Elias & Anor v Gosford City Council

Land and Environment Court (NSW)|2015-09-17|Before: Mr P

Solicitors: Mr G McKee of McKees Legal Solutions (Applicants)

Ms C Rose of Maddocks Lawyers (Respondent) File Number(s): 10962 of 2014

Judgment

Simon Elias and Betty Elias (applicant) are appealing, under s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act), against the refusal by Gosford City Council (council) of a development application (DA 44920/2013) to construct a mixed use development comprising ground level retail areas, a café with outdoor seating area and parking and a boarding house above at 302 Ocean View Road, Ettalong Beach (site).
The key issue in dispute between the parties is whether the proposal is compatible with the character of the area.

Site and locality

The site (Lot 1 DP5298) is located on the south western corner of Ocean View Road and Ferry Road. It has a frontage of 16.08m to Ocean View Road and 75.745m to Ferry Road with a site area of 1087sqm.
The site is developed with a single storey commercial building at its northern end containing four retail premises including a cafe with separate garage and shed structures. The south of the site is developed with a single storey dwelling house.
Adjoining the site to the south is Ettalong Beach Public Reserve with a public jetty located at the end of Ferry Road providing ferry services to Palm Beach. Adjoining to the west are single storey dwellings, which front Ocean View Road (306 Ocean View Road) and the Reserve to the rear (308 Ocean View Road).
The eastern side of Ferry Road is developed with single storey dwelling houses and a single storey shop on the corner of Ferry and Ocean View Roads, opposite the site.
Development in the immediate locality comprises a mix of housing types including one and two storey residential flat buildings, a seniors living development to the north and single storey dwelling houses. Further to the west along Ocean View Road is the Ettalong Town Centre, including the two to three storey Ettalong Beach Tourist Resort with Cinema Paradiso and Ettalong Markets (189-189A Ocean View Road) and the four storey shop top housing (207 Ocean View Road).

Background and proposal

The development application was lodged with council on 15 May 2013 seeking approval for a mixed use development comprising a 30 room boarding house, two retail premises and a cafe. The application was advertised and over 1000 objections were received. Council refused the application on 15 May 2014. The applicant lodged an appeal against council's refusal on 14 November 2014. A conciliation conference under s34 of the Land and Environment Court Act was held. The parties did not reach agreement and the conference was terminated. The applicant was granted leave to rely on amended plans on 12 June 2015, which were re notified and further objections received.
On 9 September 2015, the applicant sought leave to further amend the application. Council did not object to the amendments but sought an order for costs under s97B of the EPA Act, which was opposed by the applicant. I granted leave for the amended plans (Exhibit B) but reserved my decision in relation to costs, which is discussed below.
The plans, as amended, seek consent to demolish the existing structures and construct a 26 room boarding house above ground level retail areas comprising two shops at the northern end of the site and a café at the southern end, which would be separated by a parking area for sixteen cars, including one disabled space, six motor cycle and six bike parking spaces. All boarding rooms are double bed rooms (including one adaptable room). Each room has kitchen and laundry facilities and ten rooms incorporate a balcony. There is a communal room with a communal terrace at the third level adjacent to the Manager's unit. The central 12 rooms comprise two levels with a lower level sitting/dining area and bathroom and mezzanine bedroom area.
The northern section of the building would be three storeys, the central section two storeys with mezzanine, and the southern section two storeys with a single storey component fronting the reserve.
A development application (DA 39106/2110) for the adjoining site to the west has been approved which is for two storey residential development which fronts Ocean View Road (306 Ocean View Road). At the time of the hearing, an application had been lodged for a further two storey building fronting the Reserve (308 Ocean View Road).

Cost order under s 97B of the EPA Act

Section 97B of the EPA Act relevantly provides: 97B Costs payable if amended development application filed (1) This section applies to proceedings if the Court, on an appeal by an applicant under section 97 allows the applicant to file an amended development application (other than to make a minor amendment). (2) In any proceedings to which this section applies, the Court must make an order for the payment by the applicant of those costs of the consent authority that are thrown away as a result of amending the development application.
The parties disagree whether the amendments to the application are "minor" and consequently whether an order under s 97B(2) is to be made.
The applicant referred to Futurespace Pty Ltd v Ku Ring Gai Council [2009] NSWLEC and Weriton Finance Pty Ltd v Wollongong City Council [2010] NSWLEC 1301. The changes were minor in number and impact; required no or minimal reassessment; did not need re-notification; were responsive to the comments of the experts and the total effect of the amendments is minor and therefore no order as to costs is required.
In addition, the council referred to SJ Connelly Pty Ltd v Ballina Shire Council [2010] NSWLEC 167 and submits that s 97B is for "costs thrown away". The council experts have undertaken significant assessment of the plans before the Court and the proposed amendments will result in the cost of this assessment being "thrown away". Furthermore, the changes do not resolve the issues in dispute, further assessment would be required and in the context of the issues that are in dispute between the parties, the changes are not minor.

