Project Venture Developments v Pittwater Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11209 of 2004 Project Venture Developments Pty Ltd v Pittwater Council

The consequence of the Court's decision in this appeal is the grant of development consent subject to detailed conditions. The conditions are not reproduced as part of this decision but are available for inspection at the Council. A copy the Court's Orders and conditions may be obtained from the Court's registry on payment of a fee. For details of the fee payable and process for obtaining a copy of the Orders and conditions see the Court's web site at http://www.lawlink.nsw.gov.au/lec/

1 Senior Commissioner: This is an appeal against the refusal by Pittwater Council (the council) of a development application to demolish the existing buildings and erect a three-storey residential flat building on lot 55 DP 263210, known as 6 Foley Street, Mona Vale.

The site 2 The site is on the southern side of Foley Street, between Mona Vale Road and Vineyard Street. It is irregular, with a 70m frontage to Foley Street, and is now occupied by a car repair shop. On the opposite side of Foley Street is a RSL Club. The area to the south and east is detached housing. 3 The following properties share a boundary with the site: 2, 4, 6, 6A and 8 Brinawa Street, 76 and 78 Vineyard Street, and 4 Foley Street. These are one and two-storey houses, apart from 6 and 6A Brinawa Street, which is an attached dual occupancy.

Relevant planning instruments 4 Local Environmental Plan 1993 zones the land and the surrounding area Residential 2(a). The Dual Occupancy Control designates the area as Area 3. On the surrounding sites therefore, single houses and dual occupancies are permissible, while residential flat buildings are prohibited. 5 It was common ground that the proposal had existing use rights, so the zoning controls do not apply.

The proposal and its history 6 The applicant proposes to demolish the existing buildings on the site and erect a three-storey residential flat building containing 17 apartments with basement parking for 39 car spaces. 7 The applicant submitted the application in January 2004. Following notification, the council received 14 submissions. The applicant submitted amended plans in July 2004. These were advertised and attracted 31 submissions. In August 2004 the council's Development Unit accepted a planning report recommending refusal. The applicant lodged the appeal in October 2004.

The issues 8 The council submitted a Statement of Issues containing six issues, of which four had been resolved before the hearing. The two remaining issues are in fact one, ie whether the scale and density of the development is appropriate in its context.

The objectors' evidence 9 The Court heard the evidence of seven objectors on the site. Mr J Heeley of 27 Brinawa Street said that his main concerns were traffic and parking in Foley Street. He noted that there was no footpath in Foley Street. Ms F McCallum of 4 Brinawa endorsed Mr Heeley's concerns and added that she was concerned about the proposal's impact on her privacy. Mrs S Stoddard of 8 Brinawa was also concerned about being overlooked from balconies on the second and third floor. She thought that the proposal was far too bulky for the low-density area around it. 10 Mr B Smith, the general manager of the RSL Club opposite the site, said that he was concerned about traffic noise generated by his establishment disturbing the residents of the proposal. He did not want to increase the number of people who might complain about his Club. 11 Mr C Wilson of 10 Brinawa Street objected on the basis that that were no other flats in the area and that the proposal was too big. The direct impact she feared was being overlooked from the upstairs balconies. Ms P Knight, who owns the two-storey duplex at 6 and 6A Brinawa Street, said that her main concern was being overlooked. Ms E Blackman, who lives at 4 Foley Street, was concerned about the height of the proposal, her pool being overlooked, and the driveway being too close to her bedroom. 12 Mr R Smith of 43 Waratah Street, Mona Vale spoke in the council chambers, where the on-site hearing continued. Mr Smith said that his residence is located about 1km from the site. He criticised the proposal on the basis that the vehicular access is in a dangerous position, Foley Street is too narrow for this kind of development, the lack of footpath made the site unsuitable, and a bulky three-storey building in a low-density residential area was inappropriate. 13 A common theme of the objectors was the concern with increased traffic. The council did not identify this as an issue and the council's engineer raised no objection to the proposal on traffic grounds. Since it was not an issue, the Court-appointed planning expert, Mr R Chambers did not deal with it. In the absence of any expert evidence that traffic is a problem, I cannot accept the residents' concern with traffic as valid. 14 The second common concern was the height and bulk of the proposal. This was the council's main issue and is dealt with below. As regards the objectors' concerns with the impact on their properties, Mr Chambers had dealt with each adjoining property during the hearing. To ensure the privacy of 8 Brinawa Street, Mr Chambers suggested a planter box to the third-floor terrace and a privacy screen to the second-floor balcony closest to the common boundary. The applicant accepted the amendment. In Mr Chambers' opinion, the privacy of 6 and 6A Brinawa Street is protected by the deletion of balconies and the retention of existing vegetation that he suggested before the hearing. These changes are now incorporated in the plans. Ms McCallum's property at 4 Brinawa Street faces the access handle to the site and is removed from windows and balconies that might overlook it. In Mr Chambers' view, adequate separation protects the privacy of 79 Vineyard Street, while the deletion of a balcony he suggested before the hearing reduces the potential for overlooking 78 Vineyard Street. As concerns Mrs Blackman's property at 4 Foley Street, the swimming pool is sufficiently far from the proposal to retain its privacy. The vehicular entrance to the site is more 10m from the bedroom. 15 In summary, Mr Chambers said that the impact on neighbours was acceptable. The council accepted this evidence and, since it was common ground, so does the Court. The surrounding residents will, of course, see the proposal from their properties; however, the extent of disturbance by overlooking or noise will remain within acceptable limits.

