Westlake & Anor v Waverley Council

CASES CITED: Zhang v Canterbury City Council [2001] NSWCA 167

APPLICANT Mr C. Gough, solicitor of Storey and Gough LEGAL REPRESENTATIVES:

RESPONDENT Mr S. Patterson, solicitor of Wilshire Webb Stauton Beattie

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11051 of 2007 Kate Westlake & Anor v Waverley Council This determination was given extemporaneously and it has been edited prior to publication

JUDGMENT 1 The applicant in these proceedings is seeking development consent for a residential flat building containing eight residential units, six one-bedroom and two two-bedroom units and a shop. The subject site is known as No. 230-232 Bronte Road Charing Cross and it is within a heritage conservation area known as the Charing Cross Conservation Area. 2 The site is zoned residential 2(c)(1) and the objectives of the zone are: (a) to allow for a variety of medium to high density housing forms including boarding houses, dwelling houses, residential flat buildings and townhouses;

(b) to maintain and improve the amenity of the locality and to allow certain non-residential uses of low intensity compatible with the character and scale. Residential flat buildings are permissible with consent as are small shops. 3 The other provisions relevant in the DCP relate to affordable housing and I will make reference to this later. 4 The Court met on site with the parties and heard from a number of resident objectors as well as the two single experts to the proceedings. Mr Gregory Patch is a heritage architect consultant and he provided a statement, and Mr Paul Grech, a consultant town planner, also the single expert for the parties and provided a statement.

5 In note that following Mr Grech's statement and amended plan was provided and the Council raised no objection. The amended plan generally incorporated a number of the recommendations contained in Mr Grech's report.

6 The residents who gave evidence to the Court include Mr and Mrs Desa of No. 228, the adjoining property to the north. They are concerned about the generation of traffic from the redevelopment and noise generation. They are also concerned about privacy, in particular in their backyard and bedroom areas. Number 226 Bronte Road, Mrs Crawley, gave evidence she has lived in the area all her life and she is concerned about privacy, traffic and the streetscape of the conservation area. She expressed concern about overshadowing and daylight being impacted by the proposed development (the shadow diagrams were referred to assist in the assessment). Mrs Crawley also expressed concern about the scale and bulk of the development and the streetscape in terms of the Charing Cross Conservation Area and the federation look being changed. 7 The Charing Cross Precinct Committee was represented by three members: Ms Joscelyn is concerned about the conservation area and the heritage items that act as anchors around the subject site: She expressed concern about the FSR and the height in the streetscape in terms of the established built form, the precinct and the existing form of the subdivision pattern. She also expressed concern about the height in terms of additional structures being placed on the roof, the zero setback and the domino effect that approval of the subject site would have with the example of the post office extension further down the street. Ms Joscelyn expressed concern about the fact that there was a shop proposed given to the vacancy rates within the existing Charing Cross Commercial Area. She also expressed concern about the height, although it was pointed out that the amended proposal is below the height limit of council's controls. She considered the site was too narrow as the controls require a 15 metre frontage. 8 Mrs Margaret Hope also of the Precinct Committee expressed concern about the shop being isolated from the existing commercial area of Charing Cross and that this would only become another office as the post office would no doubtedly be and the shop would be a problem in terms of leasing. She also considered the traffic impact and the impact on the pedestrian amenity of the area would be impacted adversely and the lack of setbacks would not be desirable the setbacks to buildings plays an important role in terms of human health and safer environments and the greening of the environment.

9 Mrs Moira Mayne, also of the Precinct Committee, stated that Charing Cross is the oldest centre in Waverley and it has well established history in terms of the development of Charing Cross and its historic nature. She considers that the traffic would be a huge issue and that the redevelopment of the subject site would in fact lose the small subdivision lots and cottages which are part of the history of the area. 10 Mrs Pat Kennedy of the Charing Cross Precinct Committee also expressed concern about the traffic and the busy nature of the area in terms of the number of buses that pass through the area and the schools in the area and that the proposed development would adversely impact on pedestrians in the area with traffic conflicts.

