COMMISSIONER: Ozone Cronulla Pty Ltd (the Applicant) has appealed the deemed refusal by Sutherland Shire Council (the Respondent) of its development application DA 18/0323 for the demolition of existing structures across three allotments and the construction of a nine (9) storey residential flat building across three (3) lots at 5, 7 and 9 Ozone Street, Cronulla (the Subject Site).
The proposed development would include 30 apartments, and comprise:
1. pedestrian access from Ozone Street;
2. construction of three basement levels of parking with 61 car parking spaces, along with motorbike parking, bicycle parking, various service rooms, a toilet, residential storage and waste storage;
3. access to the basement parking levels from a new driveway accessed from Cecil Monroe Avenue;
4. provision of communal open space within the western setback of the proposed building;
5. removal of the seven trees currently located on the Subject Site;
6. replacement of two existing vehicle crossings on Ozone Street with four new on-street car parking spaces; and
7. earthworks and landscaping works.
The appeal is made pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act).
[2]
Background
The Subject Site is located at the eastern edge of the Cronulla Centre, approximately 100m from Cronulla Park and Cronulla Beach, and in an area that is characterised by residential apartment buildings and mixed use developments, including:
1. The Cecil, located to the south of the Subject Site at 20 Gerrale Street;
2. The Belgrave, located generally towards the south of the Subject Site at 31-33 Gerrale Street;
3. The Breeze, located generally towards the west of the Subject Site at 19-21 Gerrale Street;
4. The Drift, located to the north of the Subject Site at 10-12 Gerrale Street.
5. three, three-storey residential flat buildings opposite the Subject Site on Ozone Street, and to its east;
6. one five-storey residential flat building opposite the southern end of the Subject Site on Ozone Street and also to its east.
The Subject Site is zoned B3 Commercial Centre under Sutherland Shire Local Environmental Plan 2015 (SLEP). A residential flat building is a permissible form of development within that zone (see below at [18]).
Prior to the hearing commencing at Court, an on-site view was undertaken, during which the following individuals made submissions to the Court in relation to the appeal:
1. Mr Bill Swingler, a resident of The Cecil Apartments on Gerrale Street, Cronulla, who provided a written submission on the day of the hearing, and who identified the following issues as matters of concern for him:
1. whether the proposed development was consistent with the objectives of the B3 Commercial Core zone;
2. the potential for the proposed development to increase local traffic volumes, and impact on local parking availability;
3. the lack of visitor parking within the proposed developments;
1. Mr Paul Heeks, a resident of The Cecil Apartments on Gerrale Street, Cronulla, who provided a written submission on the day of the hearing, and who identified the following issues as matters of concern for him:
1. the potential view loss impacts of the proposed development;
2. the potential for the proposed development give rise to further cumulative overshadowing impacts on his property in mid-winter;
3. the built form and design of the proposed development;
1. Ms Vassilia Hairis, a resident of Mare Blu Apartments on Gerrale Street, who provided a written submission on the day of the hearing, and who said that, although she was not against development, she held the following concerns:
1. the potential impact of the proposed development on the solar access available to her apartment, which she said would be reduced by some 40%;
2. the potential loss of views that she would have as a consequence of the proposed development, particularly from her balcony;
3. the potential for noise impacts on her unit as a consequence of residents using the proposed common open space in proximity to her building;
1. Mr Toby Robb, of Evolution Planning, who provided a written submission on the day of the hearing, and who spoke on behalf of clients who resided in the Breeze Apartments on Gerrale Street, including Mr Brien and Ms Steege. Mr Robb identified the following issues as matters of concern to his clients:
1. whether the proposed development was consistent with the objectives of the B3 Commercial Core zone;
2. that the proposed development did not contribute to revitalisation of the commercial core of Cronulla, while it secured the advantages of a zoning uplift in terms of height and floor space ratio development standards;
3. that the proposed development was non-compliant with various provisions of the Apartment Design Guide and the Sutherland Shire Development Control Plan.
4. the potential impacts of view loss from residents of the Cecil and the Breeze apartments, and, in his opinion, the lack of application of view sharing principles to the proposed development;
5. whether the rear setbacks, and so separation distances, of the proposed development were acceptable;
6. whether the proposed development had been the subject of adequate site analysis and whether it was an appropriate design and contextual for the Subject Site;
7. whether planners had intended that the three lots constituting the Subject Site would be consolidated to permit a single development, with mass and scale that he described as 'monolithic';
8. the potential for the proposed development to increase local traffic volumes, and impact on local parking availability;
1. Mr Andrew Heath, a resident of Wymer Avenue, Burraneer, who identified the following issues as matters of concern to him:
1. the potential for the proposed development to increase local traffic volumes, and impact on access to the area and local parking availability within the area;
2. that the proposed development represented an overdevelopment within an area that was already highly developed;
1. Mr Norm Nelson, a further resident of the Cecil Apartments, who identified the following issues as matters of concern to him:
1. the potential for the proposed development to increase local traffic volumes, and traffic generated pollution,
2. the potential impact on local parking availability, access to the area, and traffic movement, as a consequence of the road design which he said had its origins in the 1920s;
3. the potential impact of the additional traffic on the amenity of his balcony area;
1. Ms Carolyn Marr, a further resident of the Breeze Apartments, who identified the following issues as matters of concern to her:
1. the potential for the proposed development to impact on views from her unit, particularly from her kitchen area;
2. the bulk and scale of the proposed development;
1. Mr Scott Bismire, a resident of Mare Blu Apartments on Gerrale Street, who said that he was supportive of the proposed development;
2. Mr Jim McDonald, a resident of Ozone Street, Cronulla, who identified the following issues as matters of concern to him:
1. the potential for the proposed development to impact on local parking availability;
2. the potential impact of construction parking on the area should the proposed development be approved;
1. Mr Jim Flaherty, a further resident of the Cecil apartments, whose apartment was the subject of an on-site inspection, and who identified the following issues as matters of concern to him:
1. the potential for the proposed development impact on view from his unit towards the north-east direction,
2. the potential impacts of the proposed development on solar access to his unit;
1. Mr Andrew Brien, a resident of the Breeze apartments, whose apartment was the subject of an on-site inspection, and in relation to which Mr Robb had also made submissions (see above at [(4)]). Mr Brien made the following further submissions during the inspection of his apartment in relation to the potential impacts of the proposed development:
1. the impact of the proposed development on views from his two-level apartment, which he described as 'devastating', and which he said would result in his retention of a remnant slither view line between the proposed development and the Cecil apartments;
2. the lack of view sharing considerations in the design of the proposed development, and the reasonableness of the design notwithstanding the numerical compliance of the proposed development with height and floor space ratio development standards under the SLEP;
3. the bulk and scale of the proposed development was excessive in circumstances where, in his opinion, there were opportunities for a more skilful design to ameliorate potential view loss impacts, including a design using a podium structure and with a series of slimmer towers;
4. that there were, in his opinion, potential opportunities to improve the design of the western façade of the proposed development.
[3]
Environmental Planning and Assessment Act 1979
The objects of the of the EP&A Act are as follows:
(a) to promote the social and economic welfare of the community and a better environment by the proper management, development and conservation of the State's natural and other resources,
(b) to facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment,
(c) to promote the orderly and economic use and development of land,
(d) to promote the delivery and maintenance of affordable housing,
(e) to protect the environment, including the conservation of threatened and other species of native animals and plants, ecological communities and their habitats,
(f) to promote the sustainable management of built and cultural heritage (including Aboriginal cultural heritage),
(g) to promote good design and amenity of the built environment,
(h) to promote the proper construction and maintenance of buildings, including the protection of the health and safety of their occupants,
(i) to promote the sharing of the responsibility for environmental planning and assessment between the different levels of government in the State,
(j) to provide increased opportunity for community participation in environmental planning and assessment.
Section 4.15(1) of the EP&A Act requires 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:
(i) any environmental planning instrument, and
(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and
(iii) any development control plan, and
(iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and
(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and
(v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979),
that apply to the land to which the development application relates,
(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,
(c) the suitability of the site for the development,
(d) any submissions made in accordance with this Act or the regulations,
(e) the public interest.
Section 4.15(3A) of the EP&A Act further provides that:
If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority:
(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards - is not to require more onerous standards with respect to that aspect of the development, and
(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards - is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and
(c) may consider those provisions only in connection with the assessment of that development application.
.
[4]
State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development
State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development ('SEPP65') aims to improve the design quality of residential flat development in New South Wales (NSW), and recognises that the design quality of residential flat development is of significance for environmental planning for the State due to the economic, environmental, cultural and social benefits of high quality design.
SEPP65 applies to residential flat buildings, shop top housing and mixed use developments with a residential component, if the building has three or more storeys, and contains four or more dwellings.
