Marina Bay Developments Pty Ltd v Pittwater Council

Marina Bay Developments Pty Ltd v Pittwater Council - [2006] NSWLEC 577 - NSWLEC 2006 case summary — Zoe

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· 2075 Pittwater Road - a two storey house adjoins the site to the east fronting Pittwater Road. · 2081 Pittwater Road - a one and two storey house adjoins the site to the west fronting Pittwater Road. · 2081A Pittwater Road - a two storey brick house adjoins the site to the west at the rear of the site. · 38 Kananook Road - a two storey house adjoins the rear south boundary and access handle. · two houses adjoin the site on either side of the access handle. 6 The opposite side of Pittwater Road is used as foreshore open space and walkway with private boatsheds and commercial marinas. Immediately opposite the site is the Bayview Yacht Racing Association building with open space on either side. 7 The locality consists predominantly of one and two storey detached houses in landscaped settings. Some houses are stepped up the slope and appear to have more than two storeys. A development approved under State Environmental Planning Policy No 5 (SEPP 5) is currently under construction at 2091 Pittwater Road. A SEPP SL development is proposed at 2085 Pittwater Road. At the time of the hearing the application was the subject of an appeal to the Court. Watts C upheld this appeal on 25 August 2006 (Marina Bay Developments Pty Limited v Pittwater Council [2006] NSWLEC 531). The history of the proposal 8 The development application was lodged on 28 September 2005. It was notified and council received 80 submissions including one letter of support. Further submissions and a petition were tendered at the hearing. The applicant lodged an appeal against council's deemed refusal of the application on 19 December 2005 and council refused the application on 6 March 2006. The Proposal 9 The proposal is for the demolition of the existing dwelling and driveway and for the construction and strata title subdivision of six self care units (4 x 3 bedroom and 2 x 2 bedroom) on five levels over basement parking for 12 cars. Planning Framework 10 The site is zoned Residential 2(a) under Pittwater Local Environmental Plan 1993 (LEP 1993). The proposal is prohibited in this zone but gains its permissibility under SEPP SL. Under cl 14 of SEPP SL the development is in-fill self-care housing. SEPP SL requires a consideration of Seniors Living Policy - Urban Design Guidelines for Infill Development (Guidelines). 11 Pittwater 21 Development Control Plan (DCP21) also applies to the site but the parties disagreed on its relevance to a development under SEPP SL. 12 Mr McEwen SC, set out the interrelationship of the above controls as follows:

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Clause 31(c) [SEPP SL] provides the blueprint for maintaining reasonable neighbourhood amenity and appropriate residential character. It requires: · Building setbacks to reduce bulk and overshadowing · The use of building form and siting that relates to the site's land form · The retention wherever reasonable of major existing trees 13 Mr Clay, for the applicant, rejected the weight placed on the controls in DCP 21 by Mr McEwen. Mr Clay submitted that there was an inherent inconsistency between the prescriptive controls in DCP 21 and achieving the aims of SEPP SL. SEPP SL specifically sets aside local planning controls that would prevent the development of Seniors Housing. SEPP SL does not prescribe minimum setbacks and those in DCP 21, in Mr Clay's submission, do not apply. While I accept that the prescriptive standards in DCP 21 do not apply to the site, DCP 21 is relevant to the extent that it identifies the desirable elements of the location's current character (or desired future character) for the purposes of cl 31 of SEPP SL. The setback controls are a consideration in defining this future character. 14 Pittwater 21 Draft Local Environmental Plan (Draft LEP) is a relevant consideration under s79C of the EPA Act. The parties agreed that the draft LEP was neither imminent nor certain and that there were no changes to the controls of relevance to the proposal. 15 There is a small non compliance with the two storey height control in cl 38(4)(b) of SEPP SL. The applicant has lodged an objection under State Environmental Planning Policy No 1 (SEPP 1). The issues 16 The Statement of Issues before the Court contained 13 issues. A number of issues were resolved by the provision of further information or the imposition of conditions. The remaining key issues are: i. Whether the proposal adequately recognises the desirable elements of the character of the locality and contributes to its quality and identity. ii. Whether the proposal provides acceptable amenity to its future occupants and adjoining residents The Evidence 17 The Court heard evidence from Mr G Goodyer, the court appointed planner, and the following experts: 18 For the applicant: · Ms C McKenzie, arboriculturist · Mr P Crozier, geotechnical engineer

