Tilt Developments Pty Ltd v Sutherland Shire Council

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Sutherland Local Environmental Plan 2000 Draft Sutherland Local Environmental Plan 2004

CASES CITED: Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003 ] NSWCA 289

DATES OF HEARING: 08/02/2005 EX TEMPORE JUDGMENT DATE : 02/09/2005

APPLICANT Mr C Gough, solicitor S0LICITORS Storey & Gough

RESPONDENT Mr C Mathieson, solicitor SOLICITORS Sutherland Shire Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10313 of 2004 Tilt Developments Pty v Sutherland Shire Council

1 This is an appeal against the refusal of DA 04/0057 by Sutherland Shire Council (the council) for the demolition of two existing dwellings and the erection of a part villa house and part townhouse development at 58-60 Edward Street Sylvania (the site). The matter was conducted as an On-Site Hearing.

2 The site is known as lot 2 in DP 620074 and Lot in DP 16771. The land is irregular in shape with a frontage of 42.67 m to Edward Street and a depth ranging from 48.715 m along the northern boundary and 63.69 m along the southern boundary. It provides an area of 2,101.9 sq m.

3 The site has a cross fall of about 5 m from the south-eastern corner to the north-western corner at the street. Pockets of vegetation and some significant trees exist on the site. The site has free standing dwelling houses adjacent to its northern, eastern and southern boundaries. It is in an area characterised by predominantly single detached dwelling houses.

4 The site is zoned 2(a1) Residential under the provisions of Sutherland Shire Local Environmental Plan 2000 (the LEP). Townhouses and villa houses are permissible with consent in this zone. Objectives are provided for the Residential 2(a1) zone at cl 33. The LEP provides Special considerations for the development in residential zones (cl 30(a)) floor space ratio (cl 35(2)) and minimum landscape requirements (cl 36(2)). 5 The site is also subject to the provisions of Draft Sutherland Local Environmental Plan 2004 (the draft Plan). In this document, the site falls within a Local Housing zone and within this zone villa housing is permissible however townhouses are prohibited.

6 The council's Development Control Plan, Townhouses and Villa Homes in 2(a1) and 2(a2) Residential Zone (the DCP) also applies. The relevant requirements relate to the DCP objectives (cl 3); siting and scale (cl 12(2)); the number of dwellings (cl 14.1) and sunlight and overshadowing (cl 17).

7 The council filed a Statement of Issues containing six individual issues. The issues relating to traffic (Issue 3) and impact on trees (Issue 2) were addressed through amendments to the plans. The remaining issues can be conveniently grouped into the following main areas: 1. what weight should be given to the draft LEP, 2. whether the proposed development appropriately addresses the streetscape and character of the area, 3. whether the SEPP 1 objection to the floor space ratio development standard is well founded, 4. whether the SEPP 1 objection to the landscaped area development standard is needed and if so is it well founded, and 5. whether adequate solar access is provided to unit 7. 8 The concerns of the local residents are largely addressed through the above issues.

9 The issue of traffic was an issue raised by the residents although not pressed by the council following a report by Mr Craig McLaren, the Court appointed expert on traffic. He notes a very small increase of around 4 vehicles per hour in peak hour for the existing traffic in Edward Street. He also recommends the relocation of the access driveway to provide adequate site distances and with this amendment he raises no further concerns with the proposed development. On the basis of his evidence I accept that the proposed development satisfactorily addresses the issue of traffic.

10 The draft LEP is a matter that is required to be considered under s 79C(1)(a)(I) of the Environmental Planning and Assessment Act 1979. The status of the draft LEP was provided to the Court by Mr Greg Hand, a town planner employed by the council. He stated that the draft LEP had been exhibited on two occasions and following the council's consideration of the submissions, the draft LEP had been referred to the Department of Infrastructure, Planning and Natural Resources (DIPNR) for gazettal. In June 2004 DIPNR advised the council of a number of areas of concern and requested further consideration of these issues. In November 2004, the council resolved to discuss the draft LEP at a special meeting although to date no time has been set for this meeting. As explained to the Court by Mr Hand the meeting is to discuss some 34 individual reports that are still being prepared by council staff. 11 Mr David Crane, the applicant's town planner stated that his discussions with council staff indicated that the draft LEP would likely need to be re-advertised. While Mr Hand did not necessarily subscribe to this view he indicated that potentially this could occur.

