Hosking Munro v Kogarah Council

Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117; CASES CITED: Stromness Pty Limited v Woollahra Municipal Council [2006] NSWLEC 587; Fodor Investments v Hornsby Shire Council [2005] NSWLEC 71; Project Venture Developments v Pittwater Council [2005] NSWLEC 191

APPLICANT Mr I. Hemmings, barrister Instructed by McKees Legal Solutions LEGAL REPRESENTATIVES: RESPONDENT Ms C. Schofield, solicitor of Pike Pike and Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT Introduction 1 This appeal is against the Kogarah Council's deemed refusal of Development Application No.62/06 which is for the demolition of a number of existing commercial buildings and the construction of a multi-unit housing development comprising 68 dwellings in six buildings above a basement car park at 125 - 137 Rocky Point Road Kogarah. The six buildings (referred to as Buildings A - H) are variously two, three and four storeys in height surrounding an area of communal open space at the centre and towards the rear of the site. Access to the basement that provides car parking for 125 vehicles is provided across the site's eastern frontage to Rocky Point Road.

The site 2 The site comprises eight separate lots with a total area of 7,525 square metres and a frontage to Rocky point Road of 137 metres. Surrounding lands to the north, west and south are predominantly developed with detached dwelling houses and at least two dual occupancy developments. Further to the north is the multi-storey Calvary Hospital. Opposite the site to the east in the Rockdale municipality are a number of larger scale commercial developments including bulky goods establishments. Planning controls 3 The block bounded by Jubilee Avenue, Rocky Point Road, Weeney Street, and Carroll Street which includes the subject site is zoned Residential 2(a) - Residential (Low Density) pursuant to Kogarah Local Environmental Plan 1998 ("the Kogarah LEP"). In this zone multi-unit housing (residential flat buildings) is prohibited. Also applicable to this area is Council's Residential Design Guide 2005-Development Control Plan ("the DCP").

4 Lands opposite the site on the east side of Rocky Point Road are included in the 4(b) Industrial (Light) zone under Rockdale Local Environmental Plan 2000 ("the Rockdale LEP").

Existing use rights 5 Notwithstanding that the proposal is prohibited, on the basis of the lawful former use of the site for commercial purposes that are prohibited in the 2(a) zone, there was no dispute that the development application can rely upon existing use rights under ss 107 and 108 of the Environmental Planning and Assessment Act 1979 ("the Act") and cll 40-43 of the Environmental Planning and Assessment Regulation 2000 ("the Regulations"). The application was lodged with the council prior to recent amendments to these provisions that do not enable the approval of an application for the change of an existing use to another prohibited use. The application is thus, as a consequence of the transitional provisions therein, not constrained by those amended provisions and the subject development is hence permissible with development consent.

6 In relying upon existing use rights care needs to be taken when considering the application or effect of planning controls that might otherwise have been applicable. Whilst section 79C of the Act continues to apply, the provisions of the otherwise applicable environmental planning instruments, to the extent that they would derogate or have the effect of derogating from the existing use, have no force or effect. Despite this, in considering the likely future character of surrounding development (one of the issues in this case), these planning controls can and should be taken into account in dealing with questions as to whether the proposal would be appropriate in its context.

7 In this regard in order to understand the likely future character of surrounding development, the adjoining lands to the north, west and south of the site are, pursuant to the 2(a) zone in the LEP, and subject to the obtaining of development consent, able to be redeveloped for dwelling houses and attached dual occupancies as well as a range of other uses such as childcare services, group homes, hospitals, nursing homes, places of worship and public buildings. Similarly the DCP deals with desired future character and can be taken into account. The DCP provides for attached dual occupancies to be up to 2 storeys in height plus roof attic. There are no development standards in the Kogarah LEP that are, notwithstanding the existing use rights, applicable in the 2(a) zone.

8 However in taking these matters into account it should not be assumed that new development taking advantage of existing use rights needs to have the same character, scale and density as that likely to occur in the surrounding area. New development nevertheless needs to be responsive to its surroundings.

