Cordon Investments Pty Ltd v Sutherland Shire Council

Objections 5. Matters raised by objectors. 23 Mr Neustein is an expert architect town planner, and the parties agreed that he should be appointed by the Court to give evidence. The respondent's evidence was heard from Mr M Lucchitti environmental assessment architect for the council. 24 Objections were received from residents and/or owners of units in 145-147 Willarong Road, the three-storey apartment building to the south of the proposal, and from the four-storey apartments at 381-389 Kingsway to the west of the proposal, and one from the owner of the unit at 158-160 Willarong Road on the corner of the Kingsway. 25 Nearly all objectors were concerned about inadequate on-site parking of existing developments and this created an existing over-parking of Willarong Road and consequent congestion and traffic hazards when entering or leaving driveways. This is exacerbated by the Kingsway having been made "no parking" for much of its length near the site and this led to overflow parking from those other existing units onto Willarong Road. 26 Some people were concerned about the loss of the church hall on the site, because of the social activities it provided in support of the community. It might be noted that the church building was already closed down and apparently had not operated for some time. 27 The large Caringbah High School was just to the north of the site with its main access for pick-up and drop-off of students in Willarong Road. This further added to peak hour congestion in the street and at intersections. The objectors did not want the additional 90 cars from this development adding to the situation. 28 Adjoining unit owners considered a four-storey development in an area with a three-storey height limit is overdevelopment. The fourth storey is seen only adding to impacts on privacy and overshadowing, visual impact of height and bulk and in some cases considered to be ugly. 29 The additional persons that could live in the development due to the exceedance of size limits, were seen as just adding to the infrastructure overload and reducing the amenity of the area. 30 Residents in the apartment building immediately to the south at 145-147 Willarong, are particularly concerned about overshadowing and loss of outlook. Ground floor units of that building currently get sun all day mid-winter. With the proposal the unit nearest the street would be in shade from about 10 am to 2 pm. Units further west along the north side, would be in shade from early morning to about midday depending on their location. That shade comes from building A. Units at the rear of 145-147 would be in shadow from about 2 pm and that shadow comes from building E. 31 During the hearing, I saw the rear common open space and drying area of units at 369-373 Kingsway to the south of building E. It is clear that at the moment, it is only shaded in the early morning in mid-winter by 145-147 Willarong. The rest of the day it is in sunlight. 32 The proposal has building E four-storeys high and only 4 m from the southern boundary. Partly due to the fourth storey of building E and the small setback, it means the communal open space and clothes line would receive only a short period of sunlight mid-morning in mid-winter due to a combination of shadows from 145-147 Willarong and from proposed building E. 33 Also from buildings D and E, the future development residue lot of the site at 377-379 Kingsway were shaded at 9 am and until about 11 am mid-winter but in sun after that. 34 To the south of 145-147 was a chapel and its grounds. Although some shadow would be on it all day from either 145-147 or the proposal, its use did not give rise to a concern on solar access. 35 Numbers 381-389 Kingsway, the four-storey apartments, would only have shadow from the proposal before 9 am mid-winter and sun the rest of the day, so there was no unreasonable shadow impact on it. 36 The subject site and the land around it is zoned Residential 2C under the Sutherland Local Environmental Plan 2000. The statute requires 65 per cent of the site area to be landscaped, of which half must be deep soil to permit large trees to grow. That is intended to achieve the objective in cl 36(1)(a) of retaining and enhancing the tree canopy of the Shire. 37 The proposal has the equivalent of 32.5 per cent of the site area in deep soil, so it complies on that. But it is deficient on the total. Mr Neustein and Mr Lucchitti agreed the total landscaped area was 56 per cent, not 48 per cent as in the issues. Mr Neustein had originally thought in writing his report, that the landscaped area was complied with at 65 per cent. But he had included areas beneath balconies and beneath suspended external corridors that did not qualify as landscaped area under the definition. 38 Having reviewed the calculations and agreeing it was 56 per cent, Mr Neustein still believed the landscaped area of the proposal was sufficient because it had the required deep soil area to grow big trees and the quality of the central courtyard landscaping was so good a casual observer would be hard pressed to notice any deficiency. 39 Mr Lucchitti noted the 65 per cent requirement was based on a maximum floor space ratio of 1:1. The proposal had a floor space ratio of 1.46:1, so there was 46 per cent more bulk of buildings than permitted and height exceedances in the four-storey buildings. In his opinion, the proposal could not satisfy the objectives under cl 36(1)(b) and (c) which required unbuilt areas to balance the size and bulk of the built form and to contain urban run-off by minimising impervious areas. 