88 She was also concerned that the 'bunker style' flats won't help the serious issues regarding drug and alcoholism, and parents and residents are pleading with the Court not to let in development that will ruin people's lives;
89 Ms J Stephenson who lives at No 86 Brighton Street, Bundeena, on the same side of the street as the proposal sought to ensure that the DCP was respected in any near development. She said, "…the footprint in the DCP is all we have got left after the corner store was burnt down by arson". "We expected that this corner store would stay low scale. This site has been historically used for village markets and dancing and lots of things and this area has been used for the community".
90 She added, "…basically, this proposal is too far dug into the ground. There will be huge excavation something like 5,000m3, which seems ridiculous [in an] environmentally sensitive zone".
91 Mr R Sainz who lives at No 36 Loftus Street, Bundeena, said, "…if the corner park store is gone and this proposal is approved, there is no guarantee of a view corridor".
92 Ms C Seidel who lives at No 10 Graham Street, Bundeena, said, "…if the proposed excavation went ahead, … filthy water [will runoff] which will end up in our bay".
93 Mr A Platt who lives at No 23 Loftus Street, Bundeena, said, "…the Court should enquire of the developers whether they have considered our quality of life in the village".
94 Ms M Scully who lives at No 70 Brighton Street, Bundeena, said, "I can tell you firsthand that business in Bundeena is a very seasonable affair".
95 Mr W Snow who lives at No 11 Graham Street, Bundeena, was concerned "…about the time this development would take to build".
96 Mr Van Ma, the new co-owner of the building next door at Nos 22-30 Brighton Street, Bundeena, sought "…to protect views from our units".
97 Mr and Mrs J and C Paige who live at No 15 Loftus Street, Bundeena, supported the proposal. They wrote, "…the space around the corner store was never used and I could count on one hand the times it was used before for public activities".
98 On 22 November 2006 most of the residents gave evidence and raised the same concerns and some other residents gave evidence including:
99 Mr N deNett who lives at No 74 Scarborough Street, Bundeena, and is secretary of the Bundeena Progress Association, was mainly concerned about what he perceived as the excessive bulk, size and scale of the proposed building. He gave evidence of the history of the planning controls for the land.
100 Dr J Leyendekkers, scientist, of No 153 Gannons Road, Carringbah, gave evidence in Court on 23 November 2006. She stated that she has been a visitor to Bundeena and a resident activist in the area for a number of years. Her main concerns were that the development was out of character with the area, being essentially a residential flat building. She stated that the 50% limit on residential to commercial in the controls should be maintained.
The issues
101 On 9 October 2006 the council filed a second further amended statement of issues [Note: Exhibit 17].
1. The proposal is out of character with the intended character of the Bundeena commercial centre as set out in the Bundeena + Maianbar Development Control Plan (the DCP), prepared pursuant to Sutherland Shire LEP 2000, and the Bundeena + Maianbar Development Control Plan as amended on 6 February 2006 and Draft Sutherland Shire Local Environmental Plan 2004 (the Draft Plan).
Particulars:
(a) The site is adjacent to a vast area of natural beauty comprising a beach, creek, headland and parklands. However the proposal, by virtue of its design and scale, will strike a discordant element in the streetscape as it is too high and therefore overpowers the site and does not satisfy objectives b, c, d in Section 05 Business Centres.
(b) The site is the most prominent site in the Bundeena Commercial Centre, being the first site seen when arriving by ferry. It has a focal foreshore position in relation to the wharf and the water and provides a "sense of arrival" and a "sense of place". It has social significance, heritage significance and it is a major contribution to the landscape character of Bundeena. Notwithstanding this, the proposal does not comply with the objectives a, b, c, and d and Guidelines 1 and 2 in Section 02 History and Heritage of the DCP.
(c) The proposal does not contribute to an improvement in the overall environmental quality of Bundeena as it does not meet the Primary Objectives of the DCP, set out on page 3 of the document, nor objectives (b) and (g) in clause 8.1(2) of the Draft Plan.
(d) The proposal is not "designed to be "light footed" ... with minimum excavation, maximum tree retention and enhancement and blending into the natural landscape" as stated on page 05 of the DCP, as it relies on extensive excavation, cut and fill, and removes all of the trees on the site.
(e) The proposal ignores Plan 9 on page 20, Section 05 of the DCP which contains an indicative footprint for future development on this site, and appropriate built form, reflecting the old corner store's historical character with continuous verandas and enabling almost all major significant landscape vegetation to be preserved.
(f) The proposal ignores Standard 6, Section 05 of the DCP, which requires the upper storey along the Brighton Street frontage to be setback to reduce the height and bulk impact on the streetscape.
(g) Two of the purposes of the DCP, at page 3, are to provide detailed objectives, standards and actions that enhance the unique local character and sense of place and maintain and regenerate the indigenous tree canopy. The proposal fails to meet these requirements and would amount to a significant change to the style of building inconsistent with the present and desired future character of the area.
(h) The proposed development does not comply with Standards 2, 4 and 9 in section O5. Business Centres of the DCP.
(i) The Bundeena + Maianbar Environmental Study, at page 3 under the heading of "Economy + Built Environment", lists some consistent forms in the Bundeena shopping centre that can be reinforced, ie
· Maximum 2 storeys but predominantly single storey,
· Verandahs rather than cantilevered awnings,
· Free standing, small-scale appearance.
The proposed development has not sought to reinforce these consistent forms identified both in the Environmental Study and the DCP.
(j) Section 05. "Business Centres" in the DCP, at page 19, states:
It is clear from a community survey carried out in April 1999, the community does not support monolithic style developments, but supports a relaxed, low scale, commercial centre, which fits in and reflects the local townscape character.
Any new design for the commercial centre must consider how to integrate the surrounding historical, natural and commercial elements (eg the wharf, the headland, the beach, the park, Bundeena House and the corner store), together with pedestrian and vehicular links into an economically sustainable centre.
The proposed development will not result in a relaxed, low scale commercial centre, which fits in and reflects the local townscape character.
