Golf Course DMG Developments Pty Ltd (Applicant) lodged Development Application No. LDA/2017/0370 with the City of Ryde Council (Council) on 19 September 2017 seeking consent for a Mixed Use development. The Council had not determined the application within the prescribed period and the Applicant is appealing its deemed refusal.
The main issues in the case are whether the development should be built to the southern boundary and whether the streetscape is appropriate.
[2]
The site and its context
The site comprises one allotment which is legally known as SP30652, No. 2 Punt Road, Gladesville. It is located at the western corner of the intersection of Victoria and Punt Roads and is irregular in shape with an area of 733.9m2. Frontage to Punt Road is 30.715m.
A two storey brick and tile residential flat building comprising four strata apartments currently stands on the site. There is a single garage attached to the southern elevation of the building with vehicular access from Punt Road. Another vehicular access is provided off Victoria Road which leads to an informal car parking area at the rear.
The site slopes downwards by approximately 3m from the north-eastern corner of the site to the south-western corner.
There are parking restrictions adjacent to the site that prohibit both parking and loading/unloading. The Applicant has made provisions for all parking and loading to occur within the site including garbage collection.
Surrounding development comprises older style two and three storey walk up residential flat buildings with lower density housing further to the south along Punt Road south of Ashburn Place.
A two storey residential flat building over ground level carparking is erected on the site to the immediate south. The balconies and living areas of four of those units face the north. Similarly a two storey residential flat building with at grade parking below is sited to the north of the site.
The Gladesville Police Station is opposite the site in Punt Road with Gladesville Hospital located approximately 200m to the south-east across Punt Road and the Giants Steps School further to the south along Punt Road. Gladesville Town Centre is located approximately 400m to the north, along Victoria Road. Banjo Paterson Park is located around 350m to the south along Punt Road.
[3]
The proposal
The plans now before the Court propose the construction of a residential flat building rather than a mixed use development as originally lodged under the development application. The Applicant had been granted leave to rely on amended plans on 16 November 2018.
Following the Joint Conferencing, further amendments were made and the Applicant was granted leave to rely on those plans (Exhibit A) at the commencement of proceedings however during the first day of the hearing it became evident that the full extent of changes were not incorporated into the plans and there were several inconsistencies. At the beginning of day 2, the Applicant tendered what it said were final plans and submits the changes made to the plans were minor and therefore, no order as to costs should follow. Those architectural plans are Exhibit J. Following an explanation of the changes made, it is apparent that there are still inconsistencies between the plans and elevations, in particular the elevations show the winter gardens extending to level 4 and the plans to level 3. The Court has been advised that this window treatment should only extend to level 3.
The Applicant also tendered and sought leave to file amended landscape plans to reflect the changes made to the architectural plans. Those plans, Exhibit K, are not consistent with the Exhibit J plans in regard to the enclosing wall of the rear courtyard to proposed Unit 1. The Applicant advises that the correct treatment of the wall is as shown on the architectural plans.
Dr Berveling, for the Council, while not opposing leave, submitted that the amendments were not minor and that costs should be awarded pursuant to the provisions of s 8.15(3) of the Environmental Planning and Assessment Act 1979 (EP&A Act).
I granted leave to the Applicant to rely on the plans and reserved my decision in relation to costs.
The development would comprise three levels of basement car parking accessed from a driveway and ramp off Punt Road adjacent to the southern boundary of the site. A loading dock and truck turning area would be provided adjacent to the ramp and vehicular site entry and occupy a large portion of the ground floor. No door is provided to the loading dock and security to the basement is by way of a roller shutter door at the top of the ramp. The basement would be excavated to the northern, eastern (Punt Road) and southern boundaries of the site with deep soil areas retained at the rear to allow for tree retention.
The proposed building is setback 2m from Punt Road at street level and above. Proposed Unit 1 would be on the ground floor and erected to the northern boundary. It, and the units above extend along that boundary for 20m with the area at ground level designed as a courtyard for Unit 1 and a common terrace area for the development. The main lobby access is adjacent to Unit 1. The remainder of the ground floor comprises loading bays, ramp areas, storage and garbage area.
The façade at ground level comprises the open area to the loading dock and ramp at the southern end of the building, the walls to the loading dock and garbage store, the main entry doors and fire stair, the front courtyard and planter to Unit 1 and the wall to the second fire stair. The walls have been designed to incorporate obscure glass panel shopfront windows and a planter box to vary the treatment of the wall.
A nil setback is also proposed along the southern boundary adjacent to the proposed driveway and entry ramp. That wall would continue past the midpoint of the site when it turns in an arc to follow the curve of the ramp. The height of the wall at that point is around 4m however, for the first 16.186m it runs the full six storeys of the building, a height of some 19m at the rear, complying with the maximum building height development standard.
