Maxnox Pty Limited v Hurstville City Council

Aitchison (Mortdale) v Hurstville City Council [2003] NSWLEC 393 ; CASES CITED: Mison v Randwick Municipal Council (1991) 23 NSWLR 734; Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254 ; Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195

APPLICANT: Mr S Kondilios (Solicitor) SOLICITORS Maddocks LEGAL REPRESENTATIVES: RESPONDENT Mr P Rigg (Solicitor) SOLICITORS Deacons

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11334 of 2005 MAXNOX PTY LIMITED v HURSTVILLE CITY COUNCIL

JUDGMENT HIS HONOUR: A. INTRODUCTION 1 This is an appeal against the refusal of Development Application 20050092 by Hurstville City Council ("the Council") for the demolition of all existing improvements and the construction of a residential flat building at 1 Martin Place, Mortdale ("the site"). B. THE SITE AND SURROUNDING AREA 2 The site is rectangular in shape with a frontage of 15.24 metres to Martin Place and side boundaries of 35.815 metres, giving a total site area of 545.6 square metres. There is a slight fall from the rear of the site to the front of approximately 1.7 metres. The existing improvements consist of a single dwelling house and detached garage. 3 The site is located in an area characterised by residential flat buildings and the Mortdale commercial centre. C. THE PROPOSAL 4 The proposal provides for a partly three storey and partly four storey residential flat building comprising 6 x 2 bedroom units, with basement car parking consisting of six resident parking spaces and two visitors spaces. Two units are proposed on each level, with a central stairway providing pedestrian access to all six units. D. RELEVANT PLANNING CONTROLS 5 The site is zoned 2 (Residential) under the provisions of Hurstville Local Environmental Plan 1994 (LEP 1994). The proposed development is permissible with consent within this zone. Clause 8(3) of the LEP 1994 provides that consent may only be granted if the development is consistent with the objectives of the zone, and only after consideration has been given to the extent to which the development is consistent with those objectives. Clause 9 provides that consent may only be granted where consideration has been given to "any planning and design principles or policies adopted by the council". 6 Hurstville City Council Interim Residential Development Code (the Code) also applies. The Code identifies four development areas, to which different requirements apply. The site falls within the development area "D"; the type of development proposed being "Medium Density/Three Storeys" (Pt 1). 7 The relevant requirements in Part 3 of the Code are:

· Site Planning - Minimum Size of Allotments and Site Amalgamations (i), Residential Densities (i)(a), Solar Access (iv) and Privacy and Views (v). · Streetscape - Local Character, Height and Scale (i), · Building Form and Style - Building Envelope (i), Storeys (v), Rear of Site (vi), · Building Setbacks, · Car Parking and Access - Basement Parking (vi), and · Landscaping. 8 The relevant requirements in Part 4 of the Code are:

· Specific Development Controls - Development Area D.

9 State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65) applies to the proposal by way of cl 4(1)(a) as the proposal constitutes "the erection of a new residential flat building". Part 2 of SEPP 65 sets out design quality principles for residential flat development. These design quality principles seek to provide a guide to achieving good design and a means of evaluating the merit of proposed solutions. 10 The application was reviewed by the Design Review Panel pursuant to Part 3 of SEPP 65. 11 The Council identified further planning instruments relevant to the site in its Statement of Basic Facts, however none relate to the issues raised by the Council. 12 One objection was received from a local resident when the development application was originally advertised, however no resident objections were received upon advertisement of the amended development application and the plans which form the subject of this appeal. E. THE ISSUES 13 The Council filed a Statement of Issues, which outlined nine issues generally relating to the applicant's non compliance with requirements of the Code. There was general agreement between the respective town planner witnesses for the parties, Mr Crane and Mr Broyd that strict compliance with the Code's requirements was not necessary because of the difficulty in complying with the minimum frontage requirement of 24 metres. The site has a frontage of only 15.24 metres and owing to the right of way servicing a car park to commercial buildings to its north east and residential flat buildings to its south west, any amalgamation with an adjoining site is unrealistic. 14 The difference in opinion between Mr Crane and Mr Broyd centred on the significance of the departures from the Code requirements. Whilst there was general agreement regarding the extent of the departure from the Code requirements, Mr Crane contended that those departures could be justified based on the inability to amalgamate with the adjoining site. Mr Broyd came to the opposite conclusion. 15 The specific areas of the Code in dispute relate to density, landscaping, setbacks, number of storeys and the consequent impact of these features on the character of the area and streetscape. F. STATUS OF THE CODE 16 There is an issue as to whether the Code is a development control plan or only a policy and, if the latter, as to the weight to be given to it. The applicant submitted that the code was not a development control plan and that it was lower than a development control plan in the hierarchy of matters which should be accorded weight. The respondent submitted that it was development control plan; or alternatively, that it should be given as much weight as a development control plan.