Findings

The Court may only make an order as to costs for amendments that are not minor. If the Court determines that the amendment are not minor then and order for "costs thrown away" must be made. However, it is not relevant to the consideration of whether changes are minor to consider the "costs thrown away". Nor is the consideration limited to the changes in the context of the issues in dispute between the parties but rather to the development as a whole. The matters outlined in Futurespace provide guidance as to whether amendments are minor. In considering the changes against these principles, I accept the applicant's submission that the amendments are minor and no order for costs is required. The total effect of the changes when considered in the context of the development as a whole is minor. The changes are minor in number and impact; required no or minimal reassessment; did not need re-notification and were responsive to the comments of the experts.

Planning controls

The development relies on the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). Part 2, Division 3 of SEPP ARH - Boarding houses applies to land within a zone that is "equivalent" to the land use zones specified in cl 26. The parties did not contend that the land was not within an "equivalent" zone in accordance with cl 5 of SEPP ARH.
Clause 28 of SEPP ARH permits boarding houses with consent. Clause 29 contains standards that cannot be used to refuse consent, including floor space ratio (FSR), building height, landscaped area, solar access, private open space, parking and accommodation size. Clause 30(1) of SEPP ARH provides standards for boarding houses, including requirements for communal living room, size and occupancy of a boarding room, provision of bicycle and motorcycle parking.
Clause 30A of SEPP ARH provides: 30A Character of local area A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area.
The site is zoned 3(a) Business General under the Gosford Planning Scheme Ordinance (GPSO). Boarding houses, commercial premises, residential flat buildings, restaurants and shops are permissible with consent in the 3(a) zone.
Clause 10 of GPSO relevantly provides: (3) The Council must not grant consent for development on land within a zone unless it has taken into consideration the objectives of the zone and the consistency of that development within those objectives as well as the objectives of the Local Government Act 1993 relating to ecologically sustainable development. (4) The Council must not grant consent for development unless it has taken into consideration the character of the development site and the surrounding area, where, for the purpose of this provision, character means the qualities that distinguish each area and the individual properties located within that area.
The objectives of the 3(a) zone are: The objectives of Zone No. 3(a) are: (a) to provide for the development of retail and commercial centres which make provision for the shopping and service needs of the community at the regional, district or neighbourhood level (or at 2 or more of these levels); and (b) to allow residential or other ancillary development but only where it is unlikely to significantly prejudice the supply of retail and commercial floor space within the City of Gosford.
Under cl 29B(2) of GPSO a maximum FSR of 1:1 is permissible in the 3(a) zone. However, under the cl 29(1)(c) of SEPP ARH the application cannot be refused on the grounds of density or scale if it complies with the relevant maximum FSR (1:1) plus an additional 0.5:1, being a total of 1.5:1. The parties disagree on the FSR of the proposal (1.02:1 applicant and 1.35:1 council) but they agree that it is below the deemed to satisfy standard in cl 29(1)(c) of SEPP ARH.
The land surrounding the site is zoned 2(b) Residential under GPSO. Clause 28 of GPSO applies to residential flat buildings and includes minimum floor and site areas for each dwelling and an envelope control with a maximum height in the Zone 2(b) zone of 10m.
Council contends that the development is characterised as a "mixed use development comprising three commercial premises and a residential flat building proposed for use as a boarding house" and consequently cl 28 of the GPSO applies to the development and that, although it is below the maximum height (9.5m) it does not comply with the envelop control. Council also contends that as the development includes a residential flat building State Environmental Planning Policy 65 - Design Quality of Residential Flat Buildings (SEPP 65) as in force prior to 19 June 2015 applies. Under cl 30(2) of SEPP 65, the consent authority must take into consideration the advice of the Design Review Panel (if any), the design quality of the residential flat development when evaluated in accordance with the design quality principles, and the Residential Flat Design Code (RFDC).
The applicant contends that the proposal is a mixed use development which includes a boarding house and that cl 28 and SEPP 65 do not apply. Furthermore, even if SEPP 65 were to apply, there are inconsistencies between it and SEPP ARH, and the latter SEPP would prevail under s 36(1)(c) of the EPA Act.