Levels 2 and 3 have identical floor plans and contain five units, four fronting Punt Road and a studio to the rear. Levels 4 and 5 are also identical and also comprise five units. Level 6 has a smaller footprint and comprises three larger units with a centrally located area of common open space at the rear overlooking the yard area.
The unit mix proposed is 4 x studios, 5 x 1 bedroom, 13 x 2 bedroom and 2 x 3 bedroom apartments.
[4]
The planning controls
The site is zoned B4 Mixed Use under the provisions of Ryde Local Environmental Plan 2014 (LEP). Residential flat buildings are permissible with consent in that zone. The objectives of the B4 zone are:
• To provide a mixture of compatible land uses.
• To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.
• To ensure employment and educational activities within the Macquarie University campus are integrated with other businesses and activities.
• To promote strong links between Macquarie University and research institutions and businesses within the Macquarie Park corridor.
Part 4 of the LEP contains Principal development standards with cl 4.3 Building height providing for a maximum height of 19m and cl 4.4 Floor space ratio (FSR) providing for a maximum FSR of 2.9:1. The proposal complies with those development standards. Clauses 6.1 Acid Sulphate Soils, 6.2 Earthworks and 6.6 Environmental sustainability are also relevant considerations however are not contentions in the case and have been addressed through draft consent conditions where appropriate.
State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65) and State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure) are relevant to determination of the application.
Ryde Development Control Plan 2014 (DCP) applies with the site falling within the Gladesville Town Centre and Victoria Road Corridor Urban Centre. Part 4.6 of the DCP applies to that precinct and provides a vision and development controls for the long term redevelopment of the precinct.
Clause 1.6 explains the structure of the Part as follows:
"This Part identifies objectives and controls that will shape the future development of Gladesville Town Centre and Victoria Road Corridor to create an attractive, accessible and unique urban environment in which to live, work, shop and visit.
Development controls are provided for strategic sites in the town centre. Five sites have been identified as key sites ("Key Blocks") in the redevelopment of the town centre. These five sites have been tested in detail regarding built form, public domain design and economic viability. The detailed development controls for these sites are provided in Section 4.0 of this Part.
Built form development controls for all sites in the town centre include building heights, building alignments, building setbacks, active street frontages, awnings and street sections. Active street frontages and building uses are shown in town centre plans and street sections. Building articulation zones are shown in plans and street sections.
Public domain development controls (Section 3.0) complement the built form controls with urban spaces being defined by built form and landscape elements. New streets and squares are designed as part of a comprehensive built form and public domain strategy for key sites. The range of desired future character for various precincts is defined by landscape character and built form."
The site is within the South Gladesville precinct or character area of the Town Centre. The vision for that precinct is described in clause 2.2.4 as follows:
"South Gladesville extends south of the town centre to Punt Road. It is the main approach to the town centre from Central Sydney, and provides a visual impression of Gladesville upon arrival. The character of this precinct will be reinforced as a well- landscaped entry to the town centre. The existing uses are predominantly low rise residential on the eastern side of Victoria Road, and commercial with residential flat buildings on the western side. Future development on the western side will have taller buildings set back from the street frontage with trees in the front setback providing the landscaped setting."
Section 3.0 contains the Objectives and Controls with 3.1 Built Form relevant to the contentions in the case, in particular, 3.1.2 Active Street Frontages, 3.1.3 Buildings Abutting the Street Alignment, 3.1.4 Setbacks, 3.1.5 Rear Setbacks and Residential Amenity, 3.3.3 Landscape Character relevant to the contentions in the case.
The Objective and Controls of section 3.1.2 Active Street Frontages are as follows:
"Objectives
1. To reinforce the commercial uses that currently exist in the town centre.
2. To avoid privacy problems for residential buildings built on or close to the street frontage.
3. To allow for a wide range of retail, commercial, entertainment and community uses at ground floor level.
4. To promote appropriate residential development.
5. To enhance personal safety and security.
6. To promote the commercial viability and function of the centre/corridor.
Controls
a. Provide ground level active uses where indicated on the Active Street Frontages Control Drawing (Figure 4.6.05).
b. Active uses contribute to personal safety in the public domain and comprise:
i. Community and civic facilities;
ii. Recreation and leisure facilities;
iii. Shops;
iv. Commercial premises;
v. Residential uses, particularly entries and foyers, however, these must not occupy more than 20% of the total length of each street frontage.
c. Where required, active uses must comprise the street frontages for a depth of at least 10 m.
d. Vehicle access points may be permitted where Active Street Frontage is required if there are no practicable alternatives.
e. Ground floor shop fronts may incorporate security grills provided these ensure light falls onto the footpath and that the interior of the shop is visible. Blank roller-shutter doors are not permitted.
f. Serviced apartments, hotels and motels shall not have apartments at the ground level. Locate retail, restaurants and / or other active uses at the ground level."