17 The significance of the issue relates to the extent to which departure from the Code's provisions might be acceptable, as well as to the fact that departures from the Code had been permitted in a successful appeal to this Court in relation to a similar application at nearby 33 Martin Place which I discuss below.

18 A development control plan, unlike a council planning policy, is quite heavily governed by legislation: see Environmental Planning and Assessment Act 1979 (EP&A Act), Part 3, Div 6 (ss 74B - 74E) and the Environmental Planning and Assessment Regulation 2000.

19 The principles relevant to consideration of development controls plans were summarised in Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254 at 272 by McClellan CJ as follows:

· A development control plan is a detailed planning document which reflects a council's expectation for parts of its area, which may be a large area or confined to an individual site. The provisions of a development control plan must be consistent with the provisions of any relevant local environmental plan. However, a development control plan may operate to confine the intensity of development otherwise permitted by a local environmental plan. · A development control plan adopted after consultation with interested persons, including the affected community, will be given significantly more weight than one adopted with little or no community consultation. · A development control plan which has been consistently applied by a council will be given significantly greater weight than one which has only been selectively applied. · A development control plan which can be demonstrated, either inherently or perhaps by the passing of time, to bring about an inappropriate planning solution, especially an outcome which conflicts with other policy outcomes adopted at a State, regional or local level, will be given less weight than a development control plan which provides a sensible planning outcome consistent with other policies. · Consistency of decision-making must be a fundamental objective of those who make administrative decisions. That objective is assisted by the adoption of development control plans and the making of decisions in individual cases which are consistent with them. If this is done, those with an interest in the site under consideration or who may be affected by any development of it have an opportunity to make decisions in relation to their own property which is informed by an appreciation of the likely future development of nearby property.

20 Is the Code a development control plan? It is entitled "Interim Residential Development Code". Its opening words under the heading "Important Note" are that the Hurstville City Council, at a meeting in 1995, "adopted the following Draft Multi Unit Residential Development Control Plan as its interim Residential Development Code…". The shift in language from "Draft…Control Plan" to "Interim…Code" in the title and in this note suggest that it was not intended to be a development control plan. Later references in the document to "This Development Control Plan", that "the DCP is a revised version of Council's 1994 DCP" and the like are, I think, references to the said draft. In Aitchison (Mortdale) v Hurstville City Council [2003] NSWLEC 393 at [17] the learned Commissioner said that "the name is not really reflective of the fact that the document is a DCP" and later referred to it as "The DCP", although she also referred to it more equivocally as "The DCP or Code". In my opinion, the document's title and opening words in the important note indicate sufficiently, on the evidence before me, that it is not a development control plan but, rather, a comprehensive planning policy.

21 Nevertheless, in my opinion, it must be taken into account under the EP&A Act, s 79C(1)(e).

22 The EP&A Act, s 79C(1) relevantly provides that: In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: ….. (iii) any development control plan ….. (e) the public interest

23 "Section 79C(1) does not stipulate or imply a hierarchy among its various paragraphs or among the subparagraphs of (a)": Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195 (CA) at 206 [56]. Section 79C(1)(e) extends "to any well-founded detailed plan adopted by a council for the site of a proposed development either alone or forming part of a greater area even if it is not formally adopted as a development control plan": Stockland at 272-273 [90]. In my opinion, the Code is a well-founded, detailed plan adopted by Council and therefore must be taken into account under s 79C(1)(e).