For the reasons which I discuss later, in considering cl 10(4) of the GPSO and cl 30A of SEPP ARH, I have found that the development is not compatible with the character of the local area to the extent that it warrants approval. Consequently, it is not necessary for me to address the competing positions in relation to cl 28 of the GPSO and SEPP 65.
Development Control Plan 159 - Character (DCP 159) is relevant. Schedule 2 of DCP 159 contains Character Maps and Character Statements, including for Ettalong Beach. The site is within Character Area Ettalong Beach 1 - Mixed Density Foreshore (Ettalong Beach 1), which describes the Desired Character as: Desired Character These areas should remain mixed-density residential foreshores where the scenic quality of prominent backdrops to Gosford City's coastal waterways is enhanced by new developments of detached and multi-unit dwellings that are surrounded by leafy gardens, and improved standards of amenity and urban design quality are achieved. Ensure that new structures do pot dominate the informal scenic qualities of foreshore settings, or disrupt development patterns established by surrounding properties. Conserve existing trees that are visually-prominent, particularly tall bushland remnants along the street and the foreshore reserve. Avoid disturbing natural landforms, and on properties that are floodprone, use low-impact construction such as suspended floors and decks rather than extensive landfilling to elevate habitable floors. Facing the waterfront, avoid terraces and retaining walls, plus fences or any other outdoor structure that would disrupt the desired informal scenic quality, or compromise the privacy and amenity of neighbouring dwellings. Avoid the appearance of a continuous wall of development along the waterfront or street by surrounding new buildings with leafy gardens that incorporate at least one wide side setback, and by stepping the shape and height of all visible facades. Maintain waterfront setbacks that are similar to the surrounding properties. Plant clusters of shady trees and shrubs that are mostly indigenous throughout all gardens as backdrops to waterways and the street. Along boundaries to the foreshore reserve and the street, plant hedges next to fences that are low or transparent in order to provide water views from dwellings as well as offering water glimpses from the street. Maintain existing shady trees throughout foreshore reserves. Minimise the scale of new buildings by using strongly-articulated forms, with facades that vary in shape and height. For example, divide floorspace into individual dwelling pavilions with a varied form or orientation, separated by landscaped courtyards, verandahs and parking structures. Disguise the visual impact of upper storeys by a combination of extra setbacks from the ground floor plus shady balconies or verandahs. Roofs should be gently-pitched to minimise the height of ridges, and flanked by wide eaves that disguise the scale and bulk of exterior walls. Parking is preferable in open carports, rather than wide garages that would accentuate building bulk or dominate visible facades. Minimise the scale of all visible facades by incorporating extensive windows that are shaded by framed balconies, verandahs or exterior sunscreens, plus some painted finishes and sheet or board cladding rather than expanses of plain masonry. Where dwellings face a street or common access-way, provide a traditional "street address" with visible verandahs, living rooms and front doors. Screen any driveways, terraces, courtyards and balconies to protect the privacy and amenity of neighbouring dwellings.
The local area includes part of the town centre which is to the west of the site on the opposite side of Ocean View Road. It is within Character Area Ettalong Beach 9 - Mainstreet Centre (Ettalong Beach 9), which describes the Desired Character as: Desired Character This should remain a mixed-use centre that provides a range of services and accommodation for local residents as well as visitors, where scenic potential of a prominent backdrop to Brisbane Water and the Hawkesbury is enhanced by new developments that encourage high levels of street activity and also achieve improved standards of amenity plus urban-and-civic design quality. Protect and enhance existing levels of "main-street" activity with building forms that maintain the pedestrian-friendly scale of existing one and two storey shop-front developments, and also the current level of midday sunlight along all footpaths. Promote high levels of on-street activity by maximising the number of retailers or businesses and the continuity of shop-windows along all street or future laneway frontages. Avoid indoor arcades that would draw people away from the street. Incorporate awnings, colonnades or balconies in all buildings to provide sheltered pedestrian settings that encourage pavement dining. Contribute to high levels of visible activity along all streets