DEVELOPMENT APPLICATION: Seniors livingfurther amended plansurban designcharacter
Judgment (5 paragraphs)
[1]
The applicant's position
Mr McKee identifies the four elements deemed by the urban designers to require detailed consideration; in assigning a hierarchy, Mr McKee suggests that the first two items - front setback and central courtyard, have been resolved by the amendments. The narrow view up through the central spine is screened with centrally located deep soil planters which can accommodate taller trees. In addition Mr McKee notes Mr Newbold's acceptance of the communal areas of open space in the central area and at the rear. In response to a criticism from council about the focus on the central spine, Mr McKee asserts that this is necessary in order to orientate most living areas and terraces to the north.
Mr McKee maintains that the essential question is what is the bulk and scale? He notes Brown ASC's findings in [19] that a 'deemed to comply' FSR of 0.5:1 will have a character different to the existing character but would be deemed to be acceptable in terms of density and scale. The proposal now has an FSR of less than 0.5:1 and apart from the majority of the deep soil at the rear of the site; there is compliance with all key elements of the SEPP. Mr McKee maintains that the proposed development is completely consistent with the rhythm of the street and that the setbacks are appropriate.
Regarding the streetscape, which Mr McKee contends is the key issue. He highlights the changes to the front setback including a new street tree, increased landscaping, and the provision of a low wall. Mr McKee notes the fact that there will be two dwellings facing the street and the roof elements which have been modified. Mr McKee stresses that all of these changes ensure the proposal is compatible with the streetscape character and meet the guidelines in the Seniors Living Policy.
In respect of neighbour issues, Mr McKee refers to the letter (Exhibit F) written on behalf of the owners of the property to the south, the most affected property, who advise they no longer object to the proposal as long as there is substantial landscaping of an appropriate level of maturity provided along the southern boundary in order to mitigate the visual impacts of the development. He also considers the relationship with the neighbour to the north to be acceptable. In regards to a complaint from the owner of 9A Grandview Parade about visual and acoustic privacy Mr McKee notes the separation distance between the development and that property as well as the relative height of the new dividing fence which will screen the majority of dwelling 4. He submits that the rear setback of 7.5m to the wall of unit 4 is acceptable when combined with the 3m setback of the villa development to the west.
On the issue of internal amenity, in response to Mr Newbold's concerns about unnecessary voids and the resultant height of units 2, 3 and 4, Mr McKee contends that these are to allow additional light into the living rooms thus providing a high level of amenity. He stresses that all except units 2 and 3 achieve the minimum hours of sunlight required by the SEPP.
Concerning the final item on the list - building form and architectural details Mr McKee describes these as the "icing on the cake". In regards to the difference in opinion between the urban designers about some of the details, Mr McKee presses the Planning Principle in Architects Marshall v Lake Macquarie City Council [2005] NSWLEC 78 where the former Senior Commissioner Roseth considered the weight to be given to an expert's opinion about the appropriateness of a building's style, character, material or colour. He asserts that Mr Newbold's suggestions about further improvements are opinions which are personal and which go to detail rather than the substance of the matter. Although on the matter of architectural details, Mr McKee notes the agreed materials and finishes; the deletion of window hoods, louvres and steel struts; the inclusion of a verandah/ pergola; lowering of retaining walls; balustrade changes; and agreed change in roof pitch to 15 degrees.
Mr McKee concludes that the proposed development should be approved.
[2]
The council's position
In final submissions, Mr Nash contends that although the FSR has been reduced, the character test remains. He asserts that there has been no substantial change in the proposal that Acting Senior Commissioner Brown assessed and refused in 2015 and what is now proposed. He cites paragraphs [17] and [18] of that judgment to support his contention that the proposal is still out of character with its surroundings.
[17] In considering how the development relates to the surrounding nearby development and the specific provisions in SEPP Seniors, I agree with the conclusions of Ms Hang, but not for all the reasons she states in her evidence. Ms Hang and Mr Harding agree that the area is not a precinct undergoing a transition, as referred to in cl 33(a). The desirable elements of the location's character were more accurately described by Ms Hang as a one and two storey attached residential development. In my view, a more expansive description would include that the one and two storey developments are generally set in a landscaped setting, with the dwelling located near the street frontage and the rear area used for the recreational needs of the occupiers. The multi-unit housing development opposite the site is more of an aberration to this established character and should not be used in any consideration of determining the general character of the area.
[18] I am satisfied that the proposed development will have unacceptable impacts on existing uses by way of its bulk, scale and built form on the surrounding low density residential development. The proposal does not recognise the desirable elements of the location's current character, largely because of the amount of floor space spread across the site and the visibility of this floor space from adjoining residential properties, brought about largely by the small rear and side setbacks.