Scale and density in the context of the surrounding area 16 In Fodor Investments v Hornsby Shire Council [2005] NSWLEC 71 I suggested that four tests should be applied to proposals on sites with existing use rights. Only the first of these tests is relevant to the issue in the present case. The test is: how do the bulk and scale (as expressed by height, floor space ratio and setbacks) of the proposal relate to what is permissible on surrounding sites? 17 The gist of Mr Chambers' evidence was that the bulk and scale of the proposal was compatible with what is permissible on surrounding sites. While the presence of the RSL Club was a factor in his opinion, it was not the basis for it. Mr Chambers agreed that the proposal was different in scale from the houses to the east and south, but he thought that the large setbacks and the lack of adverse impacts ensured that the proposal was not alien in its setting. He was particularly influenced by the fact that the proposal's height was under 8.5m, which is the height limit in the surrounding area. Because of the large setbacks, the relatively low height and the absence of adverse impact, he considered that the proposal fitted adequately into its surroundings. 18 Ms A Williams, a town planner with the council, gave evidence in the council's case to the effect that the proposal was incompatible with its surroundings. She discounted the existence of the RSL building, because it was also incompatible and should not be taken as a benchmark. The fact that the proposal was a block of flats in an area where the highest permissible residential use was dual occupancy meant that the proposal was too different to fit in. 19 Ms Williams' argument was simple: the proposal was different from its surroundings and therefore incompatible. Mr Chambers agreed that it was different but considered it nevertheless compatible. As the confusion about sameness and compatibility frequently pervades disputes about urban character, it is useful to explore the meaning of compatibility. 20 In GPC No 5 (Wombarra) Pty Ltd v Wollongong City Council [2003] NSWLEC 268 the Court established four principles for the specific case of medium density housing for older people fitting into the streetscape in a low-density housing area. o The medium density development does not have to be single-storey to be compatible with the streetscape even where most existing buildings are single-storey; o The scale of the medium density it should be visually broken up; o Existing site characteristics that reduce visual dominance should be retained; o Where new materials and forms are introduced, this should be done with sensitivity to the existing forms and materials. 21 The planning principle that follows develops the above further and makes it more generally applicable.

Planning principle: compatibility in the urban environment 22 There are many dictionary definitions of compatible. The most apposite meaning in an urban design context is capable of existing together in harmony. Compatibility is thus different from sameness. It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve. 23 It should be noted that compatibility between proposed and existing is not always desirable. There are situations where extreme differences in scale and appearance produce great urban design involving landmark buildings. There are situations where the planning controls envisage a change of character, in which case compatibility with the future character is more appropriate than with the existing. Finally, there are urban environments that are so unattractive that it is best not to reproduce them. 24 Where compatibility between a building and its surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked. o Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites. o Is the proposal's appearance in harmony with the buildings around it and the character of the street? 25 The physical impacts, such as noise, overlooking, overshadowing and constraining development potential, can be assessed with relative objectivity. In contrast, to decide whether or not a new building appears to be in harmony with its surroundings is a more subjective task. Analysing the existing context and then testing the proposal against it can, however, reduce the degree of subjectivity. 26 For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment. In some areas, planning instruments or urban design studies have already described the urban character. In others (the majority of cases), the character needs to be defined as part of a proposal's assessment. The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping. In special areas, such as conservation areas, architectural style and materials are also contributors to character. 27 Buildings do not have to be the same height to be compatible. Where there are significant differences in height, it is easier to achieve compatibility when the change is gradual rather than abrupt. The extent to which height differences are acceptable depends also on the consistency of height in the existing streetscape. 28 Front setbacks and the way they are treated are an important element of urban character. Where there is a uniform building line, even small differences can destroy the unity. Setbacks from side boundaries determine the rhythm of building and void. While it may not be possible to reproduce the rhythm exactly, new development should strive to reflect it in some way. 29 Landscaping is also an important contributor to urban character. In some areas landscape dominates buildings, in others buildings dominate the landscape. Where canopy trees define the character, new developments must provide opportunities for planting canopy trees. 30 Conservation areas are usually selected because they exhibit consistency of scale, style or material. In conservation areas, a higher level of similarity between the proposed and the existing is expected than elsewhere. The similarity may extend to architectural style expressed through roof form, fenestration and materials. 31 It should be remembered that most people are not trained planners or urban designers and experience the urban environment without applying the kind of analysis described above. As people move through the city, they respond intuitively to what they see around them. A photomontage of a proposed development in its context provides the opportunity to test the above analysis by viewing the proposal in the same way that a member of the public would. 32 I apply the above principles to this case. It was common ground that the proposal's physical impact on surrounding development was acceptable. I turn to the question visual compatibility with the streetscape of Foley Street. Foley Street (at least the section between Mona Vale Road and Vineyard Street) does not have an established height, setback or landscape character. The most prominent building is the RSL Club. I note Mr Chambers' finding that the maximum height of the proposed building does not exceed the permissible height in the adjoining residential area. 33 The applicant has produced a photomontage. In my opinion, most observers would not find the proposed building offensive, jarring or unsympathetic to this section of Foley Street. This is consistent with Mr Chambers' opinion that the proposal is compatible with its surroundings.

2. Development application to demolish the existing buildings and erect a three-storey residential flat building on lot 55 DP 263210, known as 6 Foley Street, Mona Vale is determined by the granting of consent subject to the conditions in Annexure A.

3. The exhibits are returned except Exhibits 7 and A.

      Dr John Roseth
      Senior Commissioner

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