Tenacity Consulting v Waringah

Land and Environment Court (NSW)|2004-04-07|Before: Ms P, Professor P

Introduction 1 This is an appeal against the refusal by Warringah Council (the council) of a development application to demolish the existing building and erect a mixed use building containing ground floor commercial space and 18 apartments over two levels of basement parking for 41 cars on lots 6, 7 and 8 DP 879859, known as 64-68 Pitt Road, North Curl Curl.

The site 2 The site is on the north side of Pitt Road, near its intersection with Griffin Road and within a small strip of shops. The site area is 1,214m2. It now accommodates three retail buildings. 3 To the east of the site is a drive-in bottle shop. To the west is a new three-storey commercial-residential development at 70-72 Pitt Road. To the north are three residential properties: 32 Griffin Road, 7 Bellevue Place and 8 Bellevue Place. Opposite the site is a tennis centre. The wider area around contains detached houses of one or two storeys.

Relevant legislation, planning instruments and policies 6 Warringah Local Environmental Plan 2000 (the LEP) zones this site Local Retail Centre. The mixed-use building of retail, commercial and residential is permissible. 7 Draft amendments to the LEP have been exhibited. Their relevance to the proceedings is that they omit the two-storey height limit, retain the 8.5m control and add a new control of a maximum of 7.2m for the top ceiling line above natural ground level.

8 State Environmental Planning Policy 65 - Design Quality of Residential Flat Development (SEPP 65) applies to the proposal. It incorporates a publication titled Design Code for Residential Flat Development.

The issues 9 The council submitted a Statement of Issues containing twelve issues. These were discussed during the hearing, with the result that the following four emerged as the salient issues: · Is the three-storey nature of the proposal acceptable? · Is the setback from the rear boundary adequate? · Is the impact on the privacy and views of neighbours acceptable? · Is the internal amenity acceptable?

Number of storeys 10 The council's experts were Ms P Goldin, a council planner, and Mr S Layman, an architect planner. The applicant's experts were Mr N Ingham, a consultant planner, and Professor P Webber, an architect planner. 11 The only two development standards that apply to this site, being in a Local Retail Centre, relate to aspects of height. The LEP requires that "buildings are neither to exceed two storeys nor 8.5 metres". The proposal does not exceed 8.5m but it is three storeys, so it does not comply with the first of the above standards. 12 The LEP goes on to state that "consent may be granted for a building of more than two storeys on significantly sloping land", subject to further criteria. The LEP does not define what is a significant slope. The average grade of the subject site is 9.4%. According to Mr Ingham, this makes it significantly sloping. In support of his claim, Mr Ingham has looked at a number of approvals for three-storey buildings in the vicinity on land that had similar slope to the subject site. Some of the approvals were done under the current LEP. However. I cannot tell from Mr Ingham's evidence whether the approvals were given because the land was considered to be significantly sloping or on some other basis, such as cl 20 of the LEP, that allows development standards to be varied.

13 Mr Layman did not think that a slope under 10% could be called significant. I accept this evidence. Most people would call such a slope "moderate". I am strengthened in this opinion by material from Mr Ingham's evidence relating to what other councils call "steep". It appears that no other council calls land steep unless it has a slope of at least 10%, and in most cases 15% or 20%. I conclude that the two-storey limit may not be exceeded on the basis that the land is significantly sloping.

14 Clause 20 of the LEP allows consent to be granted even where a proposal does not comply with a development standard, provided the resulting development is consistent with the general principles of development control, the desired future character of the locality and any relevant State environmental planning policy. Clause 39 contains the general principles of development control for local retail centres. Local retail centres are to incorporate a range of small-scale business uses at street level with offices or low-rise shop-top housing (being housing not on the ground floor) above to create places with a village-like atmosphere the provide a safe and comfortable environment for pedestrians and a range of business and community uses meeting the needs of the surrounding area.

