Deaton v Pittwater Council

4 On 2 January 2008, the appeal was lodged with the Court on the basis of the council's then deemed refusal of the application. On 26 March 2008 a conciliation conference under s 34 of the Land and Environment Court Act 1979 occurred without success. The council subsequently resolved to defend the appeal.

5 The hearing began on-site when I had the opportunity of inspecting the site and its environs in the company of the party's representatives, their experts and a number of local residents.

The locality 6 The Pittwater 21 Development Control Plan describes the desired future character of the Palm Beach locality as one that will remain primarily a low-density residential area consisting of one and two storey dwelling houses in a natural landscaped setting, integrated with the land form and landscape. However, whilst it is developed with many two-storey houses, there are a number of substantial houses with a three-storey or more presentation on the steep escarpment at the southern end of Palm Beach where the site is located. These homes are situated in a quality landscaped setting and have an outlook very much like that available to the site. More closely the site abuts Hordern Park to the west and some 400 m to the west there are a number of local shops. The beach itself extends to the north side of Ocean Road, less than 50 m away from the entrances to the proposed buildings. Planning controls 7 Relevantly applicable planning controls comprise: o State Environmental Planning Policy (Seniors and People with a Disability) 2004. o State Environmental Planning Policy No. 65 - Design Guidelines for Residential Flat Buildings. o State Environmental Planning Policy No. 1 - Development Standards. o State Environmental Planning Policy No.71 - Coastal Protection. o Pittwater Local Environmental Plan 1993. o Pittwater 21 Development Control Plan. 8 Under the LEP the site is zoned 2 (a) Residential A and in this zone residential flat buildings are prohibited. Clause 36 of the LEP requires that the likely effect of any development on the heritage significance of a heritage item is to be taken into consideration.

Advertising 9 The application was (in its original and amended form) advertised on two occasions resulting in a considerable number of objections being lodged with the council. When the hearing began on-site I heard from 16 residents (or their representatives).

10 Matters of concern to the resident objectors essentially include: o The character of this part of Palm Beach will be in appropriately changed as a result of the density of the proposal. o The additional traffic generated by the development will pose safety risks for pedestrians especially children using Ocean Road. o A number of existing car parking spaces in Ocean Road, where parking is at a premium, will be lost. o The proposed pathway between the site and Ocean Place is not wanted, will be out of character and will adversely affect the Norfolk Island Pines. It will not provide any public benefit only public detriment. o The provision of facilities associated with aged care and retirement would change the nature of Palm Beach. o An iconic location such as Palm Beach is not an appropriate location for seniors living. o The proposed buildings would have an excessive bulk (0.71:1 by comparison with the 0.5:1 allowed by the state policy) and scale (9.5 m by comparison with the 8 m allowed by the state policy) that would be out of character with existing development. o The "boxy" five-storey design does not resemble other houses in the area that are predominantly three storeys and would not fit into the neighbourhood. o Seniors living developments should be two-storeys not five storeys. o Approval would set an inappropriate precedent that would see seniors living developments proliferate, this not being consistent with the desired future character of Palm Beach that is carefree, casual with little structure. o Amenity impacts such as loss of views and privacy and noise from swimming pools for neighbouring residential properties. o The proposal comprises apartments that would otherwise be prohibited in the zone. o The excessive growth that has occurred in recent times needs to stop. o The basement car park is inappropriately designed and cars would need to reverse out onto the street. The provision of 25 car parking spaces for six apartments is questioned, as is the workability of the stacker spaces.

Expert evidence 11 On behalf of the respondent Council, expert evidence was given by: Ms G. Hay (town planning), Mr G. Baker (urban design), Mr G. Paroissien (arboreal), Mr J. Storer (accessibility), Mr A Reisch (traffic).

12 On behalf of the applicant, expert evidence was given by Ms D. Laidlaw (town planning), Mr N Dickson (urban design), Ms M. Howden (arboreal), Mr M. Relf (accessibility), Mr J. Osborne (landscape architecture), Mr J. Coady (traffic).