The site is not identified in the map referred to in objective 6a. The parties agree that the table in section 3.1.4 contains anomalies and that the accompanying map should be relied upon to determine front setback and that the required setbacks are a 2m setback at ground level from the street boundary with upper levels setback 4m above Level 5. The proposal complies with this control.
Clause 3.1.5 Rear Setbacks and Residential Amenity contains the following Objectives and Controls:
"Objectives
1. To restrict development at the rear of sites along Victoria Road and provide for building separation.
2. To promote the amenity of adjoining residents.
3. To encourage access alternatives to Victoria Road.
Controls
a. Provide 9 m ground level setback generally at the rear of sites fronting Victoria Road in the North Gladesville and Monash Road Precincts except where adjoining Gerard Lane and as shown in Key Sites Diagrams. Refer Figure 4.6.09 Setback I and Figure 4.6.09 Setback J.
b. Provide 12 m separation minimum above the ground floor between residential buildings (including existing residential buildings on adjacent sites).
c. Buildings fronting Victoria Road may build to the side boundary for a depth of 20 m measured from the street frontage. A side setback is then required to achieve 12 m separation between proposed and potential residential land uses.
d. Predominantly residential activities should be located adjoining low density residential areas including at the rear. If this is not practicable, activities that do not produce negative impacts in terms of noise, light, sound and odour are encouraged."
The Apartment Design Guide (ADG) is also relevant to determination of the application with sections 2F Building Separation and 3F Visual privacy relevant to the contentions in the case. The proposed development is a six-storey building and the ADG requires the following minimum separation distances and envisages the separation is shared between sites:
"Up to four storeys (approximately 12m):
• 12m between habitable rooms/balconies
• 9m between habitable and non-habitable rooms
• 6m between non-habitable rooms
Five to eight storeys (approximately 25m):
• 18m between habitable rooms/balconies
• 12m between habitable and non-habitable rooms
• 9m between non-habitable rooms"
No building separation is necessary where building types incorporate blank walls. Typically this occurs along a main street or at podium levels within centres.
[5]
The issues
Because of joint conferencing and changes made to the plans, a number of the contentions included in the Amended Statement of Facts and Contentions (Exhibit 1) have been resolved. Those that remain in contention are whether the proposal results in poor streetscape presentation; poor amenity outcomes for future occupants of the development and adjoining neighbours and whether the proposal is in the public interest.
[6]
The evidence
The hearing commenced on site with evidence heard from three persons who objected to the application. Two were local residents, one the owner of the adjoining residential flat building at No. 4 Punt Road and the third, a representative of the Giant Steps School, a school which caters for children with special needs. The issues raised by these objectors is summarised as follows:
Traffic, access and parking concerns, particularly during school hours and during peak hours;
The development will present a high blank wall towards the adjacent site which provides poor amenity, loss of privacy, views, outlook and sunlight thereby detrimentally effecting the property;
Building is too large and too high for the site;
Excessive excavation is likely to cause damage to adjoining properties;
Expert evidence was prepared by arborists Mr P Richards (Applicant) and Mr G Tesoriero (Respondent). Their Joint Report (Exhibit 5) concludes that the proposed development is acceptable as it provides for the retention of those trees considered significant on the site and the contention in relation to impact on trees and landscape has been resolved. Consent conditions reflecting their recommendations have been incorporated into the draft conditions of consent, Exhibit 7.
Traffic evidence was prepared by Mr C Palmer for the Applicant and Mr E Elias for the Council.
They agree that the amended plans provide a ramp section that depicts a headroom clearance of 3.5m and the location of services and that a 2.2m clearance to the ramps can be dealt via a suitable condition of consent. They also agree that the design of the first floor slab must be reviewed by a suitable qualified structural engineer to ensure adequate provisions has been provided and that this can also be dealt with by conditions.
The internal loading bay and associated manoeuvring area has been designed to accommodate an 8.8m long MRV truck and the experts agree that this is adequate to service the needs of the proposed development.
In accordance with the provisions of SEPP Infrastructure, the Roads and Maritime Services (RMS) has been consulted and has provided recommended conditions that should be incorporated into any consent. This requires the construction of a central median in Punt Road at the traffic signals with Victoria Road to prevent vehicles turning right to/from the development. The experts agree that this can be provided and addressed by consent conditions.
Finally, they recommend a series of conditions to address relevant Australian Standards, which they say should be incorporated into any consent issued.
The Arborists and Traffic experts were not required for cross examination.
