The Applicant, David De Battista appeals pursuant to s 97(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) following the Shoalhaven Council's deemed refusal of his development application (DA16/1830) for the construction of a residential flat building within Lot 6 DP 1082382, St Georges Basin ( the site)
[2]
The Amended Application
An amended application was developed during the s 34 conciliation conference (held pursuant to the Land and Environment Court Act 1979) which was facilitated between the parties by a Commissioner of the Court, but ultimately terminated in order to list this appeal for hearing. The final development plans - known as Revision H (Exhibit B), were only made available after the hearing had commenced. They were responsive to the recommendations of the parties' urban design experts Michael Zanardo (for the Council) and Geoff Baker (for the applicant) and include additional shadow diagrams, landscape plans and a series of perspectives of the development from critical viewing point identified by the experts.
A Schedule of Changes (Exhibit D) prepared by the applicant's architect and reviewed by the Council and Mr Zanardo has been provided to the Court. It identifies the differences between earlier versions of the plans and those now before the Court.
The amended application includes:
1. the construction of a four storey residential apartment building consisting of two buildings with a total of 54 residential units (2x1 bedroom units) 19x2 bedroom units , and 33 x3 bedroom units and two levels of basement parking providing car parking for 100 vehicles and 2 car wash bays.
2. The amended plans in Exhibit B change the original application by:
1. Increasing the setback on the western boundary from 8m to 9m across all levels.
2. Setbacks on the southern boundary have been increased to 6m from ground floor level, 7m for the first floor, 12m for the second floor and 15.5m for the 3rd floors.
3. The front setback of the third floor bedrooms has been increased to 10m.
4. Building B setback is 6m from the proposed eastern boundary.
5. The number of units has been reduced from 58 to 54 units with the mix of units changed (as noted above).
6. The overall height of the building has been reduced to fit within the 13m height limit. The roof has been redesigned to achieve compliance and the conditions specify the type of lift to ensure that the height control is not breached by the lift overrun.
7. Condition 19 of the Council's draft conditions requires amendments to corner living room windows to achieve natural cross ventilation. All habitable rooms are to have a minimum floor to ceiling height of 2.7m. The design of specified units is to be amended to achieve a minimum of 5m3 of internal storage is provided to each of the units in accordance with Objective 4G-1 of the Apartment Design Guide.
8. Enclosed lobbies have been provided at courtyard level on the western side of Building B (closest to the manufactured home site) to assist in reducing any noise amenity impacts generated from this space.
9. All front balconies to Anson Street to have the solid portion of their balconies on the east side (with the screens) allowing glass balustrades to the west to face the view. The location of air conditioning units on balconies should be amended to follow the solid portion of the balustrades.
10. The proposed hedges on the southern elevation have been reduced to fence height in order to address potential overshadowing impacts on the manufactured home village arising from the proposed Lilly Pilli. The latest additional shadow diagrams demonstrate that the amended design does no generate any unacceptable shadow to the sites to the south or the west. The development has been set back in accord with the requirement of SEPP 65 to reduce any additional shadow impact to the east generated by this development.
11. A smooth barked Apple tree (Angophora) has been added to the west of the driveway - on Council land. Ulus parvifolia proposed to be located along the driveway to the basement is not a suitable species for this area and has been replaced with Syzgium pinnacle. The recreational space in the southernmost part of the central space has been reconfigured to increase the planter width.
12. The additional unnecessary screens to units A1.7, B1.5 north, B1.6 north, B2.5, B2.6, A3.3 and B3.3 have been removed.
13. The front fence design has been amended and a central entry to give the development a more prominent street address has been incorporated into the design. The entry canopy, gate and fence design recommended by Mr Baker and accepted by Mr Zanardo has been incorporated into the plans.