Development is to integrate with the established pattern of the centre and the continuity of existing streetscape is to be maintained.

The building height in local retail centres is to accord with the height limit for the applicable locality, unless the Locality Statement provides otherwise.

Development that adjoins residential land is not to reduce the amenity enjoyed by adjoining occupants. In this regard the built form of development in the local retail centre is to provide a transition to adjacent residential development, including reasonable setbacks from side and rear boundaries, particularly at the first floor level.

Other built form controls set out in a Locality Statement which are not specifically addressed to a local retail centre are not to be considered.

15 The experts disagreed on whether the proposal was consistent with the above general principles. The two disputed principles were integration with the established pattern of the centre and no reduction of the amenity enjoyed by the occupants of adjoining residential land. In my opinion the proposal performs reasonably well on the first, and poorly on the second principle. I deal with the issue in detail under Principles of view sharing: impact on neighbours. 16 I turn to the Desired Future Character of the Curl Curl locality. The Curl Curl locality will remain characterised by detached style housing in landscaped settings interspersed by existing apartment buildings and a range of complementary and compatible uses…….. Future development will maintain the visual pattern and predominant scale of detached housing in the locality. The streets are to be characterised by landscaped front gardens and front building setbacks that are consistent with surrounding development. The exposed natural sandstone rock outcrops throughout the locality will be maintained. Development on prominent hillsides or hilltops must be designed to integrate with the landscape, topography and long distance views of the hill. Unless exemptions are made to the housing density standard in this locality statement, any subdivision of land is to be consistent with the predominant pattern, size and configuration of existing allotments in the locality.

The locality will continue to be served by the existing local retail centres in the areas shown on the map. Future development in these centres will be in accordance with the general principles of development control provided in clause 39.

17 Most of the above statement appears to be aimed at the residential areas around the site rather than at the local retail centre. The statement suggests, however, that all development should maintain the predominant scale of detached housing in the locality. Clearly a building containing shops, offices and apartments cannot and should not look like a detached house. However, in this case the applicant is asking the consent authority to permit an additional storey above the two-storey limit. A two-storey building is likely to be more in character with the surrounding area than a three-storey building. Clause 20 allows the two-storey height limit to be varied only if the resulting development is consistent with the desired future character of the locality. I do not think that the proposal meets this criterion and consequently cl 20 does not apply.

18 I have taken into consideration that the proposal complies with the 8.5m height limit. The applicant's experts argued that it is the height in metres that is responsible for impact and not the height in storeys. As a general rule, the height limit of 8.5m accommodates a two-storey building. While the designer of the proposal has managed to design a building with three storeys under 8.5m, he/she has achieved this at the cost of burying four apartments half into the ground and reducing the ceiling in all apartments to the minimum permissible under building regulations. A two-storey building with the lower floor at natural ground and with a more generous ceiling height is likely to result in a lower overall building than the proposal.

19 I have also considered the fact that the draft amendments to the LEP propose to remove the two-storey part of the height development standard. They also propose a new standard, namely restricting the height of the topmost ceiling to 7.2m above natural ground level. The proposal would not comply with this standard.

Rear setback 20 There is no standard for rear setback. The only criterion is the general planning requirement that it should be reasonable. There is also the requirement of cl 39 that the built form of development in the local retail centre is to provide a transition to adjacent residential development. 21 The basement carpark of the proposal reaches the rear setback, thus ensuring that any landscaping is on top of a concrete slab. There is a requirement for a 800mm drainage channel along the rear boundary. The sunken courtyards of the apartments on the lowest level are at 2.5m from the rear boundary, while the setback to the building itself is about 5m. In my opinion this setback is unreasonably small. It does not provide a transition to adjacent residential development, as required by cl 39.

22 I am strengthened in this conclusion by considering the proposal as a whole. Given that the commercial component is small compared to the residential, the proposed building is primarily an apartment building. Because it is in a local retail centre, it is to be built to the other three boundaries, a most unusual feature in residential flat development. Given this significant advantage, it would be reasonable for the setback from the fourth boundary (the only one that has potential to impact on the houses to the north) to be generous. In fact, the setback is miserly.