Expert Urban Design evidence was heard from Mr A Cadogan for the Applicant and Ms G Morrish for the Council. Mr A Ludvik (Applicant) and Mr G Mead (Council) provided town planning evidence.
At the conclusion of the joint conferencing amended plans were prepared which reflected the agreed changes that they recommended be made to the plans. Those plans form Attachment E to their Joint Report, Exhibit 3 however differ from those plans now before the Court. The Applicant did incorporate the recommended changes to the ground floor unit, ventilation shaft, balconies, communal open space and interior layout and resolved the floor to ceiling heights however did not amend the remainder of the ground floor and basements to provide for a car lift rather than ramp, delete the loading area and include a commercial use on the mid frontage.
The experts agreed that an amended schedule of materials and finishes should be produced to clarify proposed finishes and that additional visual interest is to be designed into the nil setback side wall to the north that does not depend on painted render. Mr Cadogan says the plans in Exhibit 3 provide greater detail of proposed materials and finishes and satisfactorily address the concern as the extent of render is significantly reduced. In particular, the northern and southern side boundary elevations are now proposed to be finished fully in facebrick in three horizontal bands, each of two levels in height corresponding to the floors of the building behind, with a dark grey facebrick in the lower band, a mid grey in the middle and a light grey for the top band. He says this provides a high quality boundary interface should the walls be visible for any significant length of time.
Ms Morrish says that the amended elevations and materials now provided are an improvement however, if the Court is minded to support a nil setback to the southern boundary she considers more effort is required to achieve visual interest for this blank wall as it is likely that the Council would support nil side setbacks to the sites along Punt Road which are yet to be developed meaning this wall could be exposed permanently.
The experts also agree that the inclusion of a loading area and ramp system with a high headroom to facilitate on site garbage pickup and vehicle access significantly adversely impacts on the streetscape and the interaction of the building with the public domain, reducing it contribution to passive surveillance and amenity. Mr Mead and Ms Morrish say that this is an issue with the site size and shape not being able to accommodate the development proposed, not just a symptom of the form of collection required.
The experts agree that a better outcome would be for the garbage to be stored elsewhere and bought to the street for collection on Punt Road, without requiring a garbage truck to enter the building. This would enable more active uses to be accommodated for more of the street frontage. For that reason they suggest a car lift arrangement rather than the large ramping structure that would reduce excavation as well as increasing deep soil area.
This recommendation was not accepted by the Applicant and the plans provide for the onsite collection of waste and the necessary truck turning areas incorporated within the building. That is consistent with the views of the traffic experts responding the lack of on-street parking and vehicle standing areas whereby they say the proposal has been designed to accommodate the service requirements on the site. The provision of on-site manoeuvring areas also satisfies the RMS requirements of ensuring the largest vehicle to enter and exit the site can do so in a forward direction in view of the location of the site in such close proximity to the signalised intersection of Punt and Victoria Roads.
Because of the traffic implications for onsite servicing, Mr Ludvik and Mr Cadogan say that the ground level frontage and floor plan, whilst not ideal from a planning or urban design perspective, are nevertheless, on balance, acceptable. Mr Cadogan says the design of the ground floor vehicle entry and loading dock is acceptable because the site is not required to have an active frontage under the DCP provisions, access is off Punt Road, a local road, the extent of driveway, loading dock and vehicle access is in accordance with Council's requirements for traffic and garbage collection. The residential main entry is off the street frontage providing passive surveillance and the front bedroom and associated private open spaces of Unit 1 also provide for passive surveillance. The entirety of the frontage at level 1 and above is composed of habitable spaces and balconies overlooking the footpath and providing for passive surveillance and increased security for the public domain.
Mr Cadogan says that while he considers the amended plans in Attachment E to Exhibit 3 provide a superior outcome for the streetscape, if it is not achievable, the plans before the Court would be acceptable.
Ms Morrish and Mr Mead consider that the plans are not acceptable from a streetscape point of view and that if the car lift and garbage collection from the street is not achievable then the proposal is not acceptable due to the significant impact of the loading area and vehicle ramp on adjoining properties and the streetscape. The proposal includes false doors in an attempt to try to ameliorate the very poor design outcome. They say this is a clear indication that the proposal is not working and that the site is not of suitable size and shape to accommodate the development proposed.
There is no agreement as to whether the nil setback extending beyond the DCP control of 20m is acceptable. Further, Ms Morrish and Mr Mead say there should be a setback provided from the southern boundary.
