Novara Crescent Pty Limited v Sutherland Shire Council

APPLICANT Mr M. E. Ball (as agent) RESPONDENT LEGAL REPRESENTATIVES: Mr A. Pickles SOLICITOR Sutherland Shire Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11410 of 2004 NOVARA CRESCENT PTY LIMITED v SUTHERLAND SHIRE COUNCIL

JUDGMENT 1 HER HONOUR: This is a Class 1 appeal against the refusal by the Council of a development application made by the Applicant for seven two-storey townhouses with basement carparking at premises known as 121-123 Novara Crescent, Como. The Applicant was represented by its agent, Mr Ball, while the Council was represented by Mr Pickles, a barrister. I would like to thank Commissioner Hoffman for his assistance in the hearing and conduct of this matter.

The Site 2 The site of the proposed development is on two existing lots, each lot containing a small cottage which will be demolished if the development is approved. The land slopes steeply upwards from Novara Crescent. There is a retaining wall uphill of the kerbside footpath. Above the retaining wall is an older footpath which is not now used regularly by pedestrians, who tend to use the lower footpath running next to Novara Crescent. The old footpath runs the length of the site frontage to Novara Crescent and allows pedestrian access to the two existing properties which comprise the site.

3 At the northern end of the site is a steep narrow street, probably better described as a laneway, called Pavia Road. Pavia Road provides vehicular access to the rear of 30 to 35 houses to the north of the site, via a lease over railway land. Immediately behind the subject property is a Council reserve and railway reserve which runs alongside the railway line, being the main Cronulla Illawarra railway line. Due to the topography the railway line is in a cutting and therefore does not present any great noise impact on the subject site.

4 In the original plans presented to the Court at the hearing the access to the proposed development was to be from Pavia Road, along a series of driveway ramps into the basement carpark. During the view on site, objectors drew attention to the fact that Novara Crescent was at about the same level as the basement floor level and it would give safer access into the property if the driveway entered from Novara Crescent. The Applicant submitted revised plans during the hearing which provided for the access to the basement carpark to be from Novara Crescent rather than from Pavia Road. The Council submitted that the ingress and egress of vehicles to the site from Novara Crescent would require re-advertising as residents living opposite the proposal would need to be informed of this change. The parties agreed the hearing could proceed on these amended plans on the basis that, if the Court's decision was likely to be favourable to the Applicant, the proposal could be re-advertised prior to the Court granting consent to the amended proposal.

5 I further note in terms of the site that there is bushland at the rear of the site, including several tall mature trees and a rock shelf which traverses the length of the site. This bushland area is proposed to be used as a communal open space for the occupants of the townhouses.

The Issues 6 The Statement of Issues filed by the Council identified a number of issues, some of which no longer needed to be pressed given the change in plans relied on by the Applicant. The Council presses the following issues which I will deal with in this judgment: (i) that the proposal did not conform with the existing and future intended character of the area; (ii) the streetscape appearance of the proposal; (iii) the non-compliance of the proposal with the applicable floor space ratios and the consequences of the floor space ratio exceedance on the bulk and scale of the buildings; and (iv) retention of trees. I note that issues two and three are inter-related.

The Evidence 7 The Council relied on the written and oral evidence of Mr Nash, a consultant town planner, and also on expert reports from Mr Shields in relation to landscaping, and Mr Anderson in relation to traffic and parking. The Applicant relied on the written and oral evidence of Mr Long, a consultant town planner, and also on expert reports from Mr McLaren in relation to traffic and parking, and Mr Richards in relation to landscaping. Joint statements of the landscape and traffic experts were tendered and relied on and it was not necessary for them to attend for cross-examination. The two planners, Mr Long and Mr Nash, gave oral evidence by way of concurrent evidence procedures in the Court.

