Findings
35I have initially considered the merits of this proposal within the parameters of the prevailing PLEP and DCP 2005, under which it is permissible with consent in the 2B Residential zone. These controls contain a number of qualitative and quantitative assessment criteria that require assessment.
36Notwithstanding this, the DLEP has to be given appropriate weight . Submissions were made regarding the authorities in this respect, which are summarised as follows:
The weight to be attributed to a draft environmental planning instrument will be greater if there is a greater certainty that it will be adopted (Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289 at par 5). Relevantly, in Terrace Tower, Spigelman CJ states at pars 6 and 7 that:
6. Notwithstanding ' certainty and imminence ', a consent authority may of course grant consent to a development application which does not comply with the draft instrument . The different kinds of planning controls would be entitled to different levels of consideration and of weight in this respect.
7 . Where a draft instrument seeks to preserve the character of a parlicular neighbourhood that purpose will be entitled to considerable weight in deciding whether or not to reject a development under the preexisting instrument, which would in a substantial way undermine that objective.
If the draft LEP is imminent and certain, Terrace Tower (par 7) raises the question of whether the proposed development will preserve the character anticipated by Zone R1 General Residential and whether the proposed development will undermine the objectives of Zone R 1 General Residential.
In Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279 , Lloyd J relevantly states :
30. Whether one applies the test of " significant weight " , or " some weight ", or " considerable weight " or " due force " or " determining weight" to the later instrument is not , however , the end of the matter . The savings clause still has some work to do . The proposed development is a permissible development by dint of the savings clause. In giving the 2001 LEP the weight of being imminent and certain , that does not mean that there is no further inquiry. It is necessary to look at the aims and objectives of the later instrument and then see whether the proposed development is consistent therewith. Various expressions have been used to define this concept , but the approach which has been favoured in the Court of Appeal is to ask whether the proposal is "antipathetic" thereto (Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 at 193).
31. This approach was adopted in the cases to which I have referred. In Mathers v North Sydney Council Talbot J (as noted in par [22J above) attributed significant weight to the then draft LEP to the extent the Court ought to be satisfied that approving the development would not detract from its objectives as expressly stated or reflected in the proposed controls .
32. In that case Talbot J refused the appeal on the ground that the proposed development was inconsistent with the proposed planning controls in the draft local environmental plan.
33. Similarly, in Architects Haywood & Bakker v North Sydney Council after stating that significant weight should be placed upon the provisions of the draft plan, Pearlman J considered whether the proposed development accorded with the planning approach and objectives of the proposed controls in the draft local environmental plan. It was the fact that the proposed development ignored the planning approach adopted by the draft LEP that led Her Honour to refuse the application in that case .
34. In Edward Listin Properties v North Sydney Council Talbot J said (at par [15]) :
Although it may not be appropriate to dwell too heavily upon the detailed controls implemented by the draft LEP, it is certainly important to have regard to the broad objectives which the draft planning instrument seeks to achieve.
35. His Honour further stated (at par [35]):
... If what is proposed is unsatisfactory in general terms and inconsistent, in particular, with the expressed future planning objectives for the area, then it should be rejected .
In Walker v North Sydney Council Cowdroy J found that the evidence established that the development application was contrary to the planning objectives of the locality , for which reason His Honour rejected the development application.
37Whilst I do not consider there was any compelling evidence that the DLEP is imminent and certain, I have considered the possibility that this form of development may be prohibited. But as the application has the benefit of the saving clause, I consider the provisions of the PLEP would be given determining weight.
38Relevantly then cl 16(3) of the PLEP requires the consent authority to be satisfied that the development is consistent the zone objectives to enhance the amenity and characteristics of the established residential areas and to ensure that the building form is in character with the surrounding built environment.
39Whilst the existing character of the surrounding area is that of predominantly single level detached dwellings on large garden lots, I accept that an appropriate form of multi unit housing could be acceptable. Obviously this would have a different presentation but presumably it should incorporate some of the attractive amenity elements of the neighbourhood so as to achieve a reasonable level of compatibility. These elements include vegetated street setbacks, mix of 1 and 2 - storey dwellings, side setbacks incorporating planting which provide high levels of privacy, together with large private open spaces that allows larger type vegetation.
40This type of issue was dealt with in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 where the Senior Commissioner set out the following principles to be considered when assessing the compatibility of a proposal with its surroundings:
42. Where compatibility between a building and its surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked.
+ Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites.
+ Is the proposal's appearance in harmony with the buildings around it and the character of the street?
41Adopting and applying these principles to the present case in terms of the disparate planning opinions, based on the planners evidence, it is apparent to me that whilst the current proposal generally satisfies the numerical compliance controls, it nevertheless seems to be 'squeezing in' the maximum number of units, which substantially achieve the minimum levels facilities that consequently compromises the objectives to enhance the amenity and characteristics of the neighbourhood in my assessment.