24 Furthermore, in my view, it is required to be taken into account by clause 9 of the LEP 1994, which provides that: The council may only grant consent to the development of land where it has taken into consideration any planning and design principles or policies adopted by the council from time to time which may be relevant to the particular development.

25 What weight should be given to the Code? In Stockland, McClellan CJ identified the matters which are relevant when determining the weight to be given to a planning policy adopted by a Council (at 273 [92]): · the extent, if any, of research and public consultation undertaken when creating the policy; · the time during which the policy has been in force and the extent of any review of its effectiveness; · the extent to which the policy has been departed from in prior decisions; · the compatibility of the policy with the objectives and provisions of relevant environmental planning instruments and development control plans; · the compatibility of the policy with other policies adopted by a council or by any other relevant government agency; · whether the policy contains any significant flaws when assessed against conventional planning outcomes accepted as appropriate for the site or area affected by it.

26 His Honour held at 274 [95]: Where, as in the present case, urban design controls which may not have been embodied in a development control plan have, nevertheless, been carefully thought out after detailed consultation with relevant parties, a council should make decisions which give them practical application. Unless cogent reasons suggest otherwise, a council is also entitled to expect the Court to require development to conform to the adopted parameters.

27 The evidence as to public consultation undertaken in the creation of the Code is sketchy, but sufficient to indicate that there was extensive publication and opportunity provided for public involvement, despite the minimal public response. There was evidence, which I accept, that one relevant provision in Part 3, requiring a residential density of 105 square metres of site area per dwelling for multi-unit developments, came from a member of the Council at a meeting rather than from research or a process of public consultation.

28 The Code has been in force for over a decade. There was some general evidence that it had been departed from, but no specific evidence as to the extent or frequency of any such departure, with the exception of the case of 33 Martin Place. It is, in my view, compatible with the objectives and provisions of the relevant Hurstville Local Environmental Plan 1994. The Code records that it was prepared by the Council and by named consultants. It is responsive to the LEP 1994, which has few specific controls. It also comes within the scope of clause 2(d) of that plan, which states that one of its aims is "to create a broad framework of planning controls within which the council may, from time to time, develop and adopt more detailed policies and guidelines relating only to matters of significance for local environmental planning". There is no suggestion that the Code is incompatible with other policies adopted by the Council or by any other relevant government agencies, nor that it contains any significant flaws when assessed against conventional planning outcomes accepted as appropriate for the area affected by it.

29 In my opinion, following Stockland, the Code is entitled to substantial weight and, generally, the Court should require a development to conform to its adopted parameters unless cogent reasons suggest otherwise. I would accept, however, that the weight to be given to the 105 square metre density required under the Code, while still significant, is somewhat diminished by the circumstances to which I have earlier referred on that point.

30 The parties have agreed that there are cogent reasons to depart to a degree from the adopted parameters because of the difficulty of complying with the minimum frontage requirement. The issue concerns the extent of the departure.

G. 33 MARTIN PLACE 31 I turn now to consider the successful appeal to this Court in relation to a similar application at nearby 33 Martin Place in Aitchison. Aitchison predated Stockland and therefore the learned Commissioner in Aitchison did not have the benefit of the judgment in Stockland.

