South Coast Drafting Services Pty Ltd v Wollongong City Council

South Coast Drafting Services Pty Ltd v Wollongong City Council - [2024] NSWLEC 1277 - NSWLEC 2024 case summary — Zoe

[34]

"1 AIMS AND OBJECTIVES

The main aims of this chapter of the DCP are to identify the existing character and desired future character for each particular suburb within the city.

The key objectives of this chapter are to:

a) Protect and enhance the existing character that distinguishes the identity of each suburb within the city; and

b) Provide character statements for each suburb within the city which in conjunction with the specific development controls outlined in other chapters of this DCP will help assist decision-making as to whether a proposed development is compatible with the desired future character of the locality/ suburb.

2 WHAT IS CHARACTER?

"Character" has two specific elements, namely:

(i) "Existing character" relates to the current patterns of natural and urban geography which may be observed in an area; and

(ii) "Desired or future character" which provides objectives for the future development of a suburb and which emphasizes the important existing features or qualities of the area that should be maintained or enhanced.

Within the planning framework, the concept of character primarily focuses on physical planning outcomes and the design of the built environment in the public realm. This may include characteristics such as particular groups of land uses, architectural styles, building densities, building heights, building materials and building setbacks as well as the spatial definition or patterns of particular locality, including subdivision layout patterns and road pattern. The character of a suburb may also be partly based on unique topographical or natural landform features, scenic environmental quality of the particular suburb including significant remnant stands of trees or streets which are lined by a particular tree species. In addition, the character of an area may also be based upon the number of heritage items or conservation areas within that particular area.

However, the character of a particular suburb should not be confused with its attractiveness since all suburbs have an existing character.

...

3 CHARACTER STATEMENTS

...

3.13 Austinmer

Existing Character

Austinmer is a leafy residential village which extends from the coastal strip right up to the slopes and foothills of the escarpment. Austinmer is a medium sized seaside village being slightly smaller than Thirroul but larger than other seaside villages to the north.

Austinmer is characterised by predominantly low density detached dwelling-houses with some medium density housing, restricted to the coastal part of the village. Detached dwelling-houses predominantly comprise of a mix of one to two storey weatherboard and brick dwelling-houses with pitched roof lines. Newer two storey contemporary styled consisting of rendered brick and weatherboard dwellings with varied roof forms have been constructed along both the coastal strip and upper slopes and foothills of the escarpment.

Brush box street trees also line some streets in Austinmer which add to its leafy village character.

...

Desired Future Character

The village atmosphere of Austinmer should be retained and the existing retail centre should remain relatively 'low key'.

Austinmer should retain its low density leafy seaside character and any new residential development should not dominate the scenic environmental quality of the coastal strip and forested escarpment. Dwellings should be generally one to two storeys in height and be designed to retain the nature attributes of the immediate locality.

Any new dwellings or major alterations and additions to existing dwellings should be designed to minimise the scale and bulk of the development through well-articulated building forms. Individually designed dwellings with weatherboard or colourbond facades with lighted coloured or light or mid grey finishes are preferred for properties along the coastal strip. The rooflines for dwellings along the coastal strip may either be flat, curved or gently pitched, depending upon existing view sheds from neighbouring properties. In some cases, split-level or varied setbacks for two storey dwellings and sloping flat or gently pitched roof forms may be necessary, to maximise view sharing opportunities for neighbouring dwellings.

..."

[48]

(1) The existing development on the north-western section of Boyce Avenue (seven properties numbered 1A to 11 Boyce Avenue) consist of one and two-storey residential dwellings with access via the rear laneway (Foreman Lane or Maxwell Road). None of these dwellings are three storeys in height and none have access via Boyce Avenue.

(2) The embankment in the Road Reserve fronting these properties is visually prominent as it is 4 to 5m above the street level. This embankment is generally intact (except for variations in landscaping treatments) with no vehicular access through. The embankment, and dwellings sitting above the embankment (including the Subject Land), are visible from Boyce Avenue and the junction at Boyce Avenue and Lawrence Hargrave Drive, and also further along Lawrence Hargrave Drive.