Council's contentions 13 The council's Statement of Facts and Contentions identifies six separate reasons that it contends should form the basis for the refusal of the application: o Character, streetscape and design: the development will cause an adverse impact to the streetscape and is inconsistent with the existing and desired future character in this section of Palm Beach. o Accessibility: the proposed development will not be serviced by a suitable means of pedestrian access (off site) for the type of occupants intended, given the conflicts which exist between pedestrians and vehicle users of this section of Ocean Road. Pedestrian access along the street frontage will be impeded by sand and is not considered to be a safe means of access for elderly people and people with disabilities. The proposed pathway will adversely affect the Norfolk Island pines and may result in a loss of on-street car parking. The arrangement and detailing of the development (including the arrangement of internal and external access, the arrangement of parking and the provision of necessary fittings, facilities and finishes) is not satisfactory. o Density: the proposal will create an unwelcome precedent in the locality in that the density proposed is not in keeping with the established and intended future density. o Excavation: the extent of excavation is excessive and will lead to excessive building bulk and inappropriate landscaped solutions that are inconsistent with the topography of the site. o Impacts on 41 Ocean Road and 32 Florida Road: the proposal will lead to an acceptable privacy impacts on the private open space and principal living areas of this property. 14 In essence these contentions involve: o Character, streetscape and design, o Accessibility, the Norfolk Island pine trees and on-street car parking, o Neighbour and internal amenity.

Character, streetscape and design 15 According to the applicant the significance of this area emerges from topographical features including the sea, sand, hillside, rocks and landscape rather than existing built form, which is said to comprise an eclectic mix.

16 Having inspected the site from a number of viewpoints I believe that the buildings on the escarpment within the view catchment of the site comprise an eclectic mix of dwelling houses. These houses, together with the existing substantial vegetation comprise the important elements of the character of this locality. I also accept, and this became apparent during the site inspection (and confirmed by the tendered photographs) that these houses have a conspicuous horizontality about them. This is the context in which the issue of character, streetscape and design should be considered. 17 SEPP SL provides guidance and direction that is especially important when a seniors living development is proposed in locations where this kind of development - a residential flat building - does not presently exist and is not otherwise permissible as is the case here under the LEP. Clause 32 of SEPP SL requires that adequate regard be given to certain design principles and relevantly, cl 33 requires that development for the purposes of seniors living should recognize the desirable elements of the location's current character and should maintain reasonable neighbourhood amenity and appropriate residential character, taking into account setbacks, building form and building heights. Sympathetic landscaping is required, together with the retention, wherever reasonable, of major existing trees.

18 Clause 40 of SEPP SL contains development standards that relevantly require the height of all buildings in the proposed development to be 8 m or less and where the building is adjacent to a boundary of the site it must not be more than two storeys in height. Also, a building located in the rear 25% area of the site must not exceed one storey. The note accompanying the number of storeys development standard says that: the purpose of this paragraph is to avoid an abrupt change in the scale of development in the streetscape. Clause 50 provides that if a proposed seniors living development is 8 m or less has a floor space ratio of 0.5:1 it cannot be refused on the grounds of height, density and scale. Because the proposal exceeds these thresholds, aspects of height, density and scale can be considered. 19 As described above the DCP anticipates that the locality will remain primarily a low-density residential area (there is a 10 m height limit) consisting of one and two storey dwelling houses, although as observed by the urban design and town planning experts there are a number of multi level (2 - 4 storey) dwelling houses on the escarpment. The DCP also anticipates that future development will maintain a height below the tree canopy and will minimise bulk and scale. Relevantly here, contemporary buildings are to utilise facade modulation and incorporate shade elements such as pergolas verandas and the like. Building colours and materials should harmonise with the natural environment.