SEPP65 sets a consistent policy direction for residential flat development in NSW and provides a uniform State-wide framework for more detailed planning for residential flat development. It has a statutory effect on development and as a consequence may supplement the provisions of state environmental planning policies, local environmental plans and development control plans.
SEPP65 has a close and integrated relationship with the Apartment Design Guide ('ADG') published by the NSW Department of Planning and Environment (see below at [24] to [27]), which provides consistent planning and design standards for residential apartments in NSW.
SEPP65 came into effect on 17 July 2015 and applies to development applications for residential flat development made after that date. It is applicable to the development application that is the subject of the current appeal.
The following provisions of SEPP65 are of particular relevance in this appeal:
1. Clause 6A, which provides:
(1) This clause applies in respect of the objectives, design criteria and design guidance set out in Parts 3 and 4 of the Apartment Design Guide for the following:
(a) visual privacy,
(b) solar and daylight access,
(c) common circulation and spaces,
(d) apartment size and layout,
(e) ceiling heights,
(f) private open space and balconies,
(g) natural ventilation,
(h) storage.
(2) If a development control plan contains provisions that specify requirements, standards or controls in relation to a matter to which this clause applies, those provisions are of no effect.
(3) This clause applies regardless of when the development control plan was made.
1. Clause 28(2), which provides:
In determining a development application for consent to carry out development to which this Policy applies, a consent authority is to take into consideration (in addition to any other matters that are required to be, or may be, taken into consideration):
(a) the advice (if any) obtained from the design review panel, and
(b) the design quality of the development when evaluated in accordance with the design quality principles, and
(c) the Apartment Design Guide.
1. Schedule 1, which provides design quality principles in relation to residential apartment development.
[5]
Sutherland Shire Local Environmental Plan 2015
Development on the Subject Site is subject to the provisions of SLEP, and under the provisions of cl 2.1 of SLEP, it is zoned B3 Commercial Core.
The objectives of the B3 zone are to:
• provide a wide range of retail, business, office, entertainment, community and other suitable land uses that serve the needs of the local and wider community;
• encourage appropriate employment opportunities in accessible locations;
• maximise public transport patronage and encourage walking and cycling;
• strengthen the viability of existing commercial centres through increased economic activity, employment and resident population;
• create an attractive, vibrant and safe public domain with a high standard of urban design and public amenity;
• enhance commercial centres by encouraging incidental public domain areas that have a community focus and facilitate interaction, outdoor eating or landscaping;
• provide for pedestrian-friendly and safe shopping designed to cater for the needs of all ages and abilities.
Within this B3 zone, a residential flat building, such as is proposed by the Applicant, is a permissible development as it is a land use that is not specified in either of items 2 (permitted without consent) or 4 (prohibited development) within the B3 description in the Land Use Table. It will also increase the resident population within the B3 zone, consistent with fourth of the above zone objectives.
The following further provisions of SLEP are also of relevance in this appeal:
1. Clause 4.3, concerning height of buildings, and which provides for a maximum building height of 30m on the Subject Site. The proposed development complies the height of buildings development standard for the Subject Site, the objectives of which are:
(a) to ensure that the scale of buildings:
(i) is compatible with adjoining development, and
(ii) is consistent with the desired scale and character of the street and locality in which the buildings are located or the desired future scale and character, and
(iii) complements any natural landscape setting of the buildings,
(b) to allow reasonable daylight access to all buildings and the public domain,
(c) to minimise the impacts of new buildings on adjoining or nearby properties from loss of views, loss of privacy, overshadowing or visual intrusion,
(d) to ensure that the visual impact of buildings is minimised when viewed from adjoining properties, the street, waterways and public reserves,
(e) to ensure, where possible, that the height of non-residential buildings in residential zones is compatible with the scale of residential buildings in those zones,
(f) to achieve transitions in building scale from higher intensity employment and retail centres to surrounding residential areas.
1. Clause 4.4, concerning the floor space ratios (FSR), and under which the Subject Site has a maximum permissible FSR of 3:1, with which it complies, and which has the following objectives:
(a) to ensure that development is in keeping with the characteristics of the site and the local area,
(b) to ensure that the bulk and scale of new buildings is compatible with the context of the locality,
(c) to control development density and intensity of land use, taking into account:
(i) the environmental constraints and values of the site, and
(ii) the amenity of adjoining land and the public domain, and
(iii) the availability of infrastructure to service the site, and
(iv) the capacity of the road network to accommodate the vehicular and pedestrian traffic the development will generate, and
(v) the desirability of retaining the scenic, visual, and landscape qualities of the area.
1. Clause 6.16, concerning urban design - general, which provides that:
In deciding whether to grant development consent for any development, the consent authority must consider the following:
(a) the extent to which high quality design and development outcomes for the urban environment of Sutherland Shire have been attained, or will be attained, by the development,
(b) the extent to which any buildings are designed and will be constructed to:
(i) strengthen, enhance or integrate into the existing character of distinctive locations, neighbourhoods and streetscapes, and
(ii) contribute to the desired future character of the locality concerned,
(c) the extent to which recognition has been given to the public domain in the design of the development and the extent to which that design will facilitate improvements to the public domain,
(d) the extent to which the natural environment will be retained or enhanced by the development,
(e) the extent to which the development will respond to the natural landform of the site of the development,
(f) the extent to which the development will preserve, enhance or reinforce specific areas of high visual quality, ridgelines and landmark locations, including gateways, nodes, views and vistas,
(g) the principles for minimising crime risk set out in Part B of the Crime Prevention Guidelines and the extent to which the design of the proposed development applies those principles.
1. Clause 6.17, concerning urban design - residential, which provides that:
In deciding whether to grant development consent for development for the purposes of residential accommodation the consent authority must consider the following:
(a) the extent to which recognition has been given in the design of the development to the needs of the diverse and changing population of Sutherland Shire,
(b) the extent to which any adverse impacts of the development on adjoining land and open space, in terms of overshadowing, overlooking, views, privacy and visual intrusion, will be minimised,
(c) the extent to which the quality of the streetscape concerned will be improved by the development,
(d) the extent to which there will be private open space of a sufficient area and dimensions to enable proposed and required activities,
(e) the extent to which any adverse impacts of the development on adjoining land, in terms of size, bulk, height, scale and siting, will be minimised,
(f) the extent to which the residential accommodation concerned integrates with a well-designed landscaped setting,
(g) any opportunities for the provision of affordable housing.
[6]
Sutherland Shire Development Control Plan 2015
The Sutherland Shire Development Control Plan 2015 (SDCP) was approved by the Sydney South Planning Panel on 25 July 2017 and came into force on 2 August 2017.
Development on the Subject Site is subject to the provisions of SDCP, the purpose of which is to:
support the provisions of Sutherland Shire Local Environmental Plan 2015 (LEP). The LEP commenced on 23 June 2015 and provides the statutory framework for land use and development in the Sutherland Shire.
Chapter 19 of SDCP, concerning development within the B3 Commercial Core zone of Cronulla,
"provides the site specific planning requirements for development within the area of Cronulla zoned B3 Commercial Core. Most redevelopment in Cronulla is expected to be mixed use development, usually a combination of commercial uses and shops on the ground floor, commercial use on the second floor, with residential flats above. The residential flat component of any development should be designed in accordance with SEPP 65 and the Apartment Design Guide 2015 (ADG)",
and includes the following relevant aims:
"2. Balance the need to protect the amenity of existing and future residents with the economic requirement to encourage business and tourism in Cronulla.
…
6. Improve the appearance and amenity of the centre with strengthened street tree planting and improvements to landscaping.
…
8. Encourage high quality architectural design in development that is appropriate to the scale and character of the different areas of the centre."
The following sections of Chapter 19 of SDCP are of relevance in this appeal:
1. Section 2, which provides the Centre Strategy, and which states:
"Cronulla Centre is a vibrant and attractive mixed-use centre characterised by its relaxed beachside atmosphere, landscaped public domain and beautiful natural environment. Cronulla Centre's proximity to waterways and natural areas of high environmental and scenic value make it a popular place to both live and visit.
…
The focus of the strategy for Cronulla Centre is to enhance the vitality of the centre and provide improvements to pedestrian amenity. The centre will provide a mix of housing, retail and commercial development, tourism facilities and community services.
…
A key consideration when determining the appropriate building form for a site is assessing the likely impact on the public domain. It is of key importance to maintain a high standard of solar access for public areas of Cronulla centre if it is to be a pleasant place for pedestrians.
…
The unique beachside setting of Cronulla Centre makes it a valuable location, especially for prestige residential flat buildings. To address strong demand, the plan seeks to increase the centre's redevelopment potential for residential units."
1. Section 3, concerning landscaping, and which states:
A key strategy for future landscaping of the centre is to strengthen the existing landscape by overlaying the network of spaces and streets with tree plantings that reflect the three vegetation communities of Cronulla.