9 Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117, ("Seaside Property") established the planning principle that at zone interfaces a 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 circumstances where a higher density residential zone adjoins a lower density residential zone, residents living in the lower density zone must accept that higher density and larger scale residential development can happen on adjoining land and that some impacts are inevitable. Such impacts must nevertheless be within reason. Conversely development in the higher density zone cannot be entirely constrained by the lower density zone but must nevertheless be sensitive to and may thus be restricted by it.

10 The zone interface principle can be applied in this case. As a consequence of the applicable existing use rights, this site is effectively unconstrained by the planning controls and should be treated as a higher density zone having an interface with the present adjoining lower density 2(a) zone. In these circumstances this site's neighbours cannot expect that its development should be of the same type, scale and density as would normally be anticipated in the 2(a) zone. Despite this their amenity should not be unreasonably affected.

11 Finally here, reference needs to be made to the findings in Stromness Pty Limited v Woollahra Municipal Council [2006] NSWLEC 587 ("Stromness") that, despite the derogation test, environmental planning instruments can inform or guide the merit assessment that needs to be undertaken under 79C of the Act.

Fodor Investments v Hornsby Shire Council 12 In the context of the existing use rights aspects of the case I was invited to apply the four questions identified by Roseth SC in Fodor Investments v Hornsby Shire Council [2005] NSWLEC 71 ("Fodor") namely:

1. How do the bulk and scale (as expressed by height, floor space ratio and setbacks) of the proposal relate to what is permissible on surrounding sites?
2. What is the relevance of the building in which the existing takes place?
3. What are the impacts on adjoining land?
4. What is the internal amenity?

13 The second question in Fodor in so far as it might apply in circumstances when an existing building is to be demolished, explains that there is no automatic entitlement to have another building of the same floor space ratio or height. Plainly this is correct but in my opinion, and subject to there being a satisfactory outcome in relation to the other three questions and in relation to the application of s79C of the Act, there is no reason why there could not be a larger building or buildings on the site.

14 Whilst Mr Baker was of the opinion that the proposed development, subject to certain changes generally satisfies these principles, because further changes that remain in dispute were required by Ms Morrish, the remaining Fodor questions need to be applied.

Advertising and consultations 15 The application has a long history including numerous meetings with council officers, councillors and the council's Design Review Panel. The proposal has been modified a number of times.

16 The application was advertised on a number of occasions and in its most recent form this resulted in some 46 objections (including 34 pro forma letters and a petition with 67 signatures) being lodged with the council. These objections include the majority of the properties that adjoin the site. Matters of concern raised by the objectors mainly comprise: o Overshadowing of backyards, outdoor living spaces and windows. o Loss of privacy from various upper-level windows, balconies and the roof top terrace. o The intrusive appearance of the development when viewed from neighbouring properties, given its height and width. o Increased demand for on street parking. o The inappropriate form and character of the development by comparison with that of the existing surrounding development.

17 These objections were elaborated upon by at least nine of the objectors when the hearing began on-site. Many of the resident objectors properties were concurrently inspected in order to understand their concerns.

18 In addition an objection was made on behalf of the carpet sales/warehouse premises opposite that, as a consequence of the need to install a median strip in Rocky Point Road, northbound traffic might not be able to access these premises, thus having an adverse financial impact. Whilst median strips opposite the site are proposed there is no indication that these would extend so far as to deny access to the objector's premises. This is nevertheless a matter for the Roads and Traffic Authority.

Expert evidence 19 On behalf of the respondent Council expert evidence was provided by: o Ms G. Morrish an architect and urban design consultant o Mr F Gennaoui a traffic engineer

20 On behalf of the applicant expert evidence was provided by: o Mr G. Baker an architect and urban design consultant o Mr C McLaren a traffic engineer

The Design Review Panel advice 21 In addition to the evidence provided by the experts I had the benefit of the reports provided by the Design Review Panel ("the panel"). At its meeting held on 1 September 2005, the panel produced a concept plan for the site that shows a built form that steps from the north, west and south from two storeys to three storeys with two four storey forms towards the centre of the site and towards Rocky Point Road. I understand that the concept plan and the comments of the panel underlie the current design now before the Court.

