Abdullah v Strathfield Municipal Council

Land and Environment Court (NSW)|2020-08-14

Introduction

This is an appeal pursuant to s 8.9(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) against the refusal by the Council of an application made under s 4.55 of the EP&A Act to modify development consent DA 2018/176 (the consent) at Lot 1 Deposited Plan 324569 known as 12-14 Elwin Street, Strathfield (site).
The consent approved the demolition of an existing dwelling house, construction of a two-storey residential dwelling with basement carparking, swimming pool and front boundary fence.
The present modification application seeks to "reinstate" bedroom 4 (the fifth bedroom) which was required to be deleted by a deferred commencement condition of the consent.
The matter commenced as a conciliation pursuant to s 34AA of the Land and Environment Court Act 1979 (Court Act). It was very quickly clear that a resolution between the parties would not be reached and the conciliation was terminated. In accordance with s 34AA(2)(b) the hearing commenced forthwith.
Both the conciliation and the hearing took place by audio visual means in accordance with the Court's COVID-19 Pandemic Arrangements Policy.
In essence the only issue was whether the bulk and scale of the additional bedroom was excessive in its particular context. For the reasons which follow I have decided to refuse the modification application.

The consent and the modification sought

On 7 March 2019 the Strathfield Local Planning Panel (Panel), exercising the power of the Council, granted development consent subject to conditions including deferred commencement Condition 1A which is in the following terms: "A First Floor Configuration The area showing bedroom 4 on the plans is to be deleted to provide a simgle storey element adjacent to the neighbour at Number 10. The remaining roof area is to be flat concrete roof and non-trafficable, other than for access to maintenance purposes. (Reason : To reduce bulk and scale on the adjoining site)"
The Notice of Determination was issued by the Council on 25 March 2019 reflective of the Panel's decision.
The Applicant provided amended plans in accordance with the deferred commencement condition and the Council advised the Applicant on 20 May 2019 that the deferred commencement conditions had been satisfied and that the consent was then operative.
The approved dwelling is not insubstantial, and includes four generous bedrooms and associated facilities, a large lounge/family/dining area, and two "spare" rooms. (The bedrooms are described on the plans as "Master bedroom" and then bedroom 1, 2, 3, totalling four bedrooms). The floor to ceiling heights are maximised to the maximum permitted wall heights. Whether or not the approved dwelling provides a form of accommodation which is expansive is not to the point and plays no role in my assessment.
What is worthy of note is that the dwelling has a large central void area and a "BBQ Pavilion" which the Council says contribute to the bulk of the building, whilst not being floor space for the purposes of the floor space ratio calculation.
Bedroom 4 is proposed at the first floor level above the BBQ Pavilion effectively part of the eastern wing of the dwelling. Leave was granted to amend the modification application to reduce the height and size of Bedroom 4 and now its dimensions are generally 4.650m x 4.460m. It projects to a point approximately 15m from the rear boundary. The whole of the proposed bedroom extends beyond first floor development on adjoining lots and so is readily apparent from adjoining rear yards, and particular the adjoining rear yard to the east, Number 10 Elwin Street (Number 10).

Statutory context

The EP&A Act provides for mandatory matters for consideration in s 4.55(3): (3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.
The Council draws attention in particular to the last sentence to emphasise that the reason the Panel required the removal of bedroom 4 as a condition of the grant of consent is a mandatory relevant consideration.
The site is zoned R2 - Low Density Residential under Strathfield Local Environmental Plan 2012 (SLEP 2012) and the proposal is permissible with consent in the zone.
The proposal is subject to a height control of 9.5m pursuant to cl 4.3 of SLEP 2012 and the Height of Building Map, with which the proposal complies.
The proposal is also subject to a floor space ratio (FSR) control of 0.5:1 pursuant to cll 4.4 and 4.4C of SLEP 2012. The Council says that the proposal does not comply with the control whereas the Applicant says that it does comply, but if not, a simple condition can ensure compliance.
The Council in any event relies on the objectives of the FSR control in cl 4.4: 4.4 Floor space ratio (1) The objectives of this clause are as follows - (a) to ensure that dwellings are in keeping with the built form character of the local area, (b) to provide consistency in the bulk and scale of new dwellings in residential areas, (c) to minimise the impact of new development on the amenity of adjoining properties, (d) to minimise the impact of development on heritage conservation areas and heritage items, (e) in relation to Strathfield Town Centre - (i) to encourage consolidation and a sustainable integrated land use and transport development around key public transport infrastructure, and (ii) to provide space for the strategic implementation of economic, social and cultural goals that create an active, lively and people-orientated development, (f) in relation to Parramatta Road Corridor - to encourage a sustainable consolidation pattern that optimises floor space capacity in the corridor. (2) The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map.
There is an additional control in cl 4.4C which provides: 4.4C Exceptions to floor space ratio (Zone R2) Despite clause 4.4, the maximum floor space ratio for a building on a lot being land in Zone R2 Low Density Residential, with an area specified in Column 1 of the Table to this clause, is the floor space ratio specified opposite that lot in Column 2 of the Table. Column 1 Column 2 