Snowmall Pty Ltd v Rockdale City Council

Planning Framework 7 The site is zoned 3(a) General Business under Rockdale Local Environmental Plan 2000 (LEP 2000). The proposed development is defined as "mixed use premises" and is permissible with consent. Clause 12(3) provides that consent must not be granted unless the Court is of the opinion that the proposed development is consistent with one or more of the objectives of the zone, which are found in cl 36. Clause 37 provides for a maximum floor space ratio (FSR) of 2:1. The parties did not agree on the FSR of the proposal. The difference in opinion related to whether certain areas should be included as floor space based on the interpretation of the gross floor area definition particularly in relation to the enclosure of balconies on level two of Building A. If the balconies were included the development would have a FSR of 2.03:1. 8 Adjoining land to the east is zoned 2 (a) Low Density Residential under LEP 2000. 9 At the time the application was lodged the Mixed Use Development/Interim Planning Policy (the policy) applied to the development. This was replaced by Rockdale Development Control Plan No 72 - Mixed Use Premises (DCP 72), which was effective from 8 July 2004. It contains no savings provisions and the parties agreed it was a relevant consideration. However, Mrs Taylor's submission, on behalf of the applicant, was that the DCP applied to commercial zones in the whole of the local government area as an interim measure. Clause 1.3 states that the plan does not apply to: Any other land in zone 3(a), 3(b) or 3(c) to which another DCP applies (whether made before or after this DCP), where that other DCP contains alternative provisions for regulating and controlling the development of mixed use premises or where that other DCP specifically exempts the land to which it applies from the operation of this DCP. 10 On this basis, both Kogarah and Rockdale councils have jointly prepared a Master Plan for the Ramsgate Shopping Centre. On 7 July 2004, Rockdale Council resolved to exhibit the Master Plan and to prepare draft Development Control Plan No 75 (DCP 75) for the Ramsgate Shopping Centre. The council report stated that "The Master Plan will provide the basis for the development of Rockdale Development Control Plan No 75" 11 At the time of the hearing, the Master Plan had been exhibited but council had not further considered the plan or the submissions. Mrs Taylor's submission was that the proposal was generally consistent with the Master Plan and it should be given weight as a relevant consideration under s79 C. Mr Cole's submission, for the council, was that the Master Plan should be given little weight as there was considerable opposition to it and the proposal was not consistent with the Master Plan. 12 In Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472, McClellan CJ discussed the weight to be given to Development Control Plans and planning policy adopted by Council. He states that : To my mind, the matters which are relevant when determining the weight to be given to a planning policy adopted by a council are as follows:

· the extent, if any, of research and public consultation undertaken when creating the policy;

· the time during which the policy has been in force and the extent of any review of its effectiveness;

· the extent to which the policy has been departed from in prior decisions;

· the compatibility of the policy with the objectives and provisions of relevant environmental planning instruments and development control plans;

· the compatibility of the policy with other policies adopted by a council or by any other relevant government agency;

· whether the policy contains any significant flaws when assessed against conventional planning outcomes accepted as appropriate for the site or area affected by it. 13 In applying these principles to the Master Plan, the key distinction is that while it has been exhibited, the response from the community has not been assessed and it is not an adopted policy of council. While I have considered the Master Plan, I accept Mr Cole's submission and have given the Master Plan little weight as a document that provides guidance as to the future character of the Ramsgate Shopping Centre and to the compatibility of the proposal with this future context. The Master Plan and related DCP are at a preliminary stage and while DCP 72 envisages that a specific DCP may be prepared for the Ramsgate Shopping Centre, this has not been finalised and the appropriate controls under which the proposal must be considered are those in DCP 72. 14 The key controls in DCP 72 for the site are: a maximum height of three storeys; rear setback of 12m from adjoining residential land (ie 6m setback from Cleland Lane); 10% of the site as deep soil landscaping and living areas to receive three hours of sunlight between 9am and 3pm on the winter solstice. 15 Rockdale Development Control Plan No 28 - Requirements for Access is relevant but no specific issues were raised with this DCP. Rockdale Development Control Plan No 67 - Crime Prevention through Environmental Design is relevant. The parties disagreed as to whether the issues raised by the NSW Police Service St George Area Local Area Command could be dealt with by conditions. Compliance with the requirements of Rockdale Parking and Loading Code (Parking Code) was also raised as an issue. 16 State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings (SEPP 65) establishes ten design principles for residential flat development. Under SEPP 65, the Residential Flat Design Code (the Code) must be considered. Part 3 of SEPP 65 provides for the establishment of Design Review Panels. Twice the Design Review Panel established for the Rockdale and Kogarah area considered the proposal. The issues 17 The Statement of Issues before the Court contained six issues. Issue 3, relating to noise mitigation measures; Issue 4, dealing with stormwater; and issue 6, relating to inaccurate plans, were satisfied by conditions and the amended plans. The remaining issues can be categorised into the following key issues:

i) whether the height, setback, FSR and landscaping of the proposal has an acceptable impact on the adjoining residential development and the Ramsgate Shopping Centre ii) whether the development achieves acceptable residential amenity in relation to solar access, privacy and landscaped area; iii) whether the proposal provides adequate parking.

The evidence 18 The following experts gave evidence: · For the council Mr B Kirk, town planner Dr R Lamb, visual impact consultant · For the applicant Mr R Chambers, town planner Mr S Kennedy, architect and urban designer Mr G Pindar, traffic engineer 19 Expert reports were provided on behalf of the Applicant by Ms R Tan, acoustic consultant, and Mr A Walker, Geotechnical engineer, but these experts were not required for cross examination. 20 The court also had the advantage of a site visit and heard evidence from the following residents on site:

Ms A Hancock, 45 Campbell Street Ms D Costello, 33 Campbell Street Mr and Mrs Page, 43 Campbell Street Mr A Berry, 40 Campbell Street Mrs Slowgrove, 28 Campbell Street Mr L Kordilio, 49 Campbell Street Mr D Zammit, 41 Campbell Street Mr and Mrs Gratis, 39 Chamberlain Street 21 The concerns of the residents are similar to those raised as issues by council. While they generally supported redevelopment of the site, they were concerned about the height of the proposal, its proximity to their houses resulting from the lack of setback and landscaping. They considered that this would result in a development, which had an unacceptable bulk and scale that would adversely impact on their properties, particularly from their back gardens, which faced the proposal. They also had concerns about overlooking from the proposal and resultant privacy impacts as well as overshadowing impacts. Residents also raised concerns about the parking provided and the traffic that would be generated by the development using the narrow laneway, which has no footpath. These issues are discussed further below. Impact on residential area 22 The key difference between the experts was whether the height of the proposal and its setback from Cleland Lane would have an appropriate impact on the adjoining residential area. 23 The opinion of Mr Kirk and Dr Lamb can be summarised as being that the building is too tall and results in an inappropriate interface with the residential area to the rear. This is exacerbated by the rear setback of the building and the lack of landscaping. 24 The ground level car park and first and second level balcony are built to the alignment of Cleland Lane. The building on the first and second level is set back 2.2m. The third level is set back further and appears as a roof form with dormers. Despite these setbacks, Mr Kirk and Dr Lamb considered that the building would appear as a four storey building which does not comply with the height limit of three storeys in cl 4.2 of DCP 72. The setback requirement in cl 5.6 of the DCP of 6m from the laneway, to provide a 12m separation with adjoining residential development, is also breached. As stated above, the experts disagreed on whether the FSR of the proposal complied with the requirements of the LEP and DCP. As I have found that the bulk of the proposal to be unacceptable I have not dealt with whether or not the FSR technically complies. I note that the Master Plan proposes a FSR of 1.8:1 for the site. 25 Both these experts recognised that the height and setback of the proposal were consistent with that of the adjoining building to the north but considered that this building did not typify the existing form of development along the laneway as most buildings are setback from the lane and are one or two storeys. Nor did they consider that the proposed development exemplified the form of development envisaged by either DCP 72 or the Master Plan. 26 In Mr Kirk and Dr Lamb's opinion, the main difference between the two approaches was that the Master Plan proposed two storeys built to the alignment of the laneway (a six metre high street wall), whereas the DCP proposed three storeys but set back six metres from the laneway. 27 Dr Lamb stated that the Master Plan was not an envelope control that permitted a two storey street wall adjoining the lane and extra storeys within a 30 degree angle. Rather it permitted two storeys and a pitched roof form. He accepted that this latter form of development could be built to the street alignment and to achieve an appropriate transition between development on Rocky Point Road and the single storey residential development off Campbell Street. However, he did not consider that a higher building along the laneway would provide an acceptable transition. He recognised that the two levels above the car park would be the most visible from the adjoining residential area and that the fourth storey, because of its setback and roof form, would only be visible from limited vantage points. None the less he considered that the current proposal was too high and too bulky and not an appropriate model for development along the laneway. 