1. Section 4, concerning streetscape and built form, and which notes that "the quality and scale of architecture, landscape elements, natural elements and works in the public domain determine the streetscape character", and "high architectural quality requires appropriate composition of building elements, textures, materials and colours and reflects the use, internal design and structure of a development". This section includes a requirement that the building height of any development on the Subject Site should be subject to detailed analysis. It also includes, relevantly, the following objectives:
"1. Ensure sites are of sufficient size to accommodate well designed development.
2. Ensure new development has regard to the future development of adjacent land and respects the form and scale of heritage items.
3. Achieve quality architecture in new development through appropriate composition and articulation of building elements, textures, materials and colours that respond to the building's use and locality.
4. Achieve development that is of an appropriate scale and context for the street and locality, which makes a positive contribution to the streetscape and the amenity of the centre.
…
6. Ensure sufficient solar access for occupants of existing and future adjacent residential buildings, adjoining development and public open space.
7. Create opportunities for incidental open spaces and public domain.
…
11. Improve the visual amenity of the public domain."
1. Section 8, concerning street setbacks, which states that "street setbacks establish the front building line. Controls over street setbacks create the proportions of the street and the continuity of street façades. Setbacks make an important contribution to the perceived scale of a street, and, for centres, to the creation of an urban streetscape character with well-defined street spaces", and which includes the following controls:
"1. Unless specifically identified in the Cronulla Building Envelope Plan and Design Guidelines for Specific Sites the first two storeys of new development must have a nil setback to the street.
2. Unless specifically identified in the Cronulla Building Envelope Plan or the Cronulla Centre Upper Level Setbacks Map, new development of greater than two storeys, shall have a two storey wall height (10m) to an active frontage, and a minimum setback of 4m for the upper storeys, above the two storey wall height."
1. Section 9, concerning side and rear setbacks, and which states that "side and rear setbacks, either onto lanes or adjacent to established residential dwellings, are required to protect the amenity of new and existing dwellings", and which includes the following control:
"3. Building separation for residential uses should be in accordance with SEPP 65 and the Apartment Design Guide."
1. Section 10, concerning landscape, and which relevantly includes the following objectives:
"1. Retain and enhance the existing tree canopy.
2. Increase the volume of indigenous trees so that the local ecology becomes a defining character of the centre.
3. Contribute to streetscape character and the amenity of the public domain by using planting and landscape elements appropriate to the desired character of the streetscape and the scale of the development."
1. Section 13, concerning shop top housing and residential flat buildings, which relevantly has the following objectives and controls
13.1 Objectives
1. Improve the design quality of shop top housing and residential flat buildings.
…
4. Ensure building design and dwelling layout provides a high level of resident amenity.
5. Ensure outdoor areas are functional and responsive to the environment.
13.2 Controls
1. Residential flat buildings and shop top housing should achieve the design quality principles of State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development and the Apartment Design Guide. This includes buildings that are two storeys or less, and/or contain less than four dwellings. …
3. The side and rear setbacks must result in a development that:
a. provides adequate resident amenity - including privacy, solar access, and ventilation;
b. responds to the local context and streetscape, providing adequate separation from existing and future adjoining development;
c. does not prevent a neighbouring site from achieving its full development potential and optimal orientation;
d. has architectural merit.
…
6. Living rooms and private open spaces for at least 70% of residential units in a development should receive a minimum of 2 hours direct sunlight between 9am and 3pm in midwinter.
7. A new residential flat building, without an active street frontage, must be setback 4m from the street to provide appropriate residential amenity. Changes in level, landscaping and building design should be employed to facilitate privacy for occupants."
1. Section 15, concerning visual and acoustic privacy, which states that "building design must take into consideration aspects of visual privacy and noise sources and minimise their future impacts on occupants" and which relevantly contains the following objectives and controls:
"15.1 Objectives
1. Ensure a high level of amenity by protecting the acoustic and visual privacy of occupants within dwellings and their associated private open spaces.
2. Ensure dwellings are sited and designed so that visual and acoustic privacy and vibration from outside sources is controlled to acceptable levels, incorporating architectural and building elements to assist in protecting privacy.
3. Minimise direct overlooking of windows and private open space so that the amenity of neighbours and intended occupants is respected.
15.2 Controls
1. Locate, orientate and design new development to ensure adequate visual privacy between buildings, and between buildings and adjacent private open space.
2. Use building design to increase privacy without compromising access to light and air."
[7]
Apartment Design Guide
The ADG published by the NSW Department of Planning and Environment, provides consistent planning and design standards for residential apartments in NSW.
Part 2 of the ADG explains the application of building envelopes and primary controls including building height, floor space ratio, building depth, separation setbacks. It provides tools to support strategic planning processes in the preparation of planning controls, and includes:
1. Section 2F Building Separation, with the following aims:
1. to ensure that new development is scaled to support the desired future character with appropriate massing and spaces between buildings;
2. to assist in providing residential amenity including visual and acoustic privacy, natural ventilation, sunlight and daylight access and outlook;
3. to provide suitable areas for communal open spaces, deep soil zones and landscaping
Parts 3 and 4 of the ADG provide objectives, design criteria and design guide for the siting, design and amenity of apartment development.
The following specific sections of Part 3 of the ADG are of relevance in this appeal:
1. Section 3D-1, the objective of which is to ensure that an adequate area of communal open space is provided to enhance residential amenity and to provide opportunities for landscaping, and which includes following design criteria:
1. communal open space has a minimum area equal to 25% of site area;
2. developments achieve a minimum of 50% direct sunlight to the principal useable part of the communal open space for a minimum of two hours between 9am and 3pm on 21 June (mid-winter);
1. Section 3D-2, the objective of which is to ensure that communal open spaces are designed to allow for a range of activities, that they respond to site conditions, and that they are attractive and inviting. It provides following design guidance in relation to the design of communal open space:
1. facilities are to be provided within communal open spaces and common spaces for a range of age groups, incorporating some of the following elements:
1. sitting space for individuals or groups;
2. barbecue areas;
3. play equipment or play areas;
4. swimming pools, gyms, tennis courts or common rooms;
1. the location of facilities should respond to microclimate and site conditions with access to some in winter, shade in summer and shelter from strong winds and down drafts;
2. visual impacts of services should be minimised, including location of ventilation duct outlets from basement car parks, electrical substations and detention takes.
1. Section 3D-3, the objective of which is to ensure that communal open spaces are designed to maximise safety, and which includes the following design guidance:
1. communal open space in the public domain should be readily visible from habitable rooms and private open space areas while maintaining visual privacy;
2. communal open space should be well lit;
3. where communal open space/facilities are provided for children and young people they are safe and contained.
1. Section 3D-4, the objective of which is to ensure that public open space, where provided, is responsive to the existing patterns and uses of the neighbourhood. The proposed development does not include any public open space.
2. Section 3F concerning visual privacy, and which has the following objectives:
1. Objective 3F-1, which requires that adequate building separation distances I shared equitably between neighbouring sites, to achieve reasonable levels of external and internal privacy which includes:
1. a design criteria requiring that separation between windows balconies is provided to ensure visual privacy is achieved. Minimum required distances from buildings to the side and rear boundaries are as follows:
Habitable Non-habitable
Building height rooms and rooms
balconies
up to 12m (4 storeys) 6m 3m
up to 25m (5-8 storeys) 9m 4.5m
over 25m (9+ storeys) 12m 6m
[8]
Note: Separation distances between buildings on the same site should combine required building separations depending on the type of room (see figure 3F.2).
Gallery access circulation should be treated as habitable space when measuring privacy separation distances between neighbouring properties."
1. the following definitions in support of the above design criteria:
"A habitable room is:
a room used for normal domestic activities, and includes a bedroom, living room, lounge room, music room, television room, kitchen, dining room, sewing room, study, playroom, family room and sunroom; but excludes a bathroom, laundry, water closet, pantry, walk-in wardrobe, corridor, hallway, lobby, photographic darkroom, clothes-drying room, and other spaces of a specialised nature occupied neither frequently nor for extended periods, as defined by the BCA.
A non-habitable room is:
a space of a specialised nature not occupied frequently or for extended periods, including a bathroom, laundry, water closet, pantry, walk-in wardrobe, corridor, hallway, lobby, photographic darkroom or clothes-drying room, as defined by the Building Codes of Australia (BCA)."
1. Objective 3F-2, which requires that site and building design elements increase privacy without compromising access to light and air and balanced outlook on views from habitable rooms and private open spaces.
[9]
Contentions
At the commencement of the hearing, and notwithstanding the range of issues raised by objectors, and noted above at [6], the Parties agreed that only the following issues remained in contention between them in this appeal:
1. view loss impacts arising from the proposed development;
2. the design of the western façade of the proposed development;
3. the adequacy of the proposed landscaping within the proposed development, including the adequacy of the proposed areas of deep soil;
4. the area and configuration of common open space within the proposed development;
5. the separation of the proposed development from adjacent buildings.
