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[2006] NSWLEC 6
Land and Environment Court (NSW)
1986-06-02
Original judgment source is linked above.
CITATION : Ingham Planning Pty Limited v The Council of the City of Gosford [2006] NSWLEC 6
APPLICANT: PARTIES : Ingham Planning Pty Limited RESPONDENT: The Council of the City of Gosford
KEY ISSUES: Development Application :- Top floor height above natural ground level
Gosford Planning Scheme Ordinance, (GPSO) State Environmental Planning Policy No 1 - Development Standards, (SEPP1) LEGISLATION CITED: State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings, (SEPP65) State Environmental Planning Policy No 71 - Coastal development Environmental Planning and Assessment Act 1979 - ss 79C and 97
Hooker Corporation Pty Limited v Hornsby Shire Council (NSWLEC, 2 June 1986, unreported); CASES CITED: Tenacity Consulting v Warringah [2004] NSWLEC 140 (7 April 2004); Winten Property Group Limited -v- North Sydney Council, NSWLEC 46, 6 April 2001
APPLICANT: Mr G McKee, solicitor SOLICITORS: McKees LEGAL REPRESENTATIVES: RESPONDENT: Mr M Fraser, barrister, instructed by Mr R E Byrd, solicitor SOLICITORS: P J Donellan & Co, Gosford in association with Wilshire Webb, City Agents
THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES
10420 of 2005 - Ingham Planning Pty Limited v The Council of the City of Gosford
1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Council of the City of Gosford (the council) to refuse a development application to construct a penthouse apartment on top of a residential flat building approved under Development Consent No 24708/2004 by Gosford City Council at Lot 51, DP 715094, being No 43 Masons Parade, Gosford. The existing approval has not been fully implemented and the ground floor slab was being poured during the site inspection. 2 I visited the land in company with the parties on the morning of the hearing, when local residents gave evidence. 3 I have concluded that the application should fail when considered under s 97C of the Environmental Planning and Assessment Act 1979, as in the circumstances of this case, the State Environmental Planning Policy No 1 (SEPP1) objection to the 6m top floor standard is not well founded. The land 4 The land is situated on the northeastern corner of Masons Parade and York Street, Gosford. 5 It is an "L" shaped parcel of land with a western frontage to Masons Parade of 45.07m; a northern boundary of 67.31 m; a southern boundary to York Street of 42.67m and eastern boundaries of 20.86m and 24.845m, giving an area of 2,434m2. 6 To the west of the land is the Gosford Olympic swimming pool and foreshore reserve of Brisbane Water. 7 To the north is a Chinese restaurant, Legacy House, restaurants and a doctor's surgery. 8 Abutting and uphill to the east at No 2 York Street, is a dwelling house, known as 'Nettaville', which is an item of environmental heritage. Also abutting the land and uphill to the east, at No 4 York Street, is a two-storey residential flat building. Further to the east are other residential flat buildings and dwelling houses. 9 To the south on the opposite side of York Street are residential flat buildings and dwelling houses. Relevant planning controls Gosford Planning Scheme Ordinance, (GPSO) 10 Under the provisions of the GPSO, the land is zoned 2(c) Residential and "Residential Flat Buildings" are permissible with the council's consent. 11 The objectives of the 2(c) zone in Clause 10 are: (a) to make provision for the orderly and economic development of suitable land in appropriate locations for housing at medium to high density; and (b) to provide for other uses which: (i) are compatible with a medium to high density residential environment and afford services to residents at a local level; and (ii) are unlikely to adversely affect residential amenity or place demands on services beyond the level reasonably required for high density residential uses.