11 Mr David Caspar, 54 Carrington Road, expressed concern that there was only limited parking, four spaces in the proposal and parking is at a premium and that in his opinion it was an unattractive building.

12 Mr Jones of 25 Tipper Road expressed his support for the proposed development.

13 By way of background the history of the application, is that the proposal was recommended by the Joint Randwick Waverley Design Review Panel and the planning assessment report also supported the application. Subject to amendments, which have now been largely incorporated, Mr Paul Grech supported the application from a planning point of view and Mr Greg Patch also considers that the proposed development is one that would be a positive contribution to the Charing Cross Conservation Area. 14 The Charing Cross Conservation Area DCP notes that in 1987 the National Trust identified Charing Cross as an urban conservation area because of its well preserved examples of late 19th and 20th century commercial architecture. Mr Patch emphasised that the Charing Cross Conservation Area is in respect of the commercial retail nature of the area and the number of heritage buildings within close proximity. Mr Patch had the opportunity of also assessing the amended plans and he did not change his view in terms of the appropriateness of the proposed development for the subject site and states:

"In my view, the proposal is seemingly a well considered response to the development of a multi unit dwelling building on the site with minimal adverse impacts on the character of the conservation area and heritage items in its vicinity. Its streetscape contribution will, at bottom, be positive as it has observed the recognised tenets of appropriate infill development in the Charing Cross Conservation Area - scale, modulation, fenestration, materials, colours and relief to the extent the insertion of a contemporary building within such a context would entail. It has responded well to the context and would appear to have provided the potential future occupants with an appropriate level of solar access and outlook in what is a relatively dense urban environment. Its contribution as a 21st century building within the conservation area is contributory by way of affording greater access to the Precinct by a greater number of people in a relatively benign way. I find that the proposal is supportable on heritage grounds."

15 In terms of the existing dwellings to the north of the subject site, that is the four cottages, the row of cottages between 222-228 inclusive, Mr Patch states that and many have been substantially altered and there is no commonality of materials. He states that they can continue to contribute to the understanding of history of the area and that this can be done by documenting the existing dwellings on the subject site.

16 I note that the residents expressed concern about the loss of the existing cottages and suggested an alternative redevelopment scheme would be for the retention of the cottages and that they could be further developed at the rear. However, the Court must assess the development application before it and it is clear that the zoning is one that contemplates greater density which may include redevelopment at times. This does not mean that all redevelopment would be appropriate and the Court must assess the merits of the application. 17 I understand that people do not necessarily embrace change but change is contemplated by the zoning of the subject site and in many respects I consider that their quarrel is with the zoning of the subject site. I must clearly assess the development application in terms of both the heritage provisions of the LEP and the Charing Cross Conservation Area and its character. On the basis of the evidence before the Court I have concluded that on heritage grounds the proposed development is one that will make a contribution to the conservation area and it has been skilfully designed and will fit comfortably within the Charing Cross Precinct.

18 In terms of the town planning impacts, Mr Paul Grech provided evidence to the Court. There are some variations to the development control plan in terms of the provisions and it is noted that he has comprehensively and holistically assessed the development in terms of the external impacts on adjoining properties and the amenity of the proposed dwelling units within the proposal. 19 The issue of privacy Mr Grech was questioned on and he had made recommendations for moveable screens and a fixed screen for one portion of unit No. 4 which would have a fixed panel, fixed at the end of 1.35 metres. In my assessment given the separation distances and whilst it is not a matter to be relied upon, but also given the distances and given the landscaping in the courtyard of the proposal that interposes between the rear yards of the properties to the north I am satisfied and I agree with Mr Grech that the proposed development is one that affords appropriate privacy and has regard to the privacy of the adjoining dwellings. I note that this is an urban environment that is closely settled and the proposal must be considered in its context while still maintaining reasonable privacy. In the context of this development application, I am satisfied that the cottages to the north will still be provided with an appropriate level of privacy and amenity with the proposed development. 20 I have assessed the application in terms of the impacts on the dwellings today and I am satisfied that the amenity impacts are not unreasonable. I have also assessed the development application in the context of if the properties to the north are redeveloped. While this may only be a possibility; in the future Mr Grech provided an assessment of a concept plan that was provided for the four adjoining lots to the north with an FSR in excess, in fact, of what is proposed on this site, (that is 1.3:1) and he is satisfied that the potential for redevelopment of the lots to the north would not be impacted by the proposed development. The isolation of sites is also an important consideration and I did turn my mind to this in an assessment of this development application especially given the fact that the proposed site is less than the minimum width provided for in the guidelines of the DCP where a fifteen metre width of blocks is required. I agree with Mr Grech's assessment that the width of this lot, that is 12.3 metres to Bronte Road and 12.4 metres to Carrington Road, does not result in an inappropriate development. In other words, the reduced width does not result in adverse impacts and there are appropriate separation distances provided to the existing dwelling houses cottages to the north.

