Long, Whale & Plant Pry Limited v Wyong Shire Council

Long, Whale & Plant Pry Limited v Wyong Shire Council - [2007] NSWLEC 309 - NSWLEC 2006 case summary — Zoe

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JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Wyong City Council (the council) of a development application (1474/04) under the Environmental Planning and Assessment Act (EPA Act) to demolish the existing dwellings and construct a residential flat building at 53 - 57 Gilbert Street, Long Jetty (the site). 2 For the reasons set out in this judgment, I have concluded that the appeal should be dismissed and the development application refused. The site and its context 3 The site is located on the western side of Gilbert Street. It comprises three allotments being lots 65, 66 and 67 DP 20749 each containing a single dwelling house. Each allotment is rectangular in shape with a width of 15.24m, a depth of 45.72m and an area of 696.8sqm. The combined frontage of the allotments to Gilbert Street is 45.72m with an overall area of 2090.4sqm. The site has a fall of approximately 4.5m from south to north. 4 Adjoining the site to the south is a single storey house (59 Gilbert Street) which adjoins a large water tank. To the north is a two storey dwelling (51 Gilbert Street) and to the west is a recent town house development (18 Nirvana Street) and single dwellings (16 and 20 Nirvana Street). Surrounding development is residential being predominantly one and two storey single dwellings with some recent town house developments. The history of the proposal 5 The development application was lodged on or around 28 June 2004. The proposal was advertised and three submissions were received. The Central Coast Design Review Panel (the Panel) considered the application on 13 October 2004 and recommended refusal. 6 On 16 February 2005 the applicant submitted amended plans. On 18 February 2005 council refused the application. The applicant lodged an application for review under s 82A of the EPA Act on 5 April 2005. The Panel considered the s 82 Review on 3 August 2005 and again recommended refusal of the application. 7 On 5 February 2006 council resolved to refer the matter to the General Manager for determination noting that it adhered to its previous decision to refuse the application. 8 The appeal was lodged on 23 May 2006. 9 On the first day of the hearing, the Court visited the site and surrounding area and heard evidence from Mr R N Dickson, the Court Appointed Expert on planning and urban design, Mr J Hancock, town planner for the applicant and Mr S Moore, the architect who reviewed the proposal for the applicant. 10 Upon return to Court, Mr Fraser for the applicant, sought the revocation of Mr Dickson as a the Court Appointed Expert and that his evidence be excluded from the proceedings on the basis that Mr Dickson or his firm has contractual commercial arrangements with the council. For the reasons which I gave on 9 November 2006. I did not accept Mr Fraser's submission. The applicant also sought leave to rely on amended plans, which was granted. The Proposal 11 The proposal is for the demolition of the existing dwellings and the construction of a three storey residential flat building with 17 units and parking for 33 cars accessed off Gilbert Avenue. Planning Framework 12 The site is zoned Residential 2(c) Medium Density Residential under Wyong Local Environmental Plan 1991 (LEP 1991). A residential flat buildings is permissible within the zone with consent and is defined as:

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(1) After receipt of a development application for consent to carry out residential flat development and before it determines the application, the consent authority is to obtain the advice of the relevant design review panel (if any) concerning the design quality of the residential flat development. (2) In determining a development application for consent to carry out residential flat development, a consent authority is to take into consideration (in addition to any other matters that are required to be, or may be, taken into consideration): (a) the advice (if any) obtained in accordance with subclause (1), and (b) the design quality of the residential flat development when evaluated in accordance with the design quality principles, and (c) the publication Residential Flat Design Code (a publication of the Department of Planning, September 2002). The issues 27 The Statement of Issues before the Court contained 4 issues which included a number of sub issues. The key issues can be summarised as: i. Whether proposed development will result in 59 Gilbert Street being an isolated site with reduced development potential. ii. Whether the height, bulk and scale of the development will have an acceptable impact on the existing and future character of the area. iii. Whether the internal amenity of the proposal is adequate. iv. Whether the proposal has an acceptable impact on adjoining properties. The Evidence Isolation of 59 Gilbert Street 28 The potential isolation of 59 Gilbert Street is an issue for two reasons. Firstly, in relation to the eligibility of the site for the FSR bonus in DCP 64 and secondly, whether the development potential of 59 Gilbert Street would be unreasonably limited or impacted upon by not being included in the site and by the proposal itself. 29 The parties agreed that the planning principles in Melissa Grech v Auburn Council [2004] NSWLEC 40, Cornerstone Property Group Pty Ltd v Warringah Council [2004] NSWLEC 189 and Karavellas v Sutherland Shire Council [2004] NSWLEC 251 were relevant. 30 The experts agreed that a better planning outcome and greater development potential would be likely if 59 Gilbert Street were amalgamated with the site. The key difference of opinion between the experts was that Mr Hancock considered the proposal provided basement parking and therefore met the precondition for the bonus provision. Also, 59 Gilbert Street could be amalgamated with allotments to the rear fronting Nirvana Street and was therefore not isolated. Alternatively, it could be developed as a single allotment with a villa or town house development, similar to development on other allotments, including 18 Nirvana Street. Mr Hancock did not consider that the proposal would impact on the amenity of any future development of 59 Gilbert Street. 31 Mr Dickson considered that as parts of the car park protruded significantly above natural ground level the development did not satisfy the precondition of the bonus provision. In his opinion, it is unlikely that the site would be amalgamated with allotments facing Nirvana Street and can not be amalgamated to the south because of the presence of the water reservoir. The width of 59 Gilbert Street would limit any development to a row of villa or town houses, even if it could be amalgamated to the rear. The development on the site would impact on the amenity of development on 59 Gilbert Street, particularly its solar access.

