Cornerstone Property Group Pty Ltd v Warringah Council - [2004] NSWLEC 189 - NSWLEC 2004 case summary — Zoe

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Cornerstone Property Group Pty Ltd v Warringah Council

[2004] NSWLEC 189

Land and Environment Court (NSW)|2004-04-29|Before: Talbot J

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Source facts

Court

Land and Environment Court (NSW)

Decision date

2004-04-29

Before

Talbot J

Source

Original judgment source is linked above.

Judgment (25 paragraphs)

[1]

Introduction 1 This an appeal against the refusal by Warringah Council (the council) of a development application for the demolition of existing buildings and construction of a mixed commercial and residential flat building with basement car parking at 1073, 1085 and 1087 Pittwater Road, and a two-storey house and swimming pool at 1 Eastbank Avenue, Collaroy (referred to as the Cornerstone site in this Judgement).

[2]

The site and it context 2 The site is an amalgamation of a number of allotments being: lots 1 and 2 D. P. 6985, lot 1 D. P. 774417, and lot 6 D. P. 13919524 at the north east corner of Pittwater Road and Eastbank Avenue. It has a site area of approximately 2985m2, with a frontage of about 63 metres to Pittwater Road and about 50 metres to Eastbank Avenue. 3 Existing development on the site includes a house used as a residential flat building at 1 Eastbank Avenue and two-storey commercial buildings with ground level shops at 1073, 1085 and 1087 Pittwater Road. 4 Development to the south and west of the site is residential. Adjoining the site to the north is commercial building (No.1091-1095 Pittwater Rd, referred to as Koumana site in this Judgement). This site adjoins the Collaroy Cinema (No. 1097 Pittwater Rd) on the corner of Pittwater Road and Alexander Street, which is a heritage item. To the east of the site, across Pittwater Road, is the Collaroy Beach Surf Club, car park and foreshore park onto the beach. 5 The Koumana site has a width of approximately 13.5m with an angled frontage to Pittwater Road of about 15.6m. Its depth varies between approximately 40.5m and 48m.

[3]

6 The development application was lodged on 11 September 2002 and was notified to adjoining residents. A number of objections were received and a mediation session was held between residents and the applicant. Council received amended plans on 9 December 2002, which were renotified and further submissions were received. Further amended plans were received on 11 February 2003. Council staff recommended approval of the application but Council refused it on 22 April 2003. 7 The applicant lodged an appeal and further amended plans were received and re- notified in September 2003. The Department of Infrastructure, Planning and Natural Resources issued General Terms of Approval on the 23 October, 2003. 8 As a result of joint conferencing between the experts, further amendments were made to the plans. The matter was set down for hearing on the 27-29 October 2003, council and the applicant agreed to seek consent orders. Talbot J granted leave to Koumana Holdings Pty Ltd (Koumana) to be an intervenor in the proceedings and the hearing dates were vacated. A development application for the Koumana site was lodged on 9 May 2003 and was refused by Council on the 9 December 2003. This application is the subject of a separate appeal. 9 At the hearing on 8-9 December 2003, the court heard evidence from adjoining residents. Statements of Evidence by Ms T Nikolova, the architect for Koumana and Mr P. Kapetas, town planner for Koumana were tendered. Neither the applicant nor council tendered Statements of Evidence dealing with the issues raised by the Intervenor. However, a joint statement on these issues by Mr N. Kennan, town planner for the council, Mr R Fleming, town planner for the applicant, Ms Nikolova and Mr Kapetas was prepared. There was little agreement between the experts for the intervenor and those of council and the applicant. 10 On 19 December 2003, I issued directions, including: 1. The experts are to prepare a joint report showing indicative building envelopes for development along the boundary of both sites which indicate the appropriate height, setback and use for each building that is likely to achieve a reasonable and equitable level of development on both sites with acceptable overshadowing and privacy impacts. 2. The experts should prepare a joint report as to compliance of the envelopes with the requirements of WLEP2000, particularly cls 62, 64, 65 and 68. 3. If the experts for each party cannot agree on appropriate envelopes for both sites, they should each prepare their own envelope for both sites and an assessment required by Direction 2. 11 In summary, the reasons for the directions were that as attempts to amalgamate the Cornerstone site and the Koumana site had been unsuccessful and from the evidence presented to the Court, I was not satisfied that approval of the development on the Cornerstone site would not prejudice reasonable development of the Koumana site. This conclusion was based on the premise that if the Cornerstone site is redeveloped with a three-storey building, redevelopment of the Koumana site is to be encouraged as a single storey building between the Cinema and the Cornerstone site would be out of context and would not contribute to the existing or future character of the area or the Collaroy Cinema, a heritage item. 12 In response to the Directions, the experts for Koumana and Cornerstone were unable to agree, and separate reports and building envelopes for each site were prepared. The ground floor plan of the Cornerstone development was amended to convert three residential units to commercial and to rearrange the north west corner unit (formally Unit 1, now unit 4). Proposal