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I have assessed the side setbacks pursuant to the SEPP SL and the Guidelines. In my opinion the proposal does not achieve the requirement in SEPP SL clause 31(c) to reduce bulk…..the proposal should provide greater setbacks for Units 5 and 6 to provide deep soil landscaped areas for the establishment of canopy trees and reduce the bulk of the building when viewed from neighbouring private open space. 28 Mr Goodyer recognised that an increase in the setback of the front units would be desirable but considered this was not feasible due to the constraints imposed by the basement car parking level and that the building to building relationship at the front was not as critical as the building to open space relationship at the rear. 29 Mr Sanders considered that the setbacks of the whole development should be increased to a minimum of 3m. He considered that the setback of the building placed too much development and bulk in close proximity to adjoining properties which resulted in adverse amenity impacts. He stated that it was unacceptable to have large elevated terraces within 3m of a boundary, particularly adjoining living areas. The setback of the basement provided insufficient space and deep soil planting for canopy trees to screen the length and bulk of the development. 30 Mr Sanders stated that the set back controls in DCP 21 should be considered as these determined the character of the area. DCP 21 requires a minimum setback of 3m which increases as the height of the development increases. 31 During the hearing the applicant agreed to a deferred commencement condition which would require a minimum 3m setback of Units 5 & 6, except the southernmost bedroom. The applicant indicated on plans how such an amendment could be achieved without significant change to the proposal. Council proposed an alternate condition that required the setback of the walls of all units a minimum of 3m. This condition remained in dispute between the parties. 32 While I accept that a minimum setback of 3m is appropriate for the length of the development, I do not accept that this should be by way of a deferred commencement condition. Such an amendment would require significant redesign of the front units and the implications for the development and likely impacts of such a change have not been assessed in the hearing. 33 The logic Mr Goodyer employed in recommending a greater setback of the rear units is also applicable to the front units. I do not accept his opinion that the constraints imposed by the basement car park mitigate against an increased setback. This may be a reason why the basement cannot be setback but is not a reason why the building above cannot be setback. A further setback of the building will reduce its bulk as perceived from adjoining neighbours and from the public domain by providing space between the proposal and other dwellings. 34 The building to open space relationship is important as the proposal can clearly be viewed from the rear yard of 2075 and from 2081 and 2081A. However the building to building relationship is also important in addressing the character of the area, which generally provides space between buildings. This space provides visual relief as well as reduced amenity impacts and ideally should be adequately landscaped to soften and screen the length and bulk of the building.

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Overall it is my opinion that Mr Goodyer's report does not have appropriate regard to the particular circumstances of the site in terms of its unusual configuration with some 539 sq ms (ie 25%) being accommodated in the handle that historically provided access from Cornish Road. As a consequence of this area being included in the assessment of floor space ratio, a greater quantum of floor space is sought to be accommodated on that part of the site where development can occur. In particular, the floor space ratio on the 75% of the site that is physically able to accommodate development is equivalent to 0.64:1 or some 28% more than the 0.5:1 referred to in the State Policy. The consequences are unacceptable impacts on the neighbours through excessive building bulk, loss of vegetation, inadequate side boundary setbacks and excavation being undertaken to close to the boundary. I would also include inadequate setback from the street in the context of excessive building bulk. 42 The access handle is part of the site and as such is included for the purpose of calculating FSR. The proposal cannot be refused on the basis of its density and scale as measured in FSR. However, the distribution of floor space on the site and its resultant impacts must be assessed and overall the proposal must be of good design. Obviously the fact that about 25% of the site is too narrow to be developed is a constraint that must be considered in the same manner as parts of a site which are too steep and therefore not suited to development. This has the advantage that the access handle and the rear of the site are retained for landscaping which contributes to the quality and identity of the area. Conversely it has the disadvantage that the bulk of the development is concentrated in a smaller area of the site. 43 SEPP SL clearly requires consideration of the design principles which require the impacts of FSR to be assessed. Cl 2(2)(b) and (c) relevantly provides that the aims of the policy will be achieved by "meeting the criteria and standards specified in this policy" and "setting out design principles that should be followed to achieve built form that responds to the characteristics of the site and form". If the impacts of built form are unreasonable there is nothing in the Policy that precludes the proposal being rejected or the requirement that FSR be reduced or relocated to ensure acceptable impacts are achieved.