8 I also note that there was additional evidence tendered by the Council in the form of submissions from residents. Exhibit 15 summarised the concerns raised by approximately ten objectors. The issues particularly raised by the residents were: (i) access through Pavia Road rather than through Novara Crescent, this concern is obviously overcome by the amended plans; (ii) concerns about traffic congestion and resulting road safety issues; and (iii) concerns about over-development and too many townhouses in the area. 1. The Proposal's Compliance with the Existing and Future Intended Character of the Area 9 In relation to the first issue, being whether the proposal conformed to the streetscape and character of the area, it was agreed that the proposal does conform to the relevant development standards set out in the Sutherland Shire Local Environmental Plan 2000 ("the LEP") and the Townhouse and the Villa houses in the 2(a1) and 2(a2) Residential Zones Development Control Plan ("the DCP") in relation to all matters such as height, boundary setback, landscape area and site area. The only area of non-compliance is in relation to the floor space ratios and an objection pursuant to State Environmental Planning Policy No 1 - Development Standards ("the SEPP 1 objection") has been filed in relation to this non-compliance. I will come back to this issue in due course.

10 Nevertheless the Council argued that the overall objectives of the LEP and DCP were not met by this proposal. In this regard, cl 30 of the LEP specifies particular objectives for residential zones in relation to: (b) the quality of the streetscape being retained; (c) the cumulative impacts of successive developments on the streetscape and character of the area being controlled; (d) the impact of the proposed development on adjoining properties in terms of size, bulk, height in that landscaped area; and finally, (e) the retention of existing vegetation. Further, in relation to the zone 2(a1) residential zone in which the proposal is situated, there were additional objectives which had to be met in relation to maintaining the streetscape character of predominantly one or two storey single dwelling houses. The Council submitted that the proposed development does not meet the above objectives.

11 The Council further submitted that I should give significant weight to the provisions of the draft Local Environmental Plan 2004 ("the Draft LEP") currently under preparation by the Council, which prohibits townhouses in the zone and which limits the number of villa houses to ten per cent within a given neighbourhood precinct. In contrast the Applicant submitted that, as the Draft LEP has only been exhibited as a draft and is not yet gazetted, its provisions should not be given determining weight in my consideration of this proposal.

12 I note that the specific controls contained in the DCP were the subject of considerable evidence at the hearing before me. In particular, the planning experts agreed that cl 10.2 and 10.3 of the DCP were met, so that the particular issue in this case was whether or not cl 10.1 of the DCP should be complied with. Clause 10.1 of the DCP provides that villa and townhouse development in each designated neighbourhood must not increase the number of multi dwellings to more than ten per cent in that neighbourhood. The site is located in the Jannali East neighbourhood area.

13 The major point of departure between the planning experts was whether, given that the existing LEP and DCP did permit townhouse and villa homes in the zoning, multi dwellings could be approved. The Applicant's planner, Mr Long, contended that the Council's DCP, requiring that only ten per cent of housing in a particular neighbourhood could be medium density, was intended to evenly distribute such development within a given precinct. As there was no other medium density development of this type within the visual catchment and the immediate environs of this proposal, he was of the view that it was acceptable. The Applicant asked the Court to consider the adjoining precinct in applying the ten per cent control contained in cl 10.1 of the DCP where, it was said, there were few medium density developments. The Applicant argued that as this application was on the boundary of the adjoining precinct this could be taken into account. Apart from the submission of the Applicant's agent at the bar table, there was no particular evidence put before the Court to demonstrate that the adjoining precinct was below the ten per cent nominated in cl 10.1 of the DCP.

14 The Council's planner, Mr Nash, on the other hand said that just over 15 per cent of the dwellings in the Jannali East neighbourhood area could already be classified as multi dwellings to which cl 10.1 of the DCP applied. Mr Nash's evidence was that the intended effect of the Council's ten per cent limit was that new multiple dwelling developments should be in other precincts where the ten per cent limit had not yet been met. The reason given for the subject neighbourhood already exceeding the ten per cent control was that there were a considerable number of Department of Housing dwellings in the area which had been subdivided as multiple dwelling developments. As these did not require consent from Council, it did not have any control over such development.