28 In Dr Lamb's opinion the DCP model of a three storey height and six metre setback from the laneway provided an appropriate transition, particularly as it provided opportunities for landscaping to soften the visual bulk of the development and to improve the amenity of the laneway, as well as improve access to sunlight and reduce the problem of overlooking and resultant privacy impacts. 29 Mr Chambers and Mr Kennedy held the alternate position that the height and setback of the proposal were acceptable in the context of the adjoining building to the north and the height of other buildings in street, although they recognised that these generally did not abut the laneway. In their opinion the laneway was a "hard edged environment" as there was little soft landscaping and garages generally defined its eastern side. On this basis they considered development built to the alignment of the western side of the laneway, as envisaged by the Master Plan, to be an appropriate model. They considered that landscaping to the laneway to be unnecessary as it was essentially a service laneway with little pedestrian usage and that planter boxes on the balconies of the proposal would be sufficient to soften the building. 30 Mr Chambers held the opinion that the setback met DCP control 5.13 which permits a lesser setback if certain criteria are met. Mr Kirk did not agree that this clause was applicable as it related to Balconies and Verandahs and, even if applicable, was not satisfied as the criteria require no adverse impact to result form the reduced setback and landscaping between the building and the boundary of the site. 31 In Mr Chambers and Mr Kennedy's opinion, the Master Plan was an envelope control that would permit a greater number than two storeys up to a maximum height of 15m and that the proposal was consistent with this. Mr Chambers and Mr Kennedy accepted that the proposal did not comply with the three storey height limit in DCP 72, but considered this to be acceptable as it was consistent with the existing context and that envisaged by the Master Plan. 32 The experts for both parties agreed that the overshadowing of the adjoining residences that would result from the proposal complied with the requirements of DCP 72. In relation to overlooking, the experts agreed that the proposed privacy louvers, screens and planter boxes would prevent overlooking and achieve acceptable privacy for the adjoining residents. However, both Mr Kirk and Dr Lamb considered that the problem could have been avoided through alternate design rather than solved through privacy devices that reduced the amenity of future residents of the development, particularly the white laminated glass privacy screen which while preventing overlooking, would also limit the outlook from future residents. 33 As stated above, DCP 72 is the planning framework within which the development must be assessed. This specifies particular controls to achieve particular objectives. These controls should only be varied if the objectives can be achieved through other means or if there are particular circumstances, which would mean that compliance with the controls is unnecessary. In this case I do not accept that the objectives have been met or the argument that consistency with the Master Plan is sufficient justification to not comply with the DCP, even if that consistency existed. 34 In particular the objectives in relation to streetscape, height and setback aim to minimise adverse impacts of bulk, integrate new development into the context of surrounding development, provide adequate separation between buildings with setbacks that spatially define the street and allow for landscaping and open space. I find that the proposal does not achieve these objectives. 35 The site is located in an area which is clearly experiencing pressure for redevelopment. It is important that this development should occur within a clearly articulated planning framework. The model for development envisaged by the Master Plan and the DCP are clearly inconsistent in their relationship of built form to the laneway. While there are obviously arguments for both models it is important that the model adopted by Council after consultation with the community is implemented consistently. To have some development built to the alignment and others set back would result in uncoordinated form of development and poor urban design outcomes. 36 The model that has been adopted through the DCP is for building to be set back six metres from the laneway. This provides an appropriate transition between development along Rocky Point Road and the residential development. It also provides opportunities for landscaping, greater separation between residential development that will reduce overlooking and provide greater solar access to both the development and adjoining development.

