Phoenix Corporation Pty Ltd v Penrith City Council [2011] NSWLEC 1178 | Case summary

Evidence 14The Court visited the site and surrounding area and heard evidence from objectors. Their principle concerns were that the proposed development is uncharacteristic of the area being of excessive bulk, scale and height in comparison to existing development and that he proposal will impact on their amenity through loss of privacy, solar access and increased traffic. They also considered the site was unsuitable for residential flat development due to potential flooding and the difficulties of safe evacuation. 15The Court heard expert evidence from: For the council

Mr C Ross, flooding
Mr P Cinque, State Emergency Services and evacuation
Mr Newbold, planning and urban design For the applicant
Dr D Martens, flooding and evacuation
Mr R Dickson, urban design
Mr V Hardy, planning Compatibility with existing area 16The key disagreement between Mr Newbold, Mr Hardy and Mr Dickson is whether the development complements the scale and character of the existing locality. 17Mr Newbold held the opinion that scale is not limited to a vertical comparison but also the horizontal and mass or volume of the development in relation to other development. Mr Dickson accepted this proposition. 18In Mr Dickson's opinion, the scale of the development was a consequence of the flooding constraints. He considered the scale relationship to be acceptable. He cited various design techniques that had been utilised to mitigate the scale of the building and the overall impact of the development. These include the setback of Building E from the dual occupancy development in Picasso Place, the three storey wall height, the further setback of the upper floor and the modulation and articulation of the length of the building. Building A is broken into two components being the 'Manor House' and the 'Annex'. The larger 'Manor House' is located adjoining the reserve and the railway line and away from existing dwelling houses on the opposite side of Lamrock Street. The buildings within the site are located away from the side boundaries and residential development on adjoining properties. 19Mr Dickson acknowledged that from various vantage points the buildings within the development would be able to be viewed but considered that the 'gaps' between buildings and their setback would mean that they would not read as a single mass. Further, the landscaping would soften the development and break up its mass. 20Mr Dickson recognised that there are no other buildings in the area of the scale, height, number of storeys and footprint proposed. However, he considered the proposal to be consistent with the existing character because the use of pitched roofs, articulation and materials meant that it presented as a residential development and that residential flat buildings are permissible within the zone. Further, he concludes that the development provides an appropriate zone boundary interface with the dwellings in the adjoining zone and a transition to the dual occupancy development within the same zone. 21Mr Newbold drew different conclusions to Mr Dickson. He acknowledges the techniques that had been employed to reduce the scale of the development but concludes that these do not result in a development that is consistent with the scale or the character of existing development. Put simply, the proposal is for three, four and five storey buildings in an area of one and two storey buildings. The length of some facades and the footprint of the proposal are considerably larger than existing development. The landscaping, 'gaps' and separation of the buildings, particularly Building E and A, when viewed from Lamrock Street, are not sufficient to break up the overall mass. In Mr Newbold's opinion, the proposal is not an appropriate response to its context and does not complement the existing scale or character of the locality. Findings 22Clause 30(2)(b) of SEPP 65 requires a consideration of the design quality of a residential flat development when evaluated in accordance with the design quality principles in Part 2. The key principles in dispute between the experts are: Clause 9 Principle 1: Context Good design responds and contributes to its context. Context can be defined as the key natural and built features of an area. Responding to context involves identifying the desirable elements of a location's current character or, in the case of precincts undergoing a transition, the desired future character as stated in planning and design policies. New buildings will thereby contribute to the quality and identity of the area. Clause 10 Principle 2: Scale Good design provides an appropriate scale in terms of the bulk and height that suits the scale of the street and the surrounding buildings. Establishing an appropriate scale requires a considered response to the scale of existing development. In precincts undergoing a transition, proposed bulk and height needs to achieve the scale identified for the desired future character of the area. Clause 11 Principle 3: Built form Good design achieves an appropriate built form for a site and the building's purpose, in terms of building alignments, proportions, building type and the manipulation of building elements. Appropriate built form defines the public domain, contributes to the character of streetscapes and parks, including their views and vistas, and provides internal amenity and outlook. 23Part 6 s 6.6 of DCP 2006 applies to land at Emu Plains, bounded by Old Bathurst Road, the Great Western Highway, Lamrock Street and the Western Railway Line. The aims of s 6.6 include: (a) to provide urban design guidelines for commercial and residential development within the area; ....... (d) to ensure the physical enhancement of the area through the provision of landscaping, street tree planting and good quality urban design. 