(3) The proposed development is not sympathetic to, or compatible with, the existing or desired future streetscape or character of the locality because it is three storeys in height, presents excess bulk and scale by the addition of the garage/basement level and is incongruous with other nearby development in this part of Boyce Avenue.

(4) The garage/basement will present as excessive bulk and scale and a dominant feature within the streetscape where there is a largely intact embankment. The proposed new garage/basement level will have a 3.6m high opening and garage door for vehicular access, excavated into a steep vegetated embankment. The alternative and available access via Foreman Lane does not present these adverse impacts to the streetscape and surrounds.

(5) The existing site constraints of the Subject Land, including the topography of the Subject Land, the embankment, the setting and attributes, including existing access from Foreman Lane, have been disregarded. The proposed development therefore does not minimise the extent of cut and fill and is unnecessary and undesirable.

(6) It is acknowledged that there are other properties in the locality that are three storeys in height (with garage/basement level), including, in particular, 60 LHD. However, the proposed development can be distinguished from 60 LHD as that property fronts a classified road and has no other means of access other than from Boyce Avenue. Further 60 LHD is significantly constrained because of its irregular shape, narrow width and three road frontages. Notwithstanding this, the basement garage at 60 LHD sits lower than street level and lower in overall height that the Subject Site, minimising impacts. Further, the embankment in the road reserve on this side of Boyce Avenue (south-eastern side) is substantially lower than the Road Reserve fronting Lot 3.

[68]