(k) The proposal is inconsistent with the following standards of the Bundeena + Maianbar DCP as amended on 6 February 2006:
(i) Point 14 of these standards requires that development of the corner store site shall: "Respect existing views enjoyed by the adjoining residential and commercial development". The proposed southwestern terrace adversely impacts upon existing views enjoyed by the adjoining commercial development at 22-30 Brighton Street.
ii. Point 7 of the standards requires that in the development of the subject premises:
"Lightweight building material shall be used. A lightweight appearance can include materials such as timber, glass, corrugated steel, louvers, etc. Lightweight architecture is responsive to climate and environment. Buildings should have minimal cut and fill of the site, include cross-ventilation and good solar access. Building forms should integrate the interior of the building with the environment with features such as verandahs, breezeways and single storey pavilion style elements".
(l) Objective (c) of the 3(b) Neighbourhood Business zone in clause 47 of Sutherland Shire Local Environmental Plan 2000 states:
Viable neighbourhood centres supported by appropriate forms of residential development". The number, size and form of the residential units result in a built form that departs significantly from the desired future character of the Bundeena commercial centre as outlined in the various clauses of the Bundeena + Maianbar DCP, referred to above. Rather than 'support' the neighbourhood centre the residential development will dominate the site to the detriment of the 'village character', given that the residential floor space is around four times the size of the commercial floor space when clause 45(1) of the LEP now limits the residential floorspace to 50% of the total floor space.
2. The proposal does not comply with the height controls in Sutherland Shire Local Environmental Plan 2000 (the LEP), the Draft Plan or in the DCP and it adversely impacts on prevailing views.
Particulars:
(a) Ceiling heights in Units 1, 8 and 9 exceed the 7.2 metre maximum in clause 43(1)(a) of the LEP and standard 1, section O5 Business Centres of the DCP.
(b) The sub-floor height at the eastern end of unit 6 exceeds 1.5 metres to the top of the floor above and therefore falls within the definition of a storey under the definition contained in clause 5 of SSLEP 2000. As a result the building containing units 6 and 9 is a three-storey building. Section O5 Business Centres of the DCP restricts the number of storeys in the Bundeena Neighbourhood Business Centre to a maximum of 2 stories.
(c) The proposal also impacts on 94 Loftus Street and the future dwellings on Lots 9 and 10 on the Uniting Church site in terms of view loss contrary to clause 8.4(d) of the Draft Plan, which requires the minimisation of impacts of new developments on adjoining properties, particularly in terms of visual intrusion.
(d) The proposal does not provide a satisfactory transition to the adjoining residential development in terms of building massing, height and scale and fails to comply with objectives (a) and (c) in clause 8.4(2).
3. Deleted.
4. The proposal does not achieve an acceptable interface with the adjoining residential zone, nor with the adjoining commercial development at 22-30 Brighton Street.
Particulars:
a. Units 1, 7 and 9 are too close to the rear boundary with insufficient separation between the buildings and the property behind. Further, unit 9 is located within a three-storey building.
b. This is a circumstance where the maximum floor space yields and development potential may not be attainable due to the planning principle laid down in Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117 regarding developments at zoning interfaces.
The proposal does not provide a satisfactory transition to the adjoining mixed residential commercial development at 22-30 Brighton Street in that:
· The south western terrace results in loss of views to the north from the commercial premises.
· The siting of the carpark entry and southern carpark wall in close proximity to the outdoor areas of the adjoining commercial development on a 1.75m side boundary setback adversely impacts on the amenity of these areas.
· The height of the southwestern terrace and its proximity to the adjoining first floor residential development adversely impacts upon the visual and acoustic privacy of these residences.
· The height of the southern terrace of unit 9, and of the stairs to units 6 and 9, and their proximity to the adjoining first floor residential development adversely impacts upon the privacy of the adjoining first floor residential units.
5. SEPP 65 Issues
Note. SEPP 65 is now statutory for this development as it is 3 storeys in height. As the design principles of SEPP 65 are recognised as being reasonable indicators of good design the following comments reflect the response this design has for the site and the locality in this regard.
The proposal is inconsistent with the following design quality principles of SEPP 65:
Principle No.1 Context
Due to a disregard of the qualities and features of the site the development does not recognise the uniqueness of the locality and consequently fails to respond appropriately to the site's constraints resulting in a development at conflict within its context. The building form and materials used are not in keeping with the village character of Bundeena, the two-storey nature of the other commercial buildings, nor with the heritage nature of other significant buildings such as Bundeena House.
Principle No.2 Scale
The proposed bulk and height of the development does not achieve the scale identified for the future character of the area due to its `compactness' of building forms, extensive excavation and visual dominance, particularly as it will appear higher than a two storey building from street level because of the way it is stepped up the slope of the site.
Principle No.4 Density
The proposal provides for individual residential accommodation in surplus to the space provided for other retail / commercial uses creating a higher density development within a predominantly low-density locality and adjacent to low-density residential zones. This results in a development that is foreign to the existing surrounding development due to its dominant visual mass.
Principle No.6 Landscape
The removal of the significant existing trees is unreasonable and results in a degradation of the particular environmental character of the area.
Principle No.7 Amenity
Due to a lack of reasonable separation, together with a poor configuration of spaces, there is a lack of visual privacy, reasonable quality private outdoor space, outlook and solar access especially to units 6 and 9. Due to the elevated public deck area over the driveway unacceptable impacts upon the privacy of adjoining site and the development unit areas have resulted.
Principle No.8 Safety and Security
There are many concealed areas screened from any overlooking or passive surveillance especially about the southern boundary resulting in significant concerns for the safety and security of future residents and users.
Principle No.10 Aesthetics
The design does not provide an appropriate composition of building elements, textures, materials and colours that reflects the use, internal design and structure of the development that responds in particular to the existing and desired future environment, context and character of the area.
6. Internal Amenity of Units 6 and 9
The proposal does not provide for an adequate level of internal amenity to units 6 and 9 in that:
The living and outdoor areas of units 6 and 9 do not receive adequate solar access in mid winter.
The extent of privacy screening to the unit 6 and 9 terraces results in enclosed, quality outdoor spaces with limited outlook.
7. Parking
The proposal does not comply with the requirements for loading areas in Clause 9 (a), (b), (c) and (d) of the Development Control Plan for Carparking.