20 The urban design and town planning experts agreed that the proposal complies with the 10 m height standard in the DCP. Notwithstanding that this standard does not strictly apply it nevertheless assists in understanding the desired future character of the area. In this regard however I note that an observer standing in the public domain in the vicinity of the front gate of Building A (about RL 3.0 metres) would, taking into account the podium, see a four level building (parapet level about 17.0 m). This is indicative of a building well in excess of 10 m in height even though the same observer standing at the side of this building (at the building line where the podium becomes a basement) would see a three-storey building with a height of less than 10 m. A similar analysis of Building B produces a similar result but the impact is somewhat mitigated as a result of the manner in which this building (unlike Building A) steps up the site. 21 It is conceded by the applicant that there are various non-compliances with the cl 40 development standards. In relation to the height standard, Miss Laidlaw provided a number of diagrams to illustrate the extent to which these are exceeded. These diagrams can be read in conjunction with the applicant's objections under State Environmental Planning Policy No 1 - Development Standards.

22 In dealing with questions of bulk and scale, in my opinion most of the cl 40 exceedences are relatively minor. The only exceedence of any significance as revealed by these diagrams is the eastern elevation where Building B exceeds the two-storey height limit. Also, in my opinion, to be taken into account (even though not shown in the diagrams) is the western elevation of Building A (Dwg no DA14) that indicates one section where a three-storey height above ground level is apparent as is an exceedence of the 8 m height limit. 23 An examination of the architectural drawings and photomontages reveals that the proposed buildings will probably maintain a height below the tree canopy but Ms Hay and Mr Baker were of the opinion that the buildings are not acceptable in terms of character, height, density and bulk. Ms Hay was particularly concerned about the extent of excavation that allows for a much larger building than would otherwise be the case. Also problematical is the density (six dwellings on two sites) of the development in a locality that is dominated by single dwellings on single lots. The buildings will read as four storeys above podium level by comparison with the lower heights of surrounding development. Importantly the height of the proposed buildings, even when considered in terms of their combined width gives a vertical rather than horizontal emphasis, which is at odds with the characteristic prevailing horizontal emphasis of existing development.

24 Mr Baker was concerned that the full five stories of the two buildings would be highly visible from the beach and this is of concern as there are no other buildings that exceed four levels on this part of the hillside that are visible. The proposed buildings are therefore incompatible in terms of height. As for building bulk the development will read as two wings sitting on a continuous base that would be much bulkier than any other building in its context. Whilst the differing architectural treatment of each wing provides some amelioration, it will still be perceived as a single, out of scale entity. Because each wing is taller than it is wide the massing is thus vertical in contrast to the predominantly distinctly horizontal massing of existing development. The bulk problem is exacerbated by the fact that the two wings are closer together than the minimum separation distances required by the Residential Flat Design Code. (In this context I note that, at Level 2, the buildings have various separation distances ranging between 4 m and 7 m). 25 In response Mr Dickson noted that the character of the visual catchment is one of multilevel dwellings, some on a sandstone podium, with distinctive roof features including gables and skillion roofs. The proposal is entirely consistent with this description although the distinctive yet subtle roof elements will only be visible from a removed distance. Overall the height and bulk of the proposal is acceptable and in keeping with the character of the area.

26 Miss Laidlaw noted that the character of this part of Palm Beach is predominantly that of substantial dwelling houses with heights of between two and four storeys and predominantly two and three stories. The layering of development on the hillside means that in some cases buildings read together as more than four storeys. She noted that SEPP SL allows development that may be different to that which currently exists around it but which is nevertheless compatible and complimentary. She contends that this is achieved because the buildings appear as two substantial dwellings in this single dwelling house context and does not accept that the common podium structure is detracting. As for height, bulk and scale she was of the opinion that what is proposed is consistent with that of surrounding development and provides a suitable fit noting that the topmost level is well set back on the building footprint. She also explained that because flat roofs are uncommon, the two buildings should have integrated pitched roofs over the three levels of accommodation. 27 The town planning and urban design experts originally agreed that the development would not be obviously apparent as apartments as opposed to single dwellings. However, Mr Baker on further consideration subsequently expressed concern that there is a risk that the contrary might occur and if the buildings are apparent as such then they would be out of character with this predominant single dwelling locality.