At the hearing, the issues of view loss, the design of the western façade and landscaping were the subject of expert evidence. On the basis of this evidence these first three contentions were resolved as follows:
[10]
View loss
During the hearing, the Court took evidence in relation to potential view loss impacts from the following urban design and town planning experts:
1. Mr Stephen Kerr, Planning Expert for the Applicant;
2. Mr Geoff Baker, Urban Design Expert for the Applicant; and
3. Mr Bruce McDonald, Urban Design and Planning Expert for the Respondent.
The urban design and planning experts agreed that:
1. the provisions of cll 4.3 and 4.4 of SLEP envisage, respectively, a built form of up to 30m in height and a FSR of 3:1 on the Subject Site, and the proposed development is compliant with these controls;
2. given that these are the development standards applicable to the Subject Site, it would be anticipated that a built form responding to these standards would, subject to merits assessment, be approved on the Subject Site;
3. given points (1) and (2), it should be concluded that a loss of view from apartments on the west side of Gerrale Street, including the Breeze apartments, was anticipated by the planners who drafted the provisions of SLEP, and the Council which adopted them;
4. the loss of views from the apartments to the west of Gerrale Street, which in some cases was assessed to be severe, was unfortunate, but was a natural consequence of the specific decision of Sutherland Shire Council to adopt the height and FSR development standards in SLEP applicable to both the Subject Site and to the lots immediately to its rear and west that front Gerrale Street;
5. there were opportunities, through use of a more skilful design, to reduce the view loss impacts on the Cecil apartments. In their joint report, the experts had provided recommendations to amend the design of the south east corner of the proposed development to achieve that outcome. These opportunities involved the relocation of fireplaces, and a reduction in the extent of the south-east corners of the proposed built form;
6. the amended Exhibit C plans prepared by the Applicant, upon which it now relies, satisfactorily reflected those recommendations, and were therefore supported by the experts.
Mr McDonald added that, while it was open to a proponent to prepare a design that further reduced the potential view loss impacts of a development on the Subject Site, through adopting a design which was less than the development standards envisaged within SLEP, the Applicant had not chosen to do so in this case.
The urban design and planning experts noted that the allotments immediately behind the Subject Site to its west, at 14 and 18 Gerrale Street, were also zoned B3 Commercial Core and:
1. were also subject to a 30m height of buildings development standard;
2. were likely to be the subject of re-development in line with that 30m height standard, and so would, in due course, also give rise to further potential view loss impacts on apartments on the western side of Gerrale Street, including those in the Breeze apartments.
On the basis of the above points, the urban design and planning experts said they agreed that the view loss contention between the Parties had been satisfactorily resolved by the amendments made to the Applicant's plans for the proposed development.
In closing remarks, Mr Nash, for the Respondent, noted that the view loss impacts of the proposed development, while a matter of public interest, and the subject of a significant number of objector submissions, were not in themselves a basis for refusal of the Applicant's development application.
Mr Hale SC, for the Applicant, submitted that the manner in which the Applicant had modified its plans for the proposed development, in order to respond to the Respondent's view loss contention, was consistent with the view loss planning principles contained in the decision of former Senior Commissioner Roseth in Tenacity Consulting v Warringah [2004] NSWLEC 140 (hereafter referred to as 'Tenacity'), and of which the most relevant principle for this appeal is the fourth principle at [29] of that judgment, which is:
"The fourth step is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable."
Given the complying nature of the proposed development, in terms of height and FSR, Mr Hale said that the Applicant had indeed adopted a more skilful design, which I note had secured a similar development potential and amenity, and which did reduce the impact on the views of neighbours, notably for those neighbours within the Cecil apartments. Mr Hale said this was consistent with the intent of the principles in Tenacity.
Having considered the evidence of the experts, and the submissions of the Parties, I accept their conclusion that, notwithstanding the view loss impacts on apartments on the western side of Gerrale Street, the Applicant's proposed development, as represented in the so-called Exhibit C plans:
1. reflects the intent of Council's B3 zoning of the Subject Site, and the development standards applicable thereto;
2. has appropriately responded to both the view loss contention raised by the Respondent, and to the submissions of objectors, in terms of the view sharing principles in Tenacity; and
3. should not be refused for reasons of view loss impacts.
[11]
Landscaping
During the hearing, a joint expert report, and additional oral evidence, was provided by the landscape architecture experts:
1. Mr David Vago, for the Applicant; and
2. Mr Aaron Lakeman, for the Respondent.
The experts agreed in their joint expert report, tendered as evidence at the hearing, that:
1. the frontages of the proposed development along Ozone Street, Ocean Grove Avenue and Cecil Munro Avenue did not comply with the relevant setback controls in SDCP (see above at [23]);
2. as a consequence of (1), the proposed development presented a large visual bulk to its street frontages that was exacerbated by services enclosures, vehicular driveways and the presence of built form within those frontages;
3. amendments could be made to the landscaping plans for the proposed development to achieve compliance with the landscaping requirements of SDCP and the ADG.
The expert landscape architects advised that they had prepared sketches of their proposed amendments to the Applicant's landscape plans which they said, if implemented, would ensure that the proposed development would provide:
1. deep soil planting of at least 7% of the site area, being the relevant deep soil control applicable within the ADG;
2. a minimum 6m length in any one direction, being a further requirement of the ADG (Objective 3E-1);
3. additional tree plantings within the proposed development, including nine trees along Ozone Street, two on Cecil Munro Avenue, and four additional trees on Ocean Grove Avenue;
4. increased planter wall heights and depths to achieve more substantial plantings in those areas;
5. a new tree planting to the right hand side of the pedestrian entrance to the proposed development to ameliorate the visual bulk of the building;
6. the relocation of the footpath location along Ozone Street such that the landscape plan complied with the public domain manual within SDCP;
7. the installation of additional shrub plantings behind the wall along the north-east section of common open space to provide visual screening from passers-by within the public domain;
8. further plantings along Ocean Grove Avenue that would ameliorate the visual bulk of the proposed development at that point.
The landscape architecture experts also recommended that, should the Applicant's proposed development be approved, a specific condition of consent should be included in relation to the north-east area of communal open space, as follows:
"Communal Open Space (North East)
The planter to the western edge of the communal open space shall be a consistent height of 1m (RL17.00). The walls when within the deep soil zone shall be piered to not reduce the deep soil area further. The planting within this elevated planter shall follow drawing L08 issue Q dated 31.01.19."
The Applicant said that it embraced the recommendations of the landscape architecture experts at [40] and [41], as well as the additional condition of consent proposed at [42], and agreed to amend its landscaping plans for the proposed development to reflect the recommendations of Mr Lakeman and Mr Vago.
Subsequently, the Applicant tendered a revision to the landscape plans for the proposed development, and sought leave to rely on these amended plans. The Respondent did not oppose this application, and the Applicant was granted leave to rely on those amended landscape plans.
The Parties agreed that the amended landscape plans had incorporated the recommendations of the landscape architecture experts and that, other than in respect to the non-achievement of a 6m width of the deep soil area at the front southern boundary of deep soil, the amended landscape plans satisfactorily resolved the landscaping contentions between the Parties.
Within the amended plans, the southern boundary of the deep soil area in front of the proposed development had a width of 4.5m, and so fell 1.5m short of the ADG requirement.
However, the width of the northern portion of that same area of deep soil was 7.5m, and so exceeded that requirement of the ADG by 1.5m.
The evidence of the landscape architecture experts during the hearing was that they were satisfied that the proposed development provided sufficient and functional deep soil planting that provided an adequate capacity to establish trees on the Subject Site.
The landscape architecture experts also noted within their supplementary joint report that the site area of the proposed development was 1595m2, and that the ADG requirement for minimum width for a site up to 1500m2 was 3m, and so the Subject Site had an area that was lower range of areas that would trigger a requirement for a 6m width.
While I accept that the ADG design criteria for deep soil includes a minimum dimension of 6m for site areas greater than 1500m2, and that this does apply to the Subject Site, I also note that the ADG provides, in relation to Objective 3E-1, that:
"Where a proposal does not achieve the deep soil requirements, acceptable stormwater management should be achieved and alternative forms of planting provided such as on the structure."
I have reviewed the amended landscape plans in relation to the recommendations of the landscape architecture experts, and I accept that the area of deep soil available for planting on the proposed development does meet the ADG requirement for 7% of the site area.
I am also satisfied that the proposed development provides for acceptable management of stormwater and appropriate alternative forms of planting, which the landscape architecture experts confirmed was acceptable.
