Is the proposal compatible with the character of the local area?
36Mr Clay SC submits that the question of "compatibility" under cl 54A(3) of SEPP ARH requires consideration of the following matters:
•Determine the local area.
•identify the desirable elements of the character of the local area.
•identify how the design of the development responds to or reinforces those desirable elements.
•understand the expectations created by the Council's controls relating to built form and character.
•consider the expectations created by the SEPP and how that affects the question of compatibility.
What is the "local area"?
37The experts agree that the "local area" generally includes the primary visual catchment of the site and that the wider context is also relevant. Ms Laidlaw and Mr Walter placed more emphasis on the immediate context of the block in which the site is located. Whereas Mr Chambers and Mr Baker considered the wider context to be important and identify the local area as being generally bounded by both sides of Warringah Road to the north and west, Starkey Street to the east and the line of Violet Avenue and Bushland Avenue to the south, which includes land within the C3 Locality - Forestville Village that has residential flat buildings and shops.
What are the desirable elements of the character of the "local area"?
38The experts agree that the existing character of the "local area" is predominantly one and two storey detached dwellings with pitched roofs in a garden setting. It also includes multi unit dwelling developments predominantly of one and two storeys.
39The experts agree that existing single storey dwellings are being replaced with larger two storey dwellings. There is also agreement that there are no three storey flat roofed residential flat buildings in the block which contains the site. The wider local area includes shops and residential flat buildings in the C3 Locality - Forestville Village.
40Mr Baker and Mr Chambers consider the desirable elements of the existing character include front setbacks containing gardens and buildings dispersed amongst landscaped settings.
41Ms Laidlaw and Mr Walter agree that buildings in landscaped settings are a desirable element of the areas character. They also refer to details of the built form, such as materials, roofs and articulation of the building facades with windows, balconies and varying setbacks as being essential elements of the character.
Does the design of the proposed development respond to or reinforce those desirable elements.
42The experts agree that it is useful in the assessment of compatibility of the design of the development with the character of the local area to have regard to the principles in Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191 where Roseth SC states:
Planning principle: compatibility in the urban environment
22 There are many dictionary definitions of compatible. The most apposite meaning in an urban design context is capable of existing together in harmony. Compatibility is thus different from sameness. It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve.
23 It should be noted that compatibility between proposed and existing is not always desirable. There are situations where extreme differences in scale and appearance produce great urban design involving landmark buildings. There are situations where the planning controls envisage a change of character, in which case compatibility with the future character is more appropriate than with the existing. Finally, there are urban environments that are so unattractive that it is best not to reproduce them.
24 Where compatibility between a building and its surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked.
Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites.
Is the proposal's appearance in harmony with the buildings around it and the character of the street?
25 The physical impacts, such as noise, overlooking, overshadowing and constraining development potential, can be assessed with relative objectivity. In contrast, to decide whether or not a new building appears to be in harmony with its surroundings is a more subjective task. Analysing the existing context and then testing the proposal against it can, however, reduce the degree of subjectivity.
26 For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment. In some areas, planning instruments or urban design studies have already described the urban character. In others (the majority of cases), the character needs to be defined as part of a proposal's assessment. The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping. In special areas, such as conservation areas, architectural style and materials are also contributors to character.
27 Buildings do not have to be the same height to be compatible. Where there are significant differences in height, it is easier to achieve compatibility when the change is gradual rather than abrupt. The extent to which height differences are acceptable depends also on the consistency of height in the existing streetscape.
28 Front setbacks and the way they are treated are an important element of urban character. Where there is a uniform building line, even small differences can destroy the unity. Setbacks from side boundaries determine the rhythm of building and void. While it may not be possible to reproduce the rhythm exactly, new development should strive to reflect it in some way.
29 Landscaping is also an important contributor to urban character. In some areas landscape dominates buildings, in others buildings dominate the landscape. Where canopy trees define the character, new developments must provide opportunities for planting canopy trees.
43Mr Chambers and Mr Baker agree that the proposed development responds to the essential elements of the existing character of the "local area" of detached dwellings in landscaped settings.
