Long, Whale & Plant Pry Limited v Wyong Shire Council

Melissa Grech v Auburn Council [2004] NSWLEC 40; CASES CITED: Cornerstone Property Group Pty Ltd v Warringah Council [2004] NSWLEC 189; Karavellas v Sutherland Shire Council [2004] NSWLEC 251

APPLICANT Mr M Fraser, barrister SOLICITORS PJ Donnellan &Co LEGAL REPRESENTATIVES: RESPONDENT Mr J Cole SOLICITORS Abbott Tout

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10457 of 2006 Bob Long, John Whale & Plant Pty Limited v Wyong Shire Council

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:

residential flat building means a building containing 3 or more dwellings. 13 The aims of the Residential 2(c) zone relevantly include:

(a) to cater primarily for residential flat buildings generally not exceeding a height of 3 storeys (except as otherwise provided for by clause 42B), 14 Wyong Development Control Plan 2005 No 60 - The Entrance (DCP 60) and Wyong Development Control Plan 2005 No 64 - Residential Development (DCP 64) are also relevant. The versions of the DCPs (exhibits 3 and 4) were adopted after the development application was lodged but the parties agreed the plans were relevant to the application. 15 Clause 6.1 of DCP 64 specifies a maximum floor space ratio (FSR) for residential flat development in the 2(c) zone of 0.9:1. The plans for which consent is sought (Exhibit F) indicate a total unit area of 2025.72sqm and a FSR of 0.96:1, which exceeds the control by about 144 sqm of floor area. The objective of the FSR control in DCP 64 are: · To have development sites and densities that are appropriate to the zone and compatible with the local context · To ensure building bulk and site coverage provisions are compatible with neighbouring development. · To assist with preliminary dwelling yield calculations 16 Clause 6.1(b) provides:

Other issues detailed within this plan, such as setbacks; amenity; water and energy efficiency; ground level carparking; courtyard provision; landscaping and other statutory requirements must also be considered, and may limit the potential for development of the site. 17 The main provision in dispute related to the development bonus in cl 6.2 of DCP 64. The objective is:

To ensure that development is in keeping with the optimum capacity of the site and the local area. 18 Clause 6.2(a) permits a 10% FSR bonus for the site provided it has a minimum site area of 1500 sqm and the development incorporates basement car parking. 19 Clause 6.2(b) provides:

Proposals shall not be eligible for bonuses if the lot amalgamations proposed will result in the isolation of single adjoining parcels, thereby limiting their future amalgamation/development potential. 20 Clause 2.4 of DCP 60 provides the same FSR controls and refers to the bonus FSR provision in DCP 64. 21 Clause 2.3 of DCP 60 provides that development in the 2(c) zone is to be limited to a maximum of three storeys in height, unless, for sites greater than 1800sqm, a different height is specified in the relevant Precinct map. The site is within Precinct 7 of DCP 60 which does not specify a height greater than 3 storeys for the site. The maximum height being 9m measured from natural ground to the top most ceiling. 22 Storey is defined in DCP 60 as:

"Storey" means the number of storeys, floors or levels which a building contains which may be intersected by the same vertical line, not being a line which passes through any wall of the building, and not including any below ground garage, rooftop lift motor or plant tanks, unenclosed rooftop facilities, terrace or deck or any parapet provided to improve the external appearance of the building (other than a parapet which gives the impression of an additional storey on the building) 23 Clause 4.2(c) of DCP 64 provides that buildings within the 2(c) zone shall generally not exceed three storeys or 10 metres in building height. The note to the clause states:

Note: Basement car parking does not constitute a storey, provided the top of the car parking level is not more than 1.2m above natural ground level at any point. 24 Storey is not defined in DCP 64 and building height has the same definition in LEP 1991 and DCP 60. 25 State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings (SEPP 65) establishes ten design principles for residential flat development. Under SEPP 65, the Residential Flat Design Code (RFDC) must be considered. Part 3 of SEPP 65 provides for the establishment of a Design Review Panel (the Panel) to provide advice on the design quality of residential flat buildings. The application was considered by the Panel twice and recommended for refusal each time. 26 Clause 30 of SEPP 65 provides:

(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.

