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[2003] NSWLEC 340
appellant. The appeal was upheld. Development consent was granted for the specified three-storey, 14-dwelling residential flat building, subject to the conditions in Annexure A and by reference to the plans,...
The Council refused permission for a 14-apartment building, raising concerns about landscaping, appearance, and apartment amenity. The Court accepted that the proposal fell short of the LEP's 65% landscaped-area standard, but found that the particular site layout still provided strong opportunities for planting and accepted the SEPP 1 objection. It also did not accept the Council's other objections as sufficient grounds for refusal. The appeal was upheld and consent granted with conditions.
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JBL Developments Pty Ltd appealed to the Land and Environment Court after Sutherland Shire Council refused its application for a residential flat building at 17a and 19 Searl Road, Cronulla. The proposal involved demolishing two existing houses and constructing a three-storey building with 14 dwellings over basement parking for 19 cars ([1], [3], [5]). The site measured 1,420 m² and had a wedge shape, a 42 m frontage to Searl Road, and a long boundary adjoining a railway line ([2]).
No linked legislation citations have been extracted yet.
The land was in the 2(c) zone under the Sutherland Shire Local Environmental Plan 2000. The relevant zone objective described in the judgment was to support high-density residential development near shopping centres and railway stations, with coordinated, efficient and economical development of high-quality residential flat buildings ([7]). The LEP also imposed a minimum landscaped-area standard of 65% of the site. The applicant lodged an objection under State Environmental Planning Policy 1, Development Standards (SEPP 1), asking that the standard not prevent consent being granted ([7]–[8]).
The Council initially gave 11 reasons for refusal. At the hearing, it reduced its case to three principal objections: the landscaped area was below the LEP standard, the building would be too dominant in the street, and apartment amenity was poor ([5], [10]). The hearings took place on 9 and 10 December 2003. The document's front matter gives a judgment date of 12 December 2003, while the judgment heading states 15 December 2003. The orders uphold the appeal and grant consent subject to conditions and the identified plans and specifications (Orders 1–2).
The landscaped-area dispute concerned both the calculation method and the planning significance of the resulting shortfall. Clause 36 required 65% of the site to be landscaped, with at least half of the landscaped area being deep landscaping. The LEP definition included gardens, lawns, shrubs and trees, but excluded, among other things, buildings, driveways and parking areas. The standard's stated objectives were to provide opportunities for tree retention and planting, balance built form with unbuilt areas, and minimise impervious areas to contain urban run-off ([11]–[12]).
The experts differed about paved areas on top of the basement car-park slab. The Council's expert excluded them; the applicant's expert included them when they were near planting beds. The Commissioner preferred the applicant expert's approach, reasoning that, once the landscaped area was on a slab, paving or planting made no difference to urban run-off, while a considered balance between paving and planting could contribute to the site's appearance and the balance between built and unbuilt areas ([14]). But the experts also disagreed about the landscaped roof over the driveway. The Commissioner accepted the Council expert's view that this should be excluded because it was about 4 m above street level ([15]).
On the calculation the Commissioner accepted, the area was 835 m², or 59% of the site, leaving a shortfall of 88 m², approximately 6% of the site ([15]). The conclusion was therefore not that the numerical standard had been met. Rather, the Commissioner accepted the SEPP 1 objection after considering the site's particular characteristics and the standard's objectives ([16]–[18]).
The site was unusually shaped, with a major railway line along its longest boundary. The building was placed parallel to that line, leaving most landscaped area at the front. The landscaping plan indicated that the opportunity could be used for planting. The average width of deep landscaping along the frontage was about 6 m, and the average building setback about 12 m. The Commissioner considered that this arrangement provided an excellent opportunity to contribute to the objective of preserving and enhancing the Shire's tree canopy ([17]). He then stated that non-compliance with cl 36 was not a reason to refuse this application ([18]).
The visual-dominance objection focused chiefly on the driveway roof and the entrance structure, which included a staircase and pergola at the street frontage. The Commissioner did not treat the building's planar form as a sound basis for refusal, describing that criticism as an expression of architectural taste. He also noted that there were other flat-roofed buildings within sight ([19]). In comparing the proposal with surrounding buildings, he observed that those buildings had at-ground parking and were therefore a full storey higher, with unattractive garages visible from the street. A street did not need to have uniform buildings, and the Commissioner considered that this high-density street could accommodate significant variety ([20]). In that context, he regarded the entrance structure as a relatively minor feature rather than a visually dominant one ([21]).