42This outcome arises because this proposal is for a majority of larger units i.e 7x4 bed, 12x3 bed and 3x2 beds. Consequently, it seems a reasonable assumption to me that there will likely be more people dwelling on the site than if more small units were incorporated. Therefore appropriate facilities should be provided to ensure the desired amenity outcome is to be achieved.
43As evidenced from the 2008 approval for a multi unit development, I accept that council was satisfied with this form of development in the locality. However, I initially have some concerns about the compatibility of this proposal with the existing neighbourhood character, particularly its bulk and scale. Insofar as the FSR index is commonly used to assess bulk and scale of buildings, I note that the proposal appears to demonstrate comfortable compliance (i.e 0.44:1) with the FSR numerical control.
44However about 30% of the rear of the site is low - lying and flood -prone land that constrains residential development. Consequently the residential development is concentrated towards the front of the lot and if a bulk and scale index was made on the developable portion of the land, the "apparent" FSR would be in the order of 0.6:1, which is at the maximum permissible. Whilst this is not the test, nevertheless the proposed form of development presents in my opinion, as a relatively long medium density development by comparison with the surrounding development that challenges the requirements for compatibility with surrounding properties.
45With regard to the streetscape presentation , it is obviously different due to the proposed basement garage entrance. However, I am satisfied that the proposed building form, together with the setbacks and landscaping can reasonably fit in. In this regard I note that the zoning permits large 2 - storey dwellings, which could have double driveways and associated garage doors in close proximity, which would be exposed to the street and likely to have a more obtrusive presentation than the more recessive single basement garage entry.
46But I am persuaded to accept Ms Lafferty's opinion that the internal amenity of the development is significantly compromised. As I have noted, this development optimises the number and sizes of the proposed 22 units, whilst predominantly only providing the minimum level of facilities. I am particularly concerned that there is no proportional increase in the facilities above the minimum for the larger units and accordingly I note the frequently stated position of the Court that mere compliance with the numerical controls does not guarantee approval.
47It appears to me that one of the attractive elements of this neighbourhood is availability of abundant private open space areas. This provides opportunities for landscaping and areas for relatively private outdoor entertaining. However, all of the proposed private open space areas for the units are in the order of the minimum requirement of 40 sq m only. It seems to me that the amenity of the larger units and neighbouring properties is likely to be significantly compromised in the circumstances.
48Whilst the degree of any comprise will vary due to the individual layout of the units, I refer to TH 3 as an example (See Attachment AA) because of the references to it by the planners. The specifications for this unit are:
- 4 bedrooms and a rear private open space of 39.8 sq m
- Rear back fence of 1800mm including top 200mm louvres to improve solar access,
- Side boundary fences of 1600 mm height and of translucent material to also facilitate the following level of solar access to the courtyard at the winter solstice:
- 20.1 sq m @ 10.32 am,
- 26.5 sq m @ 11.32 am,
- 23.9 sq m @ 12.32 pm,
- 20.00sq m @ 1.32 pm.
- Rear garden planter 500 - 800mm wide incorporating Blueberry Ash and Banksia hedging to be trimmed at 1500mm height.
- Combined laundry/ kitchen area of approximately 2m x 3.2m (kitchen 2m x 2m) with offset window 300mm wide.
- The planting of 3 x Blueberry Ash @ 1.5m spacing and minimum offset from the building of 800mm and located so as to screen the 300mm window.
- Building separation to TH15 of the non-habitable ground level laundries of 6.3m and upper level bathrooms of 12.19m.
49This typical unit specification confirms my assessment that this large unit basically achieves only the minimum amenity standards and there is likely to be a negative cumulative effect considering all the other units are similarly designed. This supports my assessment that the amount of unit area squeezed in is excessive and therefore unlikely to enhance the amenity of the area.
50Notwithstanding that this TH 3 just meets the minimum numerical controls, I accept Ms Lafferty's assessment that private courtyards of units T13, T14, T15 have non - complying solar access in the order of 1.20hr, 2hr, 2hr respectively. I do not consider any compelling evidence was presented, which would warrant the exercising of discretion to allow a significant reduction in amenity for these units, particularly in the circumstances of the development of a large lot such as this. This is a negative aspect of the proposal, in my assessment.
51Another negative aspect is the inability to obtain 3 hrs of solar access to the living areas of T13 and T14, which only achieve 2.5 hrs between 9am and 3pm, as required by the DCP, according to the evidence in Exhibit R on which I rely. These are larger 3 bed/media units and I consider the resultant amenity for these units is significantly compromised.
52As I have noted, the proposed design is of an elongated nature being about 90m long of practically continuous building form. As required by the DCP it does incorporate some communal open space within the central access corridor, which in places achieves only the minimum separation between buildings and compromises the visual amenity in my opinion.