44Mr Chambers considers the physical impacts of the proposal such as overlooking and overshadowing are acceptable. The proposal is visually compatible with its context because it is disaggregated into eight separate buildings with compliant height, landscaped setbacks, modest wall lengths to boundaries, low site coverage and retention of significant trees.
45Mr Baker agreed that there are no adverse physical impacts on neighbours. He acknowledged that the architectural appearance of the proposal differs from the neighbouring brick dwellings with pitched roofs. However, it is compatible with its context due to the separation between buildings, their relatively modest scale and the retention of existing and proposed landscaping on the site.
46Ms Laidlaw and Mr Walter consider that the proposal will have some adverse physical impacts. In particular, although the apartments are orientated north-south, there will be oblique overlooking from the upper levels into adjoining properties and within the development. They accept that this can be dealt with by screening.
47Ms Laidlaw and Mr Walter do not agree that the proposal is visually compatible or that it adequately responds to the essential elements of the existing character. Their key concern is the three storey, flat roof, box framed form of the buildings, which is uncharacteristic of the area. The extent of flat unarticulated walls which face the adjoining dwelling to the west, the repetition of the buildings and lack of details are also uncharacteristic of the local area.
48In particular, Ms Laidlaw and Mr Walter raised concerns about the design of the two buildings on the Warringah Road frontage (Buildings A and B). In their opinion, these buildings are of a bulk and form which is uncharacteristic and creates a different scale relationship to the other dwellings and multi unit developments in the street. The front setback of Building A partly does not comply with the minimum requirement in LEP 2000 and is forward of the adjoining dwelling to the north. They do not accept that landscaping can be relied upon to screen these buildings. Particularly, as the driveway to the basement between Buildings A and B provides clear views of these buildings and of Building C into the site.
49Similarly, Ms Laidlaw and Mr Walter consider that the setback of Buildings G1 and G2 from Riverhill Avenue is not adequate. Although they accept that with the amendments to the roof form and façade treatment, the appearance of these buildings is compatible in the streetscape.
Controls relating to built form and character in LEP 2000
50The experts agree that it is useful to have regard to the C1 Locality Statement in LEP 2000 in relation to "desired future character". The Locality Statement provides:
The Middle Harbour Suburbs locality will remain characterised by detached-style housing in landscaped settings interspersed by a range of complementary and compatible uses.......... The retention of existing landscaping is encouraged, where practical.
Future development will maintain the visual pattern and predominant scale of existing detached style housing in the locality. The streets will be characterised by landscaped front gardens and consistent front building setbacks. Unless exemptions are made to the density standard in this locality statement, any subdivision of land is to be consistent with the predominant pattern, size and configuration of existing allotments in the locality.
The relationship of the locality to the surrounding bushland will be reinforced by protecting and enhancing the spread of indigenous tree canopy and preserving the natural landscape, including rock outcrops, remnant bushland and natural watercourses. The use of materials that blend with the colours and textures of the natural landscape will be encouraged.
............
The locality will continue to be served by the existing local retail centres in the areas shown on the map. Future development in these centres will be in accordance with the general principles of development control listed in clause 39.
Future development of the environmentally sensitive land shown cross-hatched on the map will be limited to one dwelling per allotment. Such dwelling will be constructed having regard to the constraints, potential instability, visual sensitivity and impact on the water quality of Middle Harbour.
51The experts agree that the area is undergoing transition to the extent that existing, generally small/modest, mainly single storey dwellings are being replaced by larger, mainly two storey dwellings which have a greater scale and tend to be more prominent in the landscape. Despite this change in dwelling scale, Ms Laidlaw and Mr Walter consider that the Desired Future Character sought by LEP 2000 is one which seeks to maintain the existing character. In their opinion, the design of the proposal is not compatible with this existing character which is maintained through the built form controls in LEP 2000.