Particulars:
The Applicant proposes a Loading Dock within the basement car parking area of the development. The maximum useable dimensions of this loading area are 8m x 3.4m. At 8.8m no access is available to the commercial garbage area. These dimensions can only accommodate the Small Rigid Vehicle (SRV) as defined in Australian Standard AS2890.2-2002. This is the smallest class of delivery vehicle defined within the Standard and represents light trucks. The Standard states that the SRV design vehicle should be adopted where the service area is to be used by small commercial vehicles only. The Applicant proposes two large tenancies as part of the development. One of these tenancies would be suitable for a restaurant and is shown with a substantial terrace area containing tables. It can be reasonably expected due to the size of the commercial areas and their remote location from other commercial centres within the Shire, that deliveries would be undertaken by vehicles classed under AS2890.2-2002 as Medium Rigid Vehicles (MRV). The MRV is defined in the Standard as one that ".. represents the common service truck...". Previous site views have also revealed that other commercial facilities in the Bundeena commercial centre receive deliveries by Heavy Rigid Vehicles and it can be reasonably anticipated that deliveries by a similar Heavy Rigid Vehicle shall take place at the proposed development. A Heavy Rigid Vehicle has dimensional requirements under AS2890.2 of 10.7m for the 1989 Standard and 12.5m under the current Standard.
The location of the loading dock in the basement area increases the minimum height of the southern terrace and contributes to the adverse impacts on the adjoining development at 22-30 Brighton Street outlined in issue 6.
8. Deleted.
9. Deleted.
10. Deleted.
11. Deleted.
12. Deleted.
13. Deleted.
14. The proposal provides insufficient on-site car parking for the residential and commercial elements of the development.
Particulars:
To be consistent with the other two concurrent development applications for mixed commercial/residential development for properties nearby or adjacent in Brighton Street Bundeena each of the 7 two-bedroom units requires 1.2 parking spaces. The four-bedroom unit will require 2 parking spaces. On this basis 11 parking spaces are required for the residential units together with two spaces for visitors; a total of 13 spaces for the residential element. For the commercial element of 384 m2 the Car Parking DCP requires one parking space per 30m2 resulting in a requirement for 13 commercial spaces. In addition, there are two outdoor terraces adjacent to a retail tenancies designed for accommodation of diners with a combined area of 190 square metres. These require a further 6 car parking spaces. The total parking space requirement for the development is 31 spaces but only 23 spaces are provided.
15. Inadequacies in the information provided. Particulars:
i) The plans do not satisfy the requirements of the Land and Environment Court Practice Directions Number 17, Schedule B - Requirements for Plans in that the all rooms and spaces are not dimensioned, the heights on the landings on the stairs to units 6 and 9 are not indicated and the height of the privacy screen on the stairs to unit 9 on the northern elevation is not indicated.
16. The design of the development is unsatisfactory having regard to the following:
i) Garbage Areas
Particulars:
The putrescible and co-mingled waste storage areas for the residential elements of the development are located at the rear of the commercial tenancies. The commercial putrescible and co-mingled waste is located in the basement carpark.
Council's Waste Management Specification requires that waste is to be placed at the collection point. In this case the collection point has been determined as the kerb and gutter in Brighton Street as access and manoeuvring of Council's waste disposal vehicles to and within the basement car park is not available. To enable collection it shall be necessary to move all of the residential waste through the foyer and main entry areas of the residential component of the development to reach the kerb. Should it prove feasible to remove the residential garbage from the basement carpark it is still necessary to move the garbage from 6 storage areas to the basement via the residential lobby/foyer and in the resident's lift. The movement of these waste materials through the main access to the residential component of the development is considered to be a poor design outcome. As indicated, the storage area for the commercial putrescible and co-mingled waste is located in the basement carpark. Access to this area is only available via the resident's lobby/foyer and the resident's lift. The movement of commercial putrescible waste through the resident's lobby and lift is a poor design outcome.
ii) Servicing of the Grease Trap Particulars:
The Applicant proposes a restaurant as the retail tenancy that shall incorporate a commercial kitchen. This kitchen shall require the provision of a grease trap. No details have been provided as to the method/s by which this grease trap is to be serviced or its location. The Applicant is invited to provide further details demonstrating how the grease trap is to be serviced. Servicing of the grease trap across the footpath area of the Brighton Street or Loftus Street road reserve shall not be permitted.
17. There is a need for an archaeological survey to be done on the site before any consent is granted, given the location of the Aboriginal midden on the adjoining Uniting Church site.
18. Landscaping - the response to the existing landscape vegetation is extremely poor.
Particulars:
(a) The proposed landscaping does not achieve the desired landscape character of the site, given the site's prominence in the existing streetscape.
19. The height of the retaining wall which reaches 2.4 metres along the Loftus Street frontage and in the vicinity of the seating 'grotto' does not allow for an appropriate transition from the semi public to private areas and is out of character with the streetscape.
20. There is poor amenity to the proposed commercial spaces. Particulars:
The limited ceiling height and extensive depth of the lower ground level retail / commercial areas create poor amenity for the proper function and purpose of these spaces. The extensively excavated area results in poor amenity for solar access, natural ventilation and unreasonable presentation to the important corner address element of the site.
21. The amenity of the proposed units and southern commercial space is not appropriate in terms of levels and accessibility.
Particulars:
The extent of modification to the units required to achieve the requirements for adaptable use has not been demonstrated.
There is no accessible path of travel to the southern commercial terrace is accessed by a narrow walkway.
22. There is a poor relationship between the southern commercial tenancy and the street, resulting from the height of the terrace above the street and the lack of direct access from Brighton Street.
23. There is a poor relationship between the southern commercial tenancy and the basement facilities in that the loading dock is located at the far end of the basement, and no direct access from the loading dock to the commercial tenancy within the site.
24. Circumstances of the case and the public interest and issues raised by objectors:
(a) Submissions opposing a variation to the commercial/residential mix on the site:
· The proposed 80% residential flat development on the site is unacceptable and will destroy the unique village character of Bundeena.