24Clause 6.2 of s 6.6 refers to the site, being land adjacent to the western side of Lamrock Street, which has potential for residential development. Clause 6 2.1 relevantly provides: Any development proposals for this land shall incorporate: · measures to minimise the impact of noise on residents from the Western Railway line and Great Western Highway through appropriate design features, the use of suitable external materials, landscaping and site design; · dwellings of a scale and character which complement those existing in the surrounding area; · high-quality fencing of a scale, design and materials which does not present long, unbroken expanses to public view (eg lapped and-capped paling fence, or masonry construction, with spacing for tree and shrub planting); · landscaping which complements the character of the area, and enhances both the amenity of the residents and views from public places. Landscaping must be implemented to provide privacy and shade for the residents. 25The experts disagreed whether the proposal met the design quality principles in SEPP 65 and the requirements of cl 6.2.1 of DCP 2006, in particular, whether the proposed dwellings are of a scale and character which complement those existing in the surrounding area. 26The decision of Roseth SC in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 provides assistance in considering the proposal against the relevant principles in SEPP 65 and the controls in cl 6.2.1 of DCP 2006. In summary these require an evaluation of whether the proposal 'responds to', 'contributes to' and 'complements' its surrounding area, essentially whether it is 'compatible'. The Senior Commissioner discusses issues and provides principles to assess the compatibility between what is proposed and what exists. 22 There are many dictionary definitions of compatible . The most apposite meaning in an urban design context is capable of existing together in harmony . Compatibility is thus different from sameness . It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve. ........ 24 Where compatibility between a building and its surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked. Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites. Is the proposal's appearance in harmony with the buildings around it and the character of the street? 25 The physical impacts, such as noise, overlooking, overshadowing and constraining development potential, can be assessed with relative objectivity. In contrast, to decide whether or not a new building appears to be in harmony with its surroundings is a more subjective task. Analysing the existing context and then testing the proposal against it can, however, reduce the degree of subjectivity. 26 For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment. In some areas, planning instruments or urban design studies have already described the urban character. In others (the majority of cases), the character needs to be defined as part of a proposal's assessment. The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping. In special areas, such as conservation areas, architectural style and materials are also contributors to character. 27In applying these principles to this case, the parties agree that to be compatible does not require a development to be the same. However, they disagree on the extent to which the proposal responds to the essential elements of the area. Ms Duggan SC, for the applicant, submits that the proposal is compatible as it has residential elements such as pitched roofs that 'speak of residential use'. Mr Hemmings, for the council, submits that the only aspect of the proposal that is compatible with the area is its residential use. The essential elements such a height, number of storeys, 'manor house' typology, mansard and flat roofs are foreign elements in the locality. 28I accept Mr Hemmings' submissions and the evidence of Mr Newbold. While residential development, including residential flat buildings, is permissible in the 3(d) zone, it cannot be concluded that the proposal is compatible with what exists in the surrounding area. The character of the surrounding area is not defined in the planning instruments, however cl 6.2.1 of s 6.6 of DCP 2006 requires that new dwellings be of a scale and character which complement those existing in the surrounding area. This control relates almost specifically to the site and it can be concluded that the area is not one undergoing transition. 29A significant component of visual compatibility of the built form is the height of a development in relation to existing developments. There are no buildings in the surrounding area, either adjoining, opposite or nearby the site, which exceed two storeys or that have a floor plate or a bulk similar to that proposed. A proposal, which ranges in height from three to five storeys with large pitched roofs and extensive floor plates does not complement other dwellings in the area which are predominantly one and two storey detached houses or town houses. 30The height of the development results from the constraints imposed by flooding and evacuation however, I do not accept that this justifies the form of development proposed but rather that it indicates that a different type of development may be a more appropriate response to the constraints of the site and result in a form of development which is more compatible with the surrounding area. Shop top style housing or lower density residential development adjoining the town houses and dwellings in Lamrock Street may not result in the same degree of incompatibility as the proposal. 