40 In addition, cl 36(1)(a) would seem to require more deep soil area than 32.5 per cent of the site to grow more high canopy trees for a building that is 46 per cent bigger than permitted in order to achieve cl 36(1)(b). The standards did not apply individually. They are a suite of requirements made firm in a statute, he said. They were not flexible as in a Development Control Plan. The height and floor space ratio exceedances did not achieve the objectives of cl 35(1)(a) and (b) and 34(1)(a) to provide consistency in size and bulk in conformity with community expectations that minimised adverse impacts referred to in cl 34(10(b) and cl 30(a)(b)(d) of the Sutherland Shire Local Environmental Plan 2000. 41 Mr Lucchitti did agree in cross-examination however, that a casual observer may find it difficult to know the proposal was deficient in landscape. 42 In regard to shadows, Mr Lucchitti had prepared Exhibit 12, a marked up version of the shadow diagrams to show the reduced impact of a three-storey versus a four-storey development in buildings D and E. Mr Neustein and Mr Lucchitti agreed the lowering of buildings D and E near the south boundaries and increasing setback so the fourth storey would reduce the impacts on the communal yard and drying area of units at 369-373 Kingsway and thereby also houses on the Kingsway. Plans were prepared overnight and Mr Lucchitti agreed if the fourth storey of the unit E6 was deleted, the shadow effect on 369-373 would be reduced considerably. And if units D7, D8, D9 and D10 were amended on the fourth storey all as shown on Exhibit 13, the shadow effects on the houses to the south would also be considerably reduced. 43 At the houses where the expected future development site was located with the residual allotment from the subject site, the impacts would then be similar to a reasonable expectation for a complying development on the subject land. Mr Lucchitti said any future development on the land to the south of building D would have its private open space on the north side and the changes in Exhibit 13 would provide reasonable solar access to that private open space. The proposal as in Exhibit A would not. Mr Lucchitti added that the landscaped area deficiency was about 486 sq m or roughly the floor area of the fourth storey of the buildings D and E. 44 Mr Lucchitti made the observation that the exceedence of the floor space ratio is caused by the current definition in Sutherland Shire Local Environmental Plan 2000 that includes carparking areas inside buildings that are over and above 20 sq m per required car space. He acquiesced to Mr Neustein's assertion that even the council had seen this requirement as excessive and currently had a draft Local Environmental Plan to remove it. 45 Mr Lucchitti said, even though that draft Local Environmental Plan if gazetted would change the calculation of the proposal to a floor space of 0.95:1, there was the concern that even the proposed new definition would exclude the external stairs, elevators and suspended access walkways. They obviously added to bulk impact and the fourth storey to height impacts. Also, the land beneath them did not qualify as landscaped area and so the provision of landscaped area would still be deficient. 46 The experts conferred on the floor space of the suspended corridors, lifts and stairs and agreed if they were added in, the floor space ratio under the draft Local Environmental Plan would be 1:1. The stairs were said to be 66.36 sq m, the lifts 68.08 sq m, and the walkways 145.06 sq m 47 The applicant tendered Exhibit E that in summary moved the fourth storey wall on the south elevation of building E to have an 8.4 m setback from the boundary with 369-373 Kingsway. The fourth storey building D on the south elevation was also to be setback a minimum of 8.4 m from the boundary of 379 Kingsway and the same line shown on Exhibit 13 runs through units D7, D8, D9 and D10. This would achieve similar shadows in the southern neighbours to a three storey development. 48 The question was asked of Mr Neustein, why such a large site as this could not be designed to achieve the statutory requirement of 65 per cent of the area as landscaped area. He said, once one understood all the requirements, one could realise it was difficult for any site to achieve compliance with all the setbacks and landscaped area and three storey controls and still achieve the maximum floor space ratio of 1:1. The latter was the major interest of any developer, because the number of units had a direct effect in the potential return on investment. 49 Mr Neustein said on smaller sites or ones with constraints or difficulties due to terrain, slopes, orientation or whatever, it may well be necessary to say the maximum floor space ratio should not be allowed. The amenity and environment impacts may well be such that the floor space has to be reduced in order to reduce impacts to acceptable levels. 50 On this particular site, it was level, had few constraints and was a large site. Mr Neustein said, the proposed perimeter landscaping for big trees and internal landscaped courtyards were very good in his opinion. It was reasonable to maximise the density on this site, whereas on smaller sites getting even one extra unit may be unacceptable, he said. His opinion included the presumption that the draft Local Environmental Plan to change the floor space ratio definition would be gazetted. 