· The plan is for a predominantly residential flat development, located on what is arguably the prime commercial site in Bundeena and the entry point for visitors coming by ferry. The residents are not primarily concerned with reducing the number of shops on this site and do not accept that an increase in flats was preferable. The argument has consistently been that there should not be too many shops in the centre, not that the commercial value of this site should be reduced to a residential flat development.
· Open space is fragmented and landscaping cannot hide the scale of the development.
· The proposal does not achieve a balanced development with a reasonable number of shops and residences as well as useful private open space.
b) Submissions supporting a variation to the commercial/residential mix
· Support for the decision regarding 80% flats and 20% shops in the interest of keeping as much open space around any development as possible.
· Upon redevelopment of the commercial area of Bundeena there will be an oversupply of commercial space that would threaten the viability of the existing businesses in Bundeena. Therefore rather than maintain a 50/50 residential/commercial split it would make more sense to downsize the proposed corner store development to make way for more open space, a community space, and less need for excavation, thus giving encouragement to present business owners and landlords to invest in upgrading their premises.
c. Impact on 94 Loftus Street
· Insufficient setback along the boundaries with no. 94 Loftus Street. A setback of 6.5 metres is requested along the south and western sides of no. 94 Loftus street, as was proposed by the Court Appointed Expert for the adjoining IGA store, to reduce the overshadowing and privacy impacts and the imposition of a claustrophobic feel on no. 94 Loftus Street.
· The proposed view loss from no. 94 Loftus Street is described as severe. Previously there was a 180-degree vista to Horderns Beach over the roof of the old corner store.
d. Impact on 22-30 Brighton Street Bundeena
· The proposed 8.5m wide driveway and elevated terrace adjacent to the open seating area on the northern side of 22-30 Brighton Street, impacts significantly on the established open space at 22-30 Brighton Street. The adverse impact results from the presentation of the proposed development to no. 22-30 Brighton Street and vehicular impacts.
· The proposed terrace does not create an effective plaza/open space within the development due to the lack of integration with either the adjoining property at 22-30 Brighton Street, the public footpath or the at grade open space within the proposed development itself.
· The proposed terrace will lead to noise and view loss impacts to the residential units at the first floor of 22-30 Brighton Street, impacts which could be avoided by a truly 'integrated' open space.
· Incorrect and/or misleading photomontages prepared to illustrate impact on 22-30 Brighton Street, which underestimate the extent of the adverse impact on the adjoining property.
· The current driveway design is highly unsympathetic both in the context of the DCP objectives and directly upon No. 22-30 Brighton Street. There is capacity for the relocation of the driveway further north along Brighton Street, a reduction in its width and an increase in the driveway gradient, which would allow for the applicant to design around some of the adverse impacts arising from the driveway.
· The height of the privacy screen on the southern side of the unit 9 terrace and of the adjoining stairwell is of insufficient height to prevent overlooking into a north facing living room in 22-30 Brighton Street. This matter could be addressed through a condition of consent requiring the extension of the screen height to a level of RL 17.8.
· DA1605 contains a notation 'this line denotes the extent of the built form foreshadowed in the Bundeena and Maianbar DCP'. This notation carries with it the presumption that view impact on 22-30 Brighton Street would be considered irrelevant for a development consistent with the DCP footprint, which is an illogical proposition. There would still be a need to consider and address view impact for a development, which was consistent with the DCP footprint.
· Inaccuracies exist in the view lines depicted in views 5 and 6 on DA1605, and in view 1 on DA 1604B. As a result the analysis overstates the impact of the DCP footprint. In addition none of the views indicate the height of the balustrade around the terrace or any furniture/weather protection that would be necessary for the terrace to function as a useful public space.
(e) Assessment Context - the DCP Footprint
· The DCP footprint is not considered to lack justification or basis. The DCP is founded on an understanding of the social as well as physical development of Bundeena, including feedback from community consultation, an understanding of the particular importance of the subject site and even absent the original corner store, the potential that exists to restore the role in the community that was so closely associated with it. The applicant has not demonstrated why those DCP principles should not be adhered to.
· The significance of the DCP footprint is that it reflects the desire for a concentrated built form, securing large consolidated spaces for community congregation, consistent with the objectives in part 2 of the DCP 'to reinforce the cultural significance of the town centre of Bundeena as (a) community fathering place...' and part 5 'Recognise the corner location as the gateway to the village and its connection with the community'. The subject proposal, in contrast, adopts a fragmented building footprint and much smaller 'spaces' that for the most part are far more 'private' and exclusive than 'public' and inclusive. Adoption of the DCP footprint would provide recognition to the established social and physical infrastructure of Bundeena.
· Strict compliance with the floorspace ratio and residential/commercial mix requirements may not be necessary if the proposed development complied with the DCP footprint. However in the circumstance where the site planning is quite at odds to the DCP, no justification can be seen as to why a significant variation should be permitted.
f. Impact on 8 Mary Street
· Obstruction of water views from 8 Mary Street Bundeena.
g. Issues remaining from previous submissions
· development is inappropriate, 'box-like', too large and against the letter and spirit of Bundeena DCP,
· development is not sympathetic to the village nature of Bundeena and desired future village character,
· the driveway across the footpath in Brighton Street will be dangerous for pedestrians,
· too much excavation - trucks removing heavy rubble will cause a danger to other road users in the Royal National Park,
· cumulative impact resulting from this and two other development proposals for the shopping centre could destroy Bundeena's village character,
· height and bulk,
· impact on neighbours with respect to sunlight and view loss,
· social impact - oversupply of retail space,
· site is the 'front door' for tourists and residents coming off the ferry and crucial for a sense of place and "arrival" to Bundeena and the Royal National Park,
· social and economic impact in terms of loss of public gathering place and village green,
· residential flats could set a bad precedent,
· no detail regarding drying areas,
· poor ventilation and natural light to commercial units,
· increased energy consumption from use of air-conditioners and clothes dryers,
· inappropriate urban design,
· non-compliance with 0.7:1 FSR and 50:50 residential and commercial ratio,
· amount of excavation has been severely underestimated,
· approval will set a precedent for development in Bundeena,
· loss of trees,
· overdevelopment of the site,
· extensive excavation limits amount of deep soil planting that can be achieved,
· minimal open space,
· lack of setbacks and transitional areas to zoning interface,
· non-compliance with Sutherland Shire LEP, Bundeena + Maianbar DCP and the draft LEP,
· noise and dust effects of excavation during construction,
· drainage problems from extensive excavation, compounded by proposed developments at 22-30 and 36-40 Brighton Street. At present the run off from the old Uniting Church site to the east is spread between these sites. Residents are concerned that the cumulative impact of this and the other proposed developments could create major drainage problems and destabilise the floating sandstone escarpment on the old Uniting Church site,
· the plan exceeds the intended footprint in the DCP,
· ultimate use of flats may be for rental purposes.