[7]

Residential amenity 19 The court heard evidence from following residents: Mr E. Gibbs, 5 Eastbank Avenue, Collaroy Ms D. Broad, 3 Eastbank Avenue, Collaroy Mr D. Grgin, 4 Eastbank, Avenue, Collaroy Mr J. Paton, 9 Eastbank Avenue, Collaroy 20 The main issues raised by these residents were: o The impact on privacy and overshadowing of Nos. 3 and 5 Eastbank Avenue and No. 4 Alexander Street. o Impact on views from properties and from the view corridor in Eastbank Avenue. o Impact of traffic and parking. 21 In relation to overshadowing, Vipac Engineers and Scientists Ltd undertook an analysis of Solar Access and Shadowing (Vipac Report) arising from the development application. The study concluded that 50% of the private open space of the proposed dwelling at 1 Eastbank Avenue and the existing dwellings at 3 and 5 Eastbank Avenue would receive direct solar access between 11 a.m. and 3 p.m., which satisfied the standard of cl 62 in LEP 2000. 22 In relation to privacy, I accept the evidence of Mr Kennan and Mr Fleming that there will be limited privacy impacts between the development and the adjoining houses at Nos 1, 3 and 5 Eastbank Avenue or No. 4 Alexander St. The Eastbank Avenue properties are at a higher level than the proposal. There is significant separation between the houses and the common boundary, in the order of 15-20m, with established landscaping that will be supplemented by the proposed landscaping and fencing. In addition, the balconies of the units 22, 23 and 33 ( now units 20, 8 and 24) are screened to prevent overlooking. The rooms in the proposed development, which face these dwellings, are bedrooms generally with highlight windows. To address residents concerns, the applicant has proposed a condition that the other windows to these bedrooms be obscure glass. Due to the separation between these bedrooms and the adjoining houses, this may not be necessary, however, it is agreed between the parties and is included in the conditions of approval. 23 There are no windows on the first and second floor western elevation of the proposal that could overlook No. 4 Alexander Street. The ground floor terrace and living room doors of Unit 4 that face No 4 Alexander Street are setback only approximately 1.7 m and 3.4m respectively. A greater setback would be more appropriate, however, they are screened by the fence and existing vegetation and are unlikely to impact on this adjoining property as it is currently developed. 24 In relation to views, there will be some loss of views from Nos. 3, 4 and 5 Eastbank Avenue, but overall the views will be maintained and appropriate view sharing is achieved. The proposal is below the 11 metre height limit and is of a bulk and form anticipated by the planning controls. The view loss is also consistent with that anticipated by the planning controls. 25 Mr Paton was concerned that there would be a loss of views down Eastbank Avenue, looking to the east towards the beach, as a result of the "inadequate" corner setback of the development. I find there will be a reduction in the view corridor but this will result in limited loss of views across Pittwater Road to the pine trees with filtered views of the beach behind. The view corridor down the street and views to the beach are largely maintained. 26 In relation to parking and traffic, the proposal provides 90 car spaces when the controls require only 79. The parking is therefore more than adequate. The evidence of Mr Hewitt, traffic expert for the applicant, and Mr Hallam, traffic expert for the council, is that the traffic impacts of the proposal are acceptable and would not warrant refusal of the application. Mr Hallam stated that there is an existing problem of drivers wishing to turn right at Eastbank Avenue during peak periods. He recommended that Warringah Traffic Committee should considered the need for a restriction on the right turn movement out of Eastbank Avenue, at least during weekday peak periods. Mr Paton stated that the residents did not favour a restriction in right hand turns. Other changes recommended by Mr Hallam in relation to "no stopping" signs and the garbage arrangements have been incorporated into conditions of approval and amended basement and ground floor plans. 27 A number of amendments have been made to the application since it was first lodged to address the concerns raised by residents. The proposal is consistent with what is envisaged by the planning controls and its impact on adjoining residential amenity is reasonable.