37 The argument that is put forward in support of the model proposed in the Master Plan is that it provides two separate buildings: one facing Rocky Point Road and one facing Cleland Lane. The Design Review Panel supported this model and the proposal. It provides opportunities to achieve a high level of amenity for apartments in the development by providing dual aspect apartments with cross ventilation and opportunities for solar access and landscaping of internal courtyards. If continued along the Ramsgate Shopping Centre strip it would provide an internal corridor likely to improve residential amenity. 38 While I accept that the model of two building aligning a courtyard is a desirable outcome, it is not expressly stated in the DCP nor is it one that could not be achieved if there where greater compliance with the DCP. The site is of sufficient depth that the six metre setback to the laneway as well as two buildings and a courtyard could be achieved, albeit of less depth and consequently less yield. This model would achieve appropriate outcomes for the development and the adjoining residential development. It is also an appropriate outcome for the laneway, which is likely to experience greater pedestrian access as developments are built along it, particularly if pedestrian access is also from the rear as well as from Rocky Point Road. 39 In relation to height, I accept that both DCP 72 and the Master Plan envisage a two storey form of development which would provide an appropriate transition and scale of development facing the lane and the residential area opposite. The existing residential area is characterised by one and two storey detached houses, it is zoned as low density residential and therefore under the current planning framework the character of this area is to be maintained. It is therefore appropriate that development within the commercial zone responds to this existing and future character. 40 The proposed development is of a similar height and setback as the adjoining building to its north. In Mr Kennedy's opinion, the proposal, although better detailed, would have a similar bulk as this building. I find that this bulk has an unacceptable impact on the adjoining residential properties, particularly if it were to be the pattern of development that would occur along the laneway. 41 The Master Plan identifies the residential area as a future medium density area which would involve an amendment to the LEP. While medium density development abutting both sides of the laneway may achieve an appropriate urban form it has implications for amenity, particularly privacy. It is likely that balconies would look directly into each other across a six metre lane with little opportunity for landscaping. Whereas the Code encourages 12m separation between balconies and habitable rooms for residential flat buildings. As stated above, to base decisions on the Master Plan would be premature and the current planning controls define the future character of the area. 42 In Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117, Bly C set out the principle concerning development at zone interfaces. The Commissioner said: As a matter of principle, at a zone interface as exists here, any development proposal in one zone needs to recognise and take into account the form of existing development and/or development likely to occur in an adjoining different zone. In this case residents living in the 2(b) zone must accept that a higher density and larger scale residential development can happen in the adjoining 2(c) or 2(d) zones and whilst impacts must be within reason they can nevertheless occur. Such impacts may well be greater than might be the case if adjacent development were in and complied with the requirements of the same zone. Conversely any development of this site must take into account its relationship to the 2(b) zoned lands to the east, south-east, south and south-west and the likely future character of those lands must be taken into account. Also in considering the likely future character of development on the other side of the interface it may be that the development of sites such as this may not be able to achieve the full potential otherwise indicated by applicable development standards and the like.

43 Adopting and applying those principles to the present case, I find that the development does not achieve an appropriate interface with the adjoining residential area. I therefore see no justification for accepting a model of development that is not consistent with the adopted planning controls, even if these are only an interim measure, on the basis that it is consistent with a potential planning regime. The application must therefore fail. Impact on commercial area 44 The experts disagreed as to whether the proposal was an appropriate response to the exiting and future context of the Ramsgate Shopping Centre. Again the main area of disagreement between the experts was whether the Master Plan or DCP 72 defined the future context of the area.