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Height 44 Cl 38(4)(c) of SEPP SL provides that "a building located in the rear 25% area of the site must be single storey." The parties disagreed as to whether this standard was met and whether an objection under SEPP 1 was required. Rear 25% of the site is not defined. If the access handle is excluded then parts of Units 5 and 6 are two storey and within the rear 25% area of the site. 45 The intention of the control is not articulated in either SEPP SL or its guidelines. The experts agreed that its purpose is to mitigate potential impacts on neighbour' back yards by providing a scale of development which maintains the backyard to backyard relationship that normally exists at the rear of houses. 46 As the access handle forms part of the site, I accept that technically the 25% control is not breached and a SEPP 1 objection is not required. However, the intention of the clause is still an important consideration. A building adjoining a back garden can have a significant impact by its bulk, privacy and overshadowing. Mr Goodyer was concerned about the back yard to backyard relationship and he sought to minimise any adverse impacts through greater setback of units 5 and 6. The question is whether the two storey element at the rear of the development has a reasonable impact. 47 The two storey element within the 25% area extends about 6.5m and is setback from the east and west boundaries about 2.8m at its closest point. Mr Goodyer's recommendations would increase this setback. This part of the proposal is excavated and would be about 5m to 6m in height above natural ground level. A large existing tree on the east boundary is to be retained and there are existing trees on 2075 Pittwater Road. These measures will mitigate the impact of this part of the two storey section to an acceptable level. Its impact on 2081A is of less concern as this is a battle axe property and does not have the same back yard to back yard relationship. 48 Cl 38(4)(b) provides that buildings adjacent to a boundary must not be more than 2 storeys. A small section of the proposal, being the foyer of the rear lift well, is three storeys. The applicant has submitted a SEPP 1 objection to this standard. Mr Goodyer considered the SEPP 1 objection to be well founded as the area of non compliance does not materially increase the bulk of the building and results from the particular circumstances of the site which is relatively steep. This was not pressed as an issue in the proceedings. I have reviewed the SEPP 1 objection and accept Mr Goodyer's opinion that it is well founded. 49 The rest of the development is two storeys stepped up the site. However, due to its location opposite a reserve and Pittwater, the proposal is clearly visible. The experts agreed that the top floor, while considerably recessed would be more visible than depicted in the photomontage. The presentation of the lower four levels and the car park entry and foyer level was reasonably accurate. The proposal will clearly appear as 4 to 5 storeys when viewed from the waterway and public domain. 50 The existing character of the area is generally two storey houses, albeit some are elevated above the slope to appear as three storeys. Some houses are set behind each other as they step up the hill but their impact is mitigated by being offset and interspersed with landscaping. DCP 21 seeks to maintain this existing character by requiring a maximum two storey appearance. 51 While the proposal is not required to be the same as the existing development in the area, I accept Mr McEwen's submission that SEPP SL and its guidelines require a degree of compatibility to be achieved. 52 In Project Venture Developments v Pittwater Council [2005] NSWLEC 191 Roseth C set out principles to achieve compatibility. He states that for a building to be visually compatible with its context, it should contain, or at least respond to the essential elements that make up the character of the surrounding urban environment……The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping. 53 To achieve compatibility there should be a greater visual break between the three lower levels and the three upper levels of the building so that the two components appear separate when viewed from Pittwater Road and Pittwater. The increased side setbacks and provision of strategically placed canopy planting, particularly as proposed in the indented courtyard area, would assist in breaking up the building so that it appears a two separate buildings stepped up the hill.