Mr Cadogan says in relation to the length of the southern side boundary wall at the ground floor, although the wall is not required, enclosing the vehicle ramps/car-lift queuing areas with a flat roof (which contains a planter) and a single storey wall on the boundary (only half a level higher than a typical boundary fence) reduces potential impacts to the neighbouring property in terms of amenity, noise, and privacy compared to not providing the wall and covering roof and does not give rise to any significant overshadowing impacts. For these reasons he considers that the minor non-compliance with the setback controls is acceptable and is preferable to the alternative.
Mr Mead says the amended plans have improved the Punt Road streetscape however the development maintains a poor interface with the adjoining property to the south.
Ms Morrish does not consider the proposal is supportable as the loading dock and large ramp result in a blank wall far exceeding the DCP 20m control and present the adjacent apartments (which look onto this boundary) with a very large long wall that is within some 4.5m of windows and balconies to the apartments next door.
Regarding solar access the experts agree that views from the sun do not consider the building at No. 6 Punt Road (two properties to the south) and that the nil setback to the northern boundary has been improved by reducing the building length to 20m to satisfy the DCP requirement. They also agree that the DCP requires a minimum 6m setback past that 20m wall to achieve an eventual 12m between residential developments but accept small encroachments into the setback area. They agreed that the changes made to the plans now before the Court go to address these concerns however they do not agree as to whether a nil setback to the side boundary is appropriate or intended by the DCP controls. They also disagree whether the impacts of the nil side setback are acceptable to the existing or future developments.
Mr Ludvik says the DCP provides for buildings fronting Victoria Road to have a zero setback for a depth of 20m from the street frontage and that there are no provisions relating to zero setbacks that apply to other streets. The objectives of the separation distance are to restrict development at the rear of sites along Victoria Road and provide for building separation; and to promote the amenity of adjoining residents. The objective of building separation under the ADG is to equitably share separation distances between neighbouring sites to achieve a reasonable level of internal and external privacy. He considers the proposal does not raise any issue in terms of privacy to any existing or potential residential property.
He says that while the LEP has specific standards for sites along the Victoria Road corridor with a range of height and FSR zones, all of the properties in the South Gladesville Precinct are subject to the same building height and FSR standards and the same streetscape character in terms of the public domain as depicted in the DCP. There is nothing in the DCP that would suggest that there should be any variation of the built form of development in the Precinct in Punt Road to the form of development in the remainder of the precinct in Victoria Road. In areas planned or undergoing significant change, it is inevitable that there will be some adverse effects on adjoining development during the transitional phase, such as those that occurred when residential flat buildings replaced dwelling houses.
The planned desired future character (DFC) for development in this precinct involves 6 storey buildings with almost 3 times the density of existing development. That scale will undoubtedly have an impact on adjoining development in the precinct because of overshadowing and visual impacts until the sites to the south are redeveloped. He says the east-west orientation of lots in the precinct significantly reduces the benefits of any significant setback from side boundaries and it would be more desirable to provide the majority of the building bulk adjacent to Punt or Victoria Roads and to permit a zero setback from side boundaries through the Precinct. For these reasons he says a zero setback is satisfactory and appropriate.
Mr Cadogan agrees with Mr Ludvik and is of the opinion the DCP does not anticipate any variation to the built form from Victoria Road to Punt Road. He considers the site does have a frontage to Victoria Road regardless of its address and the building will be understood as fronting Victoria Road in visual and spatial terms. For that reason he says the controls applicable to land fronting Victoria Road i.e. Part 3.1.5.c of the DCP should apply.
He notes the three sites to the south along Punt Road towards Ashburn Place are effectively contiguous with the Victoria Road alignment (rather than being at 90 degrees or some other acute angle) and these sites have the same FSR, height and other controls in the LEP as the subject site. He says the DCP is very clear in treating all of the Punt Road frontage land with the precinct as fronting Victoria Road and accordingly, despite the change in street address, the DFC does not and should not provide any transition between the site and the three sites to the south on Punt Road. He anticipates the DFC and controls would include a built form with a nil side setback for the first 20m from the frontage and then a 6m side setback.
Mr Mead disagrees and says that because the DCP refers to sites fronting Victoria Road as having a nil setback, the clause would have no work to do for other sites that do not front that road and therefore, as the site does not have frontage to Victoria Road but rather Punt Road, the clause does not permit nil setbacks on the site. He does acknowledge that the site to the north does front Victoria Road and therefore could be developed with a nil setback and for this reason accepts the nil setback to the northern boundary is acceptable. He says a setback should be provided to the southern boundary and the failure to do so results in significant amenity impacts to the southern adjoining property
He says the DCP distinguishes properties that do not have frontage to Victoria Road such as the site and that these "side streets" transition to residential areas which have a different character and will generally not be characterised by continuous strip development. The intent of the controls is to provide separation for two reasons, being to provide spatial relief (a certain character of separated buildings) and to protect amenity of adjoining properties. He accepts the potential privacy impacts on No. 4 can be managed by the orientation of apartments to the front and rear and agrees the additional privacy screens added to balconies address that issue.
