Troy M Pascoe-Webbe and Projectworx P/L v Sutherland Shire Council

1 October 2003 Troy M Pascoe-Webbe and Projectworx P/L Applicant v Sutherland Shire Council Respondent Judgment 1 This appeal relates to a development application number 02/1693 for the erection of five, three bedroom villa homes with basement car parking for 13 cars at lots 43 and 42 DP16718 which is known as 34-36 Barraran Street, Gymea Bay. The essentially rectangular site is situated on the east side of Barraran Street and has a frontage of about 27 m and an area of 1,628 sqm. It has a fall of about 10 m from its south-east corner to the north-west corner and is also elevated above street level. 2 The locality surrounding the site is predominantly characterised by single and two storey detached dwellings although there is a one and two storey villa/townhouse development opposite. The site is zoned 2(A1) Residential under Sutherland Shire Local Environmental Plan 2000 ("the LEP") under which the proposal is permissible with development consent. The site is also located within a foreshore scenic protection area. It is also affected by the exhibited draft Sutherland Shire Local Environmental Plan 2003 ("the draft LEP') which zones the site as Local Housing. Villa houses continue to be permissible with consent. 3 Also applicable is Council's Townhouses and Villa Houses in the 2A(1) and 2A(2) Residential Zones Development Control Plan and the Landscape Development Control Plan ("The DCP's"). 4 The application in its original and revised forms was advertised and around 20 objections were received. Expressed matters of concern include: out of character with the single dwelling house nature of the area; excessive building height; inadequate building set backs; overlooking and loss of privacy; increased traffic congestion and on street parking; excessive excavation; impacts on the adjoining properties including loss of views, loss of access to southerly breezes, increased noise from people, lifts and air conditioning units; and inadequate landscaped area. 5 The application was not determined by the Council and the appeal was lodged on the basis of a deemed refusal. 6 On behalf of the respondent Council expert evidence was provided by: Miss C Howell - town planner, Mr A Johnson - landscape architect, Mr P Brooker - architect. 7 In addition resident objector evidence was given by Mr W Curtis; Mr B Harrison; Mr W Smith; and Mrs L Lloyd. 8 On behalf of the applicant expert evidence was provided by: Mr T Burns - architect and town planner, Mr A Lyden - arborist, Mr L Marshall - traffic engineer. 9 A statement of issues was provided to the court and the applicant. These issues have devolved to the following: + Whether, taking into account the extent of built form on the site, the buildings response to the landform and the extent and nature of landscaped area, the proposal would be an overdevelopment of the site and would thus be out of character with the neighbourhood, + whether the proposal would have adverse amenity impacts including matters such as noise, traffic, visual and overshadowing on neighbouring properties as well as whether the construction process including traffic and noise would adversely affect the neighbours. 10 As for the issue of adverse amenity impacts on neighbouring properties I have been persuaded by the evidence brought on behalf of the applicant that none of these matters is such as to warrant refusal of the application. I reached this conclusion, particularly taking into account the provision of landscaping and privacy screens and the sight lines diagrams, the overshadowing diagrams and conditions of consent dealing with plant and equipment, noise, construction vehicles, demolition and excavation, dilapidation surveys, construction hours and the like. 11 Dealing more particularly with the immediate neighbours' concerns there is no doubt that the occupants of Mr Smith's property will from time to time hear the residents of the villa homes especially when they use their terraces or courtyards. However taking into account the distance of separation of the elevated terraces and the provision of courtyards in part below ground level and the fact of the single storey nature of this development the inevitable intermittent use of these spaces I do not accept that this is critical to the application. 12 One of Mr Harrison's concerns involved the excavated footpath to the south of the proposed building and the safety issue arising. Bearing in mind that this element of the development will not be seen from his property and access to it will be denied given the proposed 1.8 m high fence this also cannot be a matter which is critical to the application. 13 Turning now to the matter of character it is clear to me that the five proposed villa homes will be of good architectural quality and will, taking into account the associated private landscaped terraces and courtyards, provide a commensurately high quality of amenity for the future occupants. It is also clear that the building as a whole will be of good architectural quality although once completed I doubt that the design architect will be entirely satisfied with the pedestrian pathway along the southern side of the building which was described by residents as the Gymea Gorge. 14 Whilst these matters contribute in part towards good urban design they are not in themselves a complete analysis of what is good urban design. To reach a conclusion that the proposal does comprise good urban design it is necessary to also understand the relationship of this development to its surroundings and the neighbourhood in the context of the requirements of the LEP and the DCP's. 15 Generally, the objectives of the LEP are concerned with quality of life, native vegetation and environmental sensitivity. More particularly the objectives of the 2(A1) zone refer to a residential environment: (a) where the scale, amenity and general character of the area is preserved; and (b) where the streetscape is characterised by detached one and two storey residential buildings, and (c) where the predominantly single dwelling house character of a neighbourhood is not diminished by the cumulative impact of successive dual occupancy townhouse or villa developments. 16 Clause 35 of the LEP sets a maximum floor space ratio of 0.45:1 and because the site is in a foreshore scenic protection area cl. 36 requires that 50% of the site be in the form of landscaped area. The landscaped area can be reduced by 5% where all other relevant development standards are complied with. 17 The floor space ratio objectives relate to the consistency of the size and bulk of potential buildings in the neighbourhood and to allow buildings of sufficient scale to satisfy residential needs whilst being consistent with the environmental capacity of the zone. The proposal does not technically meet the floor space ratio requirement of the LEP. However, it was agreed, taking into account the applicant's suggested condition 10F, and the proposed amendment to the LEP which will resolve the so called anomaly associated with the definition of gross floor area, that floor space ratio was not an issue and the objection pursuant to State Environmental Planning Policy Number 1, development standards, was accepted. 