102 Many of the issues were resolved by the amended plans, conditions, and following expert evidence were not pressed by the council. In respect of height, the council did not press non-compliance with the planning controls but raised as an issue the three-storey appearance of the proposal when viewed from the west. We understood the council's concern in respect of height to be related more to the overall bulk of the proposal and impact on views.
103 The following emerged as the salient issues:
· Whether the proposal is of a bulk, height and footprint consistent with the existing and future character of Bundeena.
· Whether the proportion of commercial to residential is appropriate.
· Whether the proposal achieves an appropriate interface with the adjoining residential zone, particularly setbacks and view sharing.
The evidence and findings
Existing and future character of the area
104 In this appeal the key factors in determining whether the proposal is consistent with the existing and future character for Bundeena are bulk (FSR), height and footprint.
105 In relation to FSR, the controls, both the maximum and the definition, have changed since the development application was lodged.
106 The FSR, under cl 44(1) of SSLEP2000 that applied when the development application was lodged was 1:1. However, cl 44(2) of SSLEP2000 provides that:
(1) Except where a maximum floor space ratio is specified in a development control plan, the maximum floor space ratio for buildings in a business zone is:
(a) …
(b) 1:1 in the 3(b) Neighbourhood Business zone.
(2) The consent authority must consider any maximum floor space ratio specified in any development control plan applying to the land.
107 The parties did not agree as to the relevant FSR to be applied. Clause 44(1) of SSLEP2000 provides for a FSR of 1:1, except where a maximum FSR is specified in a development control plan, which in accordance with cl 44(2) must be considered. In summary, Mr Bingham submitted 0.7:1 in BMDCP2004 has to be taken into account but the 1:1 in BMDCP2000 should be given greater weight. Mr McEwen submitted, "The council says significant weight must be given to the FSR of 0.7:1 even if LEP2000 still applies and it takes us back to 1:1." When we gave our preliminary findings Mr McEwen submitted, the council would not require strict adherence to the 0.7:1 FSR, but the above ground structure should comply.
108 BMDCP2004, although made after the lodgement of the development application, specified a FSR of 0.7:1. The construction of the FSR clause envisages that a development control plan may specify a FSR different to that in the local environmental plan. It does not exclude development applications lodged before the adoption of the development control plan from its application, nor do BMDCP2004 or BMDCP2006 include a savings provision. We therefore find that under cl 44(2) the 0.7:1 FSR in BMDCP2006 "…must be considered". The fact that the development application was lodged before this control became effective is also a relevant matter, as is the 0.7:1 FSR in SSLEP2006.
109 The definition of GFA is different under SSLEP2000 and SSLEP2006 as well as draft SSLEP2003 and therefore the calculation of FSR applicable to the development is different depending upon what definition is used.
110 Mr Dickson calculated the FSR of Version I plans under both the SSLEP2000 and SSLEP2006 and concluded:
· Under SSLEP2000: The aboveground GFA of Version I of the plans would be 2,012m2 and the FSR would be 0.89:1. The basement GFA would be 616m2 or a FSR 0.27:1. Thus the total FSR would be 1.16:1 [above ground around 0.2:1 in excess or 450m2, and in total 0.16:1 in excess of 1:1 or 360m2]. Thus calculated under the provisions of SSLEP2000 the Version I proposal would be in excess of the allowable GFA and FSR under SSLEP2006 of 0.7:1 by 711m2 or 0.316:1, respectively.
· Under SSLEP2006: The aboveground GFA of Version I of the plans would be 1,802m2 and the FSR would be 0.8:1. The basement GFA would be 1,036m2 and when an allowance for 21 spaces or 616m2 has been made, the FSR for that portion of the building would be 0.27:1. Thus the total FSR would be 1.07:1. [above ground 0.1:1 in excess of 0.7:1 or 225m2; and in total 0.07 in excess of 1:1 or 157.5m2]. Thus calculated under the provisions of SSLEP2006 the Version I proposal would be in excess of the allowable GFA and FSR by 690m2 or 0.307:1, respectively.
111 According to Mr Dickson, it was the practice of the council to exclude completely from the calculation of GFA, basement car parking and access thereto. This practice is in line with the model provisions definition of GFA. Draft SSLEP2003 reflected this practice and was the version of the draft local environmental plan that the Court considered at the time of its preliminary findings. The measurement of GFA from the internal face to the outer face of the external wall has also changed between the exhibited draft and the gazetted local environmental plan. No explanation was provided in the hearing as to the planning reason for these changes between the exhibited draft and the plan that was gazetted.
112 If the GFA were calculated under the draft instrument it would properly be gross as it is measured to the outer face of the external enclosing walls and there is an argument that the internal access to the car parking area is excluded. The changes that have occurred over time indicate that the council has not consistently applied its FSR development standards. It was estimated that there would be a difference of at least 10% in the FSR by excluding the thickness of the external walls, resulting from the change in the definition. Thus, the FSR under SSLEP2006, as calculated by Mr Dickson would be around 0.907:1 rather than 1.007:1.
113 Our preliminary findings were made before the gazettal of SSLEP2006, at the time Draft SSLEP2003 was a relevant matter for consideration. We sought an overall development that would largely comply with the 1:1 FSR, with the aboveground structure complying with the 0.7:1 FSR. We noted that this approach was consistent with the practice of council, referred to by Mr Dickson, that the below ground floor areas including the car parking were not included in the calculation of GFA. This was also reflected in the definition of GFA in draft SSLEP2003. This approach rationalised the 1:1 FSR control of SSLEP2000, with the 0.7:1 FSR in BMDCP2006 and Draft SSLEP2003.