15 The parties agreed that at the time the control was imposed in the DCP there was already an exceedance of the ten per cent. The ten per cent limit had been imposed after considerable public consultation on the part of the Council. The evidence of the Council was that, since the adoption of cl 10.1 of the DCP, the Council had uniformly applied the control in this precinct and so had not approved any new multiple dwelling developments in this neighbourhood precinct.

Finding in Relation to cl 10.1 of the DCP 16 I accept the Council's evidence that this proposal does not comply with the objectives of cl 30(b) and (c) of the LEP. Further, in relation to cl 10.1 of the DCP I accept the Council's planner's opinion that the ten per cent limit on multiple dwellings in this precinct is an important planning control which applies not only within this precinct but also over similar zones elsewhere in the Shire. I consider that this control should be applied in this case.

17 Mr Ball argued for the Applicant that the DCP cannot prohibit what is permissible in an LEP as he argued the ten per cent limit on multi-dwellings sought to do. I do not agree, however, that in this case the DCP cannot seek to regulate multiple dwellings as it does in cl 10.1. This is particularly the case where I note that cl 41 of the LEP provides that: Regardless of the development control tables in this plan, development control plan relating to land within a residential zone may recommend restrictions on specific types of development otherwise permitted on the land.

18 I consider that support for this conclusion is found in the Court of Appeal decision in North Sydney Council v Lygon 302 Pty Ltd (1995) 87 LGERA 435, which was a case to which Mr Pickles referred and which I consider confirms that controls such as those contained in cl10.1 of this DCP are allowed in the context of this LEP.

Finding in relation to the Draft LEP 19 The next question I should consider in this context is what is the effect of the prohibition on townhouses within this zone contained in the Draft LEP. The evidence is that the Draft LEP has been exhibited pursuant to s 65 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") and has now been sent off to the Department of Infrastructure Planning and Natural Resources with a s 68 report. Section 79C of the EP&A Act provides that: In determining a development application, a consent authority is to take into consideration … the provisions of: (i) any environmental planning instrument and (ii) any draft environmental planning instrument that is or has been placed on public exhibition, details of which have been notified to the consent authority…

20 Accordingly, it would appear that s 79C requires me to take into account the Draft LEP. I was referred by Mr Ball to the decision of Terrace Towers Holding Pty Ltd v Sutherland Shire Council [2003] NSWCA 289, being a recent decision in which the issue of the extent to which a draft Local Environmental Plan should be given consideration by the Court was considered by the Court of Appeal. Paragraph 51 in Terrace Towers states that:

Cowdroy J did not err in law in paying significant weight to the fact that [the Sutherland Draft LEP] was actually in force at the time of the proceedings before him. It remained a draft instrument as far as the proposal was concerned, by virtue of the command of the transitional provision. Section 79C(1)(a)(ii) nevertheless authorised the consent authority to pay regard to relevant provisions in a draft instrument. Its provisions had become certain and its commencement imminent (in relation to the date of lodgement of the instant development application). Common sense explains why significant regard may be given to one whose commencement is imminent and whose terms have become certain. "Imminence" indicates close temporal proximity of application, but stops short of "presence" or "arrival". 21 While Mr Ball for the Applicant sought to distinguish Terrace Towers from this case on the basis that the draft Local Environmental Plan considered in Terrace Towers had been gazetted, whereas here it has not, I note that in a couple of cases to which I have been referred it has been accepted by this Court that an exhibited draft Local Environmental Plan does merit significant weight being given to it. I particularly refer to par 33 in Architects Haywood and Bakker Pty Limited v North Sydney Council [2000] NSWLEC 138 and also to Mathers v North Sydney Council [2000] NSWLEC 84 where Talbot J held, similarly to the decision in Architects Haywood, that an exhibited draft LEP merited significant weight as to its general intent, if not to its every detailed provision.

22 Given the above cases, it is significant, but not necessarily determinative, that the Draft LEP currently provides that there is to be a prohibition against townhouses in this zone. As I have already stated, my primary finding against the Applicant relates to the current provisions of the LEP and DCP, but my finding in relation to the current LEP and DCP is confirmed when I consider the prohibition on townhouses contained in the Draft LEP.