When asked to confirm that these properties present as two-storey from the road at the bottom of the embankment on Boyce Avenue (as opposed to standing in the front garden of the properties), Mr Bennett said "I can show you some places where you can" and took the Court to photos of 7 Boyce Avenue and 62 Lawrence Hargrave Drive.
However, Mr Bennett says earlier in the Joint Town Planning Report (Ex 5, p 10 [2.26]), that "the proposed development presents as a two storey building - as do the majority of the existing properties in the vicinity of the Site (including those along the north-western section of Boyce Avenue)".
I have considered the analysis contained within the applicant's written submissions which is stated to be "confirmed from site visit, visual inspection and local knowledge (Mr Steven House), 25 February 2024". It is not definitive as to the author and does not comprise a proper planning analysis of what has been approved by the respondent council or whether these dwellings are in fact three storeys or whether they present as three storeys and from what vantage point. I have therefore provided significantly more weight on the evidence of the town planning experts as set out in the Joint Town Planning Report and their oral evidence.
Based on the evidence, I accept that some of the dwellings along the north-western section of Boyce Avenue (being properties 1A to 11 Boyce Avenue) present as three storeys when viewed from within the boundaries of those properties. These properties primarily include 7 Boyce Avenue (as per the photograph taken from the property in Ex D, p 27) and 1A Boyce Avenue (when viewed from Maxwell Road as per Ex D, p 16). However, having regard to the evidence of the planners and my own observations from the site view, I accept Mr Bennett's written evidence that the majority of the existing properties along the north-western section of Boyce Avenue, present as two storeys when viewed from the street at Boyce Avenue.
I am therefore satisfied that the north-western section of Boyce Avenue, presents as a row of primarily two-storey dwellings sitting atop a large embankment with no structural breaks in the continuity of that embankment, save for various stairs and retaining walls.
Turning to the other side of Boyce Avenue and locality more generally, I accept that there are instances of dwellings presenting as three storeys in the locality based on the evidence of the experts, the photographs contained within Ex D, tab 1, and walking the locality at the site view.
In relation to desired future character, I have considered section 3.13 of Chapter D1 of the WDCP which states "dwellings should be generally one to two storeys in height and be designed to retain the nature attributes of the immediate locality".
Noting the decision of Preston CJ in SJD, I am satisfied that the desired future character for Austinmer as set out in s 3.13 of Chapter D1 of the WDCP is a relevant, although not determinative matter to which I have had regard in the determination of this appeal.
In relation to the visual impacts associated with the garage/basement level and their consistency with, or impacts to, streetscape and character, I accept that the other side of Boyce Avenue has multiple driveways excavated into the embankment on that side of the street. However, I accept Ms Richards evidence, which is consistent with my observations from the site view, that the embankment on the other side of Boyce Avenue to Lot 3 is significantly lower than the embankment which adjoins Lot 3. Further, the embankment which adjoins Lot 3 is intact, in the sense that no driveways have been cut into it, such that the two sides of Boyce Avenue should not necessarily be treated the same. Further, it does not appear that there would be any other vehicular access available to the properties on the other side of Boyce Avenue (not having rear lane access).
The embankment adjoining Lot 3 creates a consistent and continuous visual line on that side of the road. If the proposed development was approved and a 4.8m wide driveway constructed with a garage and basement level on Boyce Avenue, I am satisfied that this would be a significant departure from the existing streetscape. For completeness, I hold this view regardless of whether the garage opening is 2.7m in height as per the Amended Development Application or 3.6m as per the plans considered in the Joint Town Planning Report.
Section 2 of Ch D1 of the WDCP expressly provides that "the character of a particular suburb should not be confused with its attractiveness since all suburbs have an existing character". I accept the respondent's submission that the embankment "informs the existing character" regardless of whether it comprises fill, is natural, weed infested or otherwise, and the guidance provided by s 2 of Ch D1 of the WDCP is a relevant consideration in this case.
I accept Ms Richards' evidence that 60 LHD can be distinguished from the Subject Land such that it should not be used as a precedent to support the proposed development in this case. This is primarily because 60 LHD is significantly constrained because of its irregular shape, narrow width and three road frontages (one being a classified road). Further, I accept Ms Richards' evidence that the embankment in the road reserve on this side of Boyce Avenue (south-eastern side) is substantially lower than the Road Reserve fronting Lot 3.
Therefore, although a three-storey residential development may be appropriate in the Austinmer locality in certain circumstances, the merits of the Amended Development Application do not support a three-storey dwelling in this case. This is because I am satisfied that the north-western section of Boyce Avenue presents as a row of primarily two-storey dwellings sitting atop a large embankment with no structural breaks in the continuity of that embankment, save for various stairs and retaining walls. It is appropriate to distinguish the north-western section of Boyce Avenue from the other side for the purposes of establishing the streetscape relevant to the Subject Land, due to the height and structural continuity of the embankment within the Road Reserve on the north-western side when compared with the significantly lower and inhomogeneous embankment on the other side of Boyce Avenue.
The proposed development, if approved, would be a significant departure from the existing streetscape in that it would present as a three-storey development when viewed from the street, and the proposed excavation into the embankment to facilitate a garage/basement will present as excessive bulk and scale and a dominant feature within the streetscape where there is a largely intact embankment on the north-western side.
Finally, I accept the respondent's submissions that the Amended Development Application fails to adequately address setback and fencing requirements in the WDCP, although I note the agreement of the town planning experts that these issues could likely be resolved through the provision of further information.
Therefore, I accept the respondent's submission that the Amended Development Application should be refused as the proposed development is not sympathetic to the existing or desired future streetscape and neighbourhood character, and the garage/basement level is out of character and context with the surrounds, presenting an unnecessary and unacceptable bulk and scale in the context of the Subject Land.

[72]

(1) The inferred historical filling of Lot 3 is a potentially contaminating activity, and the applicant has not provided adequate information as to whether Lot 3 is contaminated for the purposes of s 4.6 of the RH SEPP.

(2) Insufficient information has been provided to allow the Court, as the consent authority in this case, to consider the matters listed in cl 7.6(3) of the WLEP "before granting development consent for earthworks".

(3) The Amended DA, if approved, would present as a three-storey dwelling which would be unsympathetic and inconsistent with the existing visual presentation to the street of the other dwellings on the north-western side of Boyce Avenue (which largely present as two storeys).