28 Whilst Mr Baker seemed to be fundamentally opposed to seniors living on the site notwithstanding the provisions of SEPP SL, I agree that in dealing with the character of this area the question of the extent to which new buildings that present as residential flat buildings is a very important consideration. In recognizing that SEPP SL allows a different kind of development that is otherwise not permitted, the need to respond and indeed contribute to the existing character is also of considerable importance. Hence, new development needs to have a complimentary rather than conflicting form. Consequently, if a development is conspicuously different it could be out of character and fail to meet the design principle that requires the maintenance of residential character. 29 In this regard, taking into account the evidence of Miss Hay I accept the evidence of Mr Baker to the effect that the six dwellings will be apparent to an observer as an apartment development or a residential flat building to such an extent as to be unacceptable in the context of the character of the surrounding area. I have reached this conclusion taking into account the development's utilisation of a single podium (with single driveway entrance) and the uniformity of the three identical levels in each building. This is not overcome by the differing architectural treatment and form of each of the two buildings - the three levels of the northern facade of the Building A are in the same plane whereas in Building B they step back up the slope. The uniformity is also inconsistent with the provision of the DCP that seeks modulation in contemporary buildings especially for Building A.

30 It is apparent that when viewed from Ocean Road and from the beach opposite, the development will read as at least four levels, comprising two three-storey buildings above a common podium, despite the fact that much of the podium level is below the ground. Here it must be recognized that the podium parapet level (at RL 9 m) is about 7 m above the footpath (RL 2.8 m), having an effective height of about two storeys. Conversely the topmost fifth levels will not be so apparent from closer viewing positions, being positioned towards the rear of the site. However they will be noticeable from some oblique viewing angles and from more distant views, adding to what I conclude to be the uncharacteristic height and verticality of the development. In reaching this conclusion I have again taken into account the different forms of the two buildings. 31 I agree with Miss Laidlaw that any future landscaping of the site for this development needs to be carried out on the basis of providing an appropriate setting for these buildings rather than to screen them. Plainly the provision of landscaping that would interfere with the special views available from the proposed dwellings would be inappropriate especially as the vast majority of houses on the escarpment are not screened by landscaping and seem not to have their views affected to any significant degree by vegetation. Hence the appearance of the buildings is particularly important. In GPC No 5 (Wombarra) Pty Ltd v Wollongong City Council [2003] NSWLEC 268 it was explained, in effect, that where the size of a seniors living development ...is much greater than other buildings in the street it should be visually broken up so that it does not appear as one building. Sections of a building or separate buildings should be separated by generous breaks and landscaping.

32 In my opinion this development is larger than other buildings in the street, especially by comparison with its neighbour to the east. But, disregarding for the moment the podium, it comprises two different buildings and can be considered to be broken up visually. Despite this I agree with Mr Baker that the separation between the buildings is not what can be described as a generous break even taking into account the effect of the existing and proposed landscaping. The fact that the two buildings sit upon a common podium is supportive of the conclusion that these buildings will tend to read as one from many viewing positions. Whilst buildings above a podium or similar do exist in this area, this development will have obvious differences, comprising two buildings sharing a large podium that is effectively 7 m high and extends virtually across the full width of the site. This is another problematical aspect of the development in terms of the requirement of SEPP SL that there be an appropriate response to current residential character. 33 Whilst Ms Hay was concerned about excessive excavation, I do not share her concern given that the excavation already exists. If it his as she says a factor that facilitates unacceptable bulk then the development should be rejected on this basis rather than for excessive excavation.

34 Having considered all of the evidence in relation to character, streetscape and design, I have reached the conclusion that the proposed development is flawed in terms of the extent to which it is overly conspicuous as residential flat buildings, exhibits excessive verticality and more generally an excessive height and bulk. These matters indicative of a development that should not be approved in this particular locality. Whilst SEPP SL allows a different form of development, such development must recognize and respond to the desirable elements of the location's current character. Accepting as I do the thrust of the evidence provided on behalf of the respondent, the proposed development fails this test.

35 Finally, because the proposal fails to meet the character requirements in SEPP SL it follows that the objections under SEPP 1 should not be upheld.

Accessibility, trees and on-street car parking 36 Clause 38 of SEPP SL requires that the proposed development should have obvious and safe links to public transport services or local facilities. The necessary range of services and facilities is not available in Palm Beach and these can only be obtained from other centres such as Newport. Public transport is available but along this part of Ocean Road there are no paths for pedestrians. The road's carriageway commonly used for this purpose in the manner of a shared zone, (although the legality of this is uncertain).