31I acknowledge that attempts have been made to mitigate the height and bulk of the buildings by increasing setbacks near adjoining residential development, separation between buildings, landscaping and articulation. However, these measures are not sufficient to render the proposal compatible with the existing residential development in the surrounding area. Particularly given the zone interface that occurs in Lamrock Street (see Seaside Property Developments Pty Ltd v Wyong Shire Council [2004 NSWLEC 117). 32While not proposed as an alternate scheme, Ms Duggan provided a deferred commencement condition, which deleted the mezzanine storage level (Level 2) and thereby lowered the residential levels and the overall height of the buildings. Effectively the height of the first residential level would be lowered from RL31.50 to be no higher than RL29. The height of the podium would remain the same (RL28.87). No plans were provided to illustrate the proposed changes and the planners were provided little opportunity to comment on the suggestions. The proposal was not put to the flooding and evacuation experts for comment. 33The alternate scheme proposed in the deferred commencement condition would reduce the overall height of the buildings and would improve the relationship with adjoining development in Picasso Place and Lamrock Street. However, not to the extent that it would be compatible with the surrounding residential development as it would remain a three to four storey development in a one to two storey area. 34There is also insufficient detail to assess the impacts of such a proposal, particularly as the deletion of the mezzanine level would result in the first residential level being at the same level as the podium. The podium provides access to the individual buildings and their foyers, lifts and stairwells. It also provides access throughout the development and links the different buildings to each other and to facilities such as the helicopter pad. The proposal in the deferred commencement condition would require internal redesign and deletion of parts of units to maintain this access. 35The podium provides areas of communal open space as well as access. The relationship of these areas to the residential uses would need to be assessed to ensure that there are not unresolved privacy impacts, as some areas of private open space and living areas would open directly off the podium, particularly if Building B and C were mirror reversed to address solar access concerns. 36I find that it would be inappropriate to impose the deferred commencement condition as it does not sufficiently address the incompatibility of the proposal with the surrounding residential development, as well as the degree of uncertainty as to its likely impacts and the absence of expert evidence on the flooding and evacuation implications of the scheme. 37For the reasons discussed above, in considering the design quality of the proposal when evaluated against the principles in SEPP 65 for Context, Scale and Built Form, as well as whether its scale and character complements the surrounding area as required by s 6.6 of DCP 2006, the proposal must fail. For completeness I will briefly discuss the other issues in dispute between the parties. Amenity 38Mr Newbold raised a number of concerns in relation to the internal amenity of the proposal. These include the level of solar access to the units, which he estimates to be below the RFDC 'rule of thumb' that 70% of units achieve three hours of solar access to living rooms in midwinter. He was also concerned about the lack of direct access from the buildings to the ground level landscaped areas, the usability of communal open space on the podium level, the safety and design of the foyers and access to the helicopter landing pad. 39Mr Dickson did not agree with the concerns raised by Mr Newbold. In particular, he considered that the proposal met the 70% solar access requirement through the provision of skylights to units. Both he and Mr Newbold agreed that if Buildings B and C were mirror reversed, the development would more than comply with the RFDC requirement for solar access. 40Mr Dickson considered the access to landscaped areas, amenity of the communal open space and safety and design of the foyers to be acceptable. Ms Duggan provided a condition, which proposed amendments to the access for the helipad that would address the issue raised by Mr Newbold. Findings 41The amenity issues, of themselves, would not warrant refusal of the application. However, they are negative aspects of the proposal which could be addressed through more considered design to better achieve the objectives of SEPP 65 so as to improve the design quality of residential flat development. Flooding and Evacuation 42Dr Martens and Mr Ross generally agreed on the likely inundation of the site in respective flooding events. They agree that council's Flood Planning Level is based on the 1 in 100 year event plus a 0.5m freeboard. The site would not be inundated by the 1 in 100 year event but it would be within the freeboard. 43Dr Martens and Mr Ross agreed that from the 1 in 70 year event a flood runner would develop in the Emu Plains area which results in the site being part of a low 'flood island' and the evacuation routes becoming blocked. The site would be inundated at the 1 in 200 year event. 44The experts agree that the proposal has been designed to ensure that the habitable levels (5.4m above the 1 in 100 year level) would not be inundated even in the Probable Maximum Flood (PMF). 