14. The eastern and western setback has been widened for deep soil planting, pedestrian entry paths in the eastern setback have been removed, privacy screens to apartment B1.6 have been added, the balcony to unit BG.4 (and typical balconies over B1.4 and B2.4) have been made rectilinear, with the northern splayed portion of the balcony brought outwards to come into alignment with the southern portion. All air-conditioning units are to be behind the solid screen on the balconies,
[3]
The expert evidence
The parties' design experts are now satisfied that the amended application in (Exhibit B) satisfactorily addresses all of the matters recommended in their joint statement (Exhibit 7). Moreover, they agree that there is no urban design basis to refuse the development application now before the Court. In short, their oral evidence is that the development (subject to the imposition of the agreed conditions of consent in Exhibit 6) complies with the requirements of State Environmental Planning Policy 65 (SEPP 65) and Council's current planning controls and policies.
The parties' town planning experts are also satisfied with the amended application and support an approval of the development in (Exhibit B) subject to the agreed conditions of consent (Exhibit 6). Moreover, the planners gave oral evidence to the Court that they do not support the local objectors concerns as expressed at the view at the commencement of the hearing and in their written submissions to the Court and the Council - including the further submissions in response to the plans in Exhibit B.
Following assessment it is the case that the Council and its experts are now satisfied that a conditional approval of the development should be granted based on the most recent amended plans (Exhibit B) and the conditions as agreed (Exhibit 6).
[4]
Objectors
Notwithstanding the agreed position of the parties' experts the Council quite properly has provided me with copies of the written submissions it has received in respect of the original application and the various amendments including the final design (Exhibit B). The EPA Act requires that I must give weighted consideration to any written and/or oral submission made by an objector to the proposed development in my assessment of this DA. (I had earlier directed that the final revision of the plans (Exhibit B) incorporating the experts' recommendations was to be notified to relevant objectors during the adjournment of these proceedings).
Not surprisingly, the development has generated significant community objection. A large contingent of local residents and other submitters attended the site view held at the commencement of the hearing and several of them addressed the Court hearing at Sydney.
Those making submissions raised the following concerns:
1. Development is out of character with the basin;
2. Adverse visual impact a four-storey building;
3. Proposal will be seen from the water;
4. The development does not meet the aims and design quality principles of SEPP 65;
5. Loss of privacy;
6. Overshadowing of neighbouring properties;
7. Appearance of the building;
8. Traffic impacts - safety, increased volume of traffic;
9. Exceeds the 13 metres height limit;
10. Lack of public transport;
11. Unsuitable development that sets a precedent;
12. Not enough parking for residents or visitors; and
13. Inadequate flora and fauna survey undertaken.
Simply stated, the site is zoned R1 General Residential under the Shoalhaven Local Environmental Plan 2014 (LEP) and presently has a maximum height control of 13 m.
The development of a residential flat building is permissible with consent and the planning experts agree that the amended proposal achieves the relevant objectives of the zone namely: "to provide for the housing needs of the community" and "to provide for a variety of housing types and densities" (Exhibit 2 folio 4). Moreover, the development is now compliant with State Environmental Planning Policy No 65 (SEPP 65) - Design Quality of Residential Apartment Development - Apartment Guidelines, and all relevant provisions of the LEP and Shoalhaven Development Control Plan 2914 (DCP).
It is clear from the Statement of Facts and Contentions (SOFC) filed by the Council on 28 August 2017 that the Council has consulted extensively with the local community in respect of this application from the outset. To that end the local community have participated in the s 34 conciliation conference and at the hearing.
The contentions identified in Part B of the SOFC summarise the local residents' concerns and the experts have considered these matter and are of the opinion that the amended plans in Exhibit H (subject to the imposition of the Council's draft conditions in Exhibit 6) satisfactorily address all relevant matters raised by the Council and by the local residents and other submitters.
That said, I accept that a large proportion of the local residents do not want this development on this site. They told me that they are concerned about change and they believe that the development will have a negative impact on their existing amenity and lifestyle. Collectively, they believe that the development by its form, density and scale is totally out of character with the area and the desired future character of the area. They are concerned that their existing local facilities will not be able to meet the demands of the influx of people who will occupy and /or visit the proposed 54 units. Put simply, they believe that there is no demand for such high density development in St Georges Basin and the development will in time prove not be to economically feasible. And, perhaps most importantly the local objectors believe that the maximum height control of 13m imposed by the Council on this site was a planning mistake and on that basis alone the Court should not grant consent to the proposal.