12 Clause 28(4) of the GPSO states: (4) A person must not carry out development for the purposes of a residential flat building on land to which this clause applies unless all portions of the residential flat building comply with the following requirements: (a) planes must be projected at 45 degrees from a height of 3.5 metres above natural ground level at the side and rear boundaries to a maximum height of 10 metres above natural ground level in Zone No 2(b) and 12 metres above natural ground level in Zone No 2(c), 3(a) or 3(b), (b) the vertical distance measured from the highest point of the floor of the topmost floor above natural ground level must not exceed 4 metres in Zone No 2(b) and 6 metres in Zone No 2(c), 3(a) or 3(b). 13 Clause 45B deals with development in the vicinity of an item of the environmental heritage and states: 45B. The Council shall not grant consent to a development application to carry out development in the vicinity of an item of the environmental heritage unless it has made an assessment of the effect which the carrying out of that development would have on the historic, scientific, cultural, social, archaeological, architectural, natural or aesthetic significance of the item of the environmental heritage and its setting. 14 The effect of the building envelope control in cl 28(4) of the GPSO and of the top floor height control applied together is to achieve a maximum height of three storeys perhaps with a pitched roof. On a flat site, the wall height of a building that complies with the controls of cl 28 of the GPSO would be around 9m, calculated by adding a full floor height to the 6m top floor height control. With a maximum height of 12m applying the roof could pitch from 9m to 12m at the ridge. This is the maximum height that should be considered for development on sloping ground in order to maintain views over the top of downhill development and to encourage 'view sharing'. 15 Other planning controls that apply include: · Environmental Planning and Assessment Act 1979 - Section 79C. · State Environmental Planning Policy No 71 - Coastal development. · Local Government Act 1993 - Section 89. · State Environmental Planning Policy No 1 - Development Standards. · State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings. · Development Control Plan No 100 - Medium Density Residential Development. · Development Control Plan No 106 - Controls for site Waste Management. · Development Control Plan No 108 - Energy Smart Homes. · Development Control Plan No 165 - Water Cycle Management. · Development Control Plan No 111 - Carparking. · Draft State Environmental Planning Policy (Application of Development Standards) 2004. · Development Control Plan No 34 - Heritage. · Draft Local Environment Plan - Heritage. The proposal and its history 16 The council received, on 18 February 2005, the new development application to construct a penthouse apartment on top of an approved residential flat building on the land. 17 Development Consent No 24708/2004 had been previously granted by the council on 22 December 2004, to demolish the existing motel on the land and to erect a three-storey residential flat building containing nineteen (19) apartments and one level of basement car parking with forty-five (45) car parking spaces. The motel has been demolished and the approved development is presently being constructed. 18 It is proposed to add a new penthouse apartment on top of the building containing three (3) bedrooms with a floor area of 189.34m2. Terraces are proposed on the northern and western sides of the new penthouse with access to the terrace from the living/family/dining rooms. Lift access would be provided. The penthouse floor is setback from the outer edges of the approved building. 19 The proposed finished floor level (FFL) of the basement car park level would be RL -0.085m to RL 0.000m AHD. The FFL of ground, first and second floors approved would be 2.850m, 5.700m and 8.550m AHD respectively. The proposed FFL of the penthouse apartment would be 11.400m AHD. By letter dated 14 December 2005 Mr P W Barclay, Registered Surveyor, confirmed that the constructed level of the first floor [meaning ground floor level] of the building under construction is 2.91m AHD and 60mm over the approved height of 2.850m AHD. This difference is immaterial to the Court's consideration in this matter however, hopefully the principal certifying authority will ensure that the difference in levels can be absorbed in the overall height of the approved building so that the roof level is no higher than the approved 14.250m AHD. 20 The height from natural ground level to the floor level of the penthouse (top floor height) would be around 8.95m. Thus the proposed penthouse top floor height would exceed the 6m height development standard of Clause 28(4)(b) of the Gosford Planning Scheme Ordinance by a maximum of 2.95m (49%). The applicant has submitted a SEPP1 objection to this standard prepared by Mr N Ingham, consultant town planner. 21 The already approved height from natural ground level to the top of the lift overrun and the exhaust vent from the basement car park was 12.9m. Thus, the existing building already exceeds the 12m height development standard of Clause 28(4)(a) of the Gosford Planning Scheme Ordinance by 0.9m (7.5%). This overall building envelope height would not be increased by the proposal for the penthouse although the area in plan of non-compliance would be increased. Notification 22 The application was notified to nearby owners and occupants between 2 March 2005 to 22 March 2005 and the council received no submissions from the public. 23 On 9 March 2005 the new development application was considered by Council's Environmental Heritage Committee, which stated: The Committee were concerned about the amended height of the development and the visual impact on the heritage item and that there was no Heritage Impact Statement accompanying the amended plans.