18 Beyond this I am satisfied that the bulk and scale of the proposed one storey building, taking into account the extent to which it can be seen from the street, would not be inconsistent with development in the neighbourhood generally. 19 Floor space ratio was the only development standard in the LEP which was not complied with and given what I have just said about this, the effect of the proposal in this context is that compliance is achieved. This means that under cl. 36 of the LEP the landscaped area requirement would be 45%. 20 The landscaped area objectives are: (a) to ensure opportunities for tree retention and tree planting to preserve and enhance the tree canopy of Sutherland Shire; and (b) to ensure that unbuilt upon areas balance the built form; and (c) to contain urban run off flows by minimising the impervious areas on residential development sites. 21 A number of trees on the site will be lost although several large trees will be retained. A number of additional canopy trees are to be provided as part of the landscaping of the site. I am satisfied that the landscaping proposal will in itself be successful, Mr Johnson and Mr Lyden having agreed that the landscaping plan was a realistic depiction. In these circumstances I am satisfied that the proposal meets objective (a). 22 Whilst there was some dispute about the interpretation of objective (b) I prefer the approach taken by Mr Burns in his SEPP1 objection that this objective is about a balance between buildings and landscaped areas. Following an examination of the drawings provided for the court including the landscape plan I have no difficulty accepting the evidence of Mr Burns that this objective is met. In reaching this conclusion I accept and took into account the landscaping which is provided in constructed planter boxes. 23 In relation to objective (c) it was argued that because significant landscaped areas are provided in the form of artificial planting areas above basement structures and the like these would not meet the requirement of containing run off flows. There was no dispute that the drainage arrangement for this site was satisfactory. Again I have been persuaded that this objective is not so infringed by the proposal as to be unsatisfactory. It was agreed that 23% of the area of the site being the allotment referred to in cl. 36 is landscaped area and is capable of absorbing moisture. In addition to this I accept that the additional areas of planter beds as described by Mr Burns as podium planting having soil depths of up to one metre are also capable of absorbing moisture and should also be taken into account. 24 More generally I am satisfied that the landscaping scheme will provide an appropriate landscaped setting for this development, it will not hide the building nor is it required to do so. 25 There was much argument about the interpretation of the definition of landscaped area and I do not propose in this judgment to attempt to resolve the disagreements as to precisely what does or does not constitute landscaped area. Whilst it seems to me that this proposal in all likelihood does not meet the numerical requirement it is unnecessary to determine the exact extent of the non compliance. Instead I have taken the approach of testing the proposal in the light of the evidence and the SEPP1 objection against the stated objectives and found it to be satisfactory. 26 Taking all of the relevant evidence into account and notwithstanding that there are some minor flaws in the SEPP1 objection I have been persuaded by its conclusion that in the circumstances of this case strict compliance with the development standard would be unnecessary or unreasonable. 27 By way of comment, and as I indicated during the hearing, a tightening up of the landscaped area definition would assist those seeking to apply the requirements of cl. 36. If it is Council's intention that landscaping above any structure whether that structure be below or above ground level is to be excluded this should be clarified in the definition itself. In this context I note the provision of cl. 15 of the Villa Houses DCP, however as a matter of principle I do not see why landscaping in suitably constructed planter areas should be totally disregarded and the reasons for this conclusion can be gleaned in part from the reasons which I have already given in relation to the achievement of the landscaped area objectives. Changes to the requirements and the definition would certainly assist prospective applicants and indeed would save time in court if arguments about these matters could be avoided. 28 Turning now to the objectives of the 2(A1) zone I have no difficulty in accepting that this proposal will appear as a single storey residential building in the streetscape. I am also satisfied that it will appear as a detached building particularly taking into account the set backs from the front and the side boundaries. To the extent that the building will be seen from the street it will be of a width in the order of one or two other existing buildings in the street. I do not accept that this objective means that each of the proposed villa homes should be detached from one another. If that were the intent of the objective I am sure that there would be provisions in the LEP to this effect. Taking these matters into account, together with what I have already concluded in relation to landscaping, I am satisfied that this objective is met by the proposal. 29 There is no doubt that this medium density form of development including the landscape arrangement will not look the same as other detached dwelling house type development in the area but this is not a reason for rejection. Instead one needs to consider whether the scale, amenity and general character of the area is preserved in the context of the appearance of a different form of development. The apparent scale of the proposal being single storey is clearly not a matter of concern. The amenity of the street will change with the introduction of additional traffic but this was not given as a fundamental issue of concern. Again I heard no persuasive reasoning as to why this objective was not met. 30 Finally objective (c) of the 2(A1) zone requires that the predominantly single dwelling house character of the neighbourhood, which is the case here, is not to be diminished by successive villa house developments. There is a newly constructed villa house development almost opposite the site and as a consequence of this there will be two such developments in Barraran Street. Whilst the proposal will result in a change to the character of this part of the street I heard no persuasive evidence to suggest that these two developments together would have such adverse cumulative impacts which would indicate that the application should be rejected. Moreover, it is to be recognised that the objective is applicable to neighbourhoods rather than localities or streets and I was provided with no evidence in relation to how this proposal might affect the neighbourhood generally as is the effective requirement of the objective. In the circumstances I have not been persuaded that the proposal would infringe the objectives of the 2(A1) zone.