114 The FSR is generally accepted as being a guide to bulk and scale of development. Over the years the FSR in Bundeena has been changed from 2:1 when Bundeena was zoned General Business 3(a) with the gazettal of SSLEP2000, to 1:1 in an amendment of that planning instrument and 0.7:1 in SSLEP2006. However, as illustrated by Mr Dickson's evidence, the numerical amount varies considerably depending upon the definition of GFA and what is included and excluded in this definition. It is clear that under the definitions in both SSLEP2000 and SSLEP2006 the development as a whole exceeds the FSR maximum. The above ground structure slightly exceeds 0.7:1 but is below 1:1.
115 Despite this non-compliance with SSLEP2000, the parties agreed that an objection under State Environmental Planning Policy No 1 (SEPP 1) was not required as under cl 44(2) the FSR control is within a development control plan.
116 The key question before the Court is not only whether the proposal complies with the numerical controls but also whether it achieves the purpose of these controls. Despite there being no requirement for a SEPP1 objection the appropriateness of the proposed FSR can be tested in the light of the decision of his Honour Justice Lloyd in Winten Property Group Limited -v- North Sydney Council, NSWLEC 46, 6 April 2001, as if it were a SEPP1 objection, principally whether it meets the objectives of the control.
117 The objectives of cl 44 in SSLEP2000 are not articulated. However, the usual purpose of FSR is to control the bulk and scale of a development. The objectives in cl 35 of SSLEP2006 for building density are:
(a) to ensure that development is in keeping with the characteristics of the site and the local area,
(b) to provide a degree of consistency in the bulk and scale of new buildings that relates to the context and environmental qualities of the locality,
(c) to minimise the impact of buildings on the amenity of adjoining residential properties,
(d) to ensure, where possible, that non residential buildings in residential zones are compatible with the scale of residential buildings of land in those zones.
118 These objectives offer further assistance in determining the purpose of the FSR control. However, we note that these objectives relate largely to maintaining the existing character and context of the area. While we consider that the natural environment and the relationship of the built form to landscape are attributes of the area to be maintained, the actual built form lacks consistency or architectural merit and is not an element to be emulated. The specific controls for Bundeena and particularly the site (Standard 14) in BMDCP2006 offer guidance to the character and context, to which the proposal should respond. They are valid considerations in determining whether the proposal meets the objectives of the standard.
119 The expert evidence before the Court is that the proposal achieved appropriate bulk, scale and acceptable amenity impacts.
120 In relation to amenity impacts on adjoining residential development, the key impact is view loss and setbacks, which are discussed below. While a proposal with less FSR could reduce the view loss and provide greater separation the amenity impacts of this proposal are minimised in that the proposal "…respects existing views enjoyed by the [occupants of] adjoining residential and commercial development" as required by Standard 14 of BMDCP2006.
121 The proposal is located on opposite a park, at the edge of the Bundeena shops, near the ferry wharf. It is a corner location, which provides a "gateway" to the village. The existing commercial area of Bundeena has no strong consistency of scale or architectural merit. The adjoining property to the north is of greater bulk and scale than the proposal and is unlikely to be redeveloped in the near future. Further to the north a development had been approved with an FSR of around 0.88:1. The aboveground bulk of the proposal would largely comply with the 0.7:1 FSR control in SSLEP2006 and BMDCP2006. The belowground area provides parking to service the proposal and would not add, in any material way, to the bulk of the building. The experts agreed that the proposal was of considerable architectural merit, with materials, form, height, bulk and scale that reinforces its corner and "gateway" location as required by Standard 14 of BMDCP2006.
122 The proposal would be broken up into pavilions with terraces in between and open space which would "…reinforce the subdivision width and façade divisions along Brighton Street in order to break the building form and reduce building bulk" as required by Standard 14 of BMDCP2006. These terraces and open space provide opportunities for landscaping. A number of canopy trees are to be provided to replace trees, which are being removed, either because of their poor condition or location within the building footprint. The landscape experts agreed that the removal and replacement planting was acceptable. The proposal would be consistent with the character of Bundeena created by buildings in a landscaped setting.
123 The proposal is for mixed-use development, which would maintain a residential character, and would be setback 7.5m to Loftus Street thereby meeting Standard 14 of BMDCP2006.
124 In reviewing the objectives and standards in the development control plan we are satisfied that these are met. Standard 7 of BMDCP2006 requires the use of 'light weight' materials and minimum 'cut and fill'. Also, on p 5 of BMDCP2006 in respect of residential development and redevelopment, under the heading of 'Structure Plan', buildings are required to 'light footed'. However, this requirement seems inappropriate when dealing with mixed-use development that requires on-site car parking and loading facilities to be provided within a basement car park.
125 The preliminary findings of the Court placed emphasis on the setback of the proposal from Brighton Street to better reflect the building footprint illustrated within the BMDCP2006. This resulted in the deletion of Unit 3 in south west corner of the land. This considerably reduced the overall bulk of the proposal, reduced view loss to the adjoining residential units at Nos 22 - 30 Brighton Street, provided a significant area of open space, which can be used by the public and links with the adjoining open space, and commercial area at Nos 22 - 30 Brighton Street.
126 The proposal would also comply with the height controls contained in SSLEP2000 and BMDCP2006. The council was concerned about the three-storey appearance of the proposal, while technically there are small sections of the proposal that are three storeys in height these are stepped in accordance with BMDCP2006. The proposal at the street frontage would be two-storeys in height, the proposal steps with the topography, and the location of the three storey section would be setback a considerable distance from Brighton Street behind the landscaped courtyards. For these reasons we are satisfied that the design would appear as two storeys from public viewpoints around the land and from the adjoining residential properties would appear as single storey and is an acceptable community outcome.
127 We note that the proposal would not comply with the two-storey height control in SSLEP2006, however, for the reasons given above we are satisfied that the proposal would meet the objectives of this control.