22 The most recent report of the panel recommended that this design be approved subject to a number of changes comprising matters of detail that it considers can be "readily made to make the proposal even better". More particularly the changes required include: the deletion of protruding party walls and steeply sloping roofs; the provision of awnings for solar protection and improved articulation. These matters have now been incorporated into the final design.

23 More generally the panel was of the opinion that the scale of the project is considered to be satisfactory and that a floor space ratio of 0.91 (as proposed) is appropriate. The landscape plan is generally fine. Whilst access to the central courtyard from some dwellings is not optimal this is not a major issue for the panel. It is also suggested "that there be a community room and roof top landscaped area on the roof top level of the four storey dwellings"

The issues 24 The statement of issues originally raised matters of traffic, car parking and site access; safety and security; ecologically sustainable development; and inadequate information. These matters have now been resolved by the provision of additional information, changes to the proposal and expert evidence. Taking into account those issues that were agreed between the urban design expert witnesses the remaining issues now involve: 1. Whether the site, in terms of its location, is suitable for medium density development.

2. Whether the proposed development in terms of its height, scale, form and design would be compatible with the existing and likely future surrounding residential development and within the Rocky Point Road streetscape.

3. Whether the proposed development would have adverse amenity impacts on existing neighbouring residential development in terms of overlooking and overshadowing and its overbearing effect.

4. Whether dwellings 3 - 7 within the proposed development would have a satisfactory residential amenity, particularly in terms of solar access.

Suitability for medium density housing. 25 According to Ms Morrish the site is not suitable for residential development at the density proposed for a number of reasons. As a result of the air pollution and noise generated by the significant volumes of traffic using Rocky Point Road residential amenity will be poor. The site is poorly located effectively halfway between two commercial centres and at an unreasonable distance from railway stations and community facilities. To walk to these centres would, as a result of the effect of the traffic in Rocky Point Road, be an unpleasant experience. Although she acknowledged the availability of public transport in the form of buses, development at this density should have an alternative form of public transport available. In addition this form of development should have good access to open space and public amenities. Also, the site has not been identified by the council in the DCP for higher density residential development.

26 In response Mr Baker did not accept that these were matters of such concern that they would be determinative of the application. He explained that there are many sites zoned for medium density development in the Kogarah local government area that have similar locational qualities. He noted that the Ramsgate Centre with its community facilities was located a not unreasonable 500 metres to the south and the Kogarah Town Centre with all of its facilities is only 1.7 kilometres to the north. More generally there are hospitals, schools and a TAFE college nearby as well as parks, a golf club and Botany Bay. The site is thus entirely appropriate for medium density housing in regional and local planning terms and notwithstanding that it is not so designated this does not mean that it is not suitable for housing at the density proposed. As for possible impacts on the development from Rocky Point Road he notes that the buildings are designed so that they minimise their exposure to noise from that road.

27 Mr Baker also explained that there is a pressing need in the Sydney region for sites such as this to be developed for medium density housing if the anticipated additional one million residents over the next 20 years is to be accommodated without substantially expanding the city's outer limits.

28 Whilst Ms Morrish is generally correct in relation to her observations regarding impacts of heavily traffic arterial roads on residential amenity, I do not accept that medium density development cannot occur on major roads especially taking into account that under the planning controls there are sites similarly set aside for this purpose elsewhere. Plainly if residential development were to be prohibited along arterial roads the consequences of denied development opportunities would far outweigh any disadvantages, particularly as the design of new development can take constraints such as traffic noise into account. As Mr Baker mentions the design of the proposed buildings is responsive to this. Again Ms Morrish is correct in her opinion that development at the density proposed is better located in closer proximity to commercial and community facilities and with an alternative form of public transport. However I agree with Mr Baker that the access to and availability of these facilities for the site is not so unreasonable that it should not be denied the opportunity of being developed for medium density housing. This is particularly so given the now well-known public interest imperative of providing significant numbers of additional dwellings in response to population growth in the Sydney region.