31 I was initially concerned and indeed surprised by the design and the resulting presentation of the basement access to the street, particularly the height of the opening. This has since been amended as recommended by Mr Burns by lowering the planter box above the driveway associated with villa one. This, together with the use of sandstone facing to match the existing rock outcrops, should ensure a satisfactory outcome taking into account how the stone will appear once weathered. Whilst the front of this planter box is not shown on the drawings as having a sandstone facing it would seem appropriate that this should occur to provide a visual continuity with the existing rock outcrops and the proposed sandstone retaining wall above the rock outcrop which supports the terrace to villa one. I also note that the drawings now show the sandstone wall as being constructed or faced with random stonework rather than being coursed. If this is possible this style of stonework would seem appropriate in response to the natural outcrop of rock on this site and adjoining.

32 Whilst a different design for medium density development on this site may have resulted in a different outcome in terms of landscaped area calculation this can have no bearing on my decision that on its merits the proposal is satisfactory, would not be visually dominant or comprise an overdevelopment of the site and it should be approved.

33 The orders of the court are therefore that: 1. The appeal is upheld. 2. Development application number 02/1693 for the erection of five three-bedroom villa homes with basement car-parking for 13 cars at lots 43 and 42, DP 16718 known as 34-36 Barraran Street, Gymea Bay is determined by granting development consent subject to the conditions in annexure A. 3. Exhibits A, N and 8 are retained.

T A Bly Commissioner of the Court

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