Mr Nash submits that Mr Newbold has maintained his position that further improvements to architectural style and built form of the development are required, in particular the lowering of ridge heights and ceiling heights and modifying the roof forms, in order for the proposed development to be compatible with the surrounding land uses. He contends that these differences between the urban designers are more than simple details and go directly to council's primary concerns regarding the uncharacteristic built form of the proposal in its setting in Grandview Parade. Mr Nash presses Mr Newbold's evidence in full.
Apart from the uncharacteristic built form, Mr Nash asserts that the applicant is relying very heavily on landscaping for which there is no definitive statement on the type and extent of landscaping that would be required; as such this reliance should be given little weight. He cites the Planning Principle in Super Studio v Waverley [2004] NSWLEC 91 at [6] where former Senior Commissioner Roseth states:
6 The second principle is that where proposed landscaping is the main safeguard against overlooking, it should be given minor weight. The effectiveness of landscaping as a privacy screen depends on continued maintenance, good climatic conditions and good luck. While it is theoretically possible for a council to compel an applicant to maintain landscaping to achieve the height and density proposed for an application, in practice this rarely happens.
In Returning to Brown ASC's decision, Mr Nash contends that it is not just a matter of viewing the proposal from the street, the views from neighbouring properties and likely internal views should also be considered.
In regards to other planning matters, Mr Nash submits that the controls in PDCP remain relevant and SEPP Seniors Living does not overcome the need to undertake a merit assessment under s 79C of the Act. He notes the agreement that the proposal is a form of multi dwelling housing and therefore the building envelope controls in Part 3.1 PDCP are applicable; in particular the rear setback control of a minimum 15% of the site, which in this case is 9m. Mr Nash asserts that this would be more in keeping with the properties to the north and south and more deep soil could be located in the rear as suggested by the SEPP. He also reiterates council's experts' concerns as to the accuracy of the shadow diagrams. While the sunlight to living rooms may be compliant for 70% of the dwellings, there are still concerns about the amount and quality of sunlight to the living room of unit 1 and terrace of unit 7. Similarly, while access between units has generally improved, Mr Nash highlights the blocked access between units 7 and 8 and the absence of an updated accessibility report.
Overall, Mr Nash contends that the proposal still fails to respond to the character of the area and does not adequately respond to the relevant matters in the Seniors Policy or all applicable controls in PDCP and for these reasons the appeal should be dismissed.
[3]
Consideration
Section 79C(1) of the EPA Act requires the consent authority to take into account a range of matters relevant to the proposed development including any environmental planning policy, any development control plan, likely impacts of the development, suitability of the site, any submissions made, and the public interest.
It is agreed that SEPP Seniors Living effectively permits medium density forms of development in low density residential areas however, in doing so cl. 40 sets development standards to be achieved. The maximum building height for development in residential zones is 8m or less. I note that while the majority of the development complies with this limit, Driveway section 01 on Drawing DA-08 shows a portion of unit 8 above this height limit; this was not identified by any of the experts.
Clause 50 lists the standards that cannot be used to refuse development consent for self-contained units, including in-fill development. The proposal complies with these standards with the exception of the height exceedence identified above and the preference that two thirds of the deep soil zone be located at the rear of the site. In regards to deep soil, and notwithstanding the established character of the western side of Grandview Parade is that the majority of deep soil areas are located in the rear portion of the lots, I accept the applicant's position that in this instance, distributing the deep soil zones throughout the site enables potentially better amelioration of the visual dominance of the built form across the site and the proposal should not be refused on the basis of the distribution of deep soil zones.
Overall, I am not satisfied that the Issue C plans adequately respond to the issues identified by the urban designers in their joint report; this is underlined by the number of further amendments recommended during the hearing. For example, the Issue C plans include a number of incongruous features, in particular the heavy struts on sections of the roof overhang, and which needed further consideration by the urban designers. Neither am I fully satisfied that the proposal has sufficiently responded to council's contentions, in particular compatibility with the surrounding land use and aspects of PDCP.
As the design changes were effectively done "on the run" I am not satisfied that conditional approval can be granted. In my view, the agreed additional changes recommended by the urban designers, which I consider should be implemented as a bare minimum, will require a full suite of plans as some of the recommended design amendments will have consequences for other essential aspects of the proposal and other consequences may be unforseen without further detailed drawings. In essence, these would be Issue D plans. There is insufficient certainty to impose the urban designers' suggestions as formal conditions, including as deferred commencement conditions. Given the number of times these plans have already been amended, and after many hours of thought, I am reluctant to prolong the uncertainty by agreeing to an "amber light" approach.
For example in regards to drainage and stormwater, the OSD will have to be relocated and new calculations and details may be required to accommodate drainage from the planter boxes. Where will this be located? During the hearing, feedback from council's engineering and landscape officers in response to the Issue C plans identified other potential conflicts between stormwater pipes and landscaping and pipes from adjoining properties. Similarly, the recommendations to reduce the pitch of the roof from 18º to 15º, to change the roof form and to set back certain elements, all of which prima facie seem appropriate, may have implications for the internal layouts of rooms.