37 Clause 26 of SEPP SL requires that consent must not be granted unless the proposed development has access to services and facilities including medical. These access requirements can be met if there is a public transport service available within a distance of not more than 400 m from the site and the distance is accessible by means of a suitable access pathway. Such a pathway must be suitable for use by an electric wheelchair, motorised cart or the like. In this regard it is doubtful that be Ocean Road carriageway would be suitable.

38 The applicant relies upon access to public transport for residents of the proposed development to obtain access to services and facilities. The nearest bus stop is 310 m from the site and the applicant proposes to construct a footpath between the site and this bus stop. The bus routes involved provide access to a number of nearby (e.g. Newport) and distant centres (e.g. Sydney CBD). In this regard I agree with Mr Relf that the necessary access requirements of SEPP SL can be met by the provision of a footpath as proposed. Whilst there were some concerns about sand blowing onto the path from the beach, I do not accept this to be of sufficient concern to find it to be unacceptable. 39 Between the site and Ocean Place there are 18 mature Norfolk Island pine trees having heights ranging up to 30 m with canopy spreads of about 16 m. The arborists agreed that all of these trees - except one, possibly poisoned - are, despite some damage, close by car parking, driveways and the roadway, in good health and vigour. The arboreal experts agreed that the trees have high landscape value and, as a group, comprise a significant landscaped item supporting their listing as heritage items.

40 In order to assess possible impacts resulting from the proposed footpath on the pine trees, extensive root mapping has been undertaken. In reaching her conclusion that the trees would not be adversely affected Miss Howden and noted that excavation is not required for the majority of the pathway. Only one tree root greater than 40 mm is required to be pruned and whilst the pruning of smaller roots will be required it is unlikely that such pruning will have a significant impact on the health and condition of the trees. 41 Mr Paroissien disagreed with Miss Hayden being concerned about compaction and resulting reduced access to water and oxygen for the tree roots. In response Miss Howden said that despite any compaction, and taking into account the porosity of the stabilised compacted gravel paving material and the relatively narrow width of the path, water and oxygen will still get through and the trees will not be adversely affected.

42 Whilst I understand Mr Paroissien's concerns I expect that if the pathway is constructed in accordance with an arborist's requirements, with minimal excavation and minimal root loss, it is likely that the trees will continue in good health. It therefore follows that the heritage significance of the trees themselves would be unaffected.

43 As for the heritage setting of the trees, and the informality of this locality it is difficult to accept the arguments that these would be adversely affected by a pedestrian pathway. I have reached this conclusion taking into account the expected use of the pathway in the context of the nature and use of the trees' surroundings including the beach, the road, car parking areas, fences and the like. I thus accept that a footpath of the kind proposed would not be inappropriate. 44 There is a further concern that the provision of the footpath might affect the size and/or number of right angle car parking spaces adjacent to the pathway, and between the Norfolk Island pines in Ocean Road. This is because the footpath would occupy some of the land presently used for this purpose. The traffic experts initially did not believe this to be a problem. On further examination Mr Reisch explained that the parking spaces are dimensionally below present standards but being existing spaces their retention can be supported. He was nevertheless was concerned that parallel parking on the opposite side of this relatively narrow carriageway would result in insufficient manoeuvring areas.

45 In response Mr Coady provided a series of width measurements along the length of the footway between Hordern Park and Ocean Place to show that the only impediment to accommodating the proposed footway and compliance with the relevant Australian Standard would be the parallel parking that is of concern to Mr Reisch. 46 Mr Reisch agreed with Mr Coady that the existing carriageway needs to be retained to facilitate safe and efficient two-way traffic movement and that appropriate line marking can assist in achieving this. If this is done the proposed footpath could be provided without impacting parking space numbers while retaining appropriate traffic flow conditions.

47 It seems to me that even if the Australian Standard is not met, given that this part of Ocean Road generally operates as a low speed shared environment the likely extent of non-complying car spaces is not sufficient to deny the provision of the footpath as sought.