I have, therefore, concluded that the amended plans are sufficiently compliant with the numerical controls within the ADG in relation to the quantum of landscaping, including deep soil plantings, that the landscape contentions are resolved by the amended landscape plans, and that the proposed development should not be refused on the basis of any landscaping contention.
[12]
Design of the western façade
During the hearing, a joint expert report was tendered from the urban design and planning experts (see above at [30]) in relation to the design of the western façade of the proposed development, and in which the experts agreed that:
1. the western façade had several shortcomings including:
1. unnecessary building bulk that was too close to the site boundary, including at the uppermost levels;
2. excessive areas of blank wall;
3. scale issues, notably the repetition of elements at two-storey intervals;
4. planters that were not integrated into the facade design, and which were 'tokenistic' and difficult to access for maintenance;
1. the identified shortcomings could be addressed by adopting the following recommended improvements:
1. rounding the north-west and south-west corners so as to be the same radius as the balconies on the eastern corners, and infilling with curved glass block walls at the south-west corner (bathroom inside, for units 201 and above) or curved window glazing at the north-west corner (relocated bedroom inside, units 204 and above);
2. moving the fire escape stairs east to abut the lift shaft and relocating the car park exhaust and stair pressurisation ducts to the outside western face of the stairs. They said that this would reduce the bulk of this element at the corners, eliminate the large blank stare wall currently facing the neighbours, and articulate the surface. They recommended that those portions of the stair wall still exposed should remain constructed of reinforced concrete, whilst the duct shaft could be clad in metal panels;
3. removing the individual apartment air-conditioning heat pumps and relocating these by preference to the basement, but if necessary to the rooftop plant room;
4. relocating the window to the internal common corridor so that it is next to the lifts, which would make it easier to see out and which would increase daylight to the corridor;
5. removing the louvres and small balcony to units 201 and above to increase available winter sun to the living area. Because the western living area windows face northwards (rather than to the side boundaries), these could include operable window panes to facilitate cross ventilation without compromising the privacy of neighbours to the west;
6. removing the powder room to units 201 and above from the living area, in order to increase the spatial flow and flexibility within the unit, and to more effectively capitalise on the winter sun coming in from the north facing windows;
7. relocating the powder room to the entry hall next to the second bedroom and moving the bedroom westwards. A curved external wall, recommended to be metal cladding to match the duct shaft in the front of the fire stairs, would soften the impact of this projection, and an operable window, also facing north, would ensure that neighbours' privacy would not be jeopardised;
8. providing sealed vertical openings to the western living room in units 201 and above, and to the ensuite bathroom (relocated, units 204 and above). These openings should be in-filled with glass blocks or translucent fixed glazing. These changes would relieve expanses of external blank wall, improve internal amenity for the proposed development, and avoid privacy impacts on neighbours.
The Applicant said that it embraced the recommendations made in the joint report of the urban design and planning experts, and subsequently tendered amended plans (referred to in the proceedings as the Exhibit C plans), that reflected and adopted the recommendations of the urban design and planning experts.
The Applicant sought leave to rely on these Exhibit C plans. The Respondent did not oppose this submission, and leave was granted.
The Parties agreed that the amended Exhibit C plans, as tendered, satisfactorily resolved the issues in relation to the presentation of the western façade. Having considered both recommendations of the experts, and the amended Exhibit C plans now relied upon by the Applicant, I accept the conclusion of the experts, and agree that the contention in relation to the design of the western façade is satisfactorily resolved by those amended plans.
[13]
Remaining contentions
Notwithstanding the resolution of these first three contentions by further amended landscape and architectural plans, the contentions relating to common open space and building separation remained unresolved, and were subsequently addressed by the Parties and their experts during hearing.
The specific remaining questions requiring resolution in this appeal were then as follows:
1. Are the Applicant's proposals for the provision of common open space acceptable?
2. Are the Applicant's proposed building separations from the western façade of the proposed development acceptable?
[14]
Are the Applicant's proposals for the provision of common open space acceptable?
Section 13 of Chapter 19 of SDCP provides guidance in relation to the development of residential flat buildings within Cronulla Centre, and, as noted above at [23(7)], has the objectives that residential flat buildings should, inter alia:
1. improve the design quality of shop top housing and residential flat buildings;
2. ensure that building design and dwelling layout provides a high level of resident amenity; and
3. ensure outdoor areas are functional and responsive to the environment.
This section of SDCP then gives effect to these objectives by requiring that residential flat buildings should achieve the design quality principles of SEPP65 and the controls of the ADG.
Objective 3D-1 of the ADG requires that an adequate area of communal open space should be provided to enhance residential amenity and to provide opportunities for landscaping. It then sets out the design criteria for common open space within a residential flat building (see above at [27(1)]). These include that a residential flat building developments should:
1. provide communal open space that has a minimum area equal to 25% of site area;
2. achieve a minimum of 50% direct sunlight to the principal useable part of the communal open space for a minimum of two hours between 9am and 3pm on 21 June (mid-winter);
Mr Hale, for the Applicant, submitted that, following the preparation of the amended landscape plans, and upon which it now relies, the landscape, urban design and planning experts all agreed that the proposed development:
1. achieves Objective 3D-1, design criteria 1 of the the ADG as it provides an area of communal open space of 394m2, and equivalent to 25% of the site area, as required under this objective, and the Respondent said that it accepted that this was the case;
2. only partially achieves the ADG Objective 3D-1, design criteria 2, because:
1. the north-east area of communal open space, proposed for the corner of Ozone Street and Ocean Grove Avenue, and which would have an area of 145m2, would receive at least 50% direct sunlight to the principal usable part of that communal open space for a minimum of 2 hours between 9am and 3pm on 21 June (mid-winter); but
2. the north-west area of communal open space, which would be located at the rear of the proposed development fronting Ocean Grove Avenue, and which has an area of 249m2, would receive one hour and fifty minutes of sunlight between 9am and 3pm on 21 June, and so would not receive the required minimum 50% direct sunlight to the principal usable part of that communal open space at that time.
The ADG Objective 3D-1 also includes a series of design guidance statements for communal open space, in relation to which the proposed development only partially achieves compliance because:
1. it provides:
1. that each area of communal open space does have a minimum dimension 3m;
2. that access to the communal open space areas is possible from circulation areas, the building entry and its lobby; but
1. it does not provide:
1. communal open space that is consolidated into a single area, as the communal open space is split between two areas:
2. the required minimum of direct sunlight at mid-winter in one of the communal open space areas (the north-western area), and so is not ideally positioned in relation to solar access given its location between the proposed development and the building to the rear. Its amenity is also compromised as a consequence of its location;
3. for all common open space to be co-located with areas of deep soil.
During the hearing, Mr Nash, for the Respondent, submitted that:
1. the location and configuration of the north-western area of communal open space was such that it:
1. presented a 'canyon like' appearance which was unattractive and decreased the potential amenity of the space;
2. could not fulfil its designation as the primary area of communal open space, notwithstanding its larger size;
3. only provided one hour and fifty minutes of direct sunlight on 21 June at mid-winter, and so did not satisfy one of the two design criteria within Objective 3D-1 of the ADG;
4. was not co-located with areas of deep soil; and
1. there was no reason why the north-western area of communal open space, as the primary area of communal open space, could not, and should not, achieve the design outcomes within Objective 3D-1 of the ADG;
2. it was not sufficient for the Applicant to propose a design of the communal open space in which one area comfortably achieved compliance, particularly in relation to direct sunlight at mid-winter, while the other area, being the larger and primary area of communal open space, did not.
The landscape architecture experts had prepared a supplementary joint expert report, which was tendered as evidence at the hearing, and which assessed the performance of the communal open space areas in the so-called Exhibit C plans, upon which the Applicant relies, and they concluded that:
1. the two areas of communal open space would provide an appropriate landscape amenity, community amenities, open space, diversity of use options, and privacy;
2. despite the north-western area of communal open space being located above the basement slab, it would, nevertheless, provide an appropriate landscape amenity in accordance with the provisions of Objective 3D-1 of the ADG;
3. the north-western area of common open space provides appropriate design quality which creates a suitable level of amenity consistent with Objective 3D-1 of the ADG.
4. the north-western area of common open space within the amended plans contains an increased amount of 'vegetated volume' and provides additional seating, green walls, a day bed, lockers and a BBQ/kitchen, and would provide a positive and attractive space for residents, notwithstanding the location of certain services in this area.
In considering the proposed development's partial achievement of the design criteria and design guidance within Objective 3D-1 of the ADG, I note that the guidance within that objective also provides that, where developments are unable to achieve the design criteria, including in circumstances where the site is in a business zone, which is the case in this appeal, such developments should, inter alia, demonstrate good proximity to public open space and facilities and/or provide contributions to public open space.
As noted above at [5] and [4], respectively, the proposed development is located within a business zone (B3) and is located approximately 100m from Cronulla Park, and Cronulla Beach.