128 Mr Tzannes was of the view that the amended proposal would be "…an appropriate design for the specific site within Bundeena and demonstrates considerable merit in the arrangement of open space, built form, publicly accessible private open space and vehicular access." [Note: Exhibit M, p 2].
129 Before the latest amendments, Mr Dickson defined the local character and scale of Bundeena as being:
…predominantly free-standing single storey residential development that provides established landscaping within generous front and rear setbacks. There is no defined built form character, however, there is a dominance of small fibro cottages, depicting a 'beach shack' feel. From the 1990s onwards, the village beachside scale of Bundeena has been in the process of change. The construction of much larger brick and tile homes, consistent with more urban areas of the Sutherland Shire has seen the urban fabric of Bundeena altered.
The proposal does maintain a village scale along its street frontage. It is responsive to the bulk and scale of the existing built form within Bundeena as it consists of 2 storey building elements separated across the site by landscaped courtyards. [Note: Exhibit 3, p 12]
130 Mr Dickson maintained this position with the amended plans and raised no issue with regard to any breaches of the FSR. In oral evidence he stated that the dispersed building form may actually increase the numerical FSR but in effect results in a less bulky building.
131 The proposal, therefore, would comply with the building envelope anticipated for the land by the planning controls. The bulk and scale of the proposal would not be excessive or inappropriate in the context of adjoining development and the characteristics of Bundeena as the "Gateway" to the National Park.
132 In coming to this conclusion, we have considered the objectives and standards of the BMDCP and SSLEP2006, including cl 48, Urban Design General. In summary, these controls are aimed at achieving high quality design outcomes appropriate to the context of Bundeena. The expert evidence before us is that the proposal would meet these requirements. Despite the breach of the FSR, we are satisfied that the outcome would be of a high standard of design. In reaching this conclusion, we note that a building of this size, but of less sensitive design, would be inappropriate for the site.
Residential floor area as a proportion of the gross floor area
133 Under cl 45 of SSLEP2000 the proportion of total residential floor area to GFA is 50% except if a maximum amount is specified in a development control plan. Under BMDCP2001 the proportion of residential floor area was specified as 70% of the total GFA of a development.
134 In BMDCP2006 the proportion of residential floor area to gross floor area was specified as 50%.
135 SSLEP2006 does not include provisions for the proportion of residential floor area but these are maintained in SSDCP2006, which provides:
- A mixed-use development is to provide a minimum percentage of retail and commercial floorspace in accordance with the following proportions:
· Urban Centre 60%
· Local Centre 60%
· Neighbourhood Centre 50%.
- The retail/commercial portion of the development is to be distributed so that active uses are provided at street level.
136 The total residential GFA of Version I proposal has not been calculated however, Mr Dickson calculated the Version F proposal contained a residential proportion of 79.5%. Since then, Unit 3 has been deleted and a café added so the proportion would be slightly less.
137 In a preliminary decision of the Court in August 2006, the parties were told that the proportion of the residential component to the commercial/retail component would not be a reason to refuse the application. There was conflicting evidence as to the viability of providing a larger commercial component. A number of residents raised concerns about whether more commercial development in Bundeena was sustainable. The Court was also mindful of the changing controls and that the proposal generally complied with the proportional mix applicable when the application was lodged. The amendments during the hearing reduced the residential component and increased the commercial component. Mr McEwen submitted that if a larger commercial component were not viable, the residential component should be reduced accordingly to comply with the 50% requirement. On this basis the development would achieve, in Mr McEwen's submission, 400m2 of commercial and 400m2 of residential, being a FSR in the order of 0.4:1. We do not accept that this is a reasonable proposition given the objectives of the planning controls.
138 The retail/commercial uses have been provided at ground level and considerable changes were made to the application so that the street frontages are allocated to active uses and the open space forms an important part of the development. In particular, the open space in the south-west corner of the land has been lowered to ground level to better relate to the adjoining outdoor area, used for cafes, at Nos 22-30 Brighton Street. This area together with the proposed open space on the subject land would be an active area able to be used by the public. The experts agreed that this area would provide significant amenity to the public domain. They described the advantages as being:
· Relatively good pedestrian access from the north and south and from the adjoining development to the south;
· Achieves a balanced trade-off in terms of deep root zones: the loss of deep root zones in the northern part of the site is offset against the gain in deep root zones located in the southwest corner of the site;
· Integrates well with the south of the site;
· Narrows the driveway width to 6.2metres;
· Minimises acoustic and visual privacy issues to 22 -30 Brighton Street;
· Provides for a flexible retail/commercial space at the eastern end of the terraces. This retail space will be locate under the proposed residential units;
· Provides for views of the beach and bay and other landforms from the terrace and the adjoining shops.
139 The outdoor space at the north-west corner of the land was also amended to better relate to the street and its adjoining commercial tenancy and provides amenity for both the development and the public domain. These areas and the courtyards between the commercial tenancies provide opportunities for planting of canopy trees consistent with the objectives in the BMDCP.
Interface with the adjoining residential zone
140 The land adjoins a residential zone to the east so the eastern boundary is a zone boundary and requires special attention, [Note: Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117]. The council and the residents were concerned that the proposal would result in an unacceptable view loss to No 94 Loftus Street and that its proximity would adversely impact on the amenity of No 94 Loftus Street and the residential development of the Uniting Church lands further to the south along this boundary.
Setbacks
141 BMDCP2001 required a 6m-wide service road along the eastern boundary of the land to provide access to properties to the south, [Note: Exhibit 16, Map 09]. This service road requirement might well have been the reason for this requirement in respect of development on the land abutting to the south at Nos 22-30 Brighton Street in the Ebsworth case. In BMDCP2004 the 6m-wide service road was deleted.
142 The original proposal in the vicinity of the church lands, would have been setback a minimum of 1m at ground level, with a setback of 1.9m at the first floor level and incorporating a 900mm wide skylight over the ground floor living, dining and kitchen. The Version I plans show a different configuration with Unit 6 on level one being setback 1.6m where there are blank walls facing onto the boundary and 3m where there are windows proposed in the centre bay.