12 The law on the weight to be given to that draft LEP is set out in the Court of Appeal decision of Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2003] NSWCA 289. While the matters raised by DIPNR in their response to the draft LEP do not necessarily impinge on the subject application, the evidence that 34 separate reports are to be considered by the council in conjunction with the draft LEP suggests that further matters are likely to be considered by the council in their review of the document. While some weight must be given to the draft LEP that prohibits townhouses on the site and would therefore effectively prohibit the proposed development I am not convinced that it should be seen as determinative in these proceedings. In my view, there is a level of uncertainty that would preclude the Court from finding that the draft plan was imminent or certain and as such I am not prepared to give the draft LEP the level of weight suggested by the council. 13 The impact of the proposed development on the streetscape and the character of the area was a significant issue in the proceedings. The LEP and DCP provide a number of specific requirements in considering this issue. The objectives of the zone require a residential environment "where the scale and amenity and general character of the area is preserved". (Objective (a)) and "where the streetscape is characterised by detached one and two storey residential buildings."(Objective (b)).

14 The specific requirements in cl 30(a) require the Court not to grant consent unless it is satisfied that a range of matters have been considered. These include the zone objectives and specifically "the effect of the proposed development on the quality of the streetscape" (cl 30(a)(b)) and "the impact of the proposed development on adjoining properties in terms of size, bulk, height and the amount of landscaped area" (cl 30(a)(o)).

15 The DCP has similar requirements at cl 14 where objectives seek a form of development that "is compatible with the character and scale ….in the immediate vicinity" (Objective 1))

16 On this issue, the evidence of Mr Hand and Mr Crane focused on the access arrangements to the basement carpark. I did not understand there to be any significant issue raised by the council in relation to the form and configuration of the two dwellings located at the street frontage. 17 The access to the basement carpark was the subject of an amendment following the report by Mr McLaren. Originally, access was to be obtained near the northern boundary, but because of the need to provide adequate sight lines, the access had to be moved to the southern boundary. Because of the difference in levels this necessitated an access ramp that turns 90º on entering the property and then runs within the front setback area to the basement carpark.

18 Mr Hand's evidence indicated that this was an unacceptable impact on the streetscape, whereas Mr Crane maintained that it was acceptable based on the provision of landscaping along the edges of the access ramp and the street frontage. While being visible from the street in some locations, Mr Crane stated that any observations would only be momentary.

19 In considering the impact on the streetscape and the character of the area, the view of the site and the immediate area revealed a predominantly single dwelling residential character with an occasional dual occupancy development and an occasional multi-unit housing development. The streetscape was characterised by consistent mature street trees and landscaped front setbacks. Some battleaxe lots have been created in the area with single dwelling houses erected on these lots. When the proposed development is compared to this character, I find the proposal to be incompatible largely due to the access arrangements which are a foreign element in the area. While I accept that attempts have been made to screen the ramp from the street, I am not convinced that even if the landscaping is successful and is properly maintained that it will overcome this incompatible element of the proposal. There is also some merit in Mr Hand's argument that the location of the driveway and podium within the setback area limit the ability to provided suitable landscaping, particularly considering the existing vegetated character of the area. 20 The LEP and DCP consistently seek to maintain a form of development that is consistent with the scale, amenity and streetscape of the detached one and two storey residential buildings. The LEP and DCP clearly seek to limit the development of villa homes and townhouses through the controls on the number of dwellings and their cumulative impact. I have little trouble in finding that the presentation of a single dwelling character and streetscape is not satisfied by the proposed development.