[12]

34 Two questions need to be answered: 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? o In answering this question the key principle is whether both sites can achieve a development that is consistent with the planning controls. If variations to the planning controls would be required, such as non compliance with a minimum allotment size, will both sites be able to achieve a development of appropriate urban form and with acceptable level of amenity. o To assist in this assessment, an envelope for the isolated site may be prepared which indicates height, setbacks, resultant site coverage (both building and basement). This should be schematic but of sufficient detail to understand the relationship between the subject application and the isolated site and the likely impacts the developments will have on each other, particularly solar access and privacy impacts for residential development and the traffic impacts of separate driveways if the development is on a main road. o The subject application may need to be amended, such as by a further setback than the minimum in the planning controls, or the development potential of both sites reduced to enable reasonable development of the isolated site to occur while maintaining the amenity of both developments. Building Envelopes 35 In conformity with the Court's Directions, Cornerstone and Koumana each prepared building envelopes for both sites and assessed the likely privacy and overshadowing impacts. The Cornerstone envelope retained the setback in its development application of the northern wing (minimum 4.5m). The ground floor was changed to convert three residential units to commercial and the rearrangement of Unit 1 (now Unit 4), which removed any privacy or overshadowing considerations for this level. The envelope proposed by Cornerstone for the Koumana site was a three storey building with zero setback at the ground level and the upper two levels set back 4.5m from the common boundary with Cornerstone. The envelope builds to the boundary of the cinema on all levels. 36 The envelopes proposed by Koumana build to the common boundary for both developments with units orientated east-west with light wells providing access for light and ventilation to some habitable rooms. This floor plan reflected the development application for the Koumana site, which had been refused by council. 37 The question before the Court is not to determine an envelope for the Koumana site, but rather to be satisfied that the development application sought by Cornerstone will not prejudice reasonable development of the Koumana site. On this basis the envelope proposed by Koumana requires a redesign of the northern block of the Cornerstone development. Such a redesign would only be warranted if it were shown that what is proposed for the Cornerstone site would unreasonably restrict development of the Koumana site. This is not the case. 38 The envelope proposed by Cornerstone for the Koumana site indicates that a reasonable and equitable development can be undertaken on both sites. Both developments have similar heights, the same number of storeys and the same 4.5m setback. The evidence of Mr Fleming and Mr Kennan is that the proposed envelope has acceptable overshadowing and privacy impacts on the development proposed for the Cornerstone site.

[15]