Findings 32 I accept Mr Cole's submission, for the council, that the proposal is not eligible for a FSR bonus as the future amalgamation/development potential of 59 Gilbert Street will be limited by the lot amalgamations proposed which will result in its isolation. The extent of car parking which is above ground does not satisfy the precondition for the bonus that basement car parking be provided. The proposal therefore does not comply with the maximum FSR specified under DCP 60 and DCP 64 nor, for the reasons which I will discuss later, meet the objectives of these controls. 33 Neither DCP 60 nor 64 include any other provisions relating to amalgamation of sites. Nevertheless, it is important to consider the impact of the development on the future development potential of 59 Gilbert Street, which will be effectively isolated by the development on one side and the water reservoir on the other. 34 The statement of Mr Long, the applicant, is that prior to the lodgement of the development application attempts were made to purchase 59 Gilbert but were unsuccessful. The site was subsequently sold. The offers were not based upon an independent valuation and do not meet the principles established by Brown C in Melissa Grech being:

Firstly, where a property will be isolated by a proposed development and that property cannot satisfy the minimum lot requirements then negotiations between the owners of the properties should commence at an early stage and prior to the lodgement of the development application. Secondly, and where no satisfactory result is achieved from the negotiations, the development application should include details of the negotiations between the owners of the properties. These details should include offers to the owner of the isolated property. A reasonable offer, for the purposes of determining the development application and addressing the planning implications of an isolated lot, is to be based on at least one recent independent valuation and may include other reasonable expenses likely to be incurred by the owner of the isolated property in the sale of the property. Thirdly, the level of negotiation and any offers made for the isolated site are matters that can be given weight in the consideration of the development application. The amount of weight will depend on the level of negotiation, whether any offers are deemed reasonable or unreasonable, any relevant planning requirements and the provisions of s 79C of the Environmental Planning and Assessment Act 1979. 35 In Cornerstone the three principles in Melissa Grech were extended as follows:

…. for applications which will result in an isolated site, particularly where the planning controls envisage a greater intensity and size of development than currently exists on the site, such as a single dwelling in an area identified for residential flat buildings.

Firstly, is amalgamation of the sites feasible? In determining the answer to this question the principles set out by Brown C are relevant.

Secondly, can orderly and economic use and development of the separate sites be achieved if amalgamation is not feasible?

In answering this question the key principle is whether both sites can achieve a development that is consistent with the planning controls. If variations to the planning controls would be required, such as non compliance with a minimum allotment size, will both sites be able to achieve a development of appropriate urban form and with acceptable level of amenity. To assist in this assessment, an envelope for the isolated site may be prepared which indicates height, setbacks, resultant site coverage (both building and basement). This should be schematic but of sufficient detail to understand the relationship between the subject application and the isolated site and the likely impacts the developments will have on each other, particularly solar access and privacy impacts for residential development and the traffic impacts of separate driveways if the development is on a main road. The subject application may need to be amended, such as by a further setback than the minimum in the planning controls, or the development potential of both sites reduced to enable reasonable development of the isolated site to occur while maintaining the amenity of both developments. 36 Karavellas adds that:

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.

Height, bulk and scale 44 SEPP 65 provides additional requirements above those set out in LEP 1991 and DCPs 60 and 64. Part 2 provides Design Quality Principles that provide a guide to achieving good design.