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Trees and landscape 57 As discussed above the extent of side setbacks limits the landscaping that can be provided. The experts agreed that the landscape plan in its current form would not be able to be implemented along the boundary, in particular the eucalyptus canopy tree proposed for the indented courtyard was not feasible as it was above the car park and did not provide sufficient deep soil. The experts agreed that there was insufficient space along the boundary for canopy trees or trees with a spread, although screen planting and hedges could be provided. They agreed that the increased setback of units 5 and 6 would allow the planting of canopy trees provided there was sufficient space for the tree to overhang the adjoining allotment. 58 Ms Hobley stated that two outcomes needed to be addressed by the landscaping along the side: the effect on adjoining neighbours and the effect on the public domain. To achieve the former, screen planting of two to six metres was adequate. To achieve the latter, canopy trees were required at appropriate intervals. In Ms Hobley's opinion the scheme of landscaping proposed in the landscape plan which seeks to provide "a mix of endemic tree and shrub species to provide a layering of foliage" would achieve both these outcomes. However, the agreed position of the experts, was that due to the width of setback this landscape concept could not be achieved. 59 Deferred commencement conditions are proposed which require a detailed landscape plan be prepared. However, without amendments to the building it is unclear how the landscape plan can be implemented. The manner in which buildings are set in a landscape is a desirable element of the location's character. In the locality, the landscape clearly dominates over the built form and provides layered landscape with canopy trees and buildings with space, interspersed and softened with landscaping. This must be incorporated to provide a development, which contributes to the quality and identity of the area. I accept that this has generally been achieved at the front and rear of the proposal but for the reasons given above, is deficient along the sides and as the proposal steps up the hill. In particular the length and number of storeys will appear as one building without successful landscaping. 60 A significant component of the existing landscape is tree 18, in the front setback of the property. The tree was proposed to be retained but the experts agreed that this would not be feasible if the communal area was provided due to excavation. The tree has a structural fault but the experts agreed that without the communal area and with no structures within a diameter of 8.5m the tree had a likely life expectancy of about 15 years. However, as no root investigation had occurred, the life expectancy of the tree would need to be confirmed. They agreed that it would be desirable for the tree to remain to enable replacement trees to be established. 61 The applicant's preferred position is that the tree (except the stump) should be removed as part of the development and compensatory trees provided, however has agreed to deferred commencement conditions which would enable root investigation to better determine the life expectancy of the tree. If this confirms a life expectancy of 15 years the tree is to be retained and the communal area deleted from the proposal. 62 The communal area is recommended by the guidelines. However, it is questionable in a development such as this, with extensive private out door areas with outstanding views over Pittwater that an excavated communal area would be of much utility. When balanced against the significant contribution made to the public domain by tree 18 the provision of the communal area is unnecessary.

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Amenity 63 Generally the amenity to be enjoyed by residents of the proposal would be excellent with large north facing living areas overlooking Pittwater within well designed units. However, both bedrooms of units 1 and 2 are below natural ground level and obtain light and air off a courtyard which is partly covered by unit 3 and 4 above and is proposed to contain a canopy tree and air-conditioning vents. Mr Goodyer and Mr Sanders considered the amenity of these bedrooms to be poor. However, Mr Goodyer considered this to be acceptable as they are bedrooms and would have limited use. 64 I do not accept this position. A new development that provides accommodation for seniors should not provide poor amenity to its bedrooms, especially the main bedroom, which may be required to be used for lengthy periods due to illness or the need for rest, particularly when the amenity of the bedrooms is in such stark contrast to the amenity of the other rooms. The bedroom that is coverd by the unit above would receive very poor amenity. 65 The residents raised concerns about the bulk of the proposal and its impacts on privacy, solar access and outlook. Most of these concerns were addressed through amendments to the proposal to provide greater setbacks, screening and planting. Further information was provided on the overshadowing impact on the west facing windows of 2075 Pittwater Road. The experts agreed that while there would be an increase in overshadowing this was acceptable. 66 The main concern remained the bulk impact of the car park retaining wall and units 2 and 4 as well as the bulk and potential noise impacts from the terraces of these units. I note that 2075 Pittwater Road is setback the minimum 900mm from the boundary and it is unreasonable the expect the existing amenity of windows which face this boundary to be preserved. However, the combined effect of the bulk of the building and the terraces in this location will impact on the occupants of 2075 and is further reason that the proposal should be setback further from the boundary.

At a glance

Court

Decision date

Before

Source

Judgment (48 paragraphs)

Parties

Cases Cited (3)

Cited By (4)