed. 39 We find that the SEPP 1 objection is not well founded. Whether the internal amenity acceptable? 40 Principle 7 of SEPP 65 deals with the internal amenity of apartment buildings. It states:

Good design provides amenity through the physical, spatial and environmental quality of a development. Optimising amenity requires appropriate room dimensions and shapes, access to sunlight, natural a ventilation, visual and acoustic privacy, storage, indoor and outdoor space, efficient layouts and service areas, outlook and ease of access for all age groups and degrees of mobility. 41 Mr Vescio criticised the internal amenity of the proposal on the grounds of inadequate solar access and private open space. In our opinion, his criticism of poor solar access is valid.

42 In Mr Vescio's assessment, fewer than 70% of units receive 2 hours of sunlight. (The RFDC requires 3 hours.) We note that the SEPP 65 assessment contained in the Statement of Environmental Effects (SEE) states that all units achieve 2 hours. Our reading of the plans suggests that Mr Vescio is correct. The solar performance of the proposal is poor, mainly as a result of small openings, veranda roofs, projecting balconies and solid privacy screens.

43 Mr Vescio criticised the balconies, none of which achieve the minimum size of 10m2 suggested by the RFDC. Mr Byrnes told the Court that the balconies were kept small because the CAP suggested that large balconies would not fit into the area's character. On that basis we accept that the small balconies are not a reason for refusal.

44 In our opinion, the worst aspects of internal amenity occur on the Attic floor. These weaknesses in the design did not become apparent until Mr Byrnes and Mr Vescio gave concurrent evidence. For example, more than half of the living room of Unit 6 has a ceiling height under 2.7m, some of it considerably under. Only a tiny section of the bedrooms have a ceiling height of 2.7m, while the ceiling height at the walls is around 1.7m. The ceiling above the bath in the ensuite of Unit 7 is so low that only children could stand up in the bath (see Section GG). The ceiling of the ensuite of Unit 8 is so low that an adult could not stand at the basin. Section GG indicates that there is a Store at the eastern end of the living area of Unit 7; the plans indicate that it is part of the living area. If the section is correct, part of the living room becomes a Store, turning the living room into an internal space with a narrow corridor to a dormer window. If the plans are correct, the ceiling height of the living room at the wall is unacceptably low. 45 In our opinion, the amenity of the apartments on the Attic floor is unacceptable to the point where it would not be practicable to construct it unless the ceiling height is increased.

Adequacy of the landscaped area 46 DCP 21 requires 20m2 of landscaped area per dwelling; or 220m2 for this proposal. The definition of landscaped area does not require it to be deep soil planting. While the parties did not agree on the size of the landscaped area, it appears that the proposal provides at least 220m2 of area that may be called landscaped area. Much of the area is on a slab with 150mm of soil on top.

47 While the landscaped area may meet the numerical standards, in our opinion the quality of landscaping is one of this proposal's major weaknesses. The landscape area is poorly distributed and the overall appearance of the development is a predominance of hard surfaces unrelieved by vegetation. The lack of vegetation reinforces our finding that the proposal is too dominant and too hard for its surroundings. The proposal is inconsistent with the objective for setbacks that seeks to "accommodate substantial landscaping and mature tree canopy, to provide visual and acoustic privacy, and for an attractive streetscape".

SEPP 65 assessment 48 As stated above, the SEE contains an assessment of the proposal under SEPP 65. In our opinion, that assessment is inaccurate and equivocal. For example, the assessment recognises that the amount of communal open space is 5% of the site area instead of 25-30% suggested by the RFDC. To justify it, the assessment states: "all units have generous areas of private open space". In fact, the balconies of the units are smaller than the RFDC recommends. We have accepted this shortfall on the basis that the size of the balconies was determined by heritage considerations. However, if the balconies are small for heritage-related reasons, then the communal open space should compensate by being larger than recommended by the RFDC, not smaller.

49 The RFDC suggests that the back walls of kitchens should be no more than 8m from window. The SEPP 65 assessment states that this requirement is met in all cases. The back wall of the kitchen in Unit 6 is more than 8m from a window.

50 Finally, the assessment is equivocal about whether or not the proposal will provide for resource efficiency. On the question of "improved efficiency of hot water systems", the assessment states: "solar hot water can be provided if required". On the question of "grey water for site irrigation", the assessment states: "grey water usage tank can be provided". To say that these environmentally desirable features can be provided is meaningless, since this is true for all new buildings. The information that the council (and the Court) requires is whether or not they will be provided. As it turns out, this proposal provides neither solar hot water systems or grey water irrigation.

Orders 51 For the foregoing reasons the Orders of the Court are: 1. The appeal is dismissed. 2. Development Application No. 04 - 1070 for the demolition of the existing buildings and the construction of a three-storey retail/commercial and residential development at 63 - 67 High Street, Hunters Hill is refused. 3. The exhibits are returned.

      Dr J Roseth
      Senior Commissioner

      G T Brown
      Commissioner of the Court

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