Ostron Pty Ltd v Wingecarribee Shire Council

Ostron Pty Ltd v Wingecarribee Shire Council - [2007] NSWLEC 467 - NSWLEC 2007 case summary — Zoe

[28]

20 It is apparent from the evidence that the main issues concern the suitability of the design to contribute to the quality and identity of the area and the associated matter of compliance with the height control provisions in cl 38 of SEPPSL. 21 This application was submitted under the provisions of SEPPSL for ' self contained dwellings', which are defined as: 'a dwelling or part of the building (other than a hostel), whether attached to another dwelling or not, housing seniors or people with a disability, where private facilities for significant cooking, sleeping and washing are included in a dwelling or part of the building, but where clothes washing facilities or other facilities for use in connection with the dwelling or part of the building may be provided on a shared basis.' 22 As such, the development is permitted with consent and cl 30 of SEPP SL requires the consent authority to be satisfied that the proposed development demonstrates that adequate regard has been given to the principles set out in Division 2. This approach confirmed in Marina Bay Developments Pty Ltd v Pittwater Council [2007] NSWLEC 41, where Lloyd J said: 6 In the context of the present case, it can be seen that these provisions require the consent authority to go through a process which has a number of stages. The first stage, required by cl 31 (a), is the recognition of the desirable elements of the locations current character (or, in the case of precincts undergoing transition, where described in the local planning controls, the desired future character), "so that" the consent authority can then proceed to the second stage. The second stage, also required by cl 31 (a), is to make an assessment of whether the new buildings "contribute to" the quality and identity of the area - that is, whether they contribute to the quality and identity of the desirable elements of the location which have been identified in the first stage. The third stage is to determine whether the proposed development satisfies the remaining sub-cll (b) to (g) of cl 31. The fourth stage is required by cl 30 - the consent authority must determine whether it is satisfied that adequate regard has been given to these principles and if not, then the development application must be refused. Finally, once the process of satisfying cll 30 and 31 has been completed, only then does the consent authority turn to the development standards and other criteria in Pt 7 of the Policy (including cl 79)… 10 The commissioner does, however, make findings that the proposal would "fit in" with the neighbourhood and with each nearby dwelling; that it would be "compatible" with the streetscape; that the Church Point and Bayview locality would "remain" low-density residential area; that would "reflect" the predominant scale and setbacks of existing development; that would "integrate" with the natural landscape and topography; that its bulk and scale would be "compatible" with the streetscape; and that it would "fit in" with the existing and desired future character of the area 11 These findings are those which are clearly required by cl 31 (c), which states that the development should "maintain" reasonable amenity and appropriate residential character in various ways prescribed by that subclause. The various ways prescribed by cl 31 ( c) use language which is consistent with the concept of "maintaining" reasonable neighbourhood amenity and appropriate residential character, by the use of words "compatible" and "in sympathy" with referred to in cl 31 (d). 23 His Honour Justice Lloyd also referred to the aforementioned descriptors being consistent with the language of the planning principles set out in the case of GPC No 5 (Wombarra) Pty Ltd v Wollongong City Council [2003] NSWLEC 268.

[33]