51 The applicant put that the council's Independent Hearing and Assessment Panel had agreed to the State Environmental Planning Policy No. 1 objection to the floor space ratio based on the existing definition in the Sutherland Shire Local Environmental Plan 2000. Also the council's director of environmental services had supported the State Environmental Planning Policy No. 1 objection on the floor space ratio and on the non-compliance with the landscaped area. In the latter case, the landscape scheme was reported to be of a high standard, having been altered in response to council's architectural review advisory panel's requests and now provided potential benefit to the residents. 52 The applicant put that the same report also supported the three and four storey design of the proposal, saying the storey control was in the Residential Development Control Plan and therefore was not a statutory fixed requirement. The purpose of the storey control was: "the height of the development should be consistent with the surrounding development and should be in context with the streetscape including the height of buildings on the opposite side of the street." 53 The report drew attention to residential flats on the opposite side of Willarong being two and three and nine storeys high. And, on the same side of Willarong, the neighbouring and existing Nos. 145-147 and a recently approved development on the north side, both being three storeys the same as building A. 54 The building A of the proposal was three storey on the Willarong frontage. The buildings with four storeys in the proposal were at the rear, presumably unseen from the street, but adjacent a four-storey residential complex on the west side and an elevated three-storey above ground floor garage on the south side. The latter being equivalent height of four storeys. The report of the Director Environmental Services said the proposal was in context with its surroundings and supported it, as did Mr Neustein. 55 Overall, the Court has concluded as follows: the area is zoned residential 2C for high density residential development. Living in high density areas makes a need to address amenity aspects more important. This is necessary so that the development will provide a good living environment for the occupants of the proposal and the neighbours, and meet the various overall objectives a council sets in its statutes and development control plans for the quality of the living environment in the near and distant futures. The fact that older developments approved under earlier statutes and controls have permitted four-storey and nine-storey developments adjoining and near the site, does not justify the proposal exceeding a three-storey limit placed on an area by development control plan that has been thoroughly prepared, publicly exhibited and having considered all objections, then adopted by a council. Authority for that position is found in Stockland v Manly [2004] NSWLEC 472. 56 It would seem that the Sutherland Council found the previous height controls was producing development that did not meet the relevant objectives of the Development Control Plan or the Local Environmental Plan and thus the three-storey limit arose. 57 Even stronger was the landscaped area provisions in the Local Environmental Plan. It's purposes are clearly stated. Whilst the proposal may be able to contribute a reasonable amount of high canopy trees due to the perimeter deep soil area, will it be in the proportion that council has set by statute to achieve the balance between vegetation and building sought by the objectives? The question becomes more important when most of the proposal is one storey higher than permitted and the deficiency in landscaped area is the size of a normal house lot. About 487 sq m or the equivalent of the footprint of buildings D and E in the proposal is the deficiency. 58 As put in submissions by the respondent, it might be a person walking through the proposal would be hard pressed to know if the landscaped area was 56 per cent or 65 per cent of the total site area. But the respondent said, imagine the site with building E and most of building D gone in order to provide the statutory landscaped area. An ordinary person would have no difficulty in telling the difference between that and the proposal. 59 The applicant and Mr Neustein put that such expectations as 65 per cent landscaped area and three-storey height limit were unreasonable because one could never achieve the allowable floor space ratio of 1:1 on the subject site or any other site in the same zone. This seems to be in Mr Neustein's opinion, an anomaly in the co-ordination of the statute and controls. He even went as far as saying that the site had so few constraints and the proposal so few impacts, that its density could be maximised, that is, even above the statutory limit. 60 The respondent put to the Court that Mr Neustein support for the proposal appeared to stem from that philosophy which was his personal opinion. The Court, the respondent said, is bound by the Sutherland Shire Local Environmental Plan 2000 and the relevant Development Control Plan 9.1/08 edition 7 for Residential Flat Buildings in the 2C Residential and the 9A Mixed Residential and Business Zones. 