32 In my view, the facts and circumstances in Aitchison are distinguishable from those of the case before me. The consideration of the issues raised in Aitchison are set out in the following paragraphs of the judgment: 56 The subject site is constrained but also unique and a matter that the Court is mindful of in its assessment. The side boundary set backs of the two adjoining flat buildings are generous being the area of some landscaping and providing driveways for an access to parking for both adjoining residential flat buildings. This in itself does create an opportunity for visual separation despite the restrictive width of the subject site being only 12 m. 57 I am also satisfied that the podium at the height that is proposed is one that will 'fit in' with the streetscape and would not warrant refusal of the application. The Court was mindful of the need to ensure that the gradient could be achieved in terms of the Australian Standard for the basement car parking and I am satisfied that this can now be achieved therefore there would not be a need to further raise the level of the podium which if raised could be out of character in the streetscape. 58 With respect to the landscaped area, this is an issue that received a great deal of discussion during the proceedings. As I stated I do not count the planter boxes as areas within the landscaped area and in terms of providing canopy vegetation the subject site does provide the necessary space in the front and rear set backs. 59 For the side boundaries, the area for landscaping is minimal, however, this would not warrant refusal of the application because of the overall merits of the application and the front and rear landscaping and the visual relationship with adjoining buildings. I am mindful of the fact that a building with a site width of 12.1 m providing basement parking would require the extent or the width in terms of not providing for large areas of deep planting on the side boundary set backs. 33 It can be seen from the judgment in Aitchison that the relationship between the site and adjoining residential flat buildings was a matter given some weight in the Court's consideration. This relationship was considered acceptable in that case because of the sufficient physical separation and the provision of landscaping. A similar relationship does not exist between the subject application and its surrounding development. The number of storeys of the Aitchison development also complied with the requirements of the Code, whereas the proposed development exceeds the storey requirement, despite its compliance with the overall height requirement. 34 The density of the development in Aitchison, despite exceeding requirements in the Code, was considered acceptable because of the development's design, its relationship to adjoining development and its presentation in the streetscape. For reasons set out later in this judgment, I have concluded that the design of the subject site is unacceptable. H. THE CODE REQUIREMENTS Density 35 A density of 105 square metres of site area per dwelling unit is prescribed for the relevant development area "D". With a site area of 545.6 square metres, five units can be accommodated on the site under the Code. The proposal provides for six units, which constitutes a density of one unit per 91 square metres of site area.

Landscaped open space 36 The Code provides that a minimum of 45% of the site must be landscaped open space. 'Landscaped open space' is separately defined in the Code. The proposal provides for an area of landscaped open space amounting to 31% or 32.3%, depending on whether the calculations of Mr Crane or Mr Broyd are accepted. The difference is not material and it is not necessary for the purpose of these proceedings to prefer one of these figures above the other.

Number of storeys 37 The Code provides for a maximum of three storeys. A 'storey' is separately defined in the Code and includes a basement parking area which protrudes more than 1 metre above natural ground level. The proposed building comprises a basement parking level and three residential levels above. As the basement level protrudes a maximum of 1.7 metres above natural ground at the front the building, it clearly falls within the definition of 'storey' in the Code.

Setbacks 38 The proposal satisfies development area D's front setback requirement of 6 metres. Side boundary setbacks are determined by the building envelope controls. A minimum window to window separation of 9 metres is required for the first two storeys of a development and 12 metres for the third storey. Side boundary setbacks are to be a minimum of 4 metres to allow for good quality landscaping and ground level courtyards. On small sites (e.g., those with 24 metre frontages), the third storey is required to be set back a minimum of 7 metres from the side boundary. 39 The proposal provides for a setback ranging between 1.58 metres and 3.98 metres from the north eastern boundary and a setback of 1.5 metres and 3 metres from the south western boundary. I. THE PLANNERS' EVIDENCE 40 Mr David Crane provided town planning evidence for the applicant and Mr David Broyd provided town planning evidence for the Council. Mr Crane for the applicant 41 Mr Crane states that the proposal meets the objectives of the LEP and the zoning, as well as the objectives of the Code, notwithstanding its non-compliance with some of the Code's design standards. In his opinion, the building is compatible in bulk, scale and setbacks with the neighbouring residential flat buildings and residential flat development generally in the surrounding streetscape. He contends that the subject development will present as a well landscaped and attractive built form when viewed from the street and neighbouring properties. 42 Mr Crane submits that the proposal is an appropriate design response to the site constraints and surrounding built form context, without significantly impacting upon the amenity of neighbouring residential properties in terms of overshadowing, loss of privacy or visual bulk and scale.