Principle 1: Context states "good design respondents and contributes to its context. Context can be defined as the two natural and Built features of an area". Principle 2: Scale states "good design provides an appropriate scale in terms of the bulk and height that suits the scale of the street and the surrounding buildings". Principle 3: Built form states "good design provides an appropriate built form for a site and the buildings purpose, in terms of building alignments, proportions, building type and manipulation of building elements". Principle 4: Density states "good design has a density appropriate for a site and its context, in terms of floor space yields (or number of units or residents)". Principle 6: Landscape states "good design recognises that together landscaping and buildings operate as an integrated and sustainable system, resulting in greater aesthetic quality and amenity for both occupants and the adjoining public domain. 45 The experts agreed that the area was one in transition and that the emerging character would include a mixture of existing one and two storey single dwellings, with villa and town houses and three storey residential flat buildings. DCP 60 provides guidance to assessing the future character for Precinct 7. The intent is stated as:

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.

Internal amenity 53 Mr Dickson undertook an assessment of the proposal under the RFDC. He concluded that there were a number of deficiencies including sunlight access to the units, through ventilation, floor to ceiling heights and privacy. 54 In relation to overshadowing, Mr Moore explained that the design intent of the proposal had been to set back the proposal from the northern boundary to maximise solar access and views to the north and north west of the Entrance and to the north east to the sea. 55 Mr Dickson stated that while the units were orientated towards the north and the view, the projecting slabs and separating party walls of the building impacted on solar access to the living areas and balconies of the units. He produced shadow diagrams which demonstrated that less than 70% of the living areas would achieve more than two hours solar access in mid winter. Given the size, orientation and suburban location of the site this is unacceptable and could easily be improved by a more skilful design. 56 The other matters raised by Mr Dickson are further examples of poor design but of themselves would not warrant refusal of the application. Impact on adjoining residential amenity 57 As discussed above, the proposal will cast shadow on 59 Gilbert Street. The shadow diagrams submitted with the application related to an earlier version of the proposal, were not based on true north and did not show the effects of changes in level. The experts agreed that these diagrams and those prepared by Mr Dickson were similar but different in detail. I accept that Mr Dickson's diagrams are more accurate. These indicate that of the two north facing windows of 59 Gilbert Street one will be shaded from about 10.30am and the other from about 11.30am. No details about the use of these rooms were provided so the impact on amenity cannot be assessed. 58 There will also be a significant increase in over shadowing of the rear garden of %9 Gilbert Street. DCP 64 specifies that:

At least at least 75% of required private open space areas on adjoining land shall receive at least three hours unobstructed sunlight between the hours of 9am and 3pm on June 21. 59 The rear garden as a whole may meet the 75% control for three hours as it is large, however, it is not clear what is meant by required private open space. The area of open space adjacent to the house would be the most usable area and the overshadowing impact on it does not meet the control. A more skilful design, potentially involving a greater set back, particularly of the upper level would minimise overshadowing impacts on this property. 60 The privacy impacts from the proposal of overlooking into 59 and 51 Gilbert Street have been addressed by the introduction of screens. Mr Dickson considered that these further added to the bulk and reduced the amenity for the occupants of the proposal. He also considered that the privacy issues resulting from the terrace off Unit 8 to be of concern. This is above the car park, which is about 2m above natural ground level and approximately 3m from the boundary with 59 Gilbert Street. In Mr Dickson's opinion this will result in overlooking of the rear garden of 59 Gilbert Street. A similar relationship exists between the proposal and town house development to the rear. While these privacy impacts could be eliminated by screens this would again add to the bulk of the building and reduce the amenity for the occupants. Other issues 61 Other issues were raised, including orientation of the proposal away from the street, the certification by the design architect and the lack of a landscape plan. Of themselves these would not be individual reasons for refusal but the combined effect of these issues, the internal and external amenity impacts together with the bulk and scale of the proposal and the "isolation" 59 Gilbert Street result in an unacceptable development when assessed against the planning controls. Consequently, the application must fail.

Orders 62 For the above reasons the Orders of the Court are:

2. The development application (1474/04) to demolish three existing dwellings and construct seventeen units with parking for 33 cars at 53 - 57 Gilbert Street, Long Jetty, is refused.

      Annelise Tuor
      Commissioner of the Court

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