In regards to the feedback from council's landscape officer, no contentions were raised about the species choice or the location of the trees. It would seem to me that small to medium deciduous trees, possibly other than Sapium, can provide better amenity than natives if winter sun is required. Similarly requiring a setback of 3.5m to the outside wall of a structure would seem to preclude tree planting from many developments and would therefore seem counter-productive. However, the comments in regards to drainage are reasonable and consistent with other observations made in this judgment.
In principle I am satisfied that the further agreed amendments which simplify the street frontage, remove excessive paving, incorporate more deep soil landscaping and modify the architectural detailing of units 1 and 8, are such that the impact on the streetscape is acceptable and should not be a reason for refusal. In regards to Mr Newbold's additional suggestions for further modifications of roof forms, I find that the minimum agreed modifications would probably suffice.
However, notwithstanding a 'cannot refuse' FSR, I find that the massing of the dwellings across the site, six of which are two storey, and the limited separation distances between them will have unacceptable visual amenity impacts on the surrounding low density residential development and on the internal visual amenity of future residents.
Section 1 of the Seniors Living Policy directs a user of the policy to council controls that may identify elements that contribute to character. While I note that the urban designers considered the urban design aspects of the SEPP and the associated Policy, they do not appear to have had regard to PDCP.
As considered during the hearing, the proposal is a form of multi-dwelling housing. Part 3.3.3 PDCP considers visual and acoustic privacy. Control C4 which applies to this form of housing provides controls of between 3m and 12m between various habitable/non-habitable rooms and areas of private open space. While the urban designers appeared to accept the internal separation is satisfactory by relying on the enhanced landscaping suggested by them, I am not satisfied that this can be relied upon absent more detailed landscape/ architectural plans which demonstrate that there is sufficient volume of drained soil for sustained success. Further, the surrounding character is one of detached dwellings with clear separation between them. While full compliance with the separation controls would be unreasonable, given the intent of the SEPP, some further separation of the units, without encroaching onto any of the current setbacks or compromising areas of private open space, would assist in reducing the visual impact of the massing of built form, both from within the development and from the adjoining properties. In essence, this is consistent with the second planning principle proposed by former Senior Commissioner Roseth in GPC No 5 (Wombarra) Pty Ltd v Wollongong City Council [2003] NSWLEC 268. The planning principles in that judgment consider the issue of compatibility between a SEPP 5 (the SEPP replaced by SEPP Seniors Living) development and the surrounding low density residential zone. At [16] he states:
16 The second principle is that where the size of a SEPP 5 development is much greater than the other buildings in the street, it should be visually broken up so that it does not appear as one building. Sections of a building, or separate buildings should be separated by generous breaks and landscaping.
However, if the further amended plans demonstrate that the proposed landscaping is sustainable and that modifications to the roof form result in better internal and external visual amenity, further separation may not be required for all or any of the units.
In regards to the submissions made by residents, traffic and on-street parking issues were not raised by council. Subject to confirmation by a swept path analysis, the proposed level of parking complies with the SEPP. The further changes recommended by the urban designers should address the concerns about architectural details, character and visual impact.
Overall, I consider that the site is suitable for a Seniors Living development and is generally in the public interest.
[4]
Conclusions and Orders
It is clear from the zone objectives that a Seniors Living development is permissible and could be accommodated on the site and with some further amendments, should be capable of approval. While I accept, as did Brown ASC, that applications lodged under SEPP Seniors Living will have a different appearance to the low density residential character of the area, the SEPP and the Policy consistently refer to 'good design', the need to provide 'high level amenity' and the need to respect the privacy and amenity enjoyed by existing neighbouring properties. As Grandview Parade is not an area undergoing transition a more sympathetic contextual approach, as encouraged by the Policy, is required. Although the Issue C plans appear to have achieved a better outcome than the Issue B plans, they have not gone far enough.
For the reasons provided, the Orders of the Court are:
1. The applicant is granted leave to rely on amended plans (Issue C).
2. Pursuant to s 97B of the Environmental Planning and Assessment Act 1979 the applicant is to pay the respondent's costs thrown away as a result of amending the development application as agreed or assessed.
3. The appeal is dismissed.
4. Development Application DA 874/2015 to demolish existing structures on two lots, consolidate the lots, and construct an in-fill, self-care residential development comprising eight units at 5-7 Grandview Parade Epping is refused.