53More importantly however, cl 4.3.1 of the DCP requires the provision of low maintenance communal open space areas that facilitate opportunities for recreation and social activities e.g. BBQ or play areas are identified. The design response to this is to provide 3 areas along the central access way with 4m x 5m pergolas. They each include garden beds and bench seats, which are approximately 3 - 4m from bedroom windows in some cases.
54Taking into account the predominance of larger units with minimal private open space areas, it seems to me that there would likely be demand for an area where larger family or social gatherings could take place. Such area would ideally include the BBQ area and designated play areas as indicated in cl 4.3.1. But I do not consider the proposed pergola areas adequately provide the level of convenience, attractiveness and privacy amenity envisaged by the controls.
55Interestingly, the proposal includes some landscaping of the low - lying area towards the north of the site. Access to this area is to be available from the end of the central access way via a 1.2m wide pathway adjacent to the courtyard fence of T12. In my assessment, the inclusion of T11 and particularly T12 block the visual connection of this area from the central access way of the development. It also seems that if a more direct and open access was provided to this area, it would more effectively satisfy the DCP requirement for the provision of a BBQ and other facilities in an attractive and convenient location that minimised disturbances to other residents, as is likely to happen if the pergola areas are to host communal activities.
56I also have particular concerns about the integration of the proposed landscaping to adequately achieve the stated landscaping objectives and design principles in section 4.1.10 of the DCP. In this regard, I firstly note that the landscaping theme includes various new plantings throughout the development. However I have concerns about the adequacy of volume and width of the garden beds/locations to ensure the proposed planting outcome is sustainable.
57Insofar as I previously referred to the example of T3, it includes a Blueberry ash (Eleaocarpus reticulatus) in the boundary planter garden, which is designated 500mm - 800mm wide (depending on either the DA or the landscape plan scaling). Considering that the specification for this tree is a maximum height of 6m, I have considerable difficulty understanding how it will achieve anything like its natural potential when planted about 300mm from the fence and the canopy is likely to overhang the neighbouring property.
58I also have some reservations about the overall effectiveness of the proposed garden planting of the multiple Banksia spinulosa plantings that are adjacent the rear fence and specified to be kept clipped at 1.5m. Bearing in mind that this clipping would essential so as not to compromise the slithers of sunlight penetrating the louvres above the adjoining 1.6m high boundary fences. Otherwise the solar access of this courtyard would be compromised.
59I then see that it is proposed to plant 3 of these Blueberry ash @ 1.5m centres in front of T3 with the closest being 1m off the building and over the basement carpark. Whilst they might provide some screening of the building if they attain somewhere near their specified mature height, nevertheless the landscape plan indicates a canopy spread in the order of 3m, which would overhang the common accessway, interfere with the main entry path to T13 and also block natural light to the 300mm window near the kitchen. As it is proposed to plant some 35 Blueberry ash in similar circumstances throughout the development, I am not satisfied the overall landscaped design is sustainable and well integrated to achieve the landscaping objectives so as to enhance the amenity of the area.
60In connection with this, I note that in the matter of Dipper & Ors v Pittwater Council [2006] NSWLEC 273, the Chief Judge said in dealing with appropriate landscaping:
32 I reject this means of controlling the height. The far preferable planning solution is to devise a means which does not depend upon constant maintenance of landscape material. The Council's solution achieves this goal. The Council's solution is to replace trees which have an inherent capacity to grow higher than the desired height, with trees which have the inherent capacity to grow only to the desired height. This is the preferable solution. The alternative of a covenant is a second best solution. It involves, for the life of the development, continually maintaining plant material at a certain height. It involves constant dealings between respective owners of the properties burdened and benefited by the covenant and their successors in title. It would inevitably lead to discontent and argument between the owners. Generally, it is preferable that conditions imposed under the EPA Act should not depend upon private covenants between neighbouring properties
61Following this process, it would seem preferable to only plant appropriate species in the gardens, which don't rely on regular clipping. I have reservations about the utility of the proposed courtyard plantings in terms of sustainability, degree of regular maintenance, effectiveness in restricting overlooking and privacy loss along the 1600mm side fences.
62In summary then, having considered the evidence and observations at the site inspection, my assessment is that this amended proposal represents an overdevelopment of this constrained site. The design approach to maximise built form by the inclusion of a majority of larger units, which predominantly only achieve the minimal amenity for the court yard areas and solar access, minimal solar access to living rooms together with a poor level of communal open space provisions, reduces the amenity for future residents, in my opinion. Consequently, I do not consider the development would achieve acceptable levels of consistency with the objectives of the zone, as required by cl 16(3) of the PLEP.
63I recognise however that some of the aforementioned elements leading to this conclusion were not particularised in the contentions, although I expect they would be part of any 'good design practice' responding to the stated development controls. In these circumstances, I consider it reasonable to allow the applicant the opportunity to respond to the aforementioned negative features in respect of the subject development application, with particular reference to any conditions that might address the negative features, before final orders are made. The respondent may also make any appropriate response.
R Hussey
Commissioner of the Court