23 I should note for completeness that I also heard submissions from the Applicant in relation to the issue of whether less weight should be given to the ten per cent limit which the Draft LEP 2004 is seeking to impose on villa and dual occupancy type developments in this residential zone. The evidence of the parties was that, given a previous direction by the Department of Infrastructure Planning and Natural Resources that the inclusion of such a provision was not appropriate in the Draft LEP, it was likely this would be removed from the policy. In this regard I simply note that, as townhouses are prohibited under the draft LEP and I have taken this into account as something that I think I should give some significant weight to, the ten per cent limit will not, in any event, apply to any townhouse development. Accordingly it is not a matter which is material to my consideration of the LEP and DCP before me.

2. Streetscape and Appearance 24 The second issue I should consider now is the impact of this proposal on the streetscape appearance. This is once again relevant to the arguments that the Council made that there was a breach of objectives (b) and (c) in clause 30 of the LEP and of the objectives in cl 14 of the DCP. Clause 14 of the DCP sets out various objectives in relation to the streetscape and building design components of developments and, in particular, requires development to be compatible in size and scale to neighbouring development within the streetscape. Particular provisions also referred to in the DCP by the Council were cl 14.2, which requires that roofs be similar in angle and pitch and materials and colour to those in the neighbourhood, and cl 14.4, which requires that, where the locality was predominantly single storey and the proposal was two storey, the front of the allotment the development should be single storey with the second storey behind so that it would relate better in scale to its neighbours. The Council's planning consultant, Mr Nash, identified three key components which he considered resulted in this proposal not complying with the objectives of the LEP contained in cl 30 and cl 14 of the DCP: (i) the development, being a row of two storey townhouses, presented as a building facade of considerable length along the street frontage, would be of a different scale and character to the existing predominantly single storey, houses and also the site was elevated above the street, enhancing that impact; (ii) the proposed roof does not follow the development control plan requirements to be sympathetic to or similar to the existing typical hipped tiled low-pitched rooves in the area; and (iii) there is a basement carpark proposed which, in effect, given the amended drawings, made the development appear as three storeys, particularly from the frontage on Novara Crescent.

25 Mr Nash argued that these essentially gave the development an urban character rather than a suburban character and it was the suburban character which was sought by the Council's controls. He therefore considered this design was not appropriate for the area. The additional impact resulting from the exceedance of the floor space ratio was also emphasised by the Council in relation to this issue.

26 The Applicant argued that, as all the relevant standards except for floor space ratio were met, it was clear that this was an appropriate development for this neighbourhood. Further the Applicant argued that the site was isolated from its surroundings because it was bounded by Pavia Road and was also backed by the Council and railway reserve behind it. The only immediate neighbour was the two storey dwelling next door at number 125.

Finding 27 I agree with the Council in that, for the reasons stated by the Council and based on the observations I made on the view, I do not consider that the proposal meets the objectives of cl 30(b) or (c) in the LEP or cl 14 of the DCP. The Applicant's submissions, it seems to me, ignore the site's prominent street frontage and the overall character of the streetscape in the immediate vicinity of the site on not only the same side of the street but also opposite. I do not agree the site is isolated from its surroundings in the way submitted by Mr Ball on behalf of the Applicant.

3. The Floor Space Ratio 28 The next issue that I need to consider is that of floor space ratio and whether or not a SEPP 1 objection ought be upheld in relation to the proposal's exceedance of the permitted floor space ratio. I note that clause 35 of the LEP, which applies, states the floor space ratio should be 0.45 to 1. The evidence showed that the floor space ratio of the proposed development will be 0.66 to 1. The parties agreed that this exceedance could be attributed to the definition of gross floor space in the LEP which provided that the manoeuvring or circulation areas of the carpark, and the laundries for each unit in the basement, must also be included in the floor space ratio calculation. It was agreed by both planners that this was probably an anomaly which was intended to be corrected in the Draft LEP currently with the Department of Infrastructure Planning and Natural Resources, so that the circulation areas for cars would be excluded from being counted in a floor space ratio calculation. If the manner of calculating the floor space area is amended in the Draft LEP in this manner and this area is deleted from the calculation the proposal would still have a floor space ratio of 0.49 to 1 but would be far closer to meeting the requirements of cl 35 than under the current LEP provisions.