by surrounding upper storeys with balconies that accommodate restaurant dining or residents' outdoor recreation. Ensure that new developments (including alterations to existing buildings) do not dominate the informal scenic qualities of foreshore settings or disrupt the main-street development pattern in this established coastal shopping village. Along all public streets, shop-front facades should have a zero setback and a maximum height of two storeys, with taller storeys set back behind terraces to maintain a pedestrian-friendly scale as well as midday sunlight along all footpaths. Vary the overall height of buildings within permissible height limit and ensure that siting and form preserve levels of privacy, sunlight and visual amenity that are enjoyed by existing dwellings and their private open spaces. Reflect the form of development that is typical of traditional coastal centres where a wide variety of retailers are accommodated by separate buildings upon narrow-fronted allotments. Along any street or waterfront, avoid the appearance of a continuous wall of development or uniform building heights. Vary the shape and height of all visible facades. Top-most storeys should be setback behind wide roof terraces, and roofs plus parapet heights should step from one building to the next. Street corners should be emphasised by taller forms. In general, neighbouring buildings should be separated by landscaped courtyards and alleyways that provide view corridors, access to apartment lobbies, and daylight plus an outlook for above-ground dwellings. Within the foreshore precinct, future development should create separate building forms, and incorporate a pedestrian plaza from Ocean View Road to The Esplanade, generally along the alignment of Pacific Avenue, to provide additional sunlit retail frontages, access plus water-views. Disguise the scale and bulk of new buildings. All visible facades should employ extensive windows that are shaded by lightly-framed balconies, verandahs or exterior sunshades, plus painted finishes and some board or sheet cladding rather than expanses of plain masonry. Roofs should be gently-pitched to minimise the height of ridges, flanked by wide eaves that shade terraces and also disguise the scale of exterior walls. Side and rear facades should match the design quality of the street frontage. Conceal off-street parking behind shops or apartments, and provide unobtrusive vehicle entrances from laneways or secondary streets to minimise the disruption of shopfronts and associated pedestrian activity. Contribute to co-ordinated street improvements that include dedicated pedestrian crossings, footpath paving, landscaping and lighting to provide safe and secure settings for informal social interaction. Building colour schemes and commercial signs should be co-ordinated and limited in size and number to promote the identity of this coastal centre, rather than emphasising corporate sponsorship. In the waterfront reserve along The Esplanade, contribute to master planned landscape improvements that provide a visual link between the town centre and the coastal waterway, and that also improve recreation settings plus erosion control measures. New buildings that service visitors or future ferry operations should reflect the scale, form and architecture of traditional marine buildings, particularly by using a light-weight appearance and gently-pitched roofs with shady eaves.
Development Control Plan 111 - Car Parking (DCP 111) includes car parking requirements for specific land uses (cl 3.2), for existing development (cl 2.3) and for renovation of existing buildings (cl 2.5). The parties disagree on the amount of on-site parking required, which is discussed later.
State Environmental Planning Policy No 71 - Coastal Protection (SEPP 71) applies to the land and includes matters for consideration (cl 8). The parties did not press any issues in relation to SEPP 71.
Local Environmental Plan 2014 (Draft LEP) commenced after the Development Application was lodged. Clause 1.8A provides: 1.8A Savings provision relating to development applications If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced.
The parties agree that as LEP 2014 has commenced it is "imminent and certain" and that LEP 2014 and its savings clause must be given weight (see Blackmore Design Group Pty Limited v North Sydney Council 2001 NSWLEC, Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC, Terrace Tower Holdings Pty Limited v Sutherland Shire Council 2003 NSWCA).
Under the LEP 2014 the site is within Zone B2 Local Centre and boarding houses are permissible with consent. Other "Residential accommodation", except "shop top housing" is prohibited. The surrounding area is zoned R1 General Residential. Under LEP 2014, the site would have a maximum height of 11.5m and a maximum FSR of 1:1 and the adjoining residential would have a maximum height of 8.5m and FSR of 0.7:1.
Gosford Development Control Plan 2013 (DCP 2013) supports LEP 2014 and relevantly includes the same desired character statements for Ettalong Beach as DCP 159.