24 On 20 April 2005 the unamended development application was considered by the Central Coast Design Review Panel under SEPP65. The panel recommended refusal of the proposal on the following issues: Context: The context analysis presented does not adequately justify why a four-storey building is appropriate in this location. As stated previously the Panel does not support a four-storey building as it is out of context with this location.
Scale: The proposal exceeds the Council's three-storey height requirement and should not be approved.
The bulk and footprint of the approved building is considered to be excessive, resulting in inadequate usable open space at ground level.
Built Form: The Panel made the following comments about the previous DA that are still relevant: · The Panel is concerned that the proposal appears to have been designed without any reference to a proper survey including levels information and accurate plotting of height planes, sewer mains and flood levels. · Built form should step up the site towards the east to reflect the topography. · Separate entries/courtyards at ground level could be provided for units 1,2,3 and 4. · The basement car parking area is excessive in its layout, resulting in almost boundary-to-boundary excavation. This area could be reduced by replanning to avoid duplication of driveways and redundant circulation space, and by having car parking spaces in lieu of garages. · The main courtyard is inadequate in area. It should be substantially enlarged to provide a usable common open space.
Density: · The building appears as an over development of the site.
Resource Energy and Water Efficiency: · Limited consideration has been given to this topic. It is recommended that further consideration be given to the following issues: · Passive and active solar design. · Efficient active systems. · Soil zones for vegetation. · Reuse of water Quality and quantity of stormwater discharge.
Landscape: · [Commented on in the body of the report]
Amenity: · The loss of the communal open space on the roof will reduce the general amenity of all other residents, including preventing the availability of water views. This is considered a serious case against an additional storey as inadequate common open space has been provided at ground level.
Social Dimensions: · The loss of the communal rooftop space reduces the social opportunity for future residents. Aesthetics: · No comment.
25 After the panel made its recommendation, the applicant amended the proposal by insetting the proposed penthouse floor from the outer edge of the approved three-storey residential flat building. This followed input from the Court-appointed town-planning expert, Ms Laidlaw. 26 The amended development application was notified and there were three submissions received by the council. The council's decision 27 By notice dated 25 May 2005, the council refused the application for the following reasons:
top floor' standard should not be supported, but not otherwise; and · the impact on the heritage building was not sufficient to warrant refusal, but that it would be preferable, if any greater height was secured on the subject site, for that to be moved further north and away from the southern edge of the building, so as to maintain a less dominant form next to the heritage building. 38 The applicant amended the plans to inset the proposed penthouse floor from the perimeter of the approved three-storey residential flat building below, so that from most nearby viewpoints in the streets and public foreshore land, the wall height would appear as three storeys. A meeting was held, with Ms Laidlaw, representatives of the applicant and the council when the applicant tabled a series of photomontages, showing the impact of an amended version of the penthouse. These amendments are shown in plans in Exhibit A, dated 15 September 2005, drawing Nos 006B, 007D, 008D, 009D. 39 Ms Laidlaw considered these amendments and stated, [Note: Exhibit 2, p2]: On a strict, or literal view, the appearance of the fourth storey is not consistent with the intent of the control, however, at the distance at which it will become visible, the building as a whole, and the fourth storey in particular, will form only a small part of a broad canvas of urban development. 40 She continued, [Note: Exhibit 2, p 3]: Although still being a 'four storey building', the (amended) design coupled with the circumstances of the site, provide grounds upon which a SEPP1 objection to Clause 28(4)(b) could be supported. With regard to 'the site', the circumstances include that it is formed over the toe of the foreshore slope, and also that it is a site of a reasonably large size in which it has proved possible to achieve an uppermost floor set in from the edges of a larger footprint below, such that the viewlines to the uppermost floor are disguised by the [largely] compliant built form below. The setting back of the development towards the northern side of the footprint will, for reasons set out in my statement of evidence, produce an improved relationship with 'Nettaville' and I would not hold any objection based on that relationship. I would expect that the amenity impacts of the development would be similar to that of the original proposal. I have not undertaken a detailed analysis of impacts on views' however I would suspect that neighbouring properties to the north and north east would experience a similar impact to the original proposal (there were no objections to this original proposal), with perhaps some increase in impact in terms of views towards the south west for properties currently enjoying views in this direction .
