Character
29The determination of this issue is very much interrelated with the second issue concerning bulk and scale of the proposed development. So much was apparent both from the evidence led by the parties and from the manner in which experienced counsel briefed by the parties made their final submissions. Much was said in oral evidence about the two issues and even more written in reports and statements tendered to me. I do not intend to recite that material at length. Ultimately, much of the assessment necessary to determine both issues involves a considerable degree of subjective assessment. As I have earlier recorded, I have had the benefit of a lengthy site and locality inspection in company with the parties. I am aided by that inspection in adjudicating upon the debate that was engaged before me.
30In principle, it is necessary to recognise that, almost inevitably, the character of development undertaken in reliance upon the existing use provisions of the legislation will be different from that attaching to existing development, if the latter conforms with land use controls reflecting prohibition upon development that must rely upon an existing use entitlement for permissibility. A residential flat building in a single dwelling house area will, almost inevitably, be noticed for what it is and, in character, be differentiated from the single dwelling house environment. However, that differentiation need not equate to inimical or incompatible development.
31While the observation just made is expressed at a level of generality, the differentiation, in the context of the subject site, need not be as stark as it might be in other contexts. As I have earlier observed, residential development on land in the vicinity of the Site is diverse both in form and residential use. So much is acknowledged by the planning and design experts who addressed this issue, namely Mr G Smith for the applicant and Mr B Newbold for the respondent.
32Residential development in this southern area of Avoca Beach takes many forms involving the use of building materials and cladding that differ from building to building. If there is a common element readily observed in buildings to the west of Avoca Drive, particularly those built in more recent times, it is that they are generally of a stepped form, adapting to the steep topography, with every attempt made to maximise expansive ocean views to the east. Although many examples of this form of development are readily observed, that form of development is exemplified by several dwellings located above the Site, of three and four storeys standing on the ridge and having uninterrupted views to the east, save for two large trees growing in the north-western section of the Site. The proposed development is one that involves stepping up the Site in recognition of its steep topography and to that extent it does not differ from development that predominates in this locality.
33It is also to be noticed that much of what appears to be dense vegetation in the locality when viewed from and along Avoca Drive is located on the subject site. Understandably, a number of the residential properties developed to the west of the Site and having frontage to Ascot Avenue do not have any significant vegetation located between the dwelling and eastern boundary of their respective allotments. Uninterrupted ocean views are obviously paramount. Such character as is given to the area by vegetation is afforded in large measure by that which is growing on the Site providing, as it does, a green base or "podium" to the existing dwellings erected above it.
34The extent of vegetation on the subject site is important to be considered because a fundamental criticism directed to the proposed development is the change it will effect to the character of the area by reason of the loss of vegetation. However, it must be recognised that the Site is in private ownership and that any reasonable redevelopment of it will involve development beyond the curtilage of the existing building footprint. Given the size of the Site and its zoning, it is reasonable to contemplate that, present development aside, it could be developed for up to three single dwelling houses which, if developed consistently with the manner in which adjoining and nearby properties have been developed, would involve the loss of most, if not all, of the significant vegetation presently growing on the Site. In short, any reasonable redevelopment of the Site will, so it seems to me, almost inevitably lead to a change in character which is the consequence of development consistent with the present land use controls.
35It does not seem reasonable to me that development on this Site should be constrained by a perceived need to retain its vegetation, in effect, to compensate for the absence of vegetation on surrounding residential properties. I make this observation because Mr Newbold supported his criticism of the changed character of the area by identifying the extent to which the removal of vegetation on the Site will expose those dwellings erected above or to the west of it. His criticism seemed to be that when viewed from Avoca Beach their appearance will be made more stark and less desirable.
36It was accepted by the experts and confirmed by my site inspection that from many viewpoints in the vicinity of the subject site, including from the beach, the built form predominates with vegetation interspersed, generally identified as growing along or close to property boundaries. This observation, so it seems to me, is unexceptional in an area zoned for residential development, the objectives of which zone are directed to the provision of housing creating a "residential environment". The predominant built form and its heterogeneous character is well exemplified by a view of the locality from and in the vicinity of the section of Avoca Drive and Austral Avenue (see Exhibit G).
37The two critical planning controls influencing the character of development in the area are the PSO and DCP 159. The objectives of the Residential 2(a) zone under the PSO are expressed as follows -
" Objectives of this zone
The objectives of Zone No. 2(a) are:
(a) to make provision for the orderly and economic development of suitable land for a variety of low density housing forms which are essentially domestic in scale and which have private gardens; and
(b) to provide for other uses, but only where they:
(i) are compatible with a low density residential environment and afford services to residents at a local level; and
(ii) are unlikely to adversely affect residential amenity or place demands on services beyond the level reasonably required for low scale housing."