Mr Mead says that the shadow impacts of the development would be reduced by increased setbacks along the southern boundary, particularly to No. 6 Punt Road which has not been shown on the diagrams lodged noting the DCP encourages preservation of solar access to north facing windows, solar panels and clothes drying facilities in adjacent residential development. The ADG requires that a development ensures that solar access to neighbouring properties is not reduced by more than 20%.
He says a nil boundary setback to the southern boundary, where the neighbouring building is set back between approximately 3m and 4.5m is unacceptable in terms of the outlook from that property, which has its main living areas and balconies to several units facing north and the DCP has the objective of promoting the amenity of adjoin residents. The nil setback provides no opportunity for landscaping or articulation of the site wall to minimise its visual impacts and significantly reduces amenity. Landscaping within such a setback would not be challenged for light and would improve light, ventilation, outlook and landscaping.
He concludes that the DCP and ADG requires a 6m setback although a 3m setback may be possible should the southern elevation be treated as "non-habitable" condition i.e. highlight windows, a condition contemplated by the ADG.
Ms Morrish agrees that the nil setback to the northern boundary for the reduced length now proposed is acceptable. She considers the site does not have frontage to Victoria Road, noting its address is No. 2 Punt Road. The vista along Punt Road shows that the site forms part of the enclosure to Punt Road and the intersection with Victoria Road. It is an edge building and will be appreciated as part of that streetscape to the south of the site. The expanded verge in this location also increases the awareness of the site as part of the Punt Road streetscape. For that reason she says the DCP does not allow nil setback and as they are part of a residential streetscape rather than the Victoria Road corridor, separation between the developments is appropriate to allow for a moderation of bulk and greater landscape character. The character of Punt Road differs greatly from Victoria Road which is much busier, has no existing landscaping, commercial and retail ground floor uses and is far more urban in character and includes two zones. There is B4 for the first block to Ashburn Place closer to Victoria Road and then R2 for the remainder of the street. To the eastern side of Punt Road the land is part of Hunters Hill Council and has a different but low scale landscaped character.
Therefore these sites on Punt Road within the B4 zone create the interface to a low density zone and to the B4 and SP1 zone for Hunters Hill Council.
Apart from interpreting the DCP nil setback provisions to only apply to those sites which front Victoria Road, Ms Morrish says the ADG at 2F states that building separation is to ensure that "new development is scaled to support the DFC with appropriate massing and space between buildings". It is about more than just privacy. The space between building forms breaks down the perceived density and creates a sense of graduation from the highly urbanised forms of Victoria Road with no side setbacks and active ground floor uses to the residential character of Punt Road with side setbacks, landscaped spaces between the building forms, gaps to provide sky glimpses and visual relief from the scale of the continuous block forms.
Side setbacks also have a different role to play to building separation. They create the rhythm and pattern of spaces between built form and contribute to the character of the streetscape. Whilst the DCP appears to require a setback of 6m Ms Morrish considers a minimum setback of 3m would be acceptable, acknowledging the amenity impacts, on the assumption that only high level windows are provided to this façade to minimise overlooking to the adjacent property. The setback would allow for some buffer landscape to the adjacent existing low scale residential apartment building. It will also allow some space between this building and the sheer 6 storey wall of the development so that it is not hard on the boundary. Ms Morrish shares Mr Mead's view in regard to solar impacts.
[7]
Conclusion and findings
Firstly, I must consider the issue of costs associated with the Applicant's request to amend the application. The terms of s 8.15(3) are as follows:
If the Court on an appeal by an applicant under this Division allows the applicant to file an amended application for development consent (other than to make a minor amendment), the Court must make an order for the payment by the applicant of those costs of the consent authority that have been thrown away as a result of the amendment of the application for development consent. This subsection does not apply to proceedings to which section 34AA of the Land and Environment Court Act 1979 applies.
Mr March, for the Applicant, submits that the changes made to those plans from those to which leave was granted in November were minor. That is because the changes were very specific, did not require extensive reassessment by the experts in the proceedings and were at large, plans that reflected the agreements of those experts.
Dr Berveling submits the changes are not minor and must be assessed against the November Plans. It has required the experts to carry out further evaluation and assessment beyond that undertaken in the joint report and are not only responsive to the joint reporting.
Pepper J in Futurespace Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 153 considered this issue and determined at [14] that in order to determine whether amendments are a minor amendment, I must have regard to the degree of the changes made and their overall effect. That assessment must be made against the November plans for which leave had already been granted.