52Ms Laidlaw and Mr Walter considered that there is a degree of non compliance with controls in LEP 2000, such as landscape, building envelope and front setback. However, they considered that these were of lesser concern than the overall bulk and form of the development. Their principal concern related to the height and form of the proposal. While the proposal generally complies with the 8.5 m height limit in LEP 2000, it does not comply with the 7.2 ceiling height. They acknowledge that LEP 2000 does not include a control on the number of storeys but consider that the controls for ceiling height, overall height and building envelope have the effect of limiting development to a two storey form with a pitched roof (which may have accommodation). Ms Laidlaw also notes that while the proposal generally complies with the height limit of 8.5 m under the definition in LEP 2000, the overall height is greater through the excavation of the existing/natural ground level. Ms Laidlaw and Mr Walter consider the three storey box form to result in buildings which are of a bulk and scale that is not compatible with the character of the local area.
53Mr Chambers and Mr Baker consider that the proposal is consistent with the desired future character and generally meets the built form controls in LEP 2000. The proposal exceeds the side setback controls for dwellings, and the front setbacks on Riverhill Avenue and Warringah Road provide tree planting and landscaping consistent with the character of the area. They consider that the wall length of the buildings that face the rear and side boundaries are not dissimilar to those of the newer dwellings.
54Although the landscaping is below the requirement of 50% site area for larger sites under LEP 2000, it exceeds the landscaped area requirements under SEPP ARH (30%) and is consistent with the requirement for dwellings under LEP 2000 (40%). The buildings are in landscaped setting and significant trees are retained.
55The overall height generally does not exceed 8.5 m and any non compliances with this and the building envelop control are not significant and do not result in adverse impacts. Mr Chambers and Mr Baker consider that even though the proposal is three storeys, rather than two with a pitched roof, it does not result in a design that is incompatible with the character of the surrounding area. Under the density controls, the site could be subdivided to provide ten dwellings which would have a similar built form and impacts to the buildings proposed.
Controls relating to built form and character in SEPP ARH
56The proposal complies with the controls in cl 14 (1) of SEPP ARH. However, for the reasons discussed earlier in this Judgment, these controls do not apply, in their terms, to the development. Even if they provide a guide for the form of development envisaged under SEPP ARH, compliance with these controls would not automatically mean that the design of the development is compatible with the character of the local area.
57In accordance with cl 16 of SEPP ARH, SEPP 65 applies to the proposed residential flat building. The experts held different opinions as to whether the proposal met the principles in SEPP 65 in relation to Context (clause 9), Scale (clause 10), Built form (clause 11) density (clause 12) and aesthetics (clause 18). The reasons for the disagreement are the same as those discussed above. In relation to Density, both Mr Chambers and Mr Baker rely on their understanding that the proposal complies with the FSR control in cl 14(1) of SEPP ARH which would permit a higher density for affordable housing projects than for other types of residential development.
Findings
58The experts agree that the local area is the immediate visual catchment and that the wider catchment is also relevant. The key disagreement is the weight to be given to the residential flat buildings in the C3 Locality -Forestville Village and to non-residential uses such as shops. While these uses form part of the wider area, I accept that they are not the essential elements that the design of the development should respond to.
59The predominant character of the local area and its essential elements are one to two storey detached housing in landscaped settings. The housing is not homogeneous, and newer dwellings are replacing older dwellings. Although there is a variety of design, there is a similarity in the materials such as brick and weatherboard with pitched tile roofs. There is also a degree of variation in the dwellings with their elevations being broken up with different setbacks, windows and elements such as balconies and eaves. The multi unit developments in the local area adopt a similar typology, being generally one and two storeys with pitched roofs, although, in some cases their landscaped settings are reduced.
60The Desired Future Character for the area seeks to maintain the existing character of "detached style housing in landscaped settings....future development will maintain the visual pattern and predominant scale of existing detached style housing in the locality."
61The consideration in cl 54A(3) does not require the design of a development to be the same as that in the local area. SEPP ARH is a State wide planning policy which clearly allows for a form of development that may not necessarily reflect the exact form of existing development or of development that is anticipated for the area. However, it does require the design of the development to be compatible with the local area.