Evidence

The Court visited the site and surrounding area and heard from objectors who spoke on behalf of the significant number of objectors to the proposal. The main concerns of the objectors are that Ettalong is a "special place" and the community has worked hard to improve the area and make it an attractive place for families and retirees to live on a permanent basis. The proposed boarding house is not an appropriate use for the site as it provides short term accommodation for people in need and would result in antisocial behaviour and increased crime. There are also limited facilities, public transport and access to jobs for occupants of the boarding house. The built form of the proposal is out of character with the area and will result in unacceptable privacy impacts to adjoining residents. The proposal also does not provide adequate on-site parking and will exacerbate the demand for parking and traffic congestion that already exists. The objectors provided a traffic study to support their concerns.
The Court heard expert evidence from: For the applicant Mr T Tuxworth, planning Mr B Newbold, urban design Mr P Corbett, traffic and parking For the council Mr S McDonald, planning Ms G Morrish, urban design Mr R Day, traffic and parking
Ms Roberta Ryan, for the applicant and Ms S Rudland, for the council, prepared statements of evidence and a joint report on the social impacts (Contention 4) and the design crime risks of the proposal (Contention 5). These experts reached agreement on these issues and, although they remained a concern of the objectors, they were not pressed by council. Is the design of the development compatible with the local area?
The experts agreed that the local area for the purpose of cl 30A of SEPP ARH and cl 10(4) of the GPSO is the visual catchment of the site being both sides of Ocean View Road from about Webb Road to Whiting Road; the whole of Ferry Road; and the public reserve and walkway. They referred to the description of Existing Character for Ettalong Beach 1 in DCP 159 and agreed that the existing character is predominantly one and two storey residential development within landscaped settings, often with generous front and side setbacks and they outlined the elements that contribute to this character. The experts noted that within this context there is variety in building forms but disagreed on the contribution of the Ettalong Beach Tourist Resort and the shop top housing development. While part of the visual catchment, Ms Morrish and Mr McDonald considered they were distant, did not form a backdrop to the proposal and were anomalies in the area. Whereas Mr Tuxworth and Mr Newbold considered that they were part of the varied context in which the proposal would be viewed.
The experts agreed that the desired future character is established by the planning controls, including the GPSO, LEP 2014 and the description of Future Character for Ettalong Beach 1 in DCP 159. Although, the site is not part of the Town Centre, the experts referred to the Future Character statement for Ettalong Beach 9 in the DCP as this establishes the desired character for development in the town centre, which is within the visual catchment of the site.
The experts held different opinions on whether the design of the development is compatible with the character of the local area. Although they agreed that in determining compatibility the principles established in Project Venture v Pittwater Council (2005) 141 LGERA 80 are relevant and that the proposal does not need to be the same to be compatible.
In Ms Morrish's opinion, the site is an isolated commercial zone which results from its location next to the ferry wharf and the existing retail development on the site. Its function is to provide local facilities and be an entry point to Ettalong from the ferry and it is lower in the commercial hierarchy than the town centre. The site is surrounded by residential development and the foreshore reserve. As such development on the site should be a "less dominant form and character than the massing and architecture of the main centre itself".
Ms Morrish considers the Future Character statement for Ettalong Beach 1 applies to the proposal as the statement refers to all structures and to developments that include residential units. The Future Character statement for Ettalong Beach 9 also provides guidance for commercial development. Both statements seek to maintain the one and two storey massing of existing development with any other mass set behind the street wall. In Ms Morrish's opinion, this is not achieved by the proposal, which provides a three storey street wall to the corner of Ocean View Road and Ferry Street. While the proposal steps down in height towards the Reserve, it presents as a continuous built form along Ferry Street, at ground level it is predominantly undercroft car parking, which does not provide an active street frontage and it is not setback from its side boundary to provide landscaping. The breaks in the building, articulation and materials are not sufficient to reduce its mass and length and the building is "urban" in character. In Ms Morrish's opinion, the proposal dominates and does not respond to the existing built form or landscape character of the area.