The amenity criticism addressed lift access, orientation, cross-ventilation, apartment width, and whether the apartments related to the suburb's supposed seaside character ([22]). The layout used four separate staircases rather than a central corridor. The Commissioner considered that this allowed apartments to face both sides of the building and gave them better cross-ventilation and amenity. Providing lift access to the first-floor apartments would require four lifts for eight dwellings, which he regarded as tending to be uneconomical in this layout ([24]). The railway line to the north affected the choice of orientation: north-facing apartments would be exposed to train views and noise ([25]). The Commissioner did not accept the criticisms of cross-ventilation, width, or seaside character ([26]).
Finally, the Commissioner considered the proposal against SEPP 65 and cl 30(b) of LEP 2000. Although the Council's condensed issues did not expressly identify SEPP 65, the Commissioner considered whether the criticisms would also show a breach of its design principles. He rejected the claim that the proposal failed to contribute to the area's quality and identity. He also considered the LEP's special considerations concerning streetscape, the natural and built environment, and effects on adjoining properties, including size, bulk, height, and landscaped area. Having addressed those matters, he assessed the outcome as positive ([27]–[28]). The overall conclusion was that the objections did not justify refusal and that the proposal's positive aspects outweighed its negative ones ([29]).
The judgment describes the planning controls that applied to this proposal, but it does not set out a general account of the law before the decision or announce a new legal test. It identifies cl 36 of LEP 2000, the SEPP 1 objection, SEPP 65's ten design principles, and cl 30(b)'s special considerations for residential zones ([6]–[12], [27]–[28]). Its reasoning is principally an application of those controls to the particular design and site evidence.
The decision's clearest statement about the landscaped standard is specific: despite a 59% landscaped-area calculation against a 65% standard, the shortfall was not a reason for refusal because the site configuration and proposed landscaping offered a strong opportunity to meet the tree-canopy objective ([15]–[18]). The judgment does not say that a shortfall of this size, or any shortfall, will generally be acceptable. Nor does it set out a formula for deciding SEPP 1 objections in other cases. Its reasoning depends on the stated objectives and evidence about this site's shape, building placement, deep landscaping, and planting prospects.
The document lists “Pascoe-Webbe v; Sutherland Shire Council” under cases cited, but supplies no complete citation and does not discuss that case in the numbered reasons. No particular rule can safely be attributed to that authority from this judgment extract. The judgment also gives no later decisions or account of subsequent treatment. It is therefore not possible, on the supplied source alone, to describe how later courts have interpreted, followed, distinguished, or limited this decision.
The practical significance visible in the reasons is the method of assessment: the Commissioner first resolved what area counted under the LEP definition, then considered the numerical departure against the objectives of the standard and the physical opportunities on the site. That is a description of this judgment's reasoning, not a claim that the Court created a universally applicable sequence or binding test.
At [14], the Commissioner said: “In my opinion, Mr Crane's approach is the more logical.” The reference is to counting certain paved areas on top of the car-parking slab where they were near planting beds. In plain English, the Commissioner preferred an interpretation of the landscaped-area calculation that allowed paving and planting to be considered together on that slab, because the relevant objectives included both runoff and the balance between built and unbuilt space.
At [15], the Commissioner excluded the landscaped roof over the driveway from the calculation. The reason was that it was about 4 m above street level. The result was not a finding of compliance: the accepted total was 835 m², or 59% of the site, leaving an 88 m² shortfall from the 65% requirement. This distinction matters because the outcome followed from accepting the SEPP 1 objection, not from treating the standard as satisfied.
At [16], the Commissioner stated: “I accept that the Objection is well founded”. The following paragraph explained why: although the numerical figure was below the standard, the site's layout left substantial space for deep landscaping and planting along the frontage, with a building setback averaging about 12 m ([17]). In plain English, the Court considered the site's capacity to achieve the standard's tree-canopy objective rather than treating the percentage as the only relevant feature.
At [18], the Commissioner concluded: “Non-compliance with cl 36 of the LEP 2000 is not a reason for refusal.” Read in context, this is the conclusion for this development application after accepting the SEPP 1 objection and considering the stated objectives and design evidence. The judgment does not express it as a general dispensation from the LEP standard.
At [20]–[21], the Commissioner assessed the entrance structure in its actual street context. The surrounding apartment buildings were taller because they had at-ground parking, and the street already contained substantial apartment buildings. In plain English, the entrance was not assessed in isolation; its scale and appearance were considered against the built form and variety of the street.