Having regard to the eight matters identified by Pepper J at [42], I determine that the changes made are not minor. The changes involve, through various iterations of the plans tendered, the reassessment of impacts of overshadowing and privacy, compliance with relevant DCP and ADG provisions and reconsideration of the evidence prepared during joint conferencing. The combined impact and extent of changes sought has required re-assessment of issues, more than once and accordingly cannot be considered minor.
In addition, the amendments have raised new issues such as the suitability of ramp width in addition to the original issues of streetscape and design. I do not consider that because some of the changes made reflect the discussions between the experts during joint conferencing means that no reassessment of the plans was required. This is evidenced by the additional comments made by the Council's experts in Exhibit 9.
For these reasons I am satisfied that the amendments are not minor and that the Applicant is to pay those costs of the consent authority that have been thrown away as a result of the amendment of the application for development consent in accordance with the provisions of s 8.15(3) of the EP&A Act.
In relation to the merits of the application, the parties agree that the principal issues in dispute are whether the development is appropriate in terms of side boundary setbacks, in particular, the nil setback proposed to the southern boundary and whether the streetscape and associated impacts from its design are consistent with the provisions of SEPP65, the ADG and DCP.
Having regard to the evidence, I am satisfied that the development as proposed is appropriate and consistent with the DFC envisaged under the Council's planning controls.
Whilst I find that the site does not have frontage to Victoria Road, I accept the evidence of Mr Ludvik and Mr Cadogan that the provisions of the South Gladesville precinct apply to the site as though it did front Victoria Road and in fact can be interpreted to apply to the remaining sites along Punt Road to Ashburn Place.
That is because the DCP does not distinguish in any way between those sites with frontage to Punt Road from the sites within the precinct with frontage to Victoria Road in any provision. All the diagrams include the site as part of the Victoria Road controls and importantly do not delineate Punt Road as a side street. There is no suggestion that any different character is envisaged as part of the DFC for the precinct and in fact it is suggested that the precinct extends to Punt Road only through the description in the character statement. The only description of the DFC for this part of the precinct is that "Future development on the western side will have taller buildings set back from the street frontage with trees in the front setback providing the landscaped setting."
The proposal provides for all the relevant design controls to achieve that DFC. It is setback 2m from the front boundary and incorporates the public domain elements detailed in the DCP.
It is common ground that development to the northern boundary of the site is appropriate. Ms Morrish and Mr Mead call for a 3m setback to the southern boundary of the site. Mr Cadogan and Mr Ludvik take the holistic approach that the nil setback provisions extend to Punt Road and that a nil setback is more appropriate. I accept that view, acknowledging that until such time as the adjoining property, No. 4 Punt Road is redeveloped, there will be some amenity impacts to that property. I do not consider that a 3m setback would mitigate those impacts and rather would, when the site is developed, limit its options for achieving the FSR envisaged under the Council's planning controls.
The design of the building limits the length of 6 storey wall to 16.186m rather than the 20m deemed acceptable for a nil boundary setback and that wall is at the front of the site. The ADG contemplates nil boundary setbacks. The wall reduces to just under 4m where it turns away from the boundary following the curve of the ramp. The existing outlook and vegetation would be retained beyond that point which is midway along the common boundary. I accept the agreed position of the experts that any privacy implications have been satisfactorily resolved.
In terms of overshadowing, the 3m setback recommended by the Council's experts results in minimal improvement as noted by the Council's experts of extending solar access to one adjoining unit by approximately one hour in mid-winter. I do not consider that improvement would justify setting the building off the boundary as stated above, to do so would be to compromise the redevelopment opportunities of that site and, as stated by Mr Cadogan, undermine rather than reinforce the strong street wall and DFC established for the precinct.
All experts agree that there will be some reduction in amenity as the area undergoes transition to the higher density envisaged under the planning controls and this is particularly likely in view of the FSR and building height development standards contained in the LEP which would result in six storey buildings occupying a large proportion of the site.
In regard to the provisions of SEPP 65, I find that the development has had adequate regard to the design quality principles and the objectives specified in the ADG for the relevant design criteria. The development will respond and contribute to the DFC as envisaged in the DCP and is of a scale and form envisaged in those controls. The landscaping incorporate is responsive to the requirements for the South Gladesville precinct and provides for the retention of existing trees on the site which assist in addressing the short-term impacts of the bulk and scale of the building when viewed from the south.
The amenity contentions raised by the Council have been addressed through the amended plans and draft consent conditions however more work is required to ensure safety is addressed. In this regard, the requirements of the NSW Police Force, as detailed in their letter of 4 October 2017 should be incorporated in the conditions subject to ensuring that adequate on-site queueing area is available for vehicles waiting to enter the site. The parties agreed that it was appropriate to add these conditions.