Mr McDonald held similar opinion to Ms Morrish that the Future Character Statement for Ettalong Beach 1 is relevant and that the proposal is not compatible for the following reasons: The proposal includes an extensive building footprint and minimal landscaping, very different and incompatible with the development in the local area which has a character of buildings in a landscaped setting. The approved development at 306 Ocean View Road … is distinguished by two separate buildings facing north and south and with a substantial separation between the buildings - the built form is separated in order to ensure a genuine break in the built form and the opportunity for landscaping. The scale and bulk of the proposed development would likely dominate the informal scenic qualities of the foreshore setting. The development is out of scale and inconsistent in typology with the existing development patterns established by surrounding properties. The proposal does include continuous walls of development, particularly along the length of the narrow site and when viewed from side boundaries. The Ferry Road frontage is dominated by a car parking structure that largely eliminates the opportunity for street activation. The extent of the building footprint, from side boundary to boundary and the uninterrupted built form does not provide opportunity for substantial landscaping on the site. The extent of the 3 storey form along the site and the lack of any genuine separation/break of the built form along the length of the site. The articulation that is included in the design is negated by the excessive length and footprint of the built form.
In relation to the Ettalong Beach 9 Character Statement, Mr McDonald notes that the site is not within this Character Area and that different outcomes are sought for the town centre, which may not be able to be achieved by development on the site, given that it is stand alone and relatively narrow. He considers that the proposal does not meet the desired outcomes, including "Along all public streets, shop-front facades should have a zero setback and a maximum height of two storeys, with taller storeys set back behind terraces to maintain a pedestrian-friendly scale as well as midday sunlight along all footpaths. Vary the overall height of buildings within permissible height limit and ensure that siting and form preserve levels of privacy, sunlight and visual amenity that are enjoyed by existing dwellings and their private open spaces". The building is three storeys to Ferry Road and is not setback in order to provide relief to the scale and height. The parking is not concealed but instead is a dominant feature of the building along the long frontage to Ferry Road.
Mr Tuxworth considers that the Ettalong Beach 1 Character Statement applies to the residential zoned land and does not take into account the different controls and form of development in the commercially zoned site. He assessed the application under the criteria in cl 1.5(c) referred to in cl 2.6(c) of DCP 159, for development proposals that incorporate features that are not consistent or compatible with the applicable statement of Desired Character. In particular, he notes that the proposed use and building form is consistent with the land use, density and height for the 3(a) zoned site. The proposal has appropriate regard to the surrounding residential land as it steps down from three storeys to one storey at the reserve and incorporates setbacks, steps in the façade, materials to reduce the floor plan and resultant bulk of the building. The proposed development on the adjoining land (306-308 Ocean View Road) would be similar in its height and bulk to the proposal.
In Mr Tuxworths' opinion, the Desired Character for Ettalong Beach 9 should be taken into consideration in determining whether the proposal is consistent with the character of the locality. The proposal is consistent as it provides commercial and residential uses which will service the locality. The zero setback of the ground floor provides activity and the car parking is on a secondary street frontage and is appropriately screened. The upper levels are setback, except for the street corner, where a taller form is desirable.
Mr Newbold accepted that the Desired Character Statement for Ettalong Beach 1 provides detailed guidance in relation to character. However, due to the site's commercial zoning, some elements of the character statement require interpretation in accordance with cl 1.5(c) of DCP 159. He considers there is a degree of diversity in built form in the area. In particular, the Ettalong Tourist Resort and shop top housing to the west of the site provide a back drop to the proposal as well as the town house development and corner shop opposite. The three storey component of the proposal would be viewed within this context and would be no more than one storey above the proposed development on the adjoining property and below other development in the City Centre. The remainder of the Ferry Road elevation ranges from one to two storeys with a recessed mezzanine level, and the detailed design of this façade incorporates four distinctly different elements and avoids a "monolithic" character. He notes that mixed use developments with ground floor retail occupy most of their sites and consequently cannot provide a landscaped residential setting. Nevertheless, the proposed landscaping in the car park along the western boundary and in Ferry Road would contribute to a landscaped setting.
Mr Newbold noted that the envelope controls for the town centre emphasise the corner and that applying these controls to the site would not appreciably reduce the bulk of the proposal. He considered that, subject to appropriate landscaping, the extent and visibility of the undercroft parking would not adversely impact on the streetscape and that it was not feasible to provide basement parking. However, he provided an alternate proposal which increased the length of retail frontage but would require a reduction in car spaces. Ms Morrish agreed that this was an improvement but that it did not resolve her concerns about providing an active street front and screening the parking. Furthermore, she considered that the car parking could be in a basement accessed via a car lift, which is not unreasonable for a development of the size proposed given the constraints of the site.