Mr Broyd for the respondent 43 Mr Broyd states that the density, scale and bulk of the proposal, relative to the lot width, are unacceptable within the context of the locality. He proposes that a reduction in the scale of the building would enable more landscaping, with consequent presentation, design and privacy protection benefits. He notes that deep soil planting is restricted to the front and rear yard and no provision has been made for sufficient planting along the side of the proposed building. He considers the lack of landscaping on the site and the consequent impact of the proposed development unacceptable. 44 In his opinion, the four-storey nature of the development cannot be justified given the distinctive constraints of the site. J. FINDINGS 45 In considering whether the proposed development is suitable in this location, the Court is in the unusual position of having few development standards to rely on for its assessment. The Court also has the agreed position of Mr Crane and Mr Broyd that strict compliance with the requirements in the Code was not necessary because of the difficulty in complying with the minimum frontage requirement of 24 metres. 46 While the numerical standards in the Code may have limited value in this case, there are number of objectives that provide guidance to the Court in its considerations. The relevant objectives are: Zone No 2 (Residential Zone) objectives (LEP 1994) (a) to preserve and enhance the character and amenity of established residential areas,

(d) to encourage greater visual amenity by requiring landscaping and permitting a greater variety of building materials and flexibility of design,

Code objective - Site Planning Site planning aims to maximise the attributes of a site while establishing a good relationship between buildings on a site and with neighbouring property and buildings.

Code objective - Streetscape The objective is to create attractive streetscapes which reinforce the functions of a street, enhance the amenity of buildings, and complement the surrounding built form, landscaping and environmental conditions of the locality.

Code objective - Building Form and Style To promote the design of new residential development, dwellings which will enhance the streetscape, contribute positively to the local housing stock and not unreasonably impact upon the existing community.

Code objective - Building Setbacks Setbacks define a building line from the front, side and rear boundaries of a property. The objective of these setbacks is to provide adequate space for landscaping, visual and acoustic privacy, sunlight penetration, safety requirements and for the establishment of an attractive streetscape.

Code objectives - Landscaping to create a pleasant and safe living environment that is environmentally responsive; to blend new development into the streetscape and neighbourhood; to assist in microclimate management and to maximise absorptive landscaped areas for on-site infiltration of stormwater.

Development Area D objectives to encourage higher density housing forms in localities in close proximity to public transport and community services; to provide opportunity for compatible infill development in older residential flat building areas; to encourage high quality developments in new higher density areas which take regard to the amenity of the existing housing in the locality and acknowledges the long-term building form change for these areas; to ensure properties are not isolated by development adjoining. 47 Without diminishing the substance of the individual objectives, the objectives could be said to collectively seek to provide a development that contributes positively to the streetscape and character of the area through its relationship with adjoining development, building design and landscape treatment. 48 In my opinion, the proposed development does not achieve this collective objective for a number of reasons. 49 The landscaping proposed along the side boundaries is inadequate and inconsistent with the objective to blend new development into the streetscape and neighbourhood. The landscaping along the south west boundary is to be provided in planter boxes. The limited width of the side boundaries and the use of planter boxes above the basement car park will limit the capacity to provide landscaping that will achieve an acceptable height and density when compared to the landscaping provided in the general area. 50 The setback along this south western boundary also provides for inadequate separation between the proposed development and the neighbouring building. The development application provides for a separation of 5.7 metres between the proposed building's windows and those of the existing residential flat building and a separation of 5 metres between the balconies of the two buildings. As the setback requirements in the Code cannot be achieved owing to the lot width, great care and a sensitive design are required to deal with visual and aural privacy issues. I am not convinced that the proposal adequately addresses these issues, notwithstanding the lack of objections received to the development application from residents of the adjoining building. 51 No landscaping is to be provided along the north eastern boundary because of the need to provide pedestrian access to the building. This boundary effectively adjoins the commercial zone of the Mortlake shopping centre. While this interface does not present the same issues as would have arisen had the north eastern boundary adjoined a similarly zoned residential site, the facade of the building along this boundary is clearly visible from Martin Place and parts of the Mortlake shopping centre. This boundary proposal will not offer an appropriate transitory zone between the residential development of Martin Place and the commercial activities of the Mortlake shopping centre, but will contribute to a rather sharp contrast between the two zones. Some landscaping along this boundary would provide consistency with the residential development in Martin Place and a softer edge between the two zones. 52 While not raised as a specific issue by the council, I find that the treatment of the north eastern elevation is inconsistent with the objective relating to solar design and energy efficiency, in that the proposal does not constitute an energy efficient housing design. Despite its optimal orientation and association with the living rooms of the proposed units, the elevation provides no opening windows to allow for cross ventilation and direct solar access. Instead, glass blocks are used to satisfy the Building Code of Australia requirements for fire protection because the setback to the boundary is less than 3 metres. 53 The number of storeys is also inconsistent with the general pattern of surrounding residential development constructed under the Code. The Court was taken on a view of a number of developments in Martin Place and Macquarie Place, one street to the south east of Martin Place. The Court was not provided with evidence of one building constructed under the Code which exceeded three storeys. Consequently, the proposal is inconsistent with the streetscape objective, in that the proposal does not create attractive streetscapes which reinforce the functions of a street, enhance the amenity of buildings, and complement the surrounding built form [and] landscaping. 54 Overall, the development provides an excessive amount of floor space for the site area. The consequences of this are clearly seen in the subject proposal's inadequate setbacks, lack of suitable landscaping, four-storey construction and other shortcomings in design. 55 For the reasons mentioned in the preceding paragraphs the proposal is in conflict with Principle 1: Context, Principle 2: Scale, Principle 3: Built form, Principle 4: Density, Principle 6: Landscape and Principle 7: Amenity of SEPP 65. K. CONCLUSION 56 The applicant submitted that if the Court considered it an appropriate to allow the appeal, subject to requiring amendments to the development application, then the Court should deliver an interim judgment with directions whereby the amendments could be effected and, consequently, the appeal upheld.