Character, height and built form. 29 Ms Morrish, in dealing with the issue of character, height and built form explained that the four storey buildings would be inappropriate given that the site's context comprises a low scale residential environment to the west and two-storey industrial Development to the east on the opposite side of Rocky Point Road. The applicable planning controls have the effect of ensuring that surrounding residential development will remain low scale of up to 2 storeys and by contrast the proposal will comprise a whole new typology. She does not accept that having a similar height to that of the nearby hospital makes it appropriate, especially as the hospital is in a different street block and a different the zone. Commercial/industrial development on the east side of Rocky Point Road is generally of a two/three-storey nature on sites that slope away from the road. Whilst acknowledging that a residential use is more desirable by comparison with the previous commercial use of the site the four storey bulky building form will be dominant and out of character with the area especially the low scale existing residential development.

30 In dealing with this issue Mr Baker explained that Rocky Point Road comprises a mixture of uses and scales of development and that in this context the proposal would be appropriate. Given the relatively small footprint the two proposed four-storey buildings (that were of particular concern to Ms Morrish) they are, by comparison smaller in bulk and scale than some of the larger developments fronting Rocky Point Road that are in the effect three or more residential storeys in height. These include the hospital and some industrial/commercial buildings. The desired future character of this locality must include further redevelopment of the light industrial zone opposite the site. The Rockdale LEP allows development with a floor space ratio of 1:1 and the associated development control plan contains a 45 degree height plane building envelope that will, given the large sites typical of this zone allow buildings well in excess of four (residential) storeys.

31 In Project Venture Developments v Pittwater Council [2005] NSWLEC 191 ("Project Venture") it was noted that 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. Buildings do not have to be the same height to be compatible. As noted above the council's Design Review Panel has no fundamental opposition to the medium density redevelopment of this site, including four storey buildings towards the centre of the site and fronting Rocky Point Road with transitionally lower buildings to the north, south and west.

32 In my opinion, the Design Review Panel's concept for the development of this site is appropriate and consistent with the principle in Project Venture and I am satisfied that the proposal is responsive to it. I also accept that it comprises an appropriate response to the first question in Fodor that asks how does the bulk and scale of the proposal relate to what is permissible on surrounding sites. In other words the manner in which the development steps from two and three storeys around the perimeter of the site to four-storeys towards the centre and adjacent to Rocky Point Road is a suitable response to the likely future character of surrounding residential development. Taking into account the applicable planning controls I accept that the future character of the immediately surrounding land is likely to include a number of two-storey dual occupancy developments in addition to those existing together with the existing, new and renovated detached dwelling houses. 33 As for the development's presentation to Rocky Point Road I find this to be satisfactory accepting Mr Baker's explanation of how building bulk should be interpreted in the light of other existing nearby larger scale developments that reflect variety in the streetscape and the potential for lands to the east to be developed (in accordance with the Rockdale council's planning controls) with large buildings.

34 I thus accept that a development of the form and scale here proposed including four-storey buildings would not be inappropriate in the context of the existing and likely future development opposite and surrounding the site.

Amenity impacts on neighbours. 35 The third question in Fodor requires consideration of the impacts of the proposed development on adjoining land and notwithstanding that existing use rights are involved such impacts need to be considered as they would be for any development proposal and should of course be reasonable.

36 As described above the majority of the neighbours who reside in dwellings that adjoin the site of this development have objected to this proposal for reasons involving overlooking, overshadowing and the bulky and out of character appearance of the buildings when viewed from their homes.

Shadows. 37 The shadow diagrams for the development reveal the extent to which the proposed buildings would overshadow neighbouring properties to the west and south. Ms Morrish suggests that the extent of overshadowing should not substantially exceed a shadow cast by the existing development plus the shadow that a complying two-storey development might generate. Whilst she acknowledges that overshadowing of neighbouring dwelling houses is not anticipated, the greatest overshadowing impact involves the rear yards of lots 17 and 182 in Carroll Street between 9 a.m. and 11 a.m.

38 Mr Baker acknowledges that these properties will be the subject of additional overshadowing but contends that the impacts are marginal. They will not have more than 50% of their rear yards additionally overshadowed between 9 a.m. and 10 a.m. Taking into account a standard boundary fence, Lot 182 whilst being significantly affected at 9 a.m. will be unaffected by 10 a.m. As for lot 17, the additional overshadowing results from a building that comprises two storeys plus attic that would be permitted under the otherwise applicable 2(a) zone. The overshadowing of the property to the south at 139 Rocky Point Road is minimal and largely contained within the shadow generated by a standard boundary fence. Again these shadows result from a building comprising two storeys plus attic.