29 The Applicant argued that, since this exceedance was below ground level in the basement carpark, the bulk of the buildings above the ground were similar to that which was permissible in any event. The Applicant also considered that as the Draft LEP would rectify the anomaly contained in the LEP regarding the floor space calculation, this was the appropriate floor space calculation which the Court should consider. The Applicant argued that, once the gazettal of the Draft LEP occurs, the floor space ratio would be calculated as being 0.49 to 1 which would represent an exceedance of only sixty square metres and that these were mitigating factors the Court should take into account.

30 The Council argued that the proposal must comply with the existing LEP and that the Applicant's argument that all of the exceedance was below ground level was not appropriate and was not entirely correct. The Council argued that the proper way to view the floor space ratio issue was that one could not delete the manoeuvring areas from the basement area because this would make the basement impractical. If there was to be basement carparking then the manoeuvring space would have to be retained, which would mean that at least some of the floor space exceedance would have to be deleted on the above ground structure so that the bulk and scale of the proposal would be reduced. The Council calculated that the actual floor space exceedance in relation to the current LEP provisions was approximately 280 square metres, which is obviously a substantial increase above what is normally allowed. The Council essentially argued that this exceedence represented the floor space of one townhouse and that it was necessary for one townhouse to be deleted, together with its associated basement carpark, in order for the floor space ratio requirements contained in the current LEP to be met.

31 The Applicant has submitted a SEPP 1 objection to justify the exceedance of the floor space ratio. I should note the objectives of the floor space ratio as set out in the LEP are: (a) that there will be a consistency of size and bulk of buildings in a given precinct and also (b) that it would prevent buildings of a size and bulk beyond the expectations and capacity of the neighbourhood. 32 I was further referred to the five tests identified in Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46 in relation to a SEPP 1 objection which are as follows: (i) is the planning control in question a development standard? (ii) what is the underlying object or purpose of the standard? (iii) is compliance with the development standard consistent with the aims of the Policy, and in particular does compliance with the development standard tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EP&A Act? (iv) is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? (v) is the objection well founded?

Finding 33 Applying these tests, it is clear that there is a planning control which is a development standard and, as I have already noted, there are clear objectives which are set out in relation to that standard in cl 35 of the LEP. I consider that these objectives are reasonable and should be complied with. I do not consider compliance with the development standard to be unreasonable or unnecessary in the circumstances of this case.

34 Given that the objective of the development standard is clear and is seeking to avoid building that is inconsistent with existing local character, I think there is some basis to the argument that it needs to be complied with. The current proposal does not comply with existing surrounding streetscape partly as a result of the bulk and scale of the building. Even if the exceedance is considered only as 60 square metres, as it would be under the Draft LEP provisions, assuming these are gazetted, I consider that this is still a substantial exceedance in the context of this development. I refuse the application for a SEPP 1 modification.

4. Retention of Trees 35 The last matter I should briefly refer to is that of the retention of trees. The relevant provisions of the LEP are set out in cl 30(e) where the retention and enhancement of existing vegetation is an objective. Specifically, cl 12(1) of the DCP provides that the site analysis must identify any significant trees on the site and that the development must be designed around the existing significant trees. There are three significant trees proposed to be removed as part of this proposal. The parties' respective arborists disagree on whether this is acceptable or not. While I accept that other vegetation, including large trees, will be retained on the site if this proposal is to proceed, there is no doubt that the canopy will be noticeably reduced by the removal of these three trees, particularly when viewed from Novara Crescent. This is another factor suggesting that a refusal is warranted.

36 I note for completeness that there were also issues before the Court concerning internal amenity particularly solar access and layout and also issues raised in relation to disabled access. It is unnecessary that I deal with these given my findings on issues 1 to 4.

Orders 37 Accordingly I make the following formal orders. 1. The Applicant's appeal is dismissed. 2. The exhibits may be returned.

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