21 The subject site has constraints and opportunities. The site is somewhat of a dog leg that wraps around the corner triangular site known as the post office building, a heritage item, on the triangular corner of Bronte and Carrington Roads. The fall in the land is from Carrington to Bronte of some three metres. The nil setback to the post office I consider is appropriate and is a positive response to the constraint of the site. There are no adverse impacts created by a nil setback and, indeed, it provides for a block edge development that is in character with the streetscape. 22 On the issue of non compliance of the landscaping area I note that the landscaping provides for some 27% of soft landscaping as opposed to a 30% requirement in the development control plan. Having regard to the effective consolidated area that is provided for the deep soil planting and canopy that within the courtyard area to serve the unit blocks and also to provide for amelioration of impacts to the adjoining properties to the north, I am satisfied the design is appropriate response to the site and the shortfall does not warrant refusal of the application.

23 This site is zoned 2(c)(1) and is the beginning of the residential zone interfacing with the business zone. Development of the site should respond to this interface with the commercial zoning and in my assessment the juxtaposition and the setbacks are appropriate in this context and having regard to Charing Cross Conservation Area. 24 The other issue that the Court must address is the floor space ratio. I note that the floor space ratio for the subject site is approximately 0.9:1 in terms of council's development control plan. The FSR of the proposed development is about 1.2:1 and the proposed development can only achieve additional floor space with the provision of affordable housing. The affordable housing provisions are contained at 4.12 of the DCP; that is for the mutli unit area. The loss of affordable rental accommodation in Waverley is a matter of particular concern for the council and it states:

"In the face of increasing land values, construction costs and attractiveness of the LGA for investment, the cost of housing in both rental and owner occupied sectors will continue to increase markedly. As a result, council has put in place a variety of mechanisms directed at maintaining the affordability of rental housing within the LGA. The mechanisms applied by council involve a system of development incentives by relaxing various controls within this part in exchange for the provision of affordable rental housing." 25 There are a number of development incentives, that is a bonus, provided in the DCP. "A floor space bonus is contingent on the development proposal being able to accommodate the bonus in a manner which maintains acceptable environmental amenity. Council is conscious of the need to maintain an adequate environmental amenity of the development in the surrounding neighbourhood where a floor space bonus has been granted. The objectives are to encourage the development of new affordable housing whilst upholding the environmental objectives." 26 In terms of the controls, an additional bonus may only be permitted where affordable housing is provided and the development must demonstrate that all environmental criteria within this part are satisfied for a bonus FSR to be considered.

27 I am satisfied that the proposed development will not lead to adverse environmental impacts on adjoining properties or the locality and that the environmental criteria are satisfied in terms of the proposed development. The development is one which demonstrates considerable thought and skill in terms of the design. That is in terms of the amenity afforded to existing residential properties as well as to the future occupants of the eight units.