[5]
Consideration
I appreciate that a Planning Proposal has been submitted to the Department of Planning recommending an amendment to the LEP to reduce the height control for the site. However, I also understand that at the present time the Proposal has not progressed to a gateway determination and for that reason it has no statutory weight in my assessment under section 79C of the EPA Act. The document falls within category of public interest - a background fact which when weighted against all of the evidence is in my assessment as submitted by the parties of little consequence in this appeal.
As the applicant submits the Court is not in a position to change planning law but must assess an application against the relevant statutory controls and policies at the time based on the evidence as presented. While each case necessarily turns on its own facts there is no getting around the relevant planning controls they must be considered and the application assessed against them. Quite clearly, the planning controls applicable to this site, today, facilitate the development as proposed. Moreover, the parties' experts agree that the development by its design and appearance meets all relevant planning controls and policies. Each expert has told the Court that there is no planning or urban design basis to refuse a conditional approval of the application. Put simply, the experts agreed that they do not support a refusal of the application based on the objectors' written and oral concerns as expressed in their submissions to the Court.
That said, I have no doubt that the local objectors who have made submissions to the Council and to me about their fears and concerns in respect of this development are genuine and honest beliefs. I understand that they do not want a development of this density with a height of 13 m on this site. They collectively believe that the local infrastructure will not support the development's population and that this scale of development will not be economically viable in their town. The development will be visible from the water (albeit in a context of other existing urban development) - and in their opinion nothing short of an eye saw. It will accommodate 54 residential units and 100 cars in its basement and I accept that over time the development may well contribute to an increase in traffic and the need for an increase in local services to accommodate the new population. That said, the Council has not raised traffic safety or traffic congestion as a contention in the appeal - it is satisfied with the applicant's traffic study as submitted with the DA. Nor has the Council raised a contention in respect of any unacceptable impact on any endangered species on this site or any adverse impact on the water quality of St Georges Basin generated by this development - despite the objectors concerns about these matters.
Given the density and scale of the two residential flat buildings adjoining much lower scale older style residential housing it must be accepted that the development will be different within the existing landscape. However, the relevant planning laws at the moment accommodate the scale and density of this development on this site and the experts believe that the amended design will not generate unacceptable overshadowing for its neighbours. The building has been setback at each level progressively to address excessive bulk and avoid overlooking and to protect the privacy of the residents and the adjoining sites. Balconies are screened where appropriate and the development now meets the ADG. The urban design experts are supportive of the proposed landscape plan and the finishes proposed for the exterior of the development. Again, I must I emphasise that there is no planning objection to a conditional approval of the Revision H plans raised by the expert evidence.
[6]
Findings
Based on the evidence before me I must find that many of the concerns expressed by the local residents are analogist to the fears and concerns dealt with in New Century Development Pty Ltd v Baulkham Hills Shire Council [2003] NSW LEC 154 at [61]. A fear or concern without rational or justified foundation is not a matter which by itself can be considered as probative evidence to found the outcome sought. Fears must be able to be objectively tested and in this case, having had opportunity to test the evidence I am of the opinion that such a justified foundation and/or rational basis is absent. The objectors concerns are in my assessment adequately dealt with by the amended application and the conditions of consent as proposed by the Council and supported by the expert evidence.
[7]
Conclusion
After careful consideration of the expert evidence, the relevant planning controls, the written and oral objections received by the Court I am satisfied that the final amended application is a vast improvement on the original design. After assessment under s 79C, I find that the amended proposal is acceptable development for the site. Accordingly, I grant development consent to the amended application in accordance with the parties' proposed draft conditions in Exhibit 6.
The Court orders are:
1. Appeal upheld.
2. That development consent be granted to development application DA 16/183 for the construction of a four storey residential flat building development in two separate buildings comprising a total of 54 residential units over two levels of basement parking and associated strata subdivision at Lot 6 DP 1082382, Anson Street, St Georges Basin in accordance with the plans in Exhibit B and subject to the conditions in Exhibit 6.
3. The Exhibits apart from Exhibit B and 2 are returned.
Commissioner Dixon
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 27 October 2017