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Inherent in the concept of whether amalgamation is feasible is whether it is also reasonable. ….I do not see it is the role of the Court to enter into negotiations on a final purchase price but rather to be satisfied that a reasonable offer has been made…… 37 Adopting and applying the first principle in Cornerstone and Karavellas to the present case, from the limited evidence before the Court it is not possible to determine whether amalgamation of the 59 Gilbert Street with the site is feasible or whether a reasonable offer has been made. 38 In applying the second principle in Cornerstone, no indicative building envelope has been prepared. Nonetheless, based on the redevelopment of other similar sites, I accept that 59 Gilbert Street can be developed as a separate site. However, the proposal as it is currently designed will severely impact on the amenity of any likely development of 59 Gilbert Street, mainly due to the extent of overshadowing. If it is assumed that development of 59 Gilbert Street would be similar to other medium density development on similar shaped allotment then it would be in the form of a row of villas or town houses with their living areas and open space facing to the north (and the subject site). Unless these areas are elevated above ground they will be overshadowed by the proposal for most of the day. 39 I do not accept Mr Fraser's submission that the poor solar access approved for other developments justifies a similar situation for 59 Gilbert Street. While the proposal generally complies with the setback requirements in DCPs 60 and 64 it does not meet the recommended requirements in the RFDC. A further setback and a design which is more sensitive to the impact on 59 Gilbert Street is not unreasonable given the size of the site. A different design could achieve a more acceptable outcome for both sites without unduly limiting their development potential or amenity. 40 In addition, acceptable privacy from the proposal is only achieved by the addition of screens along the southern elevation which is a poor solution to a problem that could be avoided by better design. The podium created by the car park elevated above ground in the south west corner some 2m also results in privacy impacts on the rear garden of the existing development on 59 Gilbert Street. There would be a greater impact on open space provided as part of any redevelopment of the site for medium density. 41 I accept Mr Dickson's evidence that that the appearance of the development and its visual bulk would also impact on the amenity of future development on 59 Gilbert Street. 42 There is no evidence as to the form that a development would take if 59 Gilbert Street were amalgamated with the rear sites. Such an amalgamation is unlikely and the impacts of the proposal (due to the width of 59 Gilbert Street) would not be eliminated even if 59 Gilbert Street were amalgamated with a site to the rear. 43 Mr Fraser indicated during closing submissions that the proposal could be amended to lower the overall height of the basement by 0.5m and to set back the upper floor a further 2m from the south. This was not discussed during the hearing and the impacts of such a proposal were not assessed by the experts. Given the number of amended plans and the quality of the drawings (including those submitted on the first day of the hearing - Exhibit A), a further opportunity to provide amendments cannot be justified.

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This Precinct contains land primarily zoned Residential 2(b) and 2(c) with a wide variety of low density housing present. A considerable amount of the existing housing stock is of an age and construction type that has redevelopment potential. The intention is to maintain the existing residential character of the area with redevelopment to be a mix of housing types primarily 1.3 storeys in height. 46 Due to the protrusion of the basement car park above natural ground level, the experts agreed that from certain vantage points the proposal would appear as four storeys, however, the experts disagreed on the extent. Mr Hancock and Mr Moore considered that there would be limited vantage points and overall the proposal would appear as a two to three storey building. They considered that the proposal was appropriate for the existing and future context, which was dominated by the large water reservoir. 47 Mr Dickson considered that there were a number of points in the street and from adjoining properties where the proposal would appear as a four storey building which was excessive in the context, regardless of the water reservoir. He supported this opinion by computer images. 48 I balancing the conflicting evidence, I accept Mr Dickson's opinion. Given the objective of the zone and the intent for the precinct, the four storey appearance of the building, even if from limited vantage points, is unacceptable. The presence of the water reservoir is not a justification for a larger residential building. The reservoir is clearly a utilitarian building uncharacteristic of the otherwise residential context. The future character of the precinct will include existing one and two storey single dwellings as well as redevelopments such as the development in Nirvana Street and three storey residential flat buildings. The proposal must be compatible with this context. 49 The proposal is setback from its northern boundary to maximise solar access and views. While this achieves an acceptable height relationship between the proposal and 51 Gilbert Street, it results in the bulk of the proposal being in close proximity to the existing single storey house on 59 Gilbert Street. This is an unacceptable relationship which, given the limited redevelopment potential of that site is likely to remain. 50 The new development at 18 Nirvana Street is at a lower level than the site and is built in close proximity to the common boundary. Mr Dickson stated that over 50% of the western elevation of the basement of the proposal is above natural ground. Outside unit 7 the basement is about 2.5m above ground. The elevation of the proposal along this common boundary (due to the basement car park protrusion and the change in levels of the sites) results in an unacceptable relationship. 51 The proposal exceeds the maximum FSR control and as discussed previously is not eligible for the bonus provisions. The FSR of the car park is not included in the calculations; however, as a large part of the car park is above ground it adds considerable bulk to the building. This combined with the exceedence in FSR results in a bulk and scale of development, which is not compatible with the existing character or the future intent for the precinct and does not meet the objectives of the FSR control In DCP 64. 52 The Panel in its comments of 3 August 2005 stated that "the visual bulk is excessive" and "the proposal would be a visual overdevelopment of the site". While these comments were based on an earlier scheme, there have been no significant changes, which have reduced the overall bulk and scale of the development. I agree with the conclusions of the Panel.

At a glance

Court

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Judgment (33 paragraphs)

Parties

Cases Cited (3)