The evidence and findings
Top floor height above natural ground level
41 The allowable top floor height of 6m above natural ground level under the GPSO is breached by the proposal by around 2.7m and 2.95m or one storey. The applicant submitted a State Environmental Planning Policy No 1 (SEPP1) objection to that standard.
42 The proposal largely complies with the building envelope control, or overall height control, which is defined by a plane constructed by erecting an imaginary wall 3.5m in height on the boundary and a 45-degree plane extending over the land like a tent. A height plane 12m above and parallel to the natural ground level governs the top of this imaginary 'tent'. The three-storey residential flat building had been approved after the council had considered well founded a SEPP1 objection to the height standard for a breach of 900mm for the lift motor room and car park exhaust vent.
43 Ms Laidlaw stated, that the proposed penthouse would also breach that 12m-height by around the same amount as the lift motor room, however, over a larger plan area. Technically, there is need of an SEPP1 objection to this non-compliance, however the SEPP1 objection presently under consideration in this appeal is the breach of the allowable top floor height of 6m.
44 During the hearing Ms Laidlaw agreed that the building envelope control or overall height control could be seen as the control that should be utilised in assessing view sharing impacts. The reason for this is that the overall height is what would block out views of residents uphill and inland of Brisbane Water. However, it must also be recognised that the building envelope control would, in most circumstances, allow for the erection of a roof over the top floor of a residential flat building and views would be had on either side of the sloping roof that might reach at the ridge a maximum height of 12m above natural ground level. With a flat roof proposal, it would be necessary to ensure that any additional floor would fit the profile of the likely roof. In the present case the proposed penthouse would exceed the building envelope control or overall height control near the edges of the building. At those breach points of the conjectural roof plane, the proposal would appear as a four-storey building. An example of this is shown in Section AA at Grid E, where the proposed penthouse comes to within 1.8m of the edge of the second floor. At this point the building appears to comply with the 45-degree plane of the building envelope but would not fit within a conjectural roof form of say 30-degree pitch. It would need to be set back from the edge of the second floor around 6m to fit a conjectural 30-degree pitched roof. In other locations the proposed penthouse would be set back lesser distances, such as at Grid F and would appear as four storeys.
45 At Section AA, Grid E and nearby at Grid F, the proposed penthouse would appear from viewpoints in the rear garden of No 2 York Street as a four storey building despite it being excavated into the hill at that point. The shaded part of Section AA and the Eastern Elevation demonstrates this height and also shows the extent of the proposal that would exceed the 6m top floor height control.
46 Both Ms Laidlaw and Mr Eyre agreed that the main objective of the top floor height control is to control the form of development to achieve three-storeys and to ensure that the upper floor of development is inset from the outer edge of the building.
47 Ms Laidlaw recommended that the SEPP1 objection, in respect of the top floor height of the amended application, be upheld. She was satisfied that by insetting the proposed penthouse level from the southern elevation in the amended plans the underlying objectives of the standard could be met.
48 Mr Fraser submitted that the council's case is that the Court should not accept the top floor height non-compliance simply because it fits the building envelope control. He submitted that the controls under the GPSO must be read together. One reason put by the applicant for flexibility to be applied to the standard, he submitted, was that the space under a conjectural pitched roof proposal could have been used for habitable purposes in any event. He submitted that in this case, it would have been most unlikely that the council would have approved a pitched roof and most likely would have sought a flat rooved design. As a consequence, he submitted, the applicant should place no reliance on the compliance with the overall height control to justify a breach of the top floor height control.