143 Building envelopes have been approved for the former church lands, which indicate that the proposed houses would be setback around 10m and 7m from the eastern boundary of the subject land. The former church land is at a higher level than the subject land and consequently the proposal would appear as single-storey from viewpoints on the former church property. Despite the proximity of the proposal to this boundary an acceptable relationship is achieved with future development of the former church lands due to the setback, single-storey appearance and landscape screening along the boundary.
144 In the vicinity of No 94 Loftus Street the variable setback of has been increased marginally so that the minimum is 1.5m. The eastern elevation of the proposal is broken up with internal courtyards and short blank end walls that are staggered along this side.
145 Mr McEwen submitted that BMDCP2006 required a 7.5 m setback from a rear boundary of a residential development and that the setback from the eastern boundary of the proposal, in the vicinity of No 94 Loftus Street, would be therefore inadequate. We do not accept this submission. The specific controls in BMDCP2006 for the land require a 7.5m setback to Loftus Street being the designated front boundary. The proposal exceeds this control. The land is located on a corner and the eastern boundary is therefore more akin to a side boundary than a rear boundary, which would require a 1.5m setback under the BMDCP2006. The proposal provides a minimum of 1.5m but for about 30% of the eastern façade the setback would be 16.5m. This setback breaks the building into separate pavilions, which provide space for canopy planting and landscape screening along the boundary to soften the visual impact of the proposal.
146 We consider that the design of the proposal, together with its landscaping, would be a appropriate response to the particular characteristics of the land and its topography and would achieve an acceptable relationship.
Views
147 Applying the principles of Tenacity Consulting v Warringah Council [2004] NSWLEC 140, firstly, the view is of water, and includes the land/water interface. This is best appreciated from the patio. Secondly, the view is over the land across a side boundary and as such "…is more difficult than the protection of views from front and rear boundaries. …The expectation to retain side views and sitting views is often unrealistic." Thirdly, the view is from a study, bedroom and a patio. The view from the patio is largely retained. The Bundeena Café, the previous building on the land, largely obscured the western view of the water from the study, although there were in distant views to the bush. The impact on the view from the study when measured against the view across the Bundeena Café is largely unchanged by the proposal. The room which is most affected is the bedroom. This room would lose some of the western views it previously enjoyed of the water, and would retain some of the land/water interface view and gain in the extent of the view of the beach when compared to the view over the Bundeena Café.
148 During the course of the hearing, the applicant modified the design so as to increase the availability of views over the proposal and the land from the bedroom. This was achieved by skewing in plan of that part of the proposal in the vicinity of Units 1 and 2. Mr Dickson considered this to provide "…a greater benefit in the available critical view from No 94, than that which was available from No 94 under the previous proposal." [Note: Exhibit 30, p 7]. He noted that the skewing the building was an alternative to removing Bedroom 4 and the balcony in Unit 1 of the proposal. The removal of Bedroom 4 and the balcony would further improve the views to the land water interface from the bedroom.
149 In assessing the impact on views Tenacity states:
The fourth step is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable.
150 The view loss is from a bedroom and if the development were complying with all the controls for the site, reasonable view sharing would be achieved. However, even though the proposal complies with the height control it exceeds the FSR control. We consider that the deletion of Bedroom 4 and the balcony of Unit 1 is therefore not unreasonable to further improve the view of the land/water interface from the bedroom window and provide similar views of the land/water interface to those that existed over the Bundeena Café. This change can easily be implemented by employing a similar floor plan to that of Unit 7. We have included a condition of consent to this effect.
151 Mr McEwen submitted that the proposal could be redesigned to require the loading dock to be located in the courtyard on the ground floor between the commercial tenancies, thereby affording the designer the opportunity of lowering, by around 1.4m, the podium of the building. This condition would have the effect of lowering the proposal by a similar amount and improving the views from No 94 Loftus Street. In the Version I plans, the height of the podium was designed to accommodate truck access to the basement loading dock. All the experts, except for Mr Brooker, agreed that placing the loading dock in the landscaped terrace would have a significantly adverse impact on the public domain. When balancing the benefits of lowering the building with those adverse impacts on the public domain, we consider this change to be inappropriate, particularly as the proposal complies with the height limit and we consider the view loss from No 94 Loftus Street to be reasonable.
Conditions
152 The conditions are those in Exhibit 34, as amended by Exhibit S and the conditions filed by the parties on 4 December 2006.
153 The main condition that remained in dispute was whether there should be a deferred commencement condition requiring an Aboriginal archaeological survey and design changes to be subject to further approval of the council. We have deleted the deferred commencement condition and incorporated the requirements into general conditions.
154 The conditions relating to the provision of a loading dock in the courtyard on the ground floor have been deleted as discussed above as we are satisfied that the basement loading is more appropriate for a development of the size proposed.
155 We have included a new Condition 1B(q) to the effect that:
Bedroom 4 and the balcony of Unit 1 is to be deleted and shall not be constructed. The reason for this change to the plans is to further improve the view of the land/water interface from the bedroom window of No 94 Loftus Street.
156 We have deleted part of the deferred commencement Condition 2m that would have required the southwestern corner at ground floor level not be used for any commercial purpose and maintained as an open, at-street-grade landscaped space. We consider it is appropriate that this area be used in association with the café. This will still enable it to be used by the public and ensure that it would be maintained and provide an active street frontage.
157 Also we have deleted part of the deferred commencement Condition 2n that would have required the size of the southern retail/commercial tenancy be reduced by the relocation of its southern wall 2.5m to the north. We consider that adequate views would be available from Nos 22 - 30 Brighton Street commercial tenancies. The size of the café is only 56m2 internally and moderate in size to provide for the sustainability of this use. We have also taken into consideration the commercial/residential proportions required in the BMDCP for this land.
158 We have amended Condition 4 to require a small rigid vehicle (SRV) as defined by Australian Standard AS2890.2 - 2002 for deliveries to the basement loading dock. This is to ensure that the use of commercial tenancies will not require servicing by large articulated vehicles which would impact on the area.
159 We have maintained Condition 89 that requires only one parking space per commercial tenancy be allocated for the exclusive use of that tenancy. This would ensure that the remaining commercial parking spaces remain available for use by the customers of any of the commercial tenancies.
Orders
160 Our orders are: