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.