At [24], the Commissioner explained the claimed amenity trade-off in the four-staircase arrangement. Apartments could face both sides of the building, which improved cross-ventilation and amenity, while lift access for eight first-floor dwellings would require four lifts. This records the design reasoning accepted in this case, not a general conclusion that lifts are unnecessary in residential flat buildings.
At [29], the Commissioner said: “On balance, the positive aspects outweigh the negative ones.” This sentence summarises the overall assessment of the issues raised by the Council and leads directly to the appeal being upheld.
The decision is most directly relevant to a planning dispute with a combination of features resembling those recorded here: a residential flat-building proposal in a high-density residential setting; a numerical shortfall from a landscaped-area standard; a SEPP 1 objection tied to the standard's objectives; and site-specific evidence that the available landscaped area can still make a substantial contribution to tree planting and canopy ([7]–[18]).
The detailed calculation may also be relevant where experts disagree about whether paved areas above basement parking count as landscaped area. This judgment accepted paved areas on top of the car-park slab where they were near planting beds, but excluded a landscaped roof over a driveway that was approximately 4 m above street level ([14]–[15]). A different definition, layout, elevation, or standard could produce a different analysis; the reasons do not establish that all paving above a slab should be counted.
The streetscape reasoning may be pertinent where an entrance structure or other feature is criticised as dominant, and the surrounding context includes substantial buildings and varied architectural forms. Here, the Commissioner considered the height and parking arrangements of neighbouring apartment buildings and the nature of Searl Road as a high-density street ([19]–[21]). The judgment does not say that a high-density setting automatically makes any design acceptable.
The amenity analysis may be relevant to proposals with multiple separate staircases, apartments facing both sides of a building, and a nearby railway line affecting orientation. The Commissioner considered cross-ventilation, lift economics, orientation, train views, and noise in the context of this design ([24]–[26]). It would be unsafe to detach any one of those observations from the specific layout and evidence.
The supplied judgment contains no later decisions, citations to subsequent cases, or history of appellate review. Its case list includes a truncated reference to “Pascoe-Webbe v; Sutherland Shire Council”, but the body of the judgment does not identify a complete citation or explain how that case relates to the decision. No account of later judicial treatment can therefore be provided from this source.
The decision itself is a Land and Environment Court judgment by Senior Commissioner Dr John Roseth. The extract records that the appeal was upheld and consent granted subject to conditions (Orders 1–2), but it does not state whether the decision was appealed, affirmed, reversed, followed, or distinguished later. Any claim about subsequent treatment would require material beyond the judgment supplied here.
The judgment does not explain the complete statutory or case-law framework governing SEPP 1 objections. It states that the objection was well founded and identifies the relevant landscaped-area objectives, but it does not formulate a general test or discuss other authorities setting out the legal approach ([11]–[18]). A fuller account of the applicable framework cannot be reconstructed from these reasons alone.
The extract also does not reproduce Annexure A, the conditions of consent. It identifies that consent was subject to those conditions and lists the plans and specifications used to determine the application, but the detailed conditions are not included in the supplied text (Order 2). The document therefore does not reveal the full operational requirements attached to the approval.
Other unanswered matters include the final detailed landscaped-area plan as conditioned, whether the proposed planting was later carried out, and how the approved development performed in practice. The judgment records the Commissioner's view of the planting opportunity, not the eventual landscaping outcome ([17]). It also does not state whether the decision was appealed or how later courts treated it.
There is a date discrepancy within the document: the front matter records 12 December 2003, while the judgment heading says 15 December 2003. The extract provides no explanation for the difference. It also includes an incomplete case-list entry for Pascoe-Webbe v Sutherland Shire Council without a full citation. Those source limitations should be kept distinct from the reasoning that can be extracted from the numbered paragraphs.
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Introduction 1 This is an appeal against the refusal by Sutherland Shire Council (the council) of a development application to erect a three-storey residential flat building containing 14 dwellings on lots A and B DP 361914, known as 17a and 19 Searl Road, Cronulla.
The site 2 The site is wedge-shaped, with a 42m frontage to Searl Road, a northeast boundary to the railway line of 62m and a 43m west boundary to an adjoining residential flat building site. The site's area is 1,420m2. Searl Road and surrounding streets are developed with three to four-storey apartment buildings. The site is the last un-redeveloped property in the street.
The proposal and its history 3 The applicant proposes to demolish the two existing houses on the site and to erect a three-storey apartment building containing 14 dwellings over basement car parking for 19 cars. The apartments on the ground floor have access to courtyards. The apartments on the first floor are two-storeys and are accessed via four separate staircases. This allows the apartments to face both the front and the rear of the building and to receive cross ventilation. 4 The basement carpark is entered from the western side of the Searl Road frontage. A landscaped roof covers the driveway, about 4m above the road level at the street frontage. Adjoining the driveway is a staircase leading to the carpark and a pergola defining the pedestrian entrance.