61 In order to put these differing opinions in to perspective, I bore in mind that the council was processing a draft Local Environmental Plan to change the definition of gross floor area in order to ease the floor space ratio calculations. That would mean that the proposal with 53 units and the external corridors, lifts and stairs would calculate in at a 1:1 floor space ratio. At the moment it calculated 1.46:1 or massively above the statutory limit. In order to get that floor space, there were impacts as seen from the evidence due to the fourth storey and overshadowing upon the west end of 145-147 Willarong and 369-373 Kingsway and 377 and 379 Kingsway that would be substantially less if the height limit was complied with. There would be some height dominance of building E over 145-147 Willarong as it would be four storeys to the latter's three. And the required minimum landscaped area would still not be provided if the development was able to comply with the FSR after gazettal of the amendment. 62 The applicant put in submissions that not being able to achieve the floor space ratio proposed, made a mockery of that provision. I cannot give it such strong criticism nor use such invective to throw away a statute. If the statute does not provide for the balance between floor space ratio and landscaped area that the council intended, then the council as the legislating body should change it. That role is not for the Court. 63 I recall in this regard the planning principle in PDE Investments No. 8 Pty Limited v Manly C [2004] NSWLEC 355, which refers to the tensions between the statutory floor space ratio and building envelope controls. Envelope controls are a way of amalgamating controls on heights and setbacks of buildings and they can also affect floor space ratio when there is a maximum height also set. In that particular case, the statutory floor space ratio did not permit the full envelope to be occupied in a building, and the application sought to utilise the envelope and exceed the floor space ratio. That judgment found that an envelope control does not necessarily have to exactly match the floor space ratio. By being a loose fit, the envelope control gives flexibility for design on difficult sites or to enable articulation of a building and a designer's creativity. 64 The parallel to this case is that it cannot be presumed the maximum floor space ratio can be achieved if there are other statutory limits such as landscaped area and controls such as height limits to be met. Even under the floor space ratio as it would be if the draft Local Environment Plan is gazetted, the development would be an absolute maximisation. Even dealing with it on that basis, there are substantial changes to buildings D and E needed to have acceptable impacts on neighbours. 65 Also I note Mr Lucchitti's evidence in reply that the draft Local Environmental Plan that is intended to amend the definition of gross floor area, also intends to change the landscaped area definition to exclude any part of a site occupied by a basement carpark. Although I do not see the latter referred to in the copy of the gross floor area change in Exhibit 7, the change that Mr Lucchitti advised would mean the central courtyard could not be included as landscaped area. There was no mention of changing the 65 per cent requirement of site area as statutory landscaped area, thus the proposal would be even more deficient on that aspect if the Lucchitti evidence is correct. 66 I doubt that the proposal could possibly achieve the objectives of cl 36(1)(a) and (b) of the Sutherland Shire Local Environmental Plan 2000. It obviously intends substantially more landscaping around buildings than the proposal has provided. 67 Mr Lucchitti said the zone 2C area is three-storey maximum to be a transition between the high-rise area designated under the Caringbah Centre Development Control Plan and the Residential A1 zone for detached dwellings just west of the site and south across the Kingsway. 68 The council's desired future character is to scale down development in this location, not scale it up to four storeys. 69 He notes that building D achieves a height of RL 50.7 compared to 145-147 Willarong of RL 46.7 to the eaves, and 381-389 Kingsway RL 52 to the ridge but RL 48 to the eaves, those buildings having pitched roofs. 70 He says, the neighbouring buildings having pitched roofs whereas the proposal has a flat roof, the proposal takes it bulk and wall height to a level that would appear substantially higher and more dominant than its immediate neighbours. It will be up to 5 m higher than the existing buildings opposite on Willarong. It will not achieve the purpose of the height control by being in context, it will in fact dominate the nearby buildings. When seen from neighbouring buildings and from ground level open space, and where it is seen from the streets, the proposal would have the appearance of higher density whereas the council was seeking to reduce the density in this transitional area. 71 These matters also come into consideration under State Environmental Planning Policy 65 in issue 3 of this appeal. 72 I have concluded that the fourth storey on four out of the five buildings in the proposal causes such impacts and non-compliances that it should not be allowed. Since most of the buildings have two-storey maisonettes occupying the third and fourth storeys, it is not just a simple measure of deleting one floor or requiring Exhibit 13 to be applied or Exhibits E and F. Such measures might be allowed by a deferred commencement conditions or adjournment to amend drawings, but not if a whole storey must be deleted. 73 In my opinion, issues 1(b)(c) and (d), issue 2 and issue 3(b) subs (1) and (3) are determinative and the proposal must be refused. 74 Therefore the orders of the Court are: 1. The appeal is dismissed. 2. Exhibits are returned to the parties except Exhibits 1, 2, 3, 8, 9, 12, 13, A, C, E and F. __________________ K G Hoffman Commissioner of the Court rjs

At a glance

Court

Decision date

Source

Judgment (14 paragraphs)

Parties

Cases Cited (2)