39 Plainly the neighbouring properties to the west are not affected at all beyond 11 a.m. and the property to the south is largely unaffected. Taking into account some overshadowing of neighbouring properties is not necessarily a benchmark of acceptability and the limited extent of additional overshadowing being essentially no more than would result from a complying development, I have decided that the overshadowing impacts are not such as to require refusal of the application. However, the removal of dwelling 63 at the fourth level of Building D will provide a benefit to Lot 182 by increasing solar access between 9 a.m. and 10 a.m. Similarly, the removal of dwelling 68 at the fourth level of building E would provide a significant benefit for several Carroll Street properties, should the existing wall along part of the Western boundary of the site be removed.

Privacy. 40 In relation to the issue of loss of privacy for dwellings on adjoining lands the experts agreed in relation to Buildings A, B and G that certain amendments would satisfy their concerns and I understand these amendments have now been incorporated. However they disagreed in relation to certain bedroom windows, Ms Morrish suggesting they be 900 mm wide and Mr baker preferring 1500 mm. In this regard I agree with Ms Morrish.

41 Dwellings 56 - 58 in Building H have balconies and living rooms at first and second floor levels that will overlook adjoining residential properties Ms Morrish acknowledged that this overlooking was across an adjoining vacant lot owned by the applicant that was likely to be developed in accordance with the 2(a) zone and that this overlooking would constrain or adversely affect the likely residential development of this land. She said that these dwellings should as a consequence be redesigned. Also, one neighbour in Jubilee Avenue whose rear boundary is situated beyond the vacant lot about 40 metres north of the site was, despite the distance of separation, particularly concerned about overlooking from the these balconies.

42 Mr Baker agreed that changes to these dwellings was unnecessary because Building H is located close to Rocky Point Road and its position on the site would be expected to approximate that of a new residential building in terms of its front and rear setbacks. The design of such a building is unlikely to have major openings in its southern facade therefore overlooking is not an issue.

43 I agree that overlooking from Building H, given the significant distances of separation and proposed landscaping is not a matter of critical concern in relation to existing properties beyond the applicant's vacant lot. I also agree with Mr Baker's explanation as to why, with respect to possible redevelopment of the adjoining vacant lot is not of critical concern.

44 According to Ms Morrish the rooftop terraces provide opportunities for overlooking into adjoining residential properties. Whilst she acknowledges that the distance of separation is reasonable for apartment development this is an area designated for single and two-storey development and a higher standard of privacy can be reasonably anticipated.

45 She nevertheless accepted that the roof terraces might be acceptable if they are relocated to the front and centre of the site so that they are as far as possible away from the Carroll Street properties and are provided with privacy screens. They need to be significantly reduced in size and the remainder of the roofs devoted to landscaping

46 Mr Baker said that the rooftop terraces were important because they provide additional communal open space opportunities and whilst providing expansive views, neighbour privacy can nevertheless be achieved. The impact of these facilities would be marginal Given that the enclosures would be clad in floor-to-ceiling glass on all sides. He did not believe that overlooking of neighbouring properties was a serious problem taking into account distance of separation shallow view angles and intervening vegetation. He nevertheless accepted that the terraces could be reduced in area and located further to the east with privacy screens as suggested by Ms Morrish.

47 Notwithstanding the distances of separation between the rooftop terraces and the neighbouring residential properties the fact that they are on top of four-storey buildings and available for communal use is problematical. I thus accept the resident objectors' concerns especially considering that from some viewpoints neighbours would be able to see people using these facilities. Taking into account what the panel said about these facilities I have been persuaded that these terraces need to be altered. Whilst they have relatively small semi-enclosed areas of about 40 square metres positioned more than 28 metres from the western boundary of the site the much larger unenclosed areas extend to about 20 metres from that boundary. In the circumstances I have decided that the extent of these terraces needs to be reduced such that access to the west is restricted by an obscure glazed screen (or similar). This is to prevent access beyond the north south alignment of the presently proposed paved and semi-enclosed components. Together with the proposed rooftop landscaping this should ensure a satisfactory outcome.

