Fesena Pty Ltd v Randwick City Council

Bulk, scale and visual impact The merit evidence 12Expert town planning evidence was provided by Mr Greg Boston for the applicant and Mr Stuart Harding for the council. Mr Boston and Mr Harding agree that there are no issues of bulk scale and visual impact from Dutruc Street as the proposed development is located behind the existing physiotherapy centre at the Dutruc Street frontage. I agree with their conclusions on this aspect of the development. 13The experts also agree that given that the permissibility for the proposal flows from SEPP Infrastructure and not LEP 1998, the suitability of the proposal should be considered in the context of its compatibility with the likely future character of surrounding development, as anticipated by LEP 1998 and the draft LEP. The experts also agree that it is necessary to have regard to the 2B zone objectives, although Mr Boston states that it must be recognised that the objectives do not anticipate the proposed use, given that it is a prohibited use within the 2B zone. 14In finding that the proposed development is acceptable in terms of compatibility with the surrounding land uses in terms of bulk scale and visual impact, Mr Boston relies on the decision in Peninsula Development Australia Pty Limited v Pittwater Council [2011] NSWLEC 1244 where "local area" is described as: ....principally the visual catchment in which the development will be viewed.... The wider catchment is also relevant.... 15In addressing compatibility, Mr Boston relies on the principles in Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191 where it relevantly states: Planning principle: compatibility in the urban environment 22 There are many dictionary definitions of compatible. The most apposite meaning in an urban design context is capable of existing together in harmony. Compatibility is thus different from sameness. It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve. 23 It should be noted that compatibility between proposed and existing is not always desirable. There are situations where extreme differences in scale and appearance produce great urban design involving landmark buildings. There are situations where the planning controls envisage a change of character, in which case compatibility with the future character is more appropriate than with the existing. Finally, there are urban environments that are so unattractive that it is best not to reproduce them. 24 Where compatibility between a building and its surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked. Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites. Is the proposal's appearance in harmony with the buildings around it and the character of the street? 25 The physical impacts, such as noise, overlooking, overshadowing and constraining development potential, can be assessed with relative objectivity. In contrast, to decide whether or not a new building appears to be in harmony with its surroundings is a more subjective task. Analysing the existing context and then testing the proposal against it can, however, reduce the degree of subjectivity. 26 For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment. In some areas, planning instruments or urban design studies have already described the urban character. In others (the majority of cases), the character needs to be defined as part of a proposal's assessment. The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping. In special areas, such as conservation areas, architectural style and materials are also contributors to character. 27 Buildings do not have to be the same height to be compatible. Where there are significant differences in height, it is easier to achieve compatibility when the change is gradual rather than abrupt. The extent to which height differences are acceptable depends also on the consistency of height in the existing streetscape. 28 Front setbacks and the way they are treated are an important element of urban character. Where there is a uniform building line, even small differences can destroy the unity. Setbacks from side boundaries determine the rhythm of building and void. While it may not be possible to reproduce the rhythm exactly, new development should strive to reflect it in some way. 29 Landscaping is also an important contributor to urban character. In some areas landscape dominates buildings, in others buildings dominate the landscape. Where canopy trees define the character, new developments must provide opportunities for planting canopy trees. 16He notes that the proposed development, with recent amendments, provides for:

• a characteristic pitched and skillion roof form,
• setbacks that allow the retention of existing trees along the southern boundary,
• wall heights are below the 7 m allowed under the 2B zone and 9 m under the R3 zone,
• a floor space ratio (FSR) of 0.49:1 which is below the 0.65:1 for the 2B zone and 0.75:1 for the R3 zone, 17While the proposed building is in breach of the 4.5 m rear setback requirement, Mr Boston states that the 2.5 m rear setback only adjoins the residential property at the rear for a distance of 2.5 m as the property boundaries overlap. 18Mr Harding disagrees with Mr Boston on the issue of bulk scale and visual appearance. He states that any assessment requires consideration of the attributes of the area and consideration of the amenity of the existing residents. This process involves identification of those attributes and the identification of possible amenity impacts when considered against those attributes. This is not the same as considering the "compatibility" of one form of development compared with another, as set out in Project Venture. 19Mr Harding states that the relevant attributes that define the character of the area include large setbacks at the rear of dwellings and the "open" corridor that is formed by those rear setbacks. The proposed building does not respect this "open character" and will provide for a visually intrusive building, given the overall length of the building at 30 m and the intrusion of some 15 m into the rear yard of 9-11 Dutruc Street. He notes that the 2B zone, which allows two storey medium density housing, would likely have a building footprint of less than 50% of the site area so as to achieve compliance with other controls such as average side setbacks of 4 m and 50% landscaped area. 20While the application does require a form of merit assessment in the absence of specific controls for this form of development, Mr Harding states that the application requires a detailed consideration of zone objectives, the attributes of the area and amenity outcomes. On these grounds, the application is inconsistent with the desirable attributes and has unacceptable impacts on the amenity of adjoining residential properties. The SEPP 1 objection 21There was some uncertainty whether the landscaped area development standard applied given the reliance on SEPP Infrastructure however for abundant caution an objection under SEPP 1 was provided and addressed by Mr Harding and Mr Boston. 22It was agreed that the development standard in cl 20B(2) requires the provision of 50% landscaped area. The SEPP 1 application states that the proposed development (including the existing physiotherapy centre) provides for a total landscaped area of around 115.5 sq m representing 21% of the site area. Mr Boston calculates that the existing landscaped area on the site is 90.4 sq m or 16.5% of the site area as the area of the proposed development is currently used for car parking. 23Mr Boston prepared the SEPP 1 objection. He states that the objective of the standard is identified in cl 20E as: Purpose: To operate together with controls for floor space ratio and building height to limit the size, scale and site coverage of a building having regard to the environmental amenity and aesthetic character of the area. 24Mr Harding states that the zone objectives are relevant as they provide context and purpose to the development standard. The relevant zone objectives are: (a) to provide for a low to medium density residential environment, and (b) to maintain the desirable attributes of established residential areas, and (c) to protect the amenity of existing residents, and 25Mr Harding states that the objectives of the zone, which seek to provide a low density environment and to maintain the desirable attributes, are key objectives that underpin the landscape development standard. 26On the question of whether compliance with the development standard is necessary, Mr Harding states that compliance is necessary. In his opinion, the extent of building coverage, with minimal side setbacks, has resulted in the reduction of the amenity of adjoining properties and the character of the area. This is inconsistent with the purpose of the standard and the relevant objectives of the zone objectives as the development standard limits the extent to which buildings can cover a site. The breach of the landscaped area development standard is a fundamental part of Mr Harding's argument over bulk and scale and unacceptable visual impact from the adjoining residential properties because of the uncharacteristic site coverage of the proposed hydrotherapy pool when combined with existing physiotherapy centre. 27Mr Boston states that the purpose of the landscaped area development standard will be satisfied given that:

Is the proposal compatible with the surrounding land uses? 29While the proposed development is permissible by way of SEPP Infrastructure, cl 57(4)(ii) requires a consideration of "the compatibility of the development with the surrounding land uses". 30The meaning of compatibility is widely accepted as being that set out in Project Venture where it means "capable of existing together in harmony" Compatibility does not mean "sameness". Clause 57(4)(ii) uses the words "surrounding land uses" which suggests a wider consideration is required beyond just physical form. The required consideration is the level of compatibility between a hospital land use (or in this case, the hydrotherapy pool and physiotherapy centre) and the adjoining residential land uses, that would include the particular characteristics of the residential use of the surrounding land. While Project Venture focuses largely, but not exclusively, on physical compatibility, cl 57(4)(ii) requires a broader consideration to include matters that may affect the use and enjoyment of the adjoining residential land, such as overshadowing, in this case. 31It was generally agreed that the test of compatibility, with regard to potential amenity impacts, rests principally with the residential properties at 9-11 Dutruc Street (directly to the south) and 48 St Marks Road (to the rear) as the other property boundaries form part of the Hospital site although Mr Harding adopts a wider area for his conclusions on the "open corridor" that is formed by the rear setbacks. 32The proposed development is a two-storey building with the ground level area providing a car park for 3 spaces and the concrete shell of the proposed hydrotherapy pool. The first floor contains the pool deck at the same level as the adjoining physiotherapy building to provide unimpeded access between the two buildings. The proposed building is around 4.4 m in height to the gutter level and setback 2 m with the common boundary with 9-11 Dutruc Street. Recent amendments have provided a 3 m wide skillion roof adjoining the property boundary to reduce the overall visual impact, after which the roof becomes a hip roof. The gutter level is around 2.5 m above the existing fence and extends for a distance of around 14 m. 33From the property at 48 St Marks Road, the site shares a common boundary of some 4.8 m and the proposed building is around 2.5 m from the common boundary. At this point the building has a height of around 4.4 m to the gutter level. The roof form adjoining the common boundary is the eastern end of the 3 m wide skillion roof. 34The question to be answered is whether the proposed development is so incompatible with the adjoining residential properties that the application should be refused. In summary, Mr Boston maintains that the answer should be no, because the form of the proposed development is not that inconsistent with the form of development contemplated by LEP 1998 and the draft LEP and that any overshadowing impacts satisfy the requirements in the DCP. Mr Harding maintains that the answer is yes, as the two-storey form of the proposed building is inconsistent with the character of the area because the two storey forms extends too far towards the rear of the site and the overshadowing impacts are unacceptable on the adjoining residential property at 9-11 Dutruc Street. 35In considering the competing evidence, and with the benefit of the site inspection, I agree with the conclusions of Mr Harding that the proposed development is not compatible with the surrounding land uses, in both physical form and the unacceptable amenity impacts it creates. In coming to this conclusion, I accept the general proposition that the LEP 1998, the DCP and the draft LEP requirements provide guidance for the test of compatibility. I also accept that compatibility does not necessarily require strict compliance with numerical development requirements. 36In this case, the incompatibility manifests itself through the distribution of floor area over the site, and specifically the positioning of the two-storey hydrotherapy pool towards the rear of the site and in close proximity to the common boundaries of 9-11 Dutruc Street, and to a lesser extent 48 St Marks Road. I agree with Mr Harding that it could reasonably be expected that the floor area of any redevelopment of the site would more likely be positioned further from the rear of the site, consistent with the general character of residential development in the area and the requirements in LEP 1998 and the DCP. This is highlighted by the rear setback requirements that provides for average rear setback of 6 m and minimum setback of 4.5 m and also the side setback requirements that provide for an average setback of 4 m in a minimum setback of 2.5 m. 37The effect of the proposed building is a building that creates an unreasonably imposing an overbearing appearance when viewed from the open space area of 9-11 Dutruc Street. A building that complied with the side and rear setbacks and was not two storeys in height would not have the same imposing appearance when viewed from 9-11 Dutruc Street. 38The unsuitability for the design also creates additional overshadowing on the rear yard of 9-11 Dutruc Street. While it was agreed that the additional overshadowing still satisfies the DCP standard of three hours of sunlight throughout the year (cl P1.3), I am not satisfied that this is necessarily the appropriate test, given that the additional overshadowing is cast by a building form that does not satisfy the side and rear boundary setback requirements. Compliance with the numerical requirements in the DCP is not the end of the inquiry. In the planning principle on solar access in The Benevolent Society v Waverley Council [2010] NSWLEC 1082, it relevantly states (at par 137): + The amount of sunlight lost should be taken into account, as well as the amount of sunlight retained. + Overshadowing arising out of poor design is not acceptable, even if it satisfies numerical guidelines. The poor quality of a proposal's design may be demonstrated by a more sensitive design that achieves the same amenity without substantial additional cost, while reducing the impact on neighbours. 39Pafburn v North Sydney Council [2005] NSWLEC 444 provides further support for the unsuitability of the proposal with the establishment of criteria for the assessment of impacts on neighbouring properties. These criteria draw on specific impacts and provide more general observations on amenity impacts. Pafburn (at pars 19 to 24) relevantly states: 19 Several judgments of this Court have dealt with the principles to be applied to the assessment of impacts on neighbouring properties. Tenacity Consulting v Warringah [2004] NSWLEC 140 dealt with the assessment of views loss; Parsonage v Ku-ring-gai Council [2004] NSWLEC 347 dealt with the assessment of overshadowing; while Meriton v Sydney City Council [2004] NSWLEC 313 and Super Studio v Waverley Council [2004] NSWLEC 91 dealt with the assessment of overlooking. 20 Five common themes run through the above principles. The first theme is that change in impact may be as important as the magnitude of impact. Where a north-facing living room receives uninterrupted sunlight all day in mid-winter, the occupant is likely to perceive its reduction to three hours as a major loss of amenity, despite the fact that the three hours of retained sunlight complies with the rule of thumb in most development control plans and the RFDC. 21 . 22. 23 The fourth theme is that the skill with which a proposal has been designed is relevant to the assessments of its impacts. Even a small impact should be avoided if a more skilful design can reduce or eliminate it. 24 The fifth theme is that an impact that arises from a proposal that fails to comply with planning controls is much harder to justify than one that arises from a complying proposal. People affected by a proposal have a legitimate expectation that the development on adjoining properties will comply with the planning regime. 40In this case, I am satisfied that the design, while clearly satisfying the needs of the applicant, could be regarded as a "poor design" when considered in the wider context of the area. The additional shadowing from "a proposal that fails to comply with planning controls" lends further support for the conclusion that the design is unsuitable in this location. 41Pursuant to cl 57(4)(ii) of SEPP Infrastructure and after considering the compatibility of the development with the surrounding land uses, I am satisfied that the extent of the incompatibility is so significant that it warrants the refusal of the application. The SEPP 1 objection 42Preston J in Wehbe v Pittwater Council [2007] 156 LGERA 446 identifies a number of ways of establishing that compliance is unreasonable or unnecessary. The most commonly invoked way is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard (Test 1). A second way is to establish that the underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary (Test 2). A third way is to establish that the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable (Test 3). A fourth way is to establish that the development standard has been virtually abandoned or destroyed by the council's own actions in granting consents departing from the standard and hence compliance with the standard is unnecessary in unreasonable (Test 41). A fifth way is to establish that the zoning of particular land was unreasonable or inappropriate so that a development standard appropriate that that zoning was also unreasonable or unnecessary as it applied to that land and that compliance with the standard in that case would also be unreasonable or unnecessary (Test 5). 43In this case, the SEPP 1 objection adopted Test 1 in Wehbe to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard Mr Harding and Mr Boston disagreed on the objective of the standard however I accept that the purpose identified in cl 20E more specifically addresses the objective for the landscaped area development standard. The zone objectives, relied upon by Mr Harding, are not irrelevant but are more general and address the 2B zone and not the specific landscaped area development standard. 44In my view, the objective of the landscaped area development standard seeks, together with other development standards, to limit the size, scale and site coverage of a building having regard to the environmental amenity and aesthetic character of the area. 45If the proposed development is tested against the objective of the landscaped area development standard than I can comfortably conclude that the objective is not achieved. The "size, scale and site coverage" of the two-storey form of the proposed development and the extent to which it extends towards the rear boundary is in conflict with " the environmental amenity and aesthetic character of the area" particularly the adjoining property at 9-11 Dutruc Street and to a lesser extent 48 St Marks Road. 46For the reasons mentioned in the preceding paragraphs, I am satisfied that the SEPP 1 objection is not consistent with the aims of SEPP 1. Also, strict compliance with the development standard, in this case, is not unreasonable and unnecessary, tends to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the EPA Act and there is a significant public benefit in maintaining the planning controls adopted by the environmental planning instrument. Consequently, the SEPP 1 objection is not well founded and the development application must be refused.

Heritage impact 47Clause 43(4) requires, before granting consent, consideration is to be given to the effect of the proposed development on the heritage significance of the St. Marks Conservation Area. 48No expert heritage evidence was provided although Mr Boston and Mr Harding addressed this contention. Mr Boston maintains that the design, form and massing of the proposed development is compatible with the character of development located within the conservation area and will not be readily discernible in a streetscape context. The main pitched roof forms matches that of the existing building on the site and that of surrounding development with the low pitched secondary roof form reflecting the skillion roof form established on adjoining properties, including the heritage item at 48t St Marks Road. 49Mr Harding states that the design of the building, in overall form, is not consistent with the form and character of other buildings in the conservation zone. The extent of footprint and the reduced side setbacks exacerbate the proposals inconsistencies with the character of the conservation zone. Mr Harding reiterates his previous concerns that the extension of building towards the rear of the site is a significant factor in the design being unsuitable. 50In addressing cl 43(4) and with the benefit of the site inspection, I am satisfied that the proposed development will not have such a negative impact on the conservation area that it would be a reason to refuse the development application. As agreed by Mr Harding and Mr Boston, the proposed development will not be visible from Dutruc Street so the principal viewing location of the St. Marks Conservation Area from Dutruc Street will remain largely unchanged. While the proposed building will be visible from the rear yard of 48 St Marks Road, there is sufficient separation between the proposed development and the dwelling on this property (notwithstanding the breach of the rear setback requirement) that there would be only minimal impact on the heritage significance of this dwelling.

Loss of trees 51Evidence on this issue was provided by arborists David Meredith for the council and Kyle Hill for the applicant. As I understand their evidence, there was no significant issue in relation to the impact of the proposed development on the root zones for the trees in dispute (trees T2, T4 and T8) based on the separation of the building from the trees, particular construction techniques, specialist irrigation, further root investigation or selective trimming of existing limbs. 52Concern was however expressed by the council over the longevity of the trees, particularly along the southern boundary, if the development was to proceed. 53While the question of tree retention is a moot point given the previous negative findings on the height and location of the proposed development, I am satisfied that given appropriate conditions, the majority of the existing significant trees could be retained and form part of a landscaping regime for the proposed development.

Orders 54The orders of the Court are:

1. The appeal is dismissed.
2. DA 700/2010 for the construction of a building containing a hydrotherapy pool with ancillary facilities and basement car parking at 7 Dutruc Street Randwick is refused.
3. The exhibits are returned with the exception of exhibit 1.

G T Brown 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: 09 October 2012