Having considered the Applicant's proposed communal open space in the amended plans, particularly in the context of Objective 3D-1 of the ADG, along with its related design criteria and design guidance, I have concluded that, whilst it does not fully achieve the design criteria and guidance within Objective 3D-1, its location within a business zone (B3) and its proximity to Cronulla Park and Cronulla Beach are such that the non-achievement of all aspects of Objective 3D-1 should not be a reason to refuse consent.
In reaching this conclusion, I am also mindful of advice provided by the NSW Department of Planning and Environment in its Planning Circular PS 17-001 entitled "Using the Apartment Design Guide", and in which the Department notes that:
"Apart from the non-discretionary development standards in SEPP65, the ADG is not intended to be, and should not be, applied as a set of development standards."
I also note the evidence of the landscape architecture experts (see above at [66(4)]), that the proposed north-western area of common open space would, notwithstanding its constraints and the location of certain services in this area, provide a positive and attractive space for residents.
Consequently, while I accept the submission of the Respondent that the proposed common open space is not designed such that it is able to achieve all of the design criteria and guidance provided within Objective 3D-1 of the ADG, I am, nevertheless satisfied that:
1. the degree to which the proposed development's communal open space addresses that objective is sufficient, given its location within a business zone, and its proximity to the substantial public open space of Cronulla Park; and
2. the design of the common open space is acceptable and is not a reason to refuse the Applicant's proposed development.
[15]
Are the Applicant's proposed building separations from the western façade of the proposed development acceptable?
As noted earlier (at [60]) Chapter 19, Section 13 of SDCP provides guidance in relation to the development of residential flat buildings within Cronulla Centre, and requires that residential flat buildings achieve the design quality principles of SEPP65.
In addition, SDCP also provides a control specifically in relation to side and rear setbacks, which requires:
"3. The side and rear setbacks must result in a development that:
a. provides adequate resident amenity - including privacy, solar access, and ventilation;
b. responds to the local context and streetscape, providing adequate separation from existing and future adjoining development;
c. does not prevent a neighbouring site from achieving its full development potential and optimal orientation;
d. has architectural merit."
The rear of the proposed development is its western façade, previously discussed above at [54] to [57]. I have considered the architectural merit, and the functionality and amenity of the communal open space within the rear setback, of that façade. In relation to these points I have concluded that:
1. the design of the western façade as represented in the amended plans upon which the Applicant relies, is acceptable.
2. the functionality and amenity provided by the communal open space within the rear setback, whilst constrained and not optimal, was nonetheless acceptable in the circumstances of the proposed development, those being its location within a B3 land use zone and its proximity to public open space.
More specific controls in relation to the rear separation of the proposed development are provided within the sections 2F and 3F of the ADG.
Chapter 2 of the ADG explains the application of building envelopes and primary controls, including in relation to building separation and setbacks, and provides tools to support strategic planning processes in the preparation of planning controls.
Section 2F of that chapter provides specific considerations in relation to the establishment of building separation controls in support of achieving the aims of this section, identified above at [25(1)].
The considerations include proposed minimum building separation distances which increase proportionally to the building height, in order that the design of buildings achieves amenity and privacy for building occupants as well is a desirable urban form.
The considerations within section 2F are given effect in relation to visual privacy within section 3F of the ADG, which includes the following Objective 3F-1:
"adequate building separation distances are shared equitably between neighbouring sites to achieve reasonable levels of external and internal visual privacy."
This objective is supported by the design criteria identified above at [27(5)(a)].
The urban design and planning experts did not agree on the correct approach to applying the criteria and guidance within sections 2F and 3F of the ADG to the proposed development.
Within the joint report of the urban design and planning experts, Mr McDonald had said that "the setbacks provided in the drawings relied upon in these proceedings generally conform to the minimum dimensions in the table on page 37 of the ADG, except where the building is only 3.7m up to level seven, and 4.0m at level eight, from the common boundary with 18 Gerrale Street", that being the building immediately to the rear and west of the proposed development.
The table on page 37 of the ADG, referred to above by Mr McDonald, provides minimum building separation distances that should be used as considerations in setting building separation controls.
Mr Kerr took a different position in relation to whether the separation distances within section 2F of the ADG or those within section 3F of the ADG were the most appropriate for use in assessing the adequacy of the proposed development's building separation distances to its rear.
Mr Kerr said that, in his opinion, the relevant provisions of the ADG were those found in section 3F of the ADG concerning visual privacy. Mr Kerr based this opinion in part on directions provided by the Department of Planning and Environment in its Planning Circular PS 17-001 entitled "Using the Apartment Design Guide", and in which it was stated that:
"in determining a development's design quality in relation to the design quality principles, the consent authority is to consider: how the development meets the objectives and design criteria set out in Parts 3 and 4."
Mr Kerr noted that, relevantly, the planning circular did not identify Part 2 of the ADG as a relevant matter when determining design quality.
Mr Kerr also noted that, as identified previously in this judgement (at [70]), the Department of Planning and Environment's Planning Circular PS 17-001 had stated that "… the ADG is not intended to be, and should not be, applied as a set of development standards".
Having considered the approaches of Mr McDonald and Mr Kerr to the assessment of the proposed development's building separations within the so-called Exhibit C plans, I agree with Mr Kerr's approach on this point. I agree with him that the guidance provided within Part 2F of the ADG is indeed concerned with considerations that a planning authority should give when establishing controls in relation to building separation. However these considerations are not, in my assessment, a basis upon which the proposed development in this appeal should be assessed. I agree with Mr Kerr that the appropriate basis for assessment of building separation distances are the design criteria provided in section 3F of the ADG. These criteria were provided above at [27(5)(a)].
Notwithstanding this, I note that Mr McDonald, in his assessment within the joint report of the urban design and planning experts, had said that the setbacks provided in the drawings relied upon in these proceedings generally conform with the minimum dimensions of the ADG, at least as set out in section 2F.
It was Mr Kerr's assessment, conveyed within the supplementary joint report of the urban design and planning experts, that the proposed development, as represented in the so-called Exhibit C plans, generally complied with the numerical building separation distances set out in Objective 3F-1 of the ADG. Mr Kerr further noted that there were some minor variations in relation to the compliance with the 3F-1 design criteria for building separation, but these were in relation to secondary windows that had been designed to improve the articulation of the western facade. He said that the Applicant had proposed that these windows would be translucent. As a consequence, Mr Kerr said that, in his opinion, these windows would provide reasonable levels of internal and external privacy, in satisfaction of Objective 3F-1.
Mr Baker was also satisfied that the proposed building separations in the so-called Exhibit C plans, were acceptable.
Having considered the evidence of the experts, and the submissions of the Parties, I have concluded that the building separations proposed by the Applicant in the Exhibit C plans, upon which it relies, are acceptable, notwithstanding the non-compliance at one point along the western façade, which I assess to be minor, and not significant, and not a basis for refusal of the development application.
[16]
Further considerations under SEPP65
1. The provisions of cl 28(2) require that:
In determining a development application for consent to carry out development to which this Policy applies, a consent authority is to take into consideration (in addition to any other matters that are required to be, or may be, taken into consideration):
(a) the advice (if any) obtained from the design review panel; and
(b) the design quality of the development when evaluated in accordance with the design quality principles; and
(c) the Apartment Design Guide.
My considerations in relation to these matters are now provided.
[17]
Design review panel advice
I have given consideration to the two most recent reports of the Design Review Forum Panel of Sutherland Shire Council, both of which were tendered as evidence during the hearing, and in relation to which I have concluded as follows:
1. The Design Review Forum Panel meeting of 25 October 2018, recommended that:
"The revised submission goes some way to addressing issues noted previously, however, there are main concerns with specific aspects of the proposal:
The response to context;
the problems of scale, mass and articulation of the Street frontages and the rear elevation;
adequacy of the front setback, and tree planting within the setback;
ADG requirements for solar access.
Further design development should be undertaken to respond to the issues noted.
In its current form the panel does not support the proposal."
1. The Design Review Forum Panel meeting of 14 February 2019, during which the following comments were reported:
"The revised submission has addressed some of the matters noted previously, the main one being the Street setback. However, other significant issues have not been responded to:
1. The proposal has not address the need for modulation and articulation of the built form to achieve a more appropriate grain and contextual fit. No attempt has been made to modulate the front facade to break down the building form with separate elements. From the street the building remains an all-encompassing horizontally articulated mass across the entire frontage, perceived as a very large object in round, and also takes little account of its urban context - on the other side of Ozone Street, a similar frontage consists of three separated buildings. As noted previously by the panel, 'the rationale for how the building is sitting on the street is not demonstrated or convincing, suggesting a more rigorous analysis and response to the context'.