Findings

Clause 30A of SEPP ARH requires consideration of whether the design of the development is compatible with the character of the local area. Clause 10(4) of the GPSO also requires consideration of the character of the site and surrounding area. This sub clause defines "character" to mean "the qualities that distinguish each area and the individual properties located within that area."
The experts have generally agreed on the existing character of the area and that the planning controls are of assistance in determining the desired future character. These controls include those relevant to the site and the surrounding area under the GPSO, LEP 2015 and DCP 159.
Under the GPSO, the site is a stand-alone 3(a) Business zone. The town centre 3(a) zone is on the opposite side of Ocean View Street, to the west of the site, and the land use surrounding the site is predominantly 2(b) residential.
The 3(a) zone has the objective of providing for the "shopping and service needs of the community at a regional, district or neighbourhood level" and "to allow residential or other ancillary development". In the hierarchy, the site functions predominantly as a neighbourhood centre, although it also provides an important function in conjunction with the ferry wharf.
The GPSO permits a FSR of 1:1 on the site and residential flat buildings in the surrounding residential area are subject to a density control based on minimum site area and a maximum height of 10m.
The Draft LEP generally provides similar zones and controls. The site is within a B2 zone with a maximum height of 11.5m and FSR of 1:1.
Clause 29 of SEPP ARH provides an additional FSR of 0.5:1 and is a standard that cannot be used to refuse consent.
The proposal is below these numerical requirements. However, it is subject to the consideration of compatibility required by cl 30A of SEPP ARH and cl 10(4) of the GPSO. The experts agreed that the principles established in Project Venture are relevant to the question of compatibility. In particular, that a development does not need to be the same to be compatible. The experts also agree on the local area and its existing character, with the exception of the contribution of the Ettalong Beach Tourist Resort and the shop top housing development. The key disagreement was the future character of the local area and whether the proposal was compatible with this character.
The site is within Ettalong Beach 1 Character Area in DCP 159, and the future character for the area generally seeks to reinforce the elements which contribute to the existing character. While the Desired Character Statement relates predominantly to residential development it is relevant to the application, as it is the area into which the development must fit. Also, as a mixed use development, the proposal has a significant residential component (72% of the floor area). However, there would be a degree of difference between the requirements for a mixed commercial/residential development and dwellings or other purely residential developments and a consideration of the matters in cl 1.5(c) are also relevant. These differences relate principally to the provision of a landscaped setting, which is characteristic of the area, which may conflict with the objective of providing an active street frontage with retail uses in a Business zone.
As the site provides an important pedestrian link between the ferry and the Ettalong town centre it is important that both the Ferry Road and Ocean View Road frontages are built to the street alignment and provide active uses, which would restrict the opportunity for landscaping along these frontages. However, the proposal provides limited active uses along the Ferry Street frontage with over 50% of the frontage occupied by ground level undercroft parking. The parking is screened from the street by a 1.8m high fence behind a 1m wide strip of landscaping. This arrangement does not respond to the character of the area of landscaped setting nor does is achieve an active street frontage. The changes proposed by Mr Newbold would improve this relationship but not to an acceptable level and would require a reduction in car spaces, which has not been justified. The Business zoning of the site is aimed at providing shopping and services which is not achieved by the limited amount of retail uses and the dominance of at grade parking along the street front, particularly in the absence of evidence as to the feasibility of providing basement car parking.
The width of the site also constrains the provision of landscaping but not to the extent proposed. Given the interface between the site and the adjoining residential developments to the west, the provision of landscaping along this boundary would be characteristic of the area and is not achieved by the limited landscaping that is proposed in the area behind the wheel stops of the car parking spaces. Similarly, the southern boundary adjoins the public foreshore reserve, and while the building is setback with an outdoor seating area, no landscaping is provided.
The three storey form of the residential component is not consistent with the future character sought for the area, which is predominantly two storey development. Even if the Character Statement for Ettalong Beach 9 is considered the proposal does not provide a two storey street wall with upper storeys set back on the corner of Ocean View Road and Ferry Road. I accept Ms Morrish's evidence that the location of the site and its neighbourhood function should result in a built form that is less dominant than that in the town centre and buildings such as the Ettalong Tourist Resort and the shop top housing are not the built forms that should be emulated nor is a higher element, which emphasises the corner appropriate for the site. A built form with the upper level setback above a two storey street wall would better respond to the existing and desired future character of the area.
Similarly, the design of the proposal includes features which reduce the bulk of the building such as stepping down in height to the Reserve, a break in the building, materials and articulation. However, this is negated by the excessive length and footprint of the built form and the lack of a landscaped setting.
I accept the evidence of Ms Morrish and Mr McDonald that the design of the development is not compatible with the character of the local area sufficient to warrant approval of the application. For completeness, I will briefly discuss the other key issues in dispute between the parties.

Parking

During the hearing, the council sought and was granted leave to amend the contentions to include an additional contention that the proposal provides inadequate parking on site. Although, opposed by the applicant, the Court was provided with expert evidence that addressed the contention. Leave was also granted for the applicant to rely on an amended parking plan (Exhibit J), which provided a loading bay plus 14 car spaces (8 for the cafe and 6 for the boarding house), 6 motor cycle spaces and 5 bicycle spaces.
The key disagreement between the experts was whether either s 2.3 or s 2.5 of DCP 111 apply and consequently whether the proposal is eligible for a "credit" for existing parking demand.
The experts held minor disagreements about the gross floor area (GFA) of the existing and proposed retail. In Mr Day's opinion the proposal is for a new building with a floor area greater than the existing building, consequently cl 2.3.2 applies which requires car parking to be provided in accordance with the requirements on cl 3.2 of DCP 111. On this basis, Mr Day calculates the number of car spaces as 20 (8 for the café, 6 for the retail and 6 for the boarding house).
Mr Corbett considers that the retail shops are being "renovated" and the GFA will be reduced. Consequently, cl 2.5 of DCP 111 applies to the retail component of the development and as such on-site parking is not required for this use. Alternatively, even if the retail shops were considered to be replaced by new retail shops, cl 2.3.1 of DCP 111 would apply and as the GFA does not exceed the existing, no additional parking would be required.
The experts disagree on whether the outdoor eating area of the café should be included as GFA. Mr Day considers that it creates a demand for parking and therefore should be included. Whereas, Mr Corbett considered that the outdoor area was not GFA under the definition in cl 3.1 of DCP 111. Nevertheless the eight spaces proposed for the café would meet the demand of both the indoor and outdoor area and be an improvement compared to the current situation where the parking for the existing café is accommodated on street.
The experts agree on the parking rate for boarding rooms under SEPP ARH, but disagree on whether a space for the on-site manager is required. Nevertheless, the amended parking plan includes six spaces for the boarding house component, which would include one space for the on-site manager.
The experts agree that there is demand for on street parking in Ferry Road and that there is limited supply. The on street parking is unlikely to be used by ferry commuters due to the two hour parking limit but may be used by people dropping off and picking up commuters and by people using the facilities on the site and the shop on the opposite corner.