27 Ms Laidlaw concluded that this proposal should be refused and identified the following points, which support her assessment that the development would present as too obviously different and incompatible in character to satisfy the provisions of the cl 31 sub-clauses: · the length of the proposed two-storey buildings, ranging between 34, 42 and (in the case of block 2) 63 metres (measured at first floor level) is excessive; · the form of building as clear 'double storey' with two floors of essentially the same floor plan, as contrasted with, for example two-storey forms that reduce the impact at first floor by setting in from the level below, or disguising the first floor within the roof form; · the length of unbroken facades on some elevations; · in the case of building 2, the extent to which the impact of the length and form of the building is compounded by the elevation of the ground floor plan by up to 1.8 metres above natural ground level on the northern side (slightly more so, if measured at the northernmost extent of the balcony); · the lack of landscaping at a height and density that would be effective in screening or at least softening the impact of development along the southern boundary, where the buildings will rise to a height of 8.5 metres above the boundary level and the proposed planting is to a maximum height of 5 metres. · Around the northern and western boundaries, the planting is hedge style, interspersed with a species to 11 metres at maturity - the equivalent of around the ridge line height of building 2, and its greatest height above ground level. Generally, however it is evident that while landscape is a dominant element in the streetscape at present, the bulk of the proposed buildings, compared to the depth of the planting available in the foreground, will lead to a reversal of roles, with the built form being dominant. 28 As I noted previously, a considerable number of objections were lodged against the proposal and there is a high degree of consistency of the objectors' recognition of the locations desirable character elements, with those identified by Ms Laidlaw. Some of the descriptive elements and opinions of the objectors as to the ability of the proposal to contribute to the quality and identity of the area are: · The character of the area is evident: low rise, self-contained dwellings on half acre or more sized blocks, established gardens with rows of mature evergreen trees, all in a semi-rural setting, · The proposed buildings are not compatible in scale with adjacent developments, · The sheer size and intensity of the development, the destructive effect on local landscape and the streetscape will result in adverse amenity to existing residents, · There are no other similar scale residential apartment blocks in the Shire, only commercial or institutional by nature, such as the Wingecarribee Civic Centre (street frontage length 36m), Southern Highlands Private Hospital (length 56.5m) and Woolworth's retail complex at Bowral (street frontage 56.5m), · Building 2 in Victor Crescent dwarfs most buildings in Moss Vale, · Insufficient, internal open space to allow replacement of larger trees, similar to that currently existing, · Scale of building is totally out of harmony with the surrounding area and similar to commercial areas in our town, · Facades are monotonous, · Development totally obliterates all views to the northeast and enjoyment of all properties whose boundaries adjoin the subject development on the north eastern side of Coromandel Place, which will be overshadowed and overlooked by the two-storey buildings. 29 Having considered the evidence and undertaken a view, I am satisfied that this proposed development is located within the existing, well-defined locality described by Ms Laidlaw. As such, it is a highly attractive residential area where the obvious elements are single storey dwellings set in relatively large landscaped grounds, that are predominantly in excess of 2000 sq m. Consequently, this has resulted in larger dwelling houses that have relatively generous separation between buildings, which allows the residents a high degree of privacy and amenity, particularly in terms of access to private open space and garden areas. 30 I am also satisfied that the local planning controls seek to maintain this very low density character and identity (i.e. minimum lot sizes of 2000 sq m), which is reinforced by private covenants on the nearby land in Victor Crescent, where development is also restricted to lots with a minimum area of 2000sq m and housing is to be single storey. 31 Accordingly, I agree with Ms Laidlaw that the proposal would represent a significant change from the current character of this locality. Even though the proposal generally meets the numerical controls for bulk and height (these being secondary considerations), nevertheless the orientation of the lot imposes significant constraints on the proposed developments ability to achieve reasonable compatibility and 'fit in' with the existing development and consequently make a positive contribution to the quality and identity of this area. 32 These constraints occur in part because of the exposed, elongated orientation of the land, with a narrower frontage of 64.5m to Church Street and a 198.17m frontage to Victor Crescent. As the land is elevated above Victor Crescent, it is visually prominent from Church Street and to all users of Victor Crescent. 33 The proposal then incorporates the following components fronting Victor Crescent (as shown in the sketch at Attachment A): · Block 1 (3 units); single storey unit with a frontage of 26.5 m; · Block 2 (10 units); 2-storey apartment building with a frontage of 63 m and separation distance of 2 m from Block 1, · Block 3 (8 units); two-storey apartment building with a length of 42 m, offset from Victor Crescent and separated from Block 2 by approximately 17 m (average).