5 The applicant lodged the development application in July 2002. Following notification, the council received one objection on the grounds that there are already too many flats in Cronulla. The council referred the proposal to the Architectural Review Advisory Panel, which concluded: "the internal planning is somewhat mean and will ultimately produce an overdevelopment of the site". In July 2003 the council accepted the recommendation of its planning staff to refuse the application. It provided eleven reasons for refusal. The applicant lodged the appeal in August 2003.
Relevant legislation, planning instruments and policies 6 State Environmental Planning Policy 65 - Design Quality of Residential Flat Development (SEPP 65) establishes ten design principles against which proposals for apartment buildings should be assessed. 7 Local Environmental Plan 2000 (LEP 2000) zones this site 2(c). The relevant part of the objective of the zone is to produce a high-density residential environment, in close proximity to the major shopping centres and railway stations, and with coordinated efficient and economical development of residential flat buildings of high quality design. The LEP contains a minimum landscaped area standard, expressed as 65% of the site's area.
8 State Environmental Planning Policy 1 - Development Standards (SEPP 1) under which the applicant has lodged an Objection to the minimum landscaped area standard.
9 Development Control Plan for Residential Flat Buildings (the DCP) establishes detailed controls for apartment buildings. The issues 10 The council submitted a Statement of Issues containing 16 issues. At the commencement of the hearing the council's advocate Mr S Griffith, reduced these to three issues, namely: · The landscaped area is short of that required by LEP 2000; · The proposed building is too dominant in the street; and · The amenity of the apartments is poor.
Landscaped area 11 Clause 36 of LEP 2000 requires a minimum of 65% of the site's area to be landscaped area, and at least half of the landscaped area to be deep landscaping. The LEP defines landscaped area as follows: Landscaped area means any part of the site of a building or a proposed building that contributes to achieving the objectives of the landscaped area development standards of this plan. The site is taken to be only that part of the site zoned to permit the development for which the building is proposed to be used.
Landscaped area includes any areas used for gardens lawns, shrubs or trees, but does not include any part of the site occupied by buildings, driveways, service access ways, parking areas, communal drying yards, garbage storage areas, swimming pools, balconies or decks. 12 The objectives of the landscaped are requirement are: (a) To ensure opportunities for tree retention and tree planting to preserve and enhance the tree canopy of Sutherland shire; and (b) To ensure that unbuilt upon areas balance the built form; and (c) To contain urban run-off flows by minimising the impervious areas on residential development sites. 13 The DCP contains its own different definition; however I have not taken this into account since the DCP cannot change the LEP's definition. In a rational world the two definitions would be the same. 14 The council's planning expert, Mr M Adamson, calculated the landscaped area differently from the applicant's expert, Mr D Crane. The difference between them was that Mr Adamson excluded all paved areas on top of the carparking slab, while Mr Crane included them where they were near planting beds. They both included planting beds on top of the slab. In my opinion, Mr Crane's approach is the more logical. Once the landscaped area is on top of a slab, paving it or treating with planting beds makes no difference in relation to urban run-off. On the other hand, a well-considered balance between paving and planting results in an attractive landscaped space. Paving and planting can equally contribute to objective (b), namely the balancing of built form with unbuilt upon areas.
15 A second difference between Mr Adamson and Mr Crane was that Mr Crane included the landscaped roof over the driveway, while Mr Adamson excluded it on the ground that it was 4m above the street level. On this point Mr Adamson's approach is the more logical. Accepting Mr Crane's inclusion of paved areas, but excluding the roof over the driveway, the landscaped area is 835m2, or 59% of the site. There is a shortfall of 88m2, or about 6% of the site.
16 The evidence included an Objection under SEPP 1 to the landscaped standard of 65%. The written Objection was supplemented by Mr Crane's oral evidence. I accept that the Objection is well founded, for the following reasons.
17 The site is an unusual shape, with a major railway line running along its longest boundary. The building is placed parallel to the railway line, leaving the majority of the landscaped area to the front and providing ample opportunity for planting. The landscaping plan suggests that the applicant will make the most of this opportunity. The average width of deep landscaping along the site's frontage is about 6m. The average setback of the building is about 12m. Despite the fact that the landscaped area is less than 65% of the site, it provides an excellent opportunity of achieving objective (a) of the standard, namely to provide opportunities for tree planting to preserve and enhance the tree canopy of Sutherland shire.