The development provides a range of apartment sizes so will provide housing choice and there is no contention that the development is not well designed apart from the concern regarding the presentation at ground level.
I accept the views expressed by the Applicant's experts that the site is constrained by its proximity to the signalised intersection of Punt and Victoria Roads and the prohibition of stopping and parking along the site frontage and down Punt Road to Ashburn Place. Accordingly, all service needs and vehicle manoeuvring must be accommodated on site. This factor requires the accommodation of a medium rigid vehicle (MRV) on site and, to comply with the requirements of RMS, all vehicles must be able to leave and enter the site in a forward direction. Such requirement and ramping associated with access to required carparking dictate the footprint of the building. The need to provide adequate building separation and retain trees on site has also affected the siting of the building and I am satisfied that the proposal is appropriate in these terms.
The DCP does not require an active street frontage along this section of the precincts (refer clause 3.1.2 and Figure 4.6.05) and, in view of the above constraints, I am satisfied that the treatment of the street level façade as detailed on the Exhibit J plans is satisfactory.
This treatment involves use of a range of materials and finishes, incorporates articulation and provides for planter boxes. The setback to Unit 1 and proposed landscaping address privacy concerns.
Finally, with regard to the impact of the single storey wall and roof above the basement ramp, I agree with the experts that the roof should remain to address noise issues and provide for additional landscaping.
An issue was raised during submissions that the amendments made to the plans by the relocation of a duct reduced the width of the ramp to less than 5.5m as required under section 2.5 of Australian/New Zealand Standard 2890.1:2004. The parties agreed that this issue can be addressed through consent conditions.
Having found the development is appropriate, I must address those conditions that remain in dispute. Considerable time was spent during the hearing resolving the majority of issues however one matter remains and that is the draft condition that was condition 136(c). The draft condition is in the following form:
"133. Creation of the Right of Way over 2m wide footpath. To facilitate public access a 2m wide Right of Way (ROW) for public access for the frontage of the property in Victoria Road/Punt Road, shall be created and registered on the titles of the subject property over the 2m wide setback as required by Clause 3.1.4 of DCP 4.6. The terms of the ROW shall be to Council's satisfaction and shall provide for, but not be limited to the following:
a) To be publicly accessible at all times.
b) Maintenance of the R.O.W to ensure safe, unobstructed access to the public at all times with all costs of maintenance being borne by the registered proprietor of the land.
c) Any public liability arising from the use of the ROW by the users, including the public are to be fully borne by the registered proprietor of the land.
The terms of the R.O.W shall be submitted to Council for assessment and approval and will need to be registered at the Lands and Property Management Authority, prior to issue of Occupation Certificate."
The Applicant dispute subclause (c) and submits the Council should be responsible for what would effectively become its footpath and that to impose a public liability responsibility on future owners of units within the development would be unreasonable. The Council submits that its insurance policy does not cover land that is not owned by it.
In this regard I accept the submissions of the Applicant and agree that the land is required to widen the footpath and deliver the public domain envisaged under the DCP. There will be no differentiation between the 2m area subject to the right-of-way and the remainder of the footpath. The Council requires the area to be made available to the public and therefore should ensure the safety of the public as it does on the remainder of the footpath. For that reason, I would not impose subclause (c).
The remaining consideration is to have regard to those issues raised in submissions. I acknowledge the concerns regarding traffic, access and parking, particularly during school hours and during peak hours and note that the site forms part of an area where the Council has undertaken extensive planning studies to determine the capacity of the area including its road network. The RMS has also considered the proposal and has not raised any objection subject to imposition of conditions which have been incorporated into Exhibit 7. The development provides for its parking and servicing needs on site and importantly is designed so that all vehicles can enter and leave the site in a forward direction. This should ensure any impacts are minimised.
I have considered the issue of the proposed boundary wall above and find that it is acceptable in the short term and provides better redevelopment opportunities for the adjacent site particularly due to its narrow width.
The proposed building is consistent with the bulk, height and scale envisaged under the Council's planning controls which have been, according to the evidence in the case, the subject of extensive planning studies and public consultation.
Conditions of consent have been imposed to address the potential of damage to adjoining properties.
There being no reason why consent should not be granted.
The orders of the Court are:
1. The Applicant is granted leave to rely on the amended plans, Exhibits J and K, and is to pay those costs of the consent authority that have been thrown away as a result of the amendment of the application for development consent as agreed or assessed.
2. The appeal is upheld.
3. Development Application LDA/2017/0370 for the construction of a six-storey residential flat building with basement carparking at No. 2 Punt Road, Gladesville is approved subject to the conditions in Annexure A.
4. The exhibits, other than Exhibits B, J, K and 1, are returned.
[8]
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Decision last updated: 19 February 2019