49 Mr Fraser also submitted that because there is no storey height control in the GPSO, the Court would accept the argument that the top floor height control is a means to achieve a three-storey height of development. He submitted that with the top storey height control of 6m in place there is no need to stipulate a three storeys height limit in the planning controls. He submitted that Ms Laidlaw the Court-appointed expert effectively says that.
50 Mr Fraser also submitted that the Court should have regard in this matter for the decision of Roseth SC in Tenacity Consulting v Warringah [2004] NSWLEC 140 (7 April 2004) and in particular his comments on view sharing. He submitted that a fundamentally important principle is one of view sharing and that is an underlying objective of the 6m top floor height control. He submitted that although Tenacity dealt with the loss of existing views, future views should be addressed. He submitted that there was a substantial breach of the 6m-top floor height control and this would lead to the exclusion of distant views currently obtained at No 4 York Street and of water views likely to be obtained from future development of that land. He referred to the Photomontage 9 in Exhibit B.
51 Mr McKee submitted that there could be no doubt that the 6m top floor height control is designed to produce the third level and "…a top on the building" and the overall height controls are designed to limit view loss, bulk, scale and streetscape.
52 He also submitted that Tenacity is distinguishable, as in the present case; the only water views that would be lost would be from the proposed future development of No 4 York Street with a finished floor level of 10.9m AHD. He submitted that the Court should attribute very little weight to this potential loss of views. He submitted that Tenacity requires the Court to consider whether the view loss is reasonable. Here, there is no impact on present water views and to suggest otherwise would be unreasonable.
53 Mr McKee submitted that from all public vantage points the proposal fits in, [Exhibit B, 15 viewpoints]. He referred to the evidence of Ms Laidlaw that from viewpoints in 'Nettaville' one might not see the ground level so the proposal with the penthouse added would not be perceived as four storeys. Given that the proposal steps into the hillside, at any public and private viewpoints only three floors would be visible.
54 On small sites there is likely to be no conflict between the building envelope control and the top floor height control, as the wall height would be around 9m and the maximum height would be 12m or less. This would allow for the possibility of a pitched roof being erected over the 9m high walls to around 12m at the ridge. There would be little advantage in including a room in the roof as the fourth floor unless the building below were wide in plan.
55 With large sites, such as involved in this appeal, the wall height would be around 9m and a fourth floor complying with the 12m maximum height, could be inset and still comply with the building envelope control. Such a proposal would require careful design to ensure that the building from all viewpoints appeared four storeys. Such a proposal would require a well-founded SEPP1 objection to the top floor height standard under the GPSO.
56 As submitted by Mr McKee, there is an argument that the purpose of the building envelope control is to control the outer bulk of the building, for among other purposes, to promote view sharing and the top floor height is to ensure a three-storey appearance. As submitted by Mr Fraser, there is also a counter argument that the top floor and building envelope controls are to be applied as a package of planning controls and must be complied with to control the form and height of development.
57 Despite there being some attraction for the former approach that was referred to by the Court during the hearing and Mr McKee in submissions, I have concluded that any new development should conform with the package of planning controls, as submitted by Mr Fraser. Thus in the particular circumstances of this case, I am not persuaded to allow the SEPP1 objection to the top floor height control. I am satisfied that compliance with the standard is not unreasonable or unnecessary in the particular circumstances of this case and the objection is not well founded. As a result the application fails.