45 Clause 4.2 of DCP 72 permits a maximum height of three storeys and cl 5.1 and cl 5.4 require the height of the building to maintain the "predominant street façade" and any development above this height to be setback a minimum of 3.5m. The Master Plan proposes a three storey (10m) street wall and a 30 degree angle up to a maximum height of 15m. The proposed development has a street frontage of two storeys and the third level setback 3.5m and a fourth level in a "roof form" with dormer windows. 46 The key area of disagreement between the parties related to whether the fourth level would read as an extra floor or as a roof form and whether this was acceptable in the existing and future context. In Mr Kennedy's opinion, even though from the north and south this level was a vertical wall, because of the use of roof cladding it would appear in a similar manner to a mansard roof. Mr Kennedy stated that the proposal would be visible in the short term, particularly from the north. However, it is recessive in design and materials and would have an acceptable impact. 47 Dr Lamb held the contrary opinion that the form of this level would appear as an extra level, which would be incompatible with the existing commercial development in the locality, particularly when viewed from the north. Although he recognised that if the area were redeveloped, as envisaged by the DCP, the proposal would "fit in". 48 I find that the street frontage and third level of the proposal has an acceptable relationship with its existing context and from certain vantage points the building as whole will be acceptable. However, from other view points it will read as a much larger building than other buildings in the locality. Despite the roof cladding, the extra floor will add to the height and bulk of the building and is not sufficient for the building to be recessive in the existing, predominantly two storey context. 49 In relation to the future context, the "mansard' form of the extra floor is not a form that is characteristic of the area. As stated above, the redevelopment of the area will require a building form, which is articulated within an adopted policy, to be consistently implemented. This is particularly important in a strip shopping centre that relies on a consistent approach to setback, street frontage, height and roof form to achieve an appropriate urban design outcome. 50 For the reasons that I have discussed above, the future context is established by the current adopted planning control, DCP 72. The form of development envisaged under this control would better relate to the existing context in the short term. The proposed fourth level would be better screened if the strip were redeveloped as envisaged by the DCP however, it would remain a roof form that is not envisaged by either the DCP or the Master Plan. I do not accept that it achieves the objective in DCP 72 "to integrate new development into the context of surrounding development" to the extent that the height control should be exceeded. Residential Amenity of the development 51 Mr Kirk raised concerns about the amenity of the proposed development, particularly in relation to solar access to the living areas, the degree of separation and overlooking between the building and the utility of the courtyard as open space and deep soil planting. 52 In relation to solar access Mr Kirk and Mr Chambers prepared a joint statement which indicates that eight apartments out of fifteen would not achieve a minimum of three hours of sunlight between 9am and 3pm on the winter solstice as required by DCP 72 which is less than the 70% required by the Code. This is a result of the east west orientation of the site and the building along the northern boundary, which reduces the level of solar access that could be achieved. It is therefore unlikely that these standards would be able to be met, however, a lower building to the east would provide more solar access. 53 Mr Kirk was concerned that the courtyard provided insufficient separation between the habitable rooms in the two buildings as some rooms were less than the desirable 12m in the Code. I accept Mr Chambers evidence that while there are minor non compliances these are from bay windows to bedrooms and overall the development would achieve appropriate separation and privacy. 54 Mr Kirk also raised concerns about the utility of the courtyard as open space. The courtyard is built over the car park with approximately 1.3% of the site being deep soil planting when 10% is required. The courtyard is essentially a circulation space with landscaping in planter boxes and limited solar access. It provides separation between the buildings and an outlook for the apartments. Greater deep soil planting would permit more substantial landscaping either of the courtyard or a landscape area if the building were setback from the lane way. 55 Overall the proposal provides acceptable residential amenity and the these issues would not be sufficient to refuse the application. Parking and traffic 56 The parties disagreed as to whether the development provided adequate parking and meets the requirements of the Parking Code in relation to visitor parking. The proposal provides 23 spaces of which one is to be designated as a loading dock and 16 are for the apartments. The remaining six are for visitors. The difference between the parties was that the Parking Code requires 6 visitor spaces for commercial and four visitor spaces for residential and in Mr Kirk's opinion was therefore deficient in its provision. 57 Mr Pindar stated that cl 6.1(l) of the Parking Code permits the sharing of the commercial car parking by residential visitors "after hours" in a mixed use development. This recognises that the period of peak demand would not coincide and that the spaces could be utilised by retail visitors during the day and by residential visitors during the evening and weekend. In his opinion, two spaces should be dedicated for commercial use and the remaining four spaces shared between the commercial and residential use. He stated that as the proposal is well serviced by public transport and there is other parking available in the area the sharing of the parking would adequately service the development. 58 The use of the commercial tenancy is not known and it may be that if the use were to be a restaurant the demand for spaces for the residential and commercial tenants would coincide. The four spaces visitor spaces would need to be available for both uses not just after hours and therefore does not strictly comply with the Parking Code. However, I am satisfied that the proposed arrangement would meet the needs of the development and not result in adverse parking impacts in the locality. 59 The residents were also concerned about the likely impact of increased traffic in the laneway. The evidence of Mr Pindar was that the development was a low traffic generating use and that the traffic generated by the proposed development can be readily accommodated and that there is no prospect whatsoever of it creating "traffic congestion". He also stated that if the area is to be redeveloped as envisaged by the Master Plan there would be a reasonable expectation that traffic generation will increase in the locality. 60 While traffic generated by this development is likely to have negligible impact, the future planning for the area should consider the capacity and amenity of the laneway and the potential for pedestrian/vehicular conflict, particularly as the laneway is narrow with no footpath or opportunities for landscaping if there are no setbacks.

Orders 61 For the above reasons the Orders of the Court are:

2. The development application to demolish the existing buildings and to construct a mixed use residential and commercial development at 336-340 Rocky Point Road, Ramsgate, is determined by refusal.

      Annelise Tuor
      Commissioner of Court

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