Findings

DCP 111 includes the following provisions which were in dispute between the experts: 2.3 Existing Development 2.3.1 Where an existing building is to be replaced by a new building. which has a floor area not exceeding the floor area of the existing building and no change of use is proposed, no additional parking is required to be provided. Any existing parking on the site, up to the number of spaces required under this plan for the existing development, or any requirement of the consent for the existing development, must be maintained on the site. 2.3.2 Where an existing building is to be replaced by a new building, i having a floor area greater than the existing building and / or ii which will have a different use, car parking is to be provided as calculated under this policy for the new building area and use. 2.5 Renovation of Existing Buildings Nothing in this plan requires the provision of additional parking where an existing building is being renovated for its existing use.
Clause 2.3.1 and cl 2.5 both provide a "credit" for the demand for parking generated by existing GFA and do not require additional parking, either for a new building or a renovation, where there is no increase in GFA or change of use.
I do not accept Mr Day's interpretation that cl 2.3.2 would require parking in accordance with the rates in the DCP for the whole of new building and that no "credit" would be provided for the GFA that previously existed. It does not make sense that where there is no increase in GFA a "credit" is available to a redevelopment but if there is an increase, even of a minor nature, the parking would then be calculated not only on the increase but also on the existing GFA.
There was minor disagreement between the experts on the existing and proposed GFA. Based on the Site Analysis and Survey Plan, which accompanied the original development application and the GFA calculations in the amended plans for the proposal, the areas are shown in the following table. Use Existing Proposed (sqm) (sqm) retail 228 172 café inside 109 132 Café outside 87 80.42 Total inside 337 304 Total inside and outside 424 384

It is irrelevant whether the retail component is a "new building" or a "renovation" as the agreed position of the experts is that the GFA for the retail uses is less in the proposed development than in the existing. Although, even though the existing retail area is shown as being retained in the plans the development application form seeks approval for a new building and it is unlikely that it would be reasonably feasible to retain the existing retail and build above or that it would meet the principles established in Cooney v Municipality of Hunters Hill [2013] NSWLEC 1187.
The café is a new building and there is a marginal increase in GFA. While the outside seating area is not GFA, it does generate a demand for parking which would be relevant to consider. However, there has been a marginal reduction in this area and consequently no increase in demand.
The proposal provides car parking for the boarding house in accordance with SEPP ARH (6 spaces) and parking for the café in accordance with cl 3.2 of DCP 111 (8 spaces), based on GFA of the café and its outdoor area without relying on a "credit" for the existing café. The parking demand for the retail would continue to be provided on street. While overall this would be an improvement over the current situation, the experts did not consider the existing parking on the site and whether this is used to provide parking for the existing uses. Furthermore, there does not appear to have been an assessment of the supply of on street parking and whether the current situation results in acceptable impacts, which would preferably be mitigated by a new development of the site. As suggested by Mr Newbold, it would be desirable to provide increased retail and active shop front but this would increase the demand for parking and also require a reduction in the number of spaces to be provided on site. The preferred option would be to provide basement car parking, which should be considered in any further application to redevelopment the site.

Other issues

The parties also disagree on whether the proposal provides adequate amenity for the occupants of the proposal and adjoining developments. These matters, of themselves, would not be reasons to refuse the application.

Objections

The objectors' concerns generally reflect the issues in dispute between the parties, which have been addressed above. The other concerns principally relate to the social impacts of a boarding house. These have been addressed by the evidence and agreement of Ms Roberta Ryan and Ms S Rudland and were not pressed by council. In particular, the experts agree that there is significant need for the proposed development; the likely residents would not be "traditional" boarding house residents and the development would provide affordable rental housing for low to moderate income households; there is adequate public transport to services in Woy Woy and Gosford. Furthermore, the experts agree that the Plan of Management would be adequate to address potential impacts, such as noise. I am satisfied that the social impacts of the proposal have been adequately addressed and would not be a reason to refuse the application.

Orders

The orders of the Court are: 1. The appeal is dismissed 2. The development application (DA 44920/2013) to construct a mixed use development comprising ground level retail areas, a café with outdoor seating area and parking and a boarding house above at 302 Ocean View Road, Ettalong Beach, is refused. 3. The exhibits, except Exhibits 1 and 5, are returned. Annelise Tuor Commissioner of the Court

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: 16 February 2016

At a glance

Court

Decision date

Before

Source

Judgment (17 paragraphs)

Parties

Cases Cited (4)