5. The exhibits are returned.
Judy Fakes
Commissioner of the Court
[5]
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Decision last updated: 21 July 2016
Parties
Applicant/Plaintiff:
Lexington Homes Pty Ltd
Respondent/Defendant:
City of Parramatta Council
Cases Cited (5)
Relevant background
In March 2015, the applicant lodged a development application seeking consent for the demolition of structures, lot consolidation and the construction of a ten unit in-fill, self-care residential development on the site. Council refused consent and the matter proceeded to Court. On 6 November 2015, Brown ASC dismissed the appeal and refused development consent (Lexington Homes Pty Ltd v Parramatta City Council [2015] NSWLEC 1503).
In December 2015 the applicant lodged DA 874/2015 (the DA). The respondent's Statement of Facts and Contentions (SFC), filed with the Court on 5 May 2016, lists the internal referrals and describes the progress of the matter.
In February 2016 the applicant submitted amended plans to council; the council wrote to the applicant requesting the withdrawal of the DA.
The applicant filed the Class 1 Application with the Court on 23 February 2016. The file note on the Court's file states that at the Registrar's Directions Hearing on 22 March 2016, the parties agreed that there was no utility in having the matter listed for a conciliation conference under s 34 of the Land and Environment Court Act 1979 (Court Act).
The amended plans were renotified.
On 29 March 2016, the applicant filed a Notice of Motion to rely upon amended plans (Issue B); the Registrar granted leave on 13 April 2016 and the usual orders/timetable made for joint conferencing of relevant experts, and the filing of evidence and other documents.
Relevant to the hearing dates set down for 6-7 June, the parties' Urban Design experts, Mr Peter Smith for the applicant and Mr Brett Newbold for the council, both of whom are architects, prepared a joint report on 30 May (Exhibit 3). The report addresses the urban design issues raised in council's SFC. As a consequence of the very detailed analysis of the plans in the light of the contentions raised by council, the urban designers identified a number of design changes that, in their opinion, would resolve many of those concerns. The changes address elements of the front setback, central courtyard, internal layout and overall building form and architectural detailing.
In response to this feedback, on 2 June 2016 the applicant prepared further amended plans (Issue C). These were forwarded to the council, and it appears from a letter to the council from the applicant's solicitor (Exhibit E) listing the changes to the plans, that council recommended the applicant discontinue the proceedings. The applicant advised that discontinuance was not an option as the amendments were minor, and were likely to resolve the proceedings.
In response to the amended plans, council prepared an Amended Statement of Facts and Contentions (Exhibit 6). While some particulars were deleted, others were inserted.
The hearing commenced on site and a number of local residents made oral submissions (discussed elsewhere in this judgment).
Upon return to Court, the applicant sought leave to rely on further amended plans - Issue C. While the amendments were opposed by council it was agreed that the urban designers be questioned and the changes to the plans highlighted. This was necessary as the Issue C plans do not show the changes in the usual way. This process proceeded as a form of voir dire and took most of the first day.
In oral evidence, the urban designers provided clarification of their agreed position and remaining points of difference. Further improvements were identified and some discussion of possible conditions ensued.
Ms Hang, council's planner and the officer who assessed the development application, opined that the changes identified by the urban designers would need further amendments to the plans and additional supporting information including new elevations and sections, a new BASIX certificate, a swept path analysis of the basement and checking to determine compliance with the Building Code of Australia (BCA). Ms Hang considered that the plans should be re-notified.
Mr McKee for the applicant and Mr Nash for the council made submissions on whether or not leave should be granted to rely on the amended plans.
In opposing leave, Mr Nash identified a number of grounds including procedural matters such as the absence of an affidavit supporting the amendments and failure to comply with the Court's Class 1 Development Appeals Practice Note. In council's view the amendments are not minor, are more than 'fine-tuning', and require further internal referrals for comments on possible consequential impacts on traffic, landscaping and parking as well as renotification. Mr Nash, in asserting that the applicant's approach was an abuse of process, cited Brown ASC in State Projects Pty Ltd v Hurstville City Council [2015] NSWLEC 1443 at [65] - [67] to support his contention. It was suggested again that the applicant discontinue and resubmit the development application to council for further assessment. Mr Nash also noted that the applicant had ample notice of the urban design issues raised in council's contentions and that an urban designer should have been engaged in a more timely manner.
In support of the further amended plans, Mr McKee presses subclauses 55(1) and (2) in the Environmental Planning and Assessment Regulation 2000 which enable a development application to be amended, with the agreement of the consent authority, at any time before the application is determined, and if it has attached to it, written particulars indicating the nature of the change. He contends that the amendments have come from the joint conferencing process and in the interests of a just, quick and cheap resolution of the matter, the Court should grant the applicant leave to rely on the Issue C plans.
In arguing against the need to renotify the plans, Mr McKee noted that the only significant change was the lowering of unit 7 by 218mm which would decrease overshadowing. He maintained that the other changes, such as additional landscaping in the front setback, were improvements; the proposed changes to the windows would not require a new BASIX certificate; and the basement is sufficiently wide to enable manoeuvrability.