62The words in Project Venture about compatible developments being "capable of existing together in harmony" and "generally accepted that buildings can exist together in harmony without having the same density, scale or appearance" are importance considerations in assessing the character of the local area.
63Project Venture states [at 26] that:
For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment".... The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping. In special areas, such as conservation areas, architectural style and materials are also contributors to character.
64The experts generally agree that the disaggregation of the development into eight separate buildings within landscape settings is a positive feature of the development. However, they disagree on the built form and its relationship to open space.
65Mr Chambers and Mr Baker placed some reliance on the similar overall height of the proposed development with other residential buildings and with the overall height control in LEP 2000. However, this ignores the ceiling control of 7.2 m and the existing form of development that is predominantly two storeys with a pitched roof. The bulk created by the additional wall height of a three storey, flat roofed building is significantly greater and of a different character to a two storey flat roofed building. Also, the overall height ignores the excavation of the proposed development and the consequent additional accommodation, which is below natural ground and not included in the calculation of the 8.5 m height but which adds to the wall height and bulk of the building.
66The footprints of the buildings range from 160 sqm to about 410 sqm. While there are examples of dwellings with large footprints in the local area, there are no examples where these footprints extend in the same vertical plane for three storeys.
67The wall lengths which face the side boundaries are generally 14.2 m, other than Buildings G1 and 2 (12.6m) and Building B (25.4m). These wall lengths are generally less or not dissimilar to recent dwellings. However, the side walls (other than Buildings C and D) are in the same plane with little articulation or windows. While this provides privacy to the adjoining dwellings it does not reflect essential elements of the character of the built form in the area, where the facades of dwellings are broken up into different planes with features such as balconies, eaves and windows.
68There was also general agreement that the open space and landscaping are a positive feature of the development, particularly the retention of the existing canopy trees in the area of communal open space and along Warringah Road. However, the experts disagree on whether the open space and its relationship to the built form reflect the essential elements of the area.
69The setbacks from the western side boundary of Buildings C and D are 5 m (with the top floor setback 7 m) and Building A is 3 m, which exceeds the side setback of existing dwellings in the area and the 900 mm control in LEP 2000. The basement carpark is setback about 2 m from the western boundary. These setbacks provide a degree of separation and opportunities for landscaping along the boundary. However, while the buildings are along the side boundary of the site they relate to the rear boundaries and the primary open space of the adjoining properties.
70The overall height and bulk of the buildings and their relationship to adjoining properties clearly require more than the minimum 900 mm setback which is adequate for the side a house which faces the side of an adjoining house. The RFDC suggests a greater setback for residential flat buildings than that required for housing under LEP 2000. While the setbacks provided along the side boundaries exceed the requirements under LEP 2000 and are acceptable for the individual buildings, the number of buildings able to be viewed from the rear gardens of the adjoining properties and the consistent architectural style of the development is uncharacteristic of the local area.
71The form of residential development that typifies the local area largely gains its individuality from different building material, designs and building form. The proposed development, with its consistent design and materials, would be clearly perceived as a single development which is larger than any other form of development in the local area, notwithstanding that it comprises separate buildings within landscaped settings
72The setback of Building B to Warringah Road retains the existing canopy trees, reduces the impact of the bulk of this building and is similar to that of the dwelling to the east. However, the front setback of Building A is forward of the dwelling to the west and encroaches on the minimum front setback control in LEP 2000. Warringah Road is a major arterial road with non residential development in proximity to the site. However, this does not justify the form of development proposed on Warringah Road nor is it acceptable to rely on landscaping to screen the development. Building A and Building B do not respond to the essential elements of the other dwellings and multi unit housing along Warringah Road. The three storey, flat roofed form and the blank side facades are uncharacteristic of this part of Warringah Road.
73Pursuant to cl 54A(3), I find that the design of the proposed development, particularly the overall bulk that results from the height and footprint of the larger buildings, is not compatible with the character of the "local area" and the degree of incompatibility is such that the development application should be refused.