28 I note that the SEPP 65 ten principles have been addressed in terms of the design review panel's report and they are of the opinion that the proposal is one that is commendable. The panel states:

"In terms of the relationship to the context of the area that Carrington and Bronte Roads have a wide variety of architectural scales, periods and styles and there is also a good mix of residential and commercial development surrounding the proposal. The proposal is a good response to this very difficult environment; the mixed residential/commercial proposal with shop frontages is well situated on Bronte Road is appropriate. The shop has a seamless but contemporary connection to the awnings and alignment of the adjacent old post office. Similarly the façade on Carrington Road has a subtle relationship to the old post office and in a way extends the qualities of that building... "The strategy of creating a protected north facing Court in the centre of the development is the obvious strategy for a humane residential environment with a useable north facing outdoor area." 29 In terms of scale, the panel states: "The scale shifts from the discipline of the fine-grained street wall to a taller three storeys interior. The interior is well set back from the street." 30 In terms of the built form: "The form is very disciplined. As experienced from the public domain it responds to the tradition of a base, middle and cornice of a 19th and early 20th century suburban main street." 31 The panel also discussed the other principles required under SEPP 65 and in terms of amenity they considered there is a high level of amenity to apartments. Generally the aesthetics of the proposal, their comment is, "This is a very well considered application and will be a significant contribution to the public domain".

32 I must be satisfied in terms of SEPP 65 and the ten principles I have considered and I agree with the panel the proposal is one that is well designed and responds to the site.

33 The Court in its overall assessment has considered the concerns of the objectors and, as I stated, I appreciate that they have concerns about redevelopment in the area. However the existing cottages on the site and adjoining are not heritage items and the proposal must be looked at in the context of the Charing Cross Conservation Area and the relevant provisions of the LEP and DCP for Charing Cross. 34 As anticipated by council's zoning and also in terms of council's DCP, one must have regard to the zoning which encourages appropriate development of this and perhaps other sites. In my overall assessment the merits of this application are such that the proposal should be approved.

35 I have had regard to the provisions of the development control plan and there are variations in terms of some of its provisions. In my assessment under the DCP I am guided by a judgment of the Chief Justice of New South Wales Zhang v Canterbury. I must give focal consideration to the DCP and in my assessment I have considered all the controls of the DCP and the package or the planning regime in which the site sits. I am satisfied that the variations do not create unreasonable impacts and that they are not matters that would warrant refusal of the application, bearing in mind if there are any variations that the development must be looked at in a more sensitive way. 36 The other matter that was raised by residents relates to traffic and this is a very urbanised and busy area with traffic good public transport and the congregation of people, including school children. The proposal will provide for a driveway on the north end of the frontage to Bronte Road, removing two existing crossings to Carrington Road. Care must always be taken in such a busy environment or heavily trafficked area when entering and leaving the site but I am satisfied that the busy area cannot prevent redevelopment of this site and the proposal deals with this in a satisfactory manner. With respect to the conflict with the bus stop, similarly care needs to be taken in this regard and there is nothing in council's planning regime that would prevent redevelopment of the site near a bus stop. I have had regard to the expert evidence of the applicant's traffic engineer, Mr McLaren, and his recommendations in terms of the traffic management and I am satisfied that this is not a matter that would warrant refusal of the application. The proposal will also be well served by public transport.

37 The other issue that was raised is that of overshadowing and daylight. As I mentioned this was looked at on site and given the good orientation of the subject site and adjoining the properties to the north, overshadowing is not an issue that would warrant refusal. I am also satisfied in terms of the separation distances that daylight will not be adversely impacted. 38 The scale and bulk of the proposed development is one that sits comfortably in the streetscape and in the context of the adjoining properties. The northern courtyard provides for an appropriate separation for the dwellings to the north.

39 Accordingly based on my assessment and findings above the formal orders of the Court in this matter are: 1. The appeal in respect of the property known as No. 230-232 Bronte Road, Charing Cross is upheld.

2. The development application No. 207/2007 submitted to Waverley Council and as amended is approved subject to the conditions contained in Annexure 'A'.

3. The exhibits are returned with the exception of Exhibits 6 and Exhibit A.

      J S Murrell
      Commissioner of the Court
      ljr

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