43 The experts considered that some views may be retained from the roof terraces and that as these were part of the upper floor apartments appropriate view sharing would be achieved. 44 My findings on this issue were given on 19 December 2003 and are as follows: In relation to views, I accept that view sharing from the upper level apartments of the Cornerstone development may not be able to be achieved if the Koumana site is redeveloped. A development of a similar height and setback from Pittwater Road as that proposed for the Cornerstone development is likely to be a reasonable response to the Cinema and an appropriate transition to the Cornerstone development which would achieve the desired future character objectives for the D2 locality. It is reasonable for prospective purchasers of the Cornerstone development to expect a redevelopment of the Koumana site within the planning controls, particularly the 11m height limit, and I do not consider that there should be an expectation for the views which currently exist over the Koumana site to remain. I accept Mr McEwen's submission was that view loss would be "an inevitable consequence of the development of the Koumana site". In my opinion, view sharing from apartments that are not yet built or enjoyed by individual owners should be a secondary consideration to achieving a development with an appropriate urban form along this street frontage. As such I do not consider that loss of views from the Cornerstone development would constrain redevelopment of the Koumana site. 45 The envelopes provided by Cornerstone and Koumana therefore did not address this issue. I have not considered the view loss from other properties, particularly those in Eastbank Avenue and Alexander Street, which would need to be considered for any application on the Koumana site. Solar Access 46 Clause 62 of LEP 2000 deals with the impact of a proposed development on surrounding properties, it states that: Development is not to unreasonably reduce sunlight to surrounding properties.

[16]

In the case of housing: . sunlight, to at least 50% of the principal private open spaces, is not to be reduced to less than 2 hours between 9 am and 3 pm on June 21, and . where overshadowing by existing structures and fences is greater than this, sunlight is not to be further reduced by development by more than 20%. 47 Clause 64 of LEP 2000 deals with the sunlight that a proposed development receives and requires that private open space is to be: capable of receiving not less than 2 hours of sunlight between 9 am and 3 pm on June 21 over at least 50% of the area of the private open space (in the case of ground level private open space and other than for apartment style housing). 48 Clause 68 of LEP 2000 deals with conservation of energy and water. In relation to solar access it states: Development is to make the most efficient use of energy and water. In particular: - the orientation, layout and landscaping of buildings and works and their sites are to make the best use of natural ventilation, daylight and solar energy, - Site layout and structures are to allow reasonable solar access the purposes of the water heating and electricity generation and maintain reasonable solar access to adjoining properties, - Buildings are to minimise winter heat loss and summer heat gain, 49 Compliance with cl 62, cl 64 and cl 68 of LEP 2000 was raised as issues five, six, and seven in the Statement of Issues. The Vipac report addressed these issues. It concluded that the private open space and living areas of the Cornerstone Development would receive adequate solar access and comply with cl 64 and 68. In relation to cl 62, the Vipac report examined the impact of the Cornerstone proposal on adjoining houses which I have discussed above. 50 The advocates now agree that the requirement in cl 64 does not apply to apartment style housing, which is proposed on both the Cornerstone and the Koumana sites and that cl 68 applies to solar access only in so far as it relates to energy conservation. Although, clause 68 does require consideration of whether a development would "maintain reasonable solar access to adjoining properties" but this repeats the requirement in cl 62 that "Development is not to unreasonably reduce sunlight to surrounding properties". This means that under LEP 2000 there is no standard for solar access that an apartment style development should be designed to meet. However, once built, a development of an adjoining site should not impact on its solar access in accordance with cl 62 and cl 68. 51 In relation to the current proposals, this means that cl 64 and cl 68 relating to solar access are not relevant to the assessment of the Cornerstone development (despite this being done in the assessment of the application and being in the Statement of Issues) However, cl 62 and cl 68 are a relevant consideration for development of the Koumana site despite there being no requirement under LEP 2000 for the Cornerstone site to provide reasonable sunlight. 52 The experts agreed that the envelope for the Koumana site would not comply with the numerical requirements of cl 62 of LEP 2000 in that it would remove sunlight to the balconies on the Cornerstone development in midwinter. 53 Mr Kennan stated that: assuming there is some form of development on both the Applicant's and the Intervenor's site, the shadow diagrams provided by the parties appear to indicate that the strict compliance with the numerical requirements of clause 62 of the WLEP 2000 cannot be achieved on either site. I am, however, of the opinion that there is scope for the objective or qualitative standard of clause 62 to be achieved, that being:

[18]