21 I also agree with the evidence of Mr Muscat who resides at the property directly to the south of the subject site where he raises objection to the unbroken length of building along his common boundary. The building has a total unbroken length of some 50 m and even though it varies from two storey to single storey and has some articulation along this length, the mass and bulk of the building is inconsistent with the general form of development in the area. While there are a number of battleaxe subdivisions with dwellings in the area, these subdivisions provide a reasonable level of separation between dwellings. In my view, the visual impact on Mr Muscat's property is unreasonable considering the existing character and the character envisaged by the zone. 22 In accordance with cl 30(a) of the LEP, I find that the effect of the proposed development on the quality of the streetscape and the impact of the proposed development on the adjoining property to the south has not been adequately addressed and as such development consent must not be granted.

23 For completeness I will briefly deal with the other significant issues.

24 There was agreement that the proposed development did not satisfy the floor space ratio of 0.5:1 requirement in cl 35(2) of the LEP. Based on the definition of gross floor area in the LEP the proposal has an FSR of 0.72:1. Mr Hand advised the Court that the definition of gross floor area was not a particularly appropriate definition and that attempts to amend the definition had been temporarily rejected by DIPNR, but a more appropriate definition is to be included in the draft LEP. Using the proposed definition Mr Hand calculates the FSR as 0.51:1. Mr Crane calculates the FSR at 0.44:1, being marginally below the 0.5:1 requirement in the LEP. 25 The difference between Mr Hand's calculations and Mr Crane's calculations were helpfully marked on a plan and tendered to the Court. The areas in dispute are all located in the basement area and include two additional spaces beyond the council requirement and void or potential storage areas. Mr Crane stated that the additional areas designated by Mr Hand did not add to the bulk of the development and as such the variation was acceptable.

26 Taking into account Mr Hand's concessions on the definition of gross floor area and the agreed position that the dwellings or built upon component of the development satisfy the FSR requirement, I accept Mr Crane's position that the SEPP 1 objection is well founded.

27 In terms of landscaped area requirement, the difference between Mr Hand and Mr Crane centred on the interpretation of the definition of landscaped area in the LEP. Mr Hand calculates the landscaped area at 34.4% whereas Mr Crane calculates the area at 52.3%. If Mr Crane's approach is accepted the proposal satisfies the 50% requirement in the LEP. If Mr Hand's approach is adopted the proposal does not satisfy this requirement although the departure may be addressed through an SEPP 1 objection. 28 Mr Hand maintained the definition precluded the area above the basement carpark podium as this area fell within the exclusion of being "part of the site occupied by the building". To support Mr Hand's position, cl 15.3 of the DCP states that for townhouse and villa development the area above a basement is not to be included in the landscaped area requirements.

29 Mr Crane, on the other hand maintained that it should be included as the area is provided with 600 mm of soil depth and as such satisfied that part of the definition that allows "an area used for gardens, lawns, shrubs or trees". Conversely, and to support Mr Crane's position, cl 8 of the council's Best Practice Guidelines, No. 05-2001, How to Calculate Landscaped Area states that podiums can be included in the calculation of landscaped area if minimum soil depth and width requirements are met.

30 In considering these conflicting views I agree with Mr Crane. Preference should be given to the definition with the LEP over that in the DCP, notwithstanding the provisions of cl 41 of the LEP. If the objectives for the landscaped area requirements are considered, the inclusion of the area above the podium is not inconsistent with these objectives. There was no disagreement that the 600 mm soil depth could support gardens, lawns or shrubs. In my view, it is not necessary for every part of the landscaped area to have deep soil to allow the planting of large trees. It would be clearly sensible to provide a range of landscaping depending on the particular locations on the site. 31 Consequently, I accept that the proposal satisfies the requirements of cl 36 and the SEPP 1 objection is not required.

32 The question of overshadowing and the non-compliance with the maximum unit yield in cl 14(1) of the DCP were raised as issues by the council however it is unnecessary for the Court to make any findings on these matters based on the findings in pars 13 to 22.

33 For the foregoing reasons, the Orders of the Court are: 1. The appeal is dismissed.

2. Development application 04/0057 for the demolition of two dwellings and the erection of a mixed villa house and town house development at 58-60 Edward Street, Sylvania, is refused.

              G T Brown
              Commissioner of the Court
              rjs/ljr

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