Grant v Sutherland Shire Council

Grant v Sutherland Shire Council - [2009] NSWLEC 1199 - NSWLEC 2009 case summary — Zoe

[17]

11 Other concerns raised by the Panel include: o The curved form of the balconies are not in keeping with the simple linear forms of the building itself. o The depth of the dwellings (ie the distance between windows and kitchen walls) being in excess of 10 m exceeds the recommended maximum distance of 8 m in SEPP 65. o The main building entry is located adjacent to two egress doors thus affecting the clarity of the main building entry. o The western half of the building elevation in Richmount Street needs to be broken down further to enable the building to present a more residential scale. Also a better design would result if the car park entry was relocated and this would enable a narrower building footprint and increased setbacks from site boundaries. o Privacy issues between bedrooms and balconies. o The landscaping design needs to be improved. 12 Regarding the proposed fourth level in the building the Panel was of the opinion that it does not meet the definition of attic space as defined in the LEP and the building therefore exceeds the maximum building height of three storeys. Despite this it was observed that: "However, the proposed fourth story is set back to minimise visual impact and was considered to be a reasonable design solution when considered in isolation. It must be demonstrated that the fourth story causes no additional solar impact (shadow diagrams to be provided for 9am and 3pm or privacy issues with neighbouring properties." 13 The Panel concluded that: "The proposed building would benefit from further rationalisation of the building form to improve the relationship between units. This can be achieved by relocating the basement car park entrance. The building elevations would benefit from further modulation of the street elevation and rationalisation of the treatment to balconies and the main building entrance. The landscaping to the rear of the site could be improved by rationalising the extent of the basement to allow more existing trees to be maintained and also addressing the issues raised above." Contentions 14 In essence the eight pages of contentions as contained in the Statement of Contentions amount to the following three issues: 1. The proposed building is an unacceptable overdevelopment of the site having regard to the design of the building in terms of height, density, streetscape and visual impact taking into account the relevantly applicable objectives and the building height, floor space ratio and setback provisions in the planning controls. In this regard the SEPP 1 objections should not be upheld. 2. The proposal is unsatisfactory because the landscaping scheme contains unacceptable and insufficient plantings and does not comply with the landscaped area development standard in the LEP and the maximum site coverage requirement in the DCP. Also two mature trees are to be removed. 3. The proposal has adverse amenity impacts on neighbouring properties as a result of overlooking and does not provide adequate aural privacy for these neighbours. Also the building at 69-71 Parramatta Street will be overshadowed. 15 The further contention in relation to the basement car park and access ramp has, in my opinion been satisfactorily resolved by amended plans (tendered during the hearing), notwithstanding that the disabled car parking spaces could have been better located.

[38]

44 In principle, as acknowledged by the Panel, considering the existing and likely future development (of residential flat buildings) along the north side of Richmount Street, a building of the kind here proposed might not be so out of character as to be unacceptable. In this regard I understand Mr Grant's opinion that the proposed building demonstrates a transition of scale from the existing four-storey development to the east. However when the whole streetscape encompassing both sides of the street is considered, this outcome becomes less tenable. Both Mr Brooker and Miss Pinfold stressed the need to consider the site's transitional location at the interface between higher and lower density zones under the LEP and the consequential need for development to be designed accordingly. To this end Mr Brooker explained that the scale of the proposed development should also address the lower existing building forms on the opposite side of the street as well as the taller buildings to the north. 45 In this context I agree with Miss Pinfold's application of the planning principle in Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117 that deals with development at zone interfaces: "... at a zone interface as exists here, any development proposal in one zone needs to recognise and take into account the form of existing development and/or development likely to occur in an adjoining different zone. In this case residents living in the 2(b) zone must accept that a higher density and larger scale residential development can happen in the adjoining 2(c) or 2(d) zones and whilst impacts must be within reason they can nevertheless occur. Such impacts may well be greater than might be the case if adjacent development were in and complied with the requirements of the same zone. Conversely any development of this site must take into account its relationship to the 2(b) zoned lands to the east, south-east, south and south-west and the likely future character of those lands must be taken into account. Also in considering the likely future character of development on the other side of the interface it may be that the development of sites such as this may not be able to achieve the full potential otherwise indicated by applicable development standards and the like." 46 Hence, whilst the residents who live opposite the site should anticipate development in the order of three storeys as permitted in Zone 6 they do not have to accept development that is taller than three storeys. Indeed they might even be entitled to expect that the redevelopment of land along the north side of Richmount Street might be lower than three storeys. As a consequence if development is to occur at three storeys or taller there should be little or no impact on those residents. The contrary has occurred with the residents complaining that the appearance of the building would be too big and bulky and would cause greater overlooking (particularly from the roof terraces) than would otherwise be the case. In this regard Miss Pinfold agreed with the residents concerns. Landscape and streetscape 47 Clause 11.a.1 of the DCP contains objectives for all built development. These objectives require all elements of development to make a positive contribution to the streetscape and existing or desired future character. In addition development is to be compatible with the scale, character and landscaped setting of the vicinity or the desired character of the locality.

[41]

50 In my opinion, and despite Mr Hilliard's concerns to the contrary, I think it is likely that the proposed plantings would be reasonably successful. Alternatively, different plantings could be successful in the same deep soil and other planting areas. Despite this I accept the evidence of Mr Brooker that the private courtyard and other structures within the front setback areas would have a dominant and inappropriate visual presentation to the public domain. In turn this denies reasonable opportunities for appropriate landscaping necessary to sufficiently soften "the hard edge built forms" as is appropriate taking into account the streetscape and most importantly the desired future character of the area. Impacts on neighbours 51 The fourth storey of the proposed building in terms of overshadowing, loss of privacy, loss of outlook and building bulk will variously affect a number of bedroom windows in the dwellings in the neighbouring 69-71 Parramatta Street. Overlooking and building bulk will variously affect the rear yards of the detached dwelling houses in Richmount Street to the west of the site. By themselves these matters might not have been significant, taking into account matters such as landscaping and other screening and privacy devices. However, Super Studio v Waverley [2004] NSWLEC 91, suggests the need for "heightened sensitivity" when dealing with impacts associated with non-compliance with planning controls, explaining that: "... the acceptability of an impact depends not only on the extent of the impact but also on reasonableness of, and necessity for, the development that causes it." 52 Consequently, these impacts take on greater significance in the light of the fact that they result from that part of the building that significantly infringes two development standards. Conclusion 53 In my opinion, in an architectural sense and in isolation this proposed residential flat building could be considered to be an acceptable design in its presentation and in terms of the quality of the spacious dwellings, despite some flaws. However having been persuaded by the evidence marshalled on behalf of the council and for the reasons given above I have decided that the underlying objectives of the development standards have not been met. Therefore SEPP 1 objections should not be upheld and as a consequence the appeal is dismissed.

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Before

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Judgment (44 paragraphs)

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Cases Cited (3)