[42]

42 I agree with Ms Laidlaws' opinion that the proposed landscaping/building relationship and character does not satisfy cl 31 (e). 43 Reference was also made to the following principles outlined in Wombarra, which I apply as follows: 1. The first principle is that buildings in a SEPP 5 development do not have to be single-storey to be compatible with the streetscape even where those buildings are single storey… I that acknowledge that 2-storey buildings are generally acceptable on the subject site, but the current proposal does not incorporate and appropriate mix of single storey to double storey dwellings (of sympathetic dimensions and separation) with the surrounding building elements. Around 73% of the new units are in the 2-storey buildings, which I consider contributes to the excessive bulk of the development. 2. The second principle is that where the size of a SEPP 5 development is much greater than other buildings in the street, it should be visually broken up so that it does not appear as one building. Sections of building, or separate buildings should be separated by generous breaks and landscaping. As I have stated previously, the elevated, corner location of the site results in a significant exposure of Blocks 1 and 2, which I do not consider are sufficiently separated or setback to be acceptable in this locality, where a predominant feature is the generous building separation of the neighbouring single storey dwellings, allowing extensive open space areas and landscaping. 3 The third principle is that where a site has existing characteristics that assist in reducing the dominance of the development, these characteristics should be preserved. Topography that makes development appear smaller should not be modified. It is preferable to preserve existing vegetation around a sites' edges to destroying it and planting new vegetation. The declining state of some of the existing vegetation, together with the proposed development layout does not assist the development in mitigating adverse elements. 4 The fourth principle is that a SEPP 5 development should aim to reflect the materials and building forms of other buildings industry… I accept that this principle could be achieved in this case by way of conditioning, but consider it is a secondary consideration due to the excessive scale of the building components proposed.

[48]

For a large 'corner' site, such as this, I believe it is reasonable to form the view that the 'rear' need not be confined to one boundary, but rather, could apply to two, namely that part that is furthest away from each of two street frontages (allowing for some two storey to be retained that the south west corner of the site, which adjoins Church Road, although this is to the ' rear' of the site, in terms of its frontage to Victor Crescent)." 47 On the basis that the objective of this control is to minimise impacts of the building bulk and associated amenity impacts of overshadowing and overlooking on neighbouring properties, the application of this 25% control should assist in infill developments in conventional subdivisions. Where there are corner allotments, I am satisfied that in certain circumstances it is reasonable to apply the control to two rear boundaries. These circumstances arise in the current case, because of the need to mitigate adverse impacts on the existing residential properties in Victor Crescent and also ensure the impacts are reasonable in terms of the Environmental Protection land. 48 However, a further complication in assessing this requirement and determining the restricted area was raised in the appeal, due to the various interpretations of what constitutes the '25% area'. Mr Buchanan determined the restricted area by taking the total area of 18168.27 sq m and deducting 4542.07 sq m (i.e. 25% of total site area) and then distributing this along the 'rear boundary, i.e. to the Environmental Protection land. On this basis, he contended that application complied. 49 This approach was challenged by Ms Laidlaw. Her alternate interpretation is that one measures off 25% of the site length, along the adopted ' long' dimensions. This alternative was acknowledged by Mr Buchanan, and on application imposed a greater restriction, resulting in non-compliance of part of Block 3 and Block 7, relative to the eastern boundary. A SEPP 1 objection was lodged in support of the non-compliance, which was not supported by Ms Laidlaw. 50 According to Ms Laidlaw's evidence there are essentially four different interpretations for application of the height controls for this corner lot, as follows: East Boundary only East and south boundary 25% of total area allocated to rear boundary Complies SEPP 1 provided Non compliance Block 7 to south boundary 25% based on site length, allocated to rear boundary SEPP 1 provided No SEPP 1 Non compliance - Block 3&7 Non compliance, Blocks 3, 5, 6, 7

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Judgment (70 paragraphs)

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Cases Cited (2)