2. The rear western facade remains overbearing in scale and as far from achieving ADG separation setbacks. This facade would be highly visible from Gerrale St to the North, and would result in a forbidding, windy canyon between buildings when the adjacent site to the West is developed. The revised submission has not ameliorated this problem in any meaningful way, and the proposal should incorporate setbacks at upper levels in line with ADG standards to respond to this issue."
1. and which concluded:
"The panel does not support the proposal in its current form.
Further design development should be undertaken to respond to issues noted above. It is likely that an appropriate build outcome will not be able to realise the maximum permissible FSR for the site."
The concerns expressed by the Panel in relation to the proposed development's western façade were the subject of evidence from the urban design and planning experts. It was their agreed opinion that the design of the western façade, as presented within the Exhibit C plans, now relied upon by the Applicant, was acceptable, and that those amended plans had satisfactorily addressed the contention in relation to the design that facade. This conclusion was accepted by the Respondent during the hearing.
The second, and remaining residual, concern flowing from the report of the Design Review Forum Panel meeting of 14 February 2019, relates to its observations that 'the street the building remains an all-encompassing horizontally articulated mass across the entire frontage, perceived as a very large object in round' and in relation to which the Panel observed that the proposed development should take greater account of its urban context, notably in relation to buildings on the other side of Ozone Street, where the panel observed that a similar frontage consists of three separated buildings.
This aspect of the design of the proposed development was the subject of evidence from the urban design and planning experts during the hearing, and during which the evidence of the experts was not aligned.
The evidence of Mr McDonald included the following points:
1. the application documents include drawings that enable a comparison between the proposed building massing and form and that of apartment buildings nearby. …. The study demonstrates the disparity between the proposed building and others in the immediate locality….. No other building has a long monolithic facade like the proposed building.
2. the building has a dominant unbroken horizontal emphasis. Devices such as reverse curved sections of the facade or a clear break is provided at ground and first floor levels would ameliorate the monolithic built form.
3. failure to properly design the spaces between the buildings can produce canyon-like spaces and very poor amenity at ground level at the base of buildings, and this application falls into this category. He said that this canyon effect would be exacerbated when the sites to the west were redeveloped at a greater height. He added that long continuous built forms, even at the minimum separation distances, can leave the long narrow spaces between, which do not have a comfortable human scale do not admit sufficient sunlight and daylight.
4. this is a situation where the circumstances of the site constraints work against the achievement of the maximum permissible FSR. The design and floor areas of the apartments may be aimed at a particular market. However, there is considerable scope to reduce apartment floor areas and the bulk of the building and to still have generous apartments.
In contrast, the evidence of Mr Kerr and Mr Baker was as follows:
1. Mr Kerr said that:
1. the dimensions of the proposed building a function of the physical dimensions of the development site and that the 4m Street building setbacks which are prescribed within Chapter 19 of SDCP and were acknowledged in the Council assessment report as being appropriate in this context;
2. the proposed building depth is modest when compared with the relevant guidelines in the ADG;
3. the description of the building facade as monolithic is a highly subjective assessment was not supported by specific controls or guidelines in SDCP or elsewhere to his knowledge.
1. Mr Baker said:
1. this is not a monolithic building and, compared to the range of typical apartment building sizes, is quite modest in scale. He noted that the building contains 32 units and the floor plate accommodates four apartments per floor (and acknowledging that they are bigger than the ADG minimum unit sizes). Mr Baker said that the ADG limit on number of units per core is eight, and he said that many apartment buildings contain more than one core per floor;
2. he did not agree with Mr McDonald that the east facade is monolithic and not articulated. He said that its curvature is distinctive and an appropriate response to the site and context and it includes a stone clad base, a central step in the facade above and areas of both glazing and balconies. He added that other more subtle visual themes (for example, increasing transparency with height) within the design had added further interest to the design.
3. the horizontal expression of the east façade is appropriate in a beach-side context;
4. the proposed building complies with the applicable development standards for height and FSR, the SDCP controls for street setbacks and the ADG standards for side setbacks. He said that it is unnecessary and unreasonable to suggest that the bulk of the building and the sizes of the apartments should be reduced.
Having considered the evidence of the experts, I have concluded that, while it was open to the Applicant to adopt a different design approach to the proposed development that may have modified the presentation of the built form, partially or completely, into separate elements, or to reduce its scale, this is not required by the applicable development standards in SLEP, the SEPP, nor by the controls in SDCP or the ADG.
Given that the proposed development complies with the development standards in SLEP and the SEPP, and, in my assessment, does not offend the controls in SDCP and the ADG, I do not conclude that the Applicant should be compelled to separate the proposed development into separate elements, nor to reduce its scale. Nor do I accept that such hypothetical design alternatives should be applied as a basis for assessment of the Applicant's proposed development.
[18]
The design quality principles
Schedule 1 of SEPP65 provides the design quality principles within SEPP65. These are:
Principle 1: Context and neighbourhood character
Principle 2: Built form and scale
Principle 3: Density
Principle 4: Sustainability
Principle 5: Landscape
Principle 6: Amenity
Principle 7: Safety
Principal 8: Housing diversity and social interaction
Principal 9: Aesthetics
I have considered the proposed development in relation to each of these principles, as follows:
1. Context and neighbourhood character, in relation to which SDCP Chapter 19, concerning the B3 Commercial Core - Cronulla, includes a Centre Strategy statement, which states, inter alia, that:
"The unique beachside setting of Cronulla Centre makes it a valuable location, especially for prestige residential flat buildings. To address strong demand, the plan seeks to increase the centre's redevelopment potential for residential units,
and,
A key consideration in determining the appropriate building form for a site is assessing the likely impact on the public domain. It is of key importance to maintain a high standard of solar access for public areas of Cronulla centre if it is to be a pleasant place for pedestrians."
1. The Applicant submitted that the proposed development will provide a prestige residential flat building, consistent with the above statement within Council's Centre Strategy for the B3 Commercial Core of Cronulla.
2. I agree with the Applicant's submission, and note that there was no evidence provided that the proposed development would compromise the high standard of solar access available within the public areas of the Cronulla Centre.
1. Built form and scale, in relation to which:
1. the proposed development is compliant with the height of buildings and FSR development standards applicable to the Subject Site;
2. the western façade of the .proposed development, as represented in the amended plans, and as discussed at [57], is now supported by the urban design and planning experts,
3. I am satisfied that the front/eastern presentation of the proposed development presents a design which is, in my assessment, of high quality and an appropriate addition to the streetscape of Cronulla Centre;
4. the view loss impacts of the proposed development, notably from its southern neighbours have been mitigated to the extent possible, and given the planning intent of Council for the Subject Site, are acceptable for the reasons provided above at [30] to [38];
1. Density, in relation to which I have concluded, on similar basis to the principle of built form and scale (see above at [(2)]), that the built density of the proposed development is acceptable given its compliance with the height of building and FSR controls applicable to the Subject Site;
2. Sustainability, in relation to which the Applicant has provided a BASIX certificate attesting that the sustainability performance of the proposed development, as assessed within the BASIX framework, is acceptable in terms of the design of its energy consumption, water consumption and thermal comfort performance. The proposed development has also been assessed to have a National House Energy Rating Scheme (NatHERS) score of 6.8, above the benchmark score of 6.0 which is often applied to such developments;
3. Landscape, in relation to which I have concluded that, based on the advice of the landscape architecture experts, the Applicant's proposed landscaping design is acceptable in terms of the relevant requirements of the ADG;
4. Amenity, in relation to which I have concluded that the Applicant's proposed development is acceptable, both in relation to the provision of amenity to potential future residents, and in terms of potential amenity impacts on others living within the vicinity of the Subject Site;
5. Safety, in relation to which the Respondent raised no contention, and concerning which I am satisfied the Applicant's proposed development is acceptable;
6. Housing diversity and social interaction, in relation to which I note that the Applicant's proposed development will provide a further thirty high quality apartments to the mix of housing in the Cronulla area, and which contains communal open spaces that are satisfactory in relation to applicable ADG controls, and which is in close proximity to Cronulla Park, both of which factors will promote social interaction, between residents and with the broader local community;
7. Aesthetics, in relation to which the presentation of the proposed development's western façade was a particular issue, and which has been addressed to the satisfaction of the urban design and planning experts through the provision of amended plans.
[19]
Apartment Design Guide
The sections of the ADG of particular relevance to this appeal were identified in opening remarks by Mr Nash, for the Respondent, (see above at [24] to [27], and have been addressed above in the following sections:
1. Section 2F, concerning building separation, which is addressed above at [76] to [93];
2. Section 3D, concerning landscaping, which is addressed above at [60] to [72];
3. Section 3F, concerning privacy, which is addressed above at [76] to [93].
[20]
Further considerations under SLEP
As identified above at [19(3)] and [19(4)] respectively, the provisions of cll 6.16 and 6.17 of SLEP are matters to which a consent authority, or the Court on appeal, is required to give consideration in deciding whether to grant development consent for development for the purposes of residential accommodation.