48 The proposed pathway is to be situated in the Ocean Road reserve on unzoned land and the council submits that the Court does not have the power pursuant to s 39(2) of the Land and Environment Court Act 1979 to impose a condition for the consent of its construction. This submission was made notwithstanding the decision of Biscoe J. in Goldberg v Waverley Council (2007) 156 LGRA 27 that the Court does have power under s 39(2) in respect of an access driveway on an uninformed but designated public road. (This decision was appealed but the appeal was not proceeded with and thus remains relevant). 49 Having decided that the proposed footpath would be satisfactory and appropriate and taking into account that footpaths are common and appropriate in road reserves, I would have had no difficulty in imposing a condition consistent with the proposal; such an approach also being consistent with that of the Court in dealing with access for other seniors living or housing for the aged and disabled type developments. Even if I did not have the power to grant consent for the footpath either under the Court's Act or the Roads Act I would (all other matters being satisfactory) have been prepared to grant a deferred commencement consent that was subject to the obtaining of any necessary consent.

Neighbour and internal amenity 50 Having decided that the development is fundamentally flawed it is unnecessary to consider in detail any amenity impacts on neighbours as required by cl 34 of SEPP SL. Similarly the same approach can be taken with any amenity deficiencies within the development itself.

51 Whilst I am satisfied that the identified impacts and deficiencies would not have been of determinative significance I would expect that a revised design for the site would consider those matters more carefully at the design stage, obtaining guidance from the Residential Flat Design Code. Conclusions 52 It is important to recognize that despite the fact that residential flat buildings are prohibited in the 2(a) zone, residential flat buildings for the purposes of seniors living are permissible under SEPP SL. It cannot be argued that because there are no residential flat buildings in this locality, this form of development cannot occur, despite Palm Beach being such an iconic location. Similarly, just because the area has seen little change over many years this cannot justify the denial of opportunities for appropriate redevelopment. Indeed, if the aim of SEPP SL to encourage the provision of housing that meets the needs of seniors or people with a disability is to be met and subject to matters of infrastructure, services and good design, then seniors living housing development can be expected. 53 Any such expectation however must be also subject to the array of merits considerations arising from s79C of the Environmental Planning and Assessment Act 1979, SEPP SL, the LEP and the DCP. Of particular importance are the design principles in SEPP SL and the availability of support services for seniors or people with a disability.

54 In this case I am satisfied that, subject to the construction of the proposed footpath that provides access to the bus stop in Ocean Place that the test for access to the necessary services is met. I also have not been persuaded that, subject to the use of appropriate materials, the proposed footpath would not be so out of character with this urban beachfront locality as to make it unacceptable in the light of aims of SEPP SL to increase the supply and diversity of residences that meet the needs of seniors or people with a disability.

55 Whilst concern was expressed as to the financial burden on the council for the ongoing maintenance of the footpath, it seems to me that if the provision of a footpath is justified, as is the case here, then, subject to appropriate construction, there is no reason why the council should not in the longer term be responsible for its maintenance. If the footpath is, as a consequence of the particular conditions where it is located, in this case the heritage listed Norfolk Island pines, constructed in a particular way that might require a different maintenance regime, I do not see this as being unreasonable or the basis for the refusal of the application. 56 In recognizing that this, like any other private development, involves significant private interests the Court as the consent authority must be careful to ensure that any impacts are within reason. In considering such impacts, by responding to the aims of SEPP SL there is a significant element of public interest that should be taken into account. In this context, I conclude that whilst conceptually the provision of seniors living on this site is appropriate, the impacts of this particular design are such that this proposal should not be approved. In essence this is because the proposed building is not sufficiently responsive to the character of this part of Palm Beach. If the applicant wishes to proceed with a seniors living development on the site, in order to achieve a more acceptable outcome it would appear that the development might need to be reduced in height, together with the introduction of greater horizontality and less uniformity into the building forms as they present to Ocean Road and to Palm Beach.

57 For the above reasons the appeal is therefore dismissed and the development application refused.

      T A Bly
      Commissioner of the Court
      ljr

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.