45Mr Ross and Dr Martens agree that the site would be isolated by the formation of the flood island for approximately 15 hours in the 1 in 100 year event; approximately 31 hours during the 1 in 200 year event and 2.8 days during the PMF event. 46Mr Ross considers the site to be a High Flood Hazard Category due to it being on a low flood island. Dr Martens considers the flood hazard depends on the magnitude of the flood event. In his opinion, the flood hazard of the site becomes high when a flood of the magnitude of 1 in 200 or greater occurs. 47The principle area of disagreement between Dr Martens, Mr Ross and Mr Cinque was the suitability of the site for residential development resulting from the requirement to evacuate the site prior to the formation of the 'flood island' and the blocking of evacuation routes. These concerns centred on the degree of certainty that a flood would occur at the time when the decision to evacuate would need to be given. 48The Bureau of Meteorology (BoM) can confidently predict flood levels 7 hours before the event based on a quantitative precipitation forecast (QPF) being the actual rain that has fallen in the catchment. However, the State Emergency Service (SES) require 10-16 hours to evacuate the 'flood island' therefore a decision to evacuate must be made 3-9 hours before the QPF, based on forecast rain modelling and the likelihood of a flood occurring. The decision to evacuate must therefore be done at an early stage, once the river reaches a certain level and has a high level of uncertainty. 49Mr Ross and Mr Cinque consider that the level of uncertainty, the time required, the lack of a perceived threat and level of flood awareness may result in people not evacuating the area once directed or, in the event that people have evacuated and a flood does not eventuate, they would be reluctant to evacuate at another time. Mr Cinque acknowledges that this situation exists with current development in the area and that evacuation of the site would add about 5-15 minutes to the time required to evacuate the existing residents in the flood island in accordance with procedures set out in the Hawkesbury-Nepean Flood Emergency Sub Plan (Emergency Plan). However, he considers this development and the cumulative development of other sites will exacerbate an already unsatisfactory situation and place further demands on the SES. In his opinion, further residential development within the flood island should not occur. 50Mr Ross and Mr Cinque consider that the inability of people to evacuate and then remaining on site during a major flood event is 'enforced entrapment' which is inconsistent with the Floodplain Development Manual 2005 (the Manual) and the Best Practice Guidelines (the Guidelines). It is also inappropriate to evacuate people from the site via the helipad. 51Dr Martens considers the increase of 5-15 minutes in evacuation time is negligible and that development of the site for this or other development does not pose an unacceptable risk. Further, he states that the proposal is designed to the PMF level and therefore, in the event that people are not evacuated, they will be above the flood level and remain safe. In his opinion, there is minimal risk to people and property. The intent of the helipad is not to evacuate people but to enable supplies to be dropped off or provide a facility for the area for emergency evacuation. Findings 52Mr Hemmings submits that the 3(d) zone is a special business and services zone which occurs in a number of locations within the LGA. Residential flat buildings are an innominate use and are not prohibited within the zone. Consistent with BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399, he submits that the 3(d) zoning of the site is not specific and the range of uses are not confined and therefore greater weight cannot be attributed to the zoning. Further, Mr Hemmings submits that while the site specific controls in Part 6 s 6.6 of DCP 2006 envisage residential development they do not refer to residential flat buildings. In his submission, this and any site in the 'flood island', is unsuitable for multi unit housing due to the high flood hazard risk and the difficulties in evacuating the site. Mr Hemmings refers to Part 2 s 2.10 of DCP 2006 which applies to Flood Liable Land. He submits that under cll 3.9 and 3.10 residential flat buildings are not permited in high hazard areas. 53Ms Duggan made the contrary submission that the site had been zoned under LEP 150 and was subject an amendment in 2001 under LEP 297. The zoning is reinforced by Part 6 s 6.6 of DCP 2006 which clearly envisages residential development on the site and the same DCP also provides controls for Flood Liable Land in Part 2 s 2.10. In her submission, s 2.10 reflects NSW Government policy that such land not be sterilised but its development be considered on its merits. The section generally adopts a standard flood planning level of the 1 in 100 event (1% Annual Exceedence Probability). Ms Duggan submits that cll 3.9 and 3.10 of s 2.10 permit residential flat buildings within existing residential and commercial zones where the existing land is not lower than the 1 in 100 event. The proposal more than meets this requirement and poses an acceptable risk to buildings, personal property and people. People would be evacuated in the same way as others in the 'flood island' and the development will not require an amendment to the Emergency Plan . In the event that people are not evacuated, they can safely remain within their apartments and not require emergency evacuation or place unreasonable demands on the SES. 54The development therefore does not increase the risk for evacuation or loss of life. In her submission, if the Court considers that further risk is acceptable, then the height of the first habitable floor could be lowered to RL29, which would still be above the 1 in 200 event. However, this proposed change was not specifically discussed with the experts. As stated above, in the absence of expert evidence or a detailed proposal the level or risk or the appropriateness of this change cannot be adequately assessed. Nor would it resolve the issues in relation to the height, bulk and scale of the proposal. 