Principles of view sharing: the impact on neighbours 23 The Court heard the evidence of the owners of three properties to the north (42 Griffin Road, 7 Bellevue Place and 8 Bellevue Place), two apartments in Nos 70-72, and two objectors who are not directly affected. I shall concentrate on the impact on 7 Bellevue Place on the grounds that the impact is greatest on this property. The impact is primarily on views. 24 Clause 61 of the LEP states that development is to allow for the reasonable sharing of views. It does not state what is view sharing or when view sharing is reasonable.

25 The notion of view sharing is invoked when a property enjoys existing views and a proposed development would share that view by taking some of it away for its own enjoyment. (Taking it all away cannot be called view sharing, although it may, in some circumstances, be quite reasonable.) To decide whether or not view sharing is reasonable, I have adopted a four-step assessment.

26 The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views (eg of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial views, eg a water view in which the interface between land and water is visible is more valuable than one in which it is obscured.

27 The second step is to consider from what part of the property the views are obtained. For example the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. In addition, whether the view is enjoyed from a standing or sitting position may also be relevant. Sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic.

28 The third step is to assess the extent of the impact. This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating. 29 The fourth step is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable. 30 Applying the above principles to 7 Bellevue Place, I would classify the view to the ocean and Manly as highly valuable, what most people would describe as magnificent. It is now available from four levels from the rear. The proposal would obliterate views from the lower three levels from sitting and standing positions. From the fourth level it would obliterate it from sitting positions and reduce it from standing positions. In my opinion, the impact would be severe.

31 I turn to the reasonableness of the proposal. It breaches one of only two development standards, namely the requirement not to exceed two storeys. I note that it complies with the height limit of 8.5m. However, that height limit is a maximum. It does not entitle the applicant to a building envelope 8.5m high over the whole site. 32 The objectors were concerned also about privacy. The applicant has provided screens on the balconies facing north, so that there would be little overlooking from the proposal. A large setback and a generous area of deep landscaping would, however, achieve the same result without privacy screens that have a negative impact on the amenity of the balconies.

33 In my opinion, the proposal significantly and unreasonably reduces the amenity enjoyed by the occupants of adjoining residential land. It is not consistent with cl 39 of the LEP.

Internal amenity 34 Mr Layman and Mr Ingham agreed, with minor exceptions, on the number of apartments that complied with the Residential Flat Design Code's guidelines for solar access. While the number was not as high as suggested in the Code, in my opinion this is not a fatal shortcoming. The view is to the south. Apartments facing north have a potential to overlook the adjoining houses. Given these constraints, I do not think that the fact that many of the apartments face south is a reason for refusing the application.

Conclusion 35 The two major weaknesses of this proposal are its third storey and its small setback from the rear boundary. These two factors combine to create an unacceptable impact on the amenity of the residential properties to the north. The appeal is therefore dismissed.

Orders

The appeal is dismissed.
Development application to demolish the existing building and erect a mixed use building containing ground floor commercial space and 18 apartments over two levels of basement parking for 41 cars on lots 6, 7 and 8 DP 879859, known as 64-68 Pitt Road, North Curl Curl is determined by refusal.
The exhibits are returned.

      Dr John Roseth
      Senior Commissioner

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : Tenacity Consulting v Waringah [2004] NSWLEC 140 Tenacity Consulting Pty Ltd Applicant PARTIES : Warringah Council Respondent FILE NUMBER(S) : 10996 of 2003 CORAM: Roseth SC KEY ISSUES: Development Application - Development Standards :- Mixed use development Principles of view sharing LEGISLATION CITED: CASES CITED: DATES OF HEARING: 29/03/2004-31/03/2004 DATE OF JUDGMENT: 04/07/2004

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