58 I have considered the SEPP1 objection to the 6m top floor height standard of the GPSO in the light of the decision of his Honour Justice Lloyd in Winten Property Group Limited -v- North Sydney Council, NSWLEC 46, 6 April 2001 paras 22 - 26. His Honour at para 26 stated that in applying the principles of Hooker Corporation Pty Limited v Hornsby Shire Council (NSWLEC, 2 June 1986, unreported):
…it seems to me that SEPP1 requires answers to a number of questions (not necessarily in the following order). First, is the planning control in question a development standard? Second, what is the underlying object or purpose of the standard? Third, is compliance with the development standard consistent with the aims of the Policy, and in particular does compliance with the development standard tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the EPA Act? Fourth, is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? Fifth, is the objection well founded? In relation to the fourth question, it seems to me that one must look to see whether a development, which complies, with the development standard is unreasonable or unnecessary, as noted by Cripps J in the Hooker Corporation case.59 Taking each question posed by his Honour Lloyd J and answering it: · Clause 28(4)(b) of the GPSO is a development standard and amenable to being considered under SEPP1; · The underlying purposes of the top floor height standard as part of a package of controls in the GPSO that govern the height, bulk and scale of development and encourage view sharing. · Thirdly, for the reasons set out in this judgment, I have concluded that compliance with the top floor height development standard would be consistent with the aims of SEPP1 to provide flexibility in the application of the planning controls. I am also satisfied that compliance with the standard would not tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the Environmental Planning and Assessment Act 1979, for the proper management and development of cities, and the promotion and co-ordination of the orderly and economic use and development of land. · Fourth, I am satisfied that compliance with the top floor height development standard would not be unreasonable or unnecessary in the circumstances of the case. A development that would largely comply is that presently under construction. However, even in that case the lift motor room would appear to breach the top floor height control. The building under construction does appear as a three-storey building, as intended by the controls. · I am satisfied that the objection is not well founded. 60 In coming to this conclusion, I have had regard for the evidence of Ms Shaw that the proposed penthouse level would overbear and loom over her back yard on the northwestern side of No 2 York Street. I am also satisfied that the proposal, because of its proximity to the side of the second floor of the development under construction would appear as four storeys from viewpoints in Mrs Shaw's rear garden. This is despite to ground level of that garden being elevated above the ground level on the subject land. From the front of No 2 York Street when viewed from the verandah there would be very little impact, as the amended proposal is well setback from the south. 61 Also, in coming to this conclusion to refuse consent, I have had regard to the submissions of Mr Fraser and to the evidence of Mr Vouros, who said that it would be unfair to his future potential for development of his property to allow a building that exceeds the 6m top floor height control that would block his future views. I am satisfied that it is necessary to take into account those future potential views. 62 I am also satisfied that from distant viewpoints on Brisbane Water the proposal would appear as four storeys against the backdrop of other buildings on the Gosford hillside. It would be preferable from a town-planning viewpoint for three-storey buildings to be erected near the waters edge and to step up the hill. The predominant building height in this area is limited to three storeys. I am satisfied that to allow a four storey building on a site on the waterfront roadway, would be contrary to the intent of the planning controls. 63 The present flat-roofed design is consistent with an appropriate response to the fourth question posed by Roseth SC in Tenacity, namely: With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. 64 Indeed, had a pitched roof been proposed in the original design, it would not have been unreasonable for the council in assessing that application to require its conversion to the style of the current approved design to provide view sharing consistent with this principle. Other matters Overall height control 65 The SEPP1 objection to the building envelope control or overall height control does not need to be addressed as the application fails for the reasons outlined above. Development in the vicinity of a heritage item 66 I accept the evidence of Ms Laidlaw in this regard that the proposed penthouse level would have little impact on the heritage significance of 'Nettaville' at No 2 York Street. 67 The amended proposal is now well set back from the southern elevation of the residential flat building under construction, so the proposed new level would not affect the York Street elevation of 'Nettaville'. Precedent 68 In Goldin and Another v Minister for Transport [2002] NSWLEC 75 his Honour Lloyd J held that in the interests of consistency precedent may be taken into account. Mr Eyre gave evidence in this case that there are a number of sites within the same residential zone that if amalgamated could be sufficiently large as to promote development similar to that being constructed on the subject land. He suggested that prospective developers of these sites might use as a precedent a breach of the top floor height to justify a fourth storey. 69 For the above reasons, the appeal is dismissed. Costs 70 As there were no submissions made in respect of costs, thus each party should pay its own costs. Orders 71 My orders are:
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Ingham Planning Pty Limited
The Council of the City of Gosford