48 In relation to the existing wall along part of the western boundary of the site Mr Baker pointed out that this wall is being retained at the request of the neighbours. Whilst the retention of this wall provides some privacy benefits its retention is, in my opinion for aesthetic reasons, undesirable. However, if the wall were to be removed (and I am not saying that it must), any impact of the proposed development must be reasonable. Plainly a more traditional fence with landscaping beyond to provide some screening would be a better outcome.

49 According to Ms Morrish the proposed development and its resulting amenity impacts including the appearance of the buildings particularly in terms of bulk and scale must be considered against the desired future character of the area surrounding the site. Taking into account the extent to which the proposed buildings will be seen from the neighbouring properties, to maintain a reasonable level of amenity for these neighbours the fourth floors and their roof terraces should be deleted.

50 Mr Baker acknowledged that the upper portions of the four-storey buildings would be visible from a number of neighbouring properties but because they are so far setback that even disregarding existing and proposed landscaping they would not constitute an unacceptable presence from the neighbours' perspective. He also said that the rooftop terraces and their associated enclosures would be little seen from neighbouring properties and are not a matter of concern in terms of bulk and scale although he accepted that they could be easily deleted without affecting reasonable open space requirements. In addition the proposed landscaping as it matures will soften the appearance of the development.

51 Being able to see the proposed buildings that will appear different in scale and character is not a reason to conclude that the development is inharmonious or unacceptable. Notwithstanding that there was no serious criticism of the architecture of this development I have decided that, taking into account the likely future character of surrounding development and applying the Seaside Property principle that dwellings 63 and 68 need to be deleted from the development to provide an appropriate stepping in built form from the east to the west. This will provide visual benefits for the neighbours to the west. (It may enable the boundary wall to be removed that in turn should allow additional solar access). It may also reduce general impressions of overlooking. With this change I do not accept that the proposed development would be visually intrusive. Internal amenity. 52 The fourth Fodor question asks what is the internal amenity and requires that this be assessed as it is assessed for all development. Whilst requirements for sunlight access or private open space do not apply these and other aspects must be considered and the dwellings should have an appropriate level amenity as a matter of good planning and design. Similarly, the provisions of the Residential Flat Design Code ("the design code") that supplements State Environmental Planning Policy 65 - Design Quality of Residential Flat Development can be utilised as a guide to assessing the merits of the application (see Stromness)

53 In dealing with building amenity the design code has the objective of ensuring that daylight access is provided to all habitable rooms and encouraged in all other areas of residential flat development. Relevantly daylight consists of skylight - diffuse light from the sky - and sunlight - direct radiation from the sun. It seeks to optimise the number of apartments receiving daylight access to habitable rooms, principal windows and private open space particularly in winter.

54 In relation to internal amenity I understand that the only concern to the respondent is whether dwellings 3 - 7 would receive sufficient winter sunlight access although this was not a matter discussed by the experts in the joint report. Whilst there was no concern that these five dwellings would not receive sufficient skylight the ground level living rooms and the courtyards of these dwellings will receive either very little or no direct sunlight in midwinter. Conversely the north facing upper-level balconies and bedrooms of dwellings 4, 5 and 6 should receive good sunlight.

55 The design code suggests that living rooms and private open spaces is for at least 70% of apartments in a development should receive a minimum of three hours direct sunlight between 9 a.m. and 3 p.m. in midwinter although in dense urban areas a minimum of two hours may be acceptable. The five dwellings of concern to the respondent plainly do not meet the two hour minimum test but given that more than 90% of apartments meet this test, the development can, overall, the considered to be satisfactory. Also given my decision that dwelling 63 is to be deleted, sunlight access to dwellings 3 - 6 should, in winter generally, be improved.

Conclusion 56 Therefore, for the reasons given above I have decided that the appeal should be upheld and conditional development consent granted.

      T A Bly
      Commissioner of the Court
      ljr

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