(4) It is the stated intention of the WDCP to generally limit residential development in the local government area to two storeys although it is noted that the number of storeys acceptable will be dependent on consideration of a number of factors (as per Ch B1 s 4.1(a) of the WDCP). Further, it is the stated "desired future character" of the Austinmer area that "dwellings should be generally one to two storeys in height and designed to retain the nature attributes of the immediate locality" (Ch D1 s 3.13 WDCP). As set out above at [107 ], although the provisions in the WDCP are not in themselves determinative, they are relevant considerations to which I have attributed weight in the determination of this appeal. Having regard to the merits of the Amended Development Application, three storeys is not supported in the circumstances of this case.

(5) The north-western side of Boyce Avenue can and should be distinguished from the other side of Boyce Avenue due to the 4m high intact embankment which forms a key feature in the streetscape. This key feature should not be disturbed to provide vehicular access when alternative vehicular access presently exists via Foreman Lane.

(6) The proposed excavation into the embankment to facilitate a garage/basement will present as excessive bulk and scale and a dominant feature within the streetscape where there is a largely intact embankment.

(7) The existing access via Foreman Lane is not so unsafe or inconvenient that alternative access via Boyce Avenue is necessary.

Parties

Applicant/Plaintiff:

South Coast Drafting Services Pty Ltd

Respondent/Defendant:

Wollongong City Council

Legislation Cited (3)

Planning and Assessment Act 1979

Environment Court Act 1979

Planning and Assessment Regulation 2021

Cases Cited (1)

Applicant's submissions

The applicant submits that the Amended Development Application complies with all planning controls in the WLEP and WDCP.
The applicant further submits that there is no desired future character statement for Austinmer in the WLEP and as per the decision of Preston CJ in Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115 (SJD), the desired future character of an area cannot be derived from a Development Control Plan absent express provisions in the parent Local Environmental Plan. As was the case in SJD, the WLEP does not expressly refer to the provisions of the WDCP for the purpose of defining "desired future character". Therefore, the existing character of the locality is what is seen.
The applicant states in its written submissions that "an analysis of the buildings within the locality has been done", which is stated to be "confirmed from site visit, visual inspection and local knowledge (Mr Steven House), 25 February 2024".
The applicant goes on to state that this analysis demonstrates that: 1. 32% of properties within the "broader locality" of the Subject Land comprise of three-storey dwellings of either three floors of residential habitation or two floors of residential habitation and a basement/garage level; and 2. 58% of properties within the "immediate locality" comprise three-storey dwellings of either three floors of residential habitation or two floors of residential habitation and a basement/garage level.
Therefore, the applicant submits (applicant's written submissions at [2.6(i)]) that the Court should conclude that three-storey development "is very much part of the existing character of the locality", and that this is reflected in the 9m maximum building height standard in the WLEP.
In relation to the visual appearance of the basement/garage level, the applicant confirms that the Amended Development Application reduces the proposed height of the garage opening to 2.7m down from 3.6m. The applicant submits that many properties on Boyce Avenue have direct vehicular access to a garage from the street, including 60 LHD and 62 Lawrence Hargrave Drive and many other properties in Austinmer generally.
The applicant goes on to state in its written submissions (at [2.7(f)]) that the existing embankment in the Road Reserve is degraded with an old retaining wall, flight of stairs and vegetation comprised of exotic weeds. The proposed garage/basement level will be landscaped and improve the interface with 3 Boyce Avenue. The applicant submits (at [2.7(i)]) that "the visual impact of the development, including the basement garage, is of sympathetic integration although it is the first development on the north west side of Boyce Avenue that seeks the utility, amenity and safety of basement vehicle garaging" and that the proposed development will "present as a two storey building, above a basement consistent with urban low density residential development".
The applicant's written and oral submissions did not address the issues raised by the respondent regarding setbacks or fencing.

At a glance

Court

Decision date

Source

Judgment (73 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (1)