55Mr Hemmings and Ms Duggan referred to BGP Properties to support their submissions. At [117] and [118] McClellan CJ states: planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. ..... In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts. 56Residential flat buildings are not prohibited within the 3(b) zone, although it is arguable that a development that is almost entirely residential may not be consistent with the objectives of the zone, however, this was not raised as a contention in the procedings. Part 6 s 6.6 of DCP 2006 only applies to a specific area of which the site is a major component. Clause 6.2 envisages residential development on the site, however cl 6.2.1 provides that any development should incorporate dwellings of a scale and character which complement those existing in the surrounding area. This does not preclude residential flat buildings or other forms of medium density development but as discussed above, it does not envisage development of the scale or character proposed. It is not unreasonable to assume that in some form, the use of the site for a residential flat building could be permitted, subject to acceptable environmental impacts. 57The main environmental impact in dispute is the constaints posed by the site as flood liable land. The agreed position of Mr Ross and Dr Martens is that the site would be inundated in the 1 in 200 event (by approximately 1.6m) and that this represents a high hazard, although Dr Martens considers that the hazard is low for the 1 in 100 event. They agree that the design of the habitable floors of the building above the PMF eliminates concerns about the risk to life and property other than the risk resulting from evacuation due to the the 'unique' constraints posed by the site's location on a 'flood island'. 58Mr Ross' and Mr Cinque's key concerns relate to the unsatisfactory procedures for evacuation that already exist in the flood island. Due to the early blocking of evacuation routes and the time needed, a decision to evacuate the flood island is required to be made a significant time before there is a level of certainty that a flood will occur. The situation already places significant demands on the SES. Mr Ross and Mr Cinque acknowledge that the additional time to evacuate the development can be undertaken within the procedures of the Emergency Plan. However, they consider that the development would set a precedent and that no further residential should be permitted on the 'flood island'. 59I acknowledge these concerns and recognise that they are relevant considerations in planning for emergencies. However, the question is whether they are contrary to the planning controls for the site. For the following reasons, I find that the early warning and uncertainty required to evacuate the 'flood island' is a concern, however, it is not, of itself sufficient to warrant refusal of the application. Firstly, the zoning of the site permits residential development, in some form. Secondly, the controls in DCP 2006 for Flood Liable Land permit residential flat buildings in existing commercial zones if the land is above the 1 in 100 event. Thirdly, the proposed development poses no greater flood or evacuation risk to occupants than that which already exists on the 'flood Island'. Fourthly, the additional demands can be accommodated within the existing Evacuation Plan without the need for amendment. 60I also find that the experts' concerns about precedent are not sufficient to warrant refusal of the application. Both Mr Hemmings and Ms Duggan referred to the decision of Lloyd J in Goldin v Minister for Transport [2002] NSWLEC 75 to support their submissions in relation to whether the proposal would be a precedent for other developments. At [28] His Honour states: ....if the Court is entertained with an application for a proposed development which is both objectionable in itself and where there is a sufficient probability that there will be further applications of a like kind, then the fact that a consent would operate as a precedent may be taken into consideration. 61As I understand the evidence, the zoning of the majority of the 'flood island' does not permit multi unit housing or residential development at the density proposed on this site. Approval of this application would therefore not be a precedent for approval of other multi unit housing applications, however, it could arguably act as a precedent to increase density given that dual occupancy development is permissible in the 'flood island'. Mr Ross and Mr Cinque were concerned about any increase in density on the 'flood island'. While this may be a reasonable concern, it is not reflected in the planning controls, which clearly permit an increase in density subject to addressing environmental constraints including requirements for Flood Liable Land. Further applications within the 'flood island would need to be considered on their merits based on the planning controls.

Phoenix Corporation Pty Ltd v Penrith City Council

At a glance

Court

Decision date

Before

Source

Judgment (12 paragraphs)

Parties

Cases Cited (3)