Clause 6.16 of SLEP requires that a consent authority, or the Court on appeal, consider a range of general urban design matters, and to which I have given consideration as follows:
1. the extent to which high quality design and development outcomes for the urban environment of Sutherland Shire have been attained, or will be attained, by the development, and in relation to which:
1. having reviewed the amended plans for the proposed development, including the amended landscape plans, the amended design of the western façade and the revisions to plans to mitigate view loss impacts from neighbours to the south, I have concluded that the proposed development will provide a high quality design, and achieve positive development outcomes, for the urban environment of Sutherland Shire.
1. the extent to which any buildings are designed and will be constructed to strengthen, enhance or integrate into the existing character of distinctive locations, neighbourhoods and streetscapes, and contribute to the desired future character of the locality concerned, and in relation to which:
1. I am satisfied that the proposed development is consistent with Sutherland Shire's Centre Strategy for the B3 Commercial Core in Cronulla (see above at [104(1)]), and, as a consequence, I am also satisfied that the proposed development will strengthen the existing character of the local streetscape, and contribute to the desired future character of the B3 Commercial Core of Cronulla.
1. the extent to which recognition has been given to the public domain in the design of the development and the extent to which that design will facilitate improvements to the public domain, and in relation to which I am satisfied that:
1. the amended landscaping plans for the proposed development, now relied upon by the Applicant, are acceptable, and in my assessment will complement the public domain within the local area. I also note that there is no evidence before me that the proposed development would compromise the solar access available to public open space in its vicinity, including in relation to Cronulla Park.
1. the extent to which the natural environment will be retained or enhanced by the development, and in relation to which:
1. I am satisfied that the proposed development, which will replace existing, but older, residential flat buildings, will have no negative impact on the natural environment, and so will, as a consequence, retain the natural environment of the local area in the vicinity of the Subject Site.
1. the extent to which the development will respond to the natural landform of the site of the development, and in relation to which:
1. I am satisfied that the proposed development is acceptable in relation to the natural landform of the Subject Site, which is currently occupied by residential flat buildings, albeit these be structures of lesser bulk and scale;
2. I am also satisfied that the proposed basement car park structure, while representing an intrusion into the natural landform of the Subject Site, is required and is appropriate in terms of the nature of the proposed development.
1. the extent to which the development will preserve, enhance or reinforce specific areas of high visual quality, ridgelines and landmark locations, including gateways, nodes, views and vistas, and in relation to which I am satisfied that:
1. the proposed development will enhance the landmark location of the Cronulla Centre; and
2. the so-called Exhibit C amended plans do mitigate, to the extent possible, potential view loss impacts to residents of dwellings to the south of the Subject Site; and
3. as agreed by the urban design and planning experts, the impacts on views currently enjoyed by some residents of buildings directly to the west of the Subject Site are an outcome that is anticipated by Council's B3 zoning of the Subject Site, and of properties immediately to its west on Gerrale Street, all of which have a 30m height of building control, and a FSR control of 3:1.
1. the principles for minimising crime risk set out in the Crime Prevention Guidelines which are provided in Part B of the document entitled 'Crime Prevention and the Assessment of Development Applications: Guidelines under section 79C of the Environmental Planning and Assessment Act 1979', and the extent to which the design of the proposed development applies those principles, and in relation to which the Respondent Council raised no contention.
Clause 6.17 of SLEP requires that a consent authority, or the Court on appeal, must consider a range of specific urban design matters, and to which I have given consideration as follows:
1. the extent to which recognition has been given in the design of the development to the needs of the diverse and changing population of Sutherland Shire, and in relation to which:
1. as previously noted at [104(1)] and [107(2)], the proposed development is consistent with Sutherland Shire's Centre Strategy for the B3 Commercial Core in Cronulla, and based on this I conclude that it is also consistent with the needs of the diverse and changing population of the Sutherland Shire;
1. the extent to which any adverse impacts of the development on adjoining land and open space, in terms of overshadowing, overlooking, views, privacy and visual intrusion, will be minimised, and in relation to which:
1. as previously noted above in relation to the design of the western façade, the mitigation of potential view loss impacts, the adequacy of landscaping, communal open space and building separations, I am satisfied that any adverse impacts of the development on adjoining land and open space, in terms of overshadowing, overlooking, views, privacy and visual intrusion, have been be minimised;
1. the extent to which the quality of the streetscape concerned will be improved by the development, and in relation to which:
1. I am satisfied that the quality of the streetscape in the vicinity of the Subject Site will be improved by the proposed development based on the agreement of the landscape architecture experts that the amended landscape plans, including plans for the front streetscape, are acceptable and compliant with the requirements of SDCP and the ADG;
1. the extent to which there will be private open space of a sufficient area and dimensions to enable proposed and required activities, and in relation to which:
1. the Respondent raised no contention, and in relation which I am satisfied that the proposed development will provide private open space of a sufficient area and dimensions, notably through the proposed development's provision of generous balcony spaces, to enable proposed and required activities to be undertaken;
1. the extent to which any adverse impacts of the development on adjoining land, in terms of size, bulk, height, scale and siting, will be minimised, and in relation to which:
1. as noted above, and notwithstanding the differing evidence of the experts, I am satisfied that any adverse impacts of the development on adjoining land, in terms of size, bulk, height, scale and siting, have been minimised within the context of the B3 zoning of the Subject Site by the Respondent Council, and the built form that flows, consequentially, from that zoning and its associated development standards;
1. the extent to which the residential accommodation concerned integrates with a well-designed landscaped setting, and in relation to which:
1. I have concluded, based on the evidence of the landscape architecture experts, that the amended landscaping plans for the proposed development are acceptable;
1. any opportunities for the provision of affordable housing, and in relation to which:
1. the Applicant said, and I agree, that the location of the Subject Site, and its zoning, is suited to an urban design outcome centred on the provision of a prestige residential flat building, consistent with statements within Council's Centre Strategy for the B3 Commercial Core of Cronulla, and which therefore, appropriately, provide dwellings that are other than affordable housing.
[21]
Conclusions
Having considered the submissions of the Parties, and the evidence of the landscaping, urban design and planning experts, I am satisfied that:
1. the potential view loss impacts of the proposed development have been mitigated to the extent possible for residents of buildings to the south of the Subject Site, and are, on this basis, acceptable;
2. the impacts of the proposed development on views currently enjoyed by residents of buildings on the western side Gerrale Street, and to the west of the Subject Site, such as the Breeze apartments, while assessed as severe, are an anticipated consequence of Council's B3 zoning of the Subject Site, which provides for a 30m height of building development standard and 3:1 FSR development standard, and with which the proposed development complies;
3. the design of the western façade of the proposed development is acceptable;
4. the amended landscaping plans for the proposed development are acceptable.
I am also satisfied that:
1. the Applicant's proposals for communal open space within the proposed development are acceptable in terms of the objectives, design criteria and design guidance in the ADG;
2. the Applicant's proposed building separations are acceptable, notwithstanding the non-compliance at one point along the western façade, which I assess to be minor, and not significant, and not a basis for refusal of the development application.
Finally, I have considered:
1. the provisions of cl 28(2) of SEPP65, and these have been addressed;
2. the provisions of cll 6.16 and 6.17 of SLEP, and these have also been addressed.
Based on these considerations, I have concluded that:
1. the proposed development is in the public interest;
2. the Applicant's development application DA 18/0323 for the demolition of existing structures and the construction of nine storey residential flat building with basement car parking at 5-9 Ozone Street, Cronulla should be approved, subject to conditions;
I note that, while not a matter to which I have given weight in this appeal, this finding is consistent with the assessment of the proposed development by officers of Sutherland Shire Council, and recommendations based thereon, as provided in a report, tendered as evidence at the hearing, to the meeting of the Sydney South Planning Panel in November 2018.
[22]
Orders
The orders of the Court are:
1. The Applicant is granted leave to amend the development application and to rely on amended plans, including amended landscape plans;
2. The Applicant is to pay the Respondent's costs that are thrown away as a result of amending the development application as agreed or assessed under s 8.15 of the Environmental Planning and Assessment Act 1979;
3. The appeal is upheld;
4. Development application DA 18/0323, as amended, for the demolition of existing structures and the construction of a residential flat building at 5-9 Ozone Street, Cronulla, with basement car parking, is determined by the grant of consent, subject to the conditions attached at Annexure 'A';
5. The exhibits are returned, except Exhibits A, B, C and 1.
……………………….
Michael Chilcott
Commissioner of the Court
Annexure A
[23]
Amendments
28 May 2019 - Cover Sheet - Reference to Sutherland Shire LEP and DCP corrected
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Decision last updated: 28 May 2019