It will be seen that the emphasis for the zone is upon low density "housing forms which are essentially domestic in scale".
38In the context of the zone objectives and consideration of character, two subclauses of cl 10 of the PSO need to be noticed. They are as follows:
"(3) The Council must not grant consent for development on land within a zone unless it has taken into consideration the objectives of the zone and the consistency of that development with those objectives as well as the objectives of the Local Government Act 1993 relating to ecologically sustainable development."
(4) The Council must not grant consent for development unless it has taken into consideration the character of the development site and the surrounding area, where, for the purpose of this provision, character means the qualities that distinguish each area and the individual properties located within that area."
39The requirement in cl 10(3) that the objectives of the zone be "taken into consideration" does not, in terms, mandate refusal if the development in contemplation is not considered to be in complete harmony with the objectives, relatively objective (a). This must necessarily be so where the power to grant development consent is founded upon the existing use provisions of the legislation rather than the provisions of the land use table of the planning instrument. Nonetheless, consideration must properly be given to the form and scale of that which is proposed in order to determine its compatibility with the expressed objectives. As was acknowledged on behalf of both parties, ultimately the determination to be made was one involving "merit" consideration and the appropriateness of the particular design upon the Site. Neither party submitted that the relevant statutory objectives directed to ecologically sustainable development were not addressed by the proposed development.
40Although not expressed as such, the principle focus upon character, so far as it emerged from the requirements of the PSO, arose from cl 10(4). I say this because focus was upon identification of the character both of the development site and its environs by attempting to identify those qualities which distinguish or identify each from any other areas. While no close attention was paid to areas outside the southern section of the Avoca Beach suburb, as would be evident from my earlier description and discussion, very considerable focus was had upon the character of the Site and its vicinity. If one were to focus upon the Site itself, its existing character would be of a residential flat building, as I have earlier described it, on a site that in its southern section and upper slope contained a variety of both native and exotic vegetation including some larger trees. The character that distinguishes the area, being that character which makes it notable is, as I have earlier described, of relatively closely settled built environment stepping up the contour of steeply sloping land with vegetation interspersed among buildings and generally located along or close to allotment boundaries.
41Significantly, this appreciation of the character of the area is reflected in DCP 159. At [20] I have set out the description of both the existing character and desired character of the Avoca 7: Medium Density Hillside Area within which the Site is located. I do not repeat those descriptions except to observe that they are consistent with my own observations as well as those of the experts.
42In the course of his evidence, Mr Newbold indicated that he was the author of DCP 159. He acknowledged that his reference to medium density and multi-unit developments in describing both the existing character and desired character of the area involved the use of those expressions in a town planning sense, meaning that he could contemplate residential flat buildings notwithstanding the prohibition on that form of development in the PSO. He endeavoured to rationalise the two controls by indicating that his description both of the present and likely future character was a recognition that some of the newer residential buildings within the area were a form of multi-unit housing and that sites, such as the subject site, upon which redevelopment could be contemplated, appeared to have the benefit of existing use entitlements, likely resulting in the redevelopment for some form of multi-unit housing or residential flat building.
43It is against this background, together with the more generally expressed design quality principles contained in Pt 2 of SEPP 65 and the Residential Flat Design Code incorporated into SEPP 65, that the proposed development needs to be considered. As I have earlier indicated, the building proposed for the Site takes a stepped form, appropriately acknowledging the topography upon which it is to be located. While it is different in design to other buildings in the locality, it does no more than reflect the diversity of design and style that characterises the area.
44Furthermore, it proposes an area of deep soil planting above the proposed building on the north-western section of the Site to be planted by a number of small trees having a capacity to reach a mature height of between 8m and 15m and a medium tree with a mature height of 15m. Boundary landscaping is also proposed together with street tree planting along Avoca Drive, all of which will maintain the characteristic development that I have earlier described. Indeed, landscaping proposed in the north-western section of the Site is far more extensive than that identified on the immediately adjoining properties to the west. Side boundary landscaping is able to be achieved at a density that appears to be greater than that evident on properties for several blocks to the south of the Site.
45Further, the building has been designed in a manner that seeks to emphasise four elements, each of which is compatible in its presentation to the street with the form and general building dimension observed in the vicinity of the Site.
46In short, I am of the opinion that the character of the proposed development does not adversely compromise the existing character of the area, nor would it appear to compromise the likely future character of the area as that latter character is expressed in DCP 159. Its character will be different by reason of its size, but not inconsistent with the general character of the area taking account of the existing residential flat building as reflecting part of that existing character.