18 Non-compliance with cl 36 of the LEP 2000 is not a reason for refusal.
Visual dominance in the street 19 Mr P Brooker, an architect, joined Mr Adamson in opposing the proposal on the basis that it would appear too dominant in the street. As I understood it, the main objection was to the roof over the driveway and the entrance structure consisting of a staircase and pergola. This structure is at the street frontage. Mr Brooker also objected to the "planar form" of the building. I propose not to take this into account, since it is an expression of architectural taste. I note that there are other flat-roofed building within sight. 20 Mr Adamson noted that the other buildings in the street were set back without driveways and entrance structures at the street frontage. However, the other buildings have at-ground parking and are therefore a full storey higher than the proposal. Their unattractive garages can be seen from the street. I do not think that the existence of an entrance structure (which by its very nature must be at the street frontage) would be perceived as a visual disturbance just because other buildings do not have it. No one suggested that the other apartment buildings in the street had any particular design merit and should be imitated. Most streets can cope with a certain amount of variety. Searl Street, being a high-density street, can cope with a significant amount of variety. 21 I note that the subject site is the only site that still contains single-storey detached houses in this high-density zone, the rest having been developed to substantial-looking apartment buildings. To criticise a relatively minor entrance structure in this visual setting on the grounds that it is dominant, seems to me unjustified.
The amenity of apartments 22 Mr Brooker criticised the planning of the apartments on the following grounds: · There is no lift to all the apartments, despite the DCP's requirement for a lift. · The two-storey dwellings are not oriented to the north. · There are not enough dwellings with good cross ventilation. · The dwellings are too narrow and they do not relate to the "seaside" atmosphere of the suburb. 23 Mr Brooker agreed that none of the above was determinative on its own, though together they added up to sufficient grounds for refusal. 24 In my opinion, the criticisms are not justified. The planning of the building is based on four staircases. The great advantage of this layout is that the apartments face towards both sides of the building, unlike apartments along a central corridor that face only in one direction. In this way the apartments have much better cross ventilation and amenity. However, without a central corridor the provision of lifts tends to be uneconomical. To provide lift access to the first floor apartments in this proposal, four lifts would be needed to serve eight apartments.
25 The orientation of the dwellings is influenced by the location of the railway line to the north. If the dwellings were oriented to the north, they would have to suffer the view and noise of the train.
26 I do not understand the criticism regarding lack of cross ventilation. The dwellings in this proposal have excellent cross ventilation. I also do not understand the criticism regarding the narrow width of the dwellings, nor their lack of relationship to "seaside" atmosphere. I perceived no seaside atmosphere in the existing buildings in Searl Road. They looked to me just like blocks of flats anywhere in Sydney. S E PP 65 and LEP 2000 27 SEPP 65 includes ten design principles. While the condensed issues did not specifically relate to SEPP 65, if the council's criticisms were justified, the proposal would also offend one or more of these principles. According to Mr Adamson the proposal offends the principle that residential flat development contribute to the quality and identity of the area. I do not accept this. For reasons explained above, the proposal meets the principle. 28 In addition, Mr Adamson said that the proposal offends also several of the Special Considerations in Residential Zones in cl 30(b) of LEP 2000. These consideration relate to the effect on the quality of the streetscape and the natural and built environment, and the impact on adjoining properties in terms of size, bulk, height and amount of landscaped area. I have already determined these issues above. The assessment of the proposal against the special considerations results in a positive outcome. 29 In my opinion, the council's objections to this proposal do not justify refusal. On balance, the positive aspects outweigh the negative ones. The appeal is therefore upheld.
Orders
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JBL Developments Pty Ltd
Sutherland Shire Council
CITATION : JBL Developments Pty Ltd v Sutherland Shire Council [2003] NSWLEC 340 Applicant: JBL Development Pty Ltd PARTIES : Respondent: Sutherland Shire Council FILE NUMBER(S) : 10923 of 2003 CORAM: Roseth SC KEY ISSUES: Development Application :- non-compliance with landscaped area standard Objection under SEPP 1 LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Sutherland Shire Local Environmnetal Plan 2000 CASES CITED: Pascoe-Webbe v; Sutherland Shire Council DATES OF HEARING: 09/12/03 and 10/12/03 DATE OF JUDGMENT: 12/12/2003
The appeal was upheld. Development consent was granted for the specified three-storey, 14-dwelling residential flat building, subject to the conditions in Annexure A and by reference to the plans, specifications, landscape material, drainage plans, and schedule of finishes identified in Order 2.