57 Does the Court have power to deliver such an interim judgment in a case such as this in Class 1 of the Court's jurisdiction? In my opinion, it does. A merits review of a development application "shall be conducted with as little formality and technicality" as possible, and in the course of such proceedings the Court "may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits": Land and Environment Court Act 1979 (The Court Act), ss 38(1) and (2). In reaching its conclusion, the Court has all the functions and discretions which the respondent Council had in respect of the matter the subject of the appeal: The Court Act, s 39(2). In making its decision, the Court must have regard to, among other things, the public interest: The Court Act, s 39(4). One of the objects of the EP&A Act, which governs development applications, is to encourage proper development for the "purpose of promoting the social and economic welfare of the community and a better environment" (EP&A Act, s 5). In my view, the legislature is less concerned in a merits review such as this with winners and losers, than with achieving the best community outcome with as little formality and technicality as possible. That may sometimes be achievable through an interim judgment, which gives an applicant the opportunity to amend its application before the Court pronounces its final judgment.

58 What principles might the Court take into account when considering whether to deliver an interim judgment in a case such as this? An analogy may be drawn with the principles relevant to a conditional consent to a development application, which were considered in Mison v Randwick Municipal Council (1991) 23 NSWLR 734 (CA) at 737 by Priestley JA, with whom Clarke and Meagher JJA agreed: In my opinion if a condition imposed upon a purported consent to a particular development application has the effect of significantly altering the development in respect to which the application is made, then the purported consent is not a consent to the application…. The test I have stated is not complete. Certainly, in my opinion, if the fulfilment of a condition imposed upon a consent will significantly alter the development in respect to which the application was made, there has been no consent to the application. Further, however, if the effect of an imposed condition is to leave open the possibility that development carried out in accordance with the consent and the condition will be significantly different from the development for which the application was made, then again, it seems to me that the Council has not granted consent to the application made.

59 In my opinion, if the effect of a judgment in a case such as this is to leave open the possibility that a modified development, which the Court is likely to approve, will be significantly different from the proposal currently before the Court, it is inappropriate to deliver an interim judgment permitting the application to be amended. In my view, there is at least that possibility in the present case. Indeed, I consider it to be probable.

60 Accordingly, the appeal is dismissed. The exhibits are to be returned to the parties.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.