To ensure that daylight access is provided to all habitable rooms and encouraged in all other areas of residential flat development. 55 To achieve this, the Code states that: living rooms and private open spaces for at least 70% of apartments in a development should receive a minimum of 3 hours direct sunlight between 9 a.m. and 3 p.m. in midwinter. In dense urban areas a minimum of 2 hours may be acceptable. 56 For the Cornerstone development, the Guidelines are the relevant document to consider whether reasonable solar access is achieved. 57 The submission of the Intervenor was that " the daylight access requirement in the Guidelines, which are applicable to proposal, are more onerous than the Daylight Access requirements of the Code, which are not applicable to the proposal by virtue of the express terms of SEPP 65 and against which the Vipac report has been prepared". I do not accept that the Guidelines are more onerous as (at p45) they have the same objective as the Code, both relate to daylight access to all habitable rooms and both have similar suggestions as to how the objective is to be achieved. The Code states that: Daylight consists of skylight - diffuse light from the sky - and sunlight - direct beam radiation from the sun. 58 Achievement of sunlight access is more onerous than skylight access. While the Vipac Report specifically refers to the Code, by satisfying the Code's requirements for sunlight access the Guidelines are also met. Although, I accept that there is no evidence before me relating to the suggestion in the Guidelines that a building should be designed to: Provide a minimum natural illuminance for habitable rooms of 30 lux at floor level, over 75% of daytime hours between 8 a.m. and 5 p.m. (relative to standard time) in accordance with BCA. Ensure daylight enters all habitable rooms. 59 As all the rooms in the Cornerstone development have direct access to daylight and many rooms have full height windows this suggestion in the Guidelines is likely to be met, however, the parties have agreed that compliance should be confirmed through a deferred commencement condition. 60 The experts agreed that the envelope for the Koumana site would not comply with the numerical requirements of cl 62 of LEP 2000. In Mr Kennan and Mr Fleming opinion this does not unreasonably reduce sunlight as the requirements of the Code are met in that sunlight access to 70% of the living rooms and private open spaces of the development as a whole is maintained. 61 I accept that the test is whether a development will unreasonably reduce sunlight. But just as this should not be limited to compliance with the numerical requirement of cl 62 it should also not simply be whether 70% of the units comply with the Code. This would be the appropriate standard for the units to be designed to but having achieved a certain level of solar access it would be important to examine how a development on an adjoining site then impacts on that level of solar access. It may not be reasonable for a unit that receives sunlight throughout the day to have this removed or significantly reduced on the basis that 70% of all units still meet the standard, without examining ways to mitigate the impact or balancing the benefits of the development against this negative impact. 62 It would be unreasonable for development on the Koumana site to cause the loss of all midwinter sun to the level one apartments of the Cornerstone site, as would be the case if the Koumana site were built to the boundary, even though 70% of all the units still complied with the Code. To better understand the impact on the units that would be affected by the envelope proposed by Cornerstone for the Koumana site, it is appropriate to compare the Vipac report with the shadow diagrams for the proposed envelope. The Vipac report was based on the current level of development on the Koumana site.

[19]

63 Such a comparison shows that five units which face south do not meet the minimum requirement of the Code (13.5% of the whole development). The Vipac report states that the north facing apartments receive a substantial amount of direct solar access into their living spaces and onto their balconies on the winter solstice. The shadow diagrams indicate that with the Cornerstone envelope for the Koumana site, unit 13 (now Unit 11) would lose all its mid winter sunlight and solar access to the living areas of the other north facing units (11 units) will be substantially reduced. Although they would receive a minimum of two hours sunlight, the amount would be significantly less, in some cases only a sliver of sunlight. 64 The balconies would not receive sunlight in midwinter. The level two balustrades overshadow the floor of the balconies in midwinter, both with and without development of the Koumana site. Therefore the status quo of these units is generally maintained. The balconies on level one receive sunlight without the Koumana development but this will be lost. The north facing units on both levels will still receive solar access to both the balconies and living areas at the Equinox. 65 Although the level of solar access which these north facing units and their open spaces were designed to achieve will be significantly reduced by the proposed envelope, I accept the opinion of Mr Fleming and Mr Kennan that it is reasonable. On the basis that they will still receive sunlight in midwinter and at the equinox, albeit at a reduced amount. It is a negative feature of the development that its living areas and balconies were not set back further from the boundary to better maintain solar access in the event that the Koumana site were developed. However, I do not consider that of itself this is a reason to refuse the development as, in the absence of the Koumana development, the Cornerstone development achieves an appropriate level of solar access to its units. I also do not consider it would be reasonable to limit development of the Koumana site to strict compliance with the numerical requirements of cl 62 provided a reasonable level of solar access is maintained to the units in the Cornerstone development directly affected by the Koumana development. Privacy 66 Clause 65 of WLEP 2000 requires that: Development is not to cause unreasonable direct overlooking of habitable rooms and principal private open spaces of other dwellings. In particular: - the windows of one dwelling are to be located so they do not provide direct and close views (ie from less than 9 metres away) into the windows of other dwellings, and - planter boxes, louvre screens, pergolas, balcony design and the like are to be used to screen a minimum of 50% of the principal private open space of a lower apartment from overlooking from an upper apartment.

[21]

68 The envelope proposed by Cornerstone for the Koumana site sets the building back a minimum of 4.5m from the boundary. One balcony on level one and two encroaches within this setback. 69 Mr Fleming and Mr Kennan were of the opinion that this satisfies the requirements of cl 65 and that acceptable privacy would be achieved. They both considered that suitable architectural treatment could be provided to prevent overlooking of private open spaces of lower apartments. 70 Mr Kapetas agreed that the building to building separation of nine metres satisfies cl 65 but raised concerns about the proximity of the balconies to each other. Ms Nikolova was of the opinion that: the nine metre separation between windows would not resolve the issue of privacy since the windows of each property directly face each other furthermore, the windows to the Cornerstone dwellings are located along the entire facade and from the floor to the full ceiling height. This does not even allow the staggering of the windows in relation from one property to the other. 71 Both the Code and the Guidelines require a greater setback than that required by LEP 2000. They suggest a separation between habitable rooms of 12m and between non habitable and habitable rooms of nine metres. Due to the narrow width of the Koumana site (13.5m), it is not feasible to achieve this setback. Given that this is mixed commercial residential area the lesser setback in LEP 2000 is acceptable. 72 While I accept that the proposal satisfies the minimum requirement in LEP 2000, it may be difficult to effectively screen the balconies and not further impact on solar access. If the Cornerstone development had been set back further from the boundary, greater separation between the living areas and between the balconies could have been achieved. Also, in the floor plan of the units, bedrooms are set back further than living areas whereas the opposite arrangement may better achieve privacy. I do not consider that of itself, it is a reason to refuse the application and I accept the evidence of Mr Kennan and Mr Fletcher that acceptable privacy is achieved. Conclusion 73 The proposed development of the Cornerstone site is an appropriate response to its site and its existing context which is consistent with the desired future character of the locality and has an acceptable impact on the amenity of existing residents. 74 Given that amalgamation of the Cornerstone site and the Koumana site is not feasible and on the premise that redevelopment of the Koumana site is to be encouraged the question before the Court is not just whether it is an appropriate response to the existing context and maintains existing amenity. It is also a question of whether the development of the Cornerstone site would unreasonable prejudice the redevelopment of the Koumana site by constraining that sites ability to comply with the relevant planning controls, particularly solar access and privacy. 75 The envelope provided for the Koumana site indicates that the Cornerstone development would not preclude reasonable development of the Koumana site. An appropriate urban form is achievable that responds to the Cornerstone development and the Cinema and achieves and acceptable level of amenity between the two developments. 76 I accept Mr Flemings opinion that: The 9 metres separation provides an envelope which permits reasonable access to sunlight, an appropriate transition between buildings, an effective separation for privacy and an equitable level of development on both sites with a form of development on both sites consistent with the desired future character for the D2 locality. 77 Whether this envelop would satisfy the other constraints of the Koumana site and the other planning controls has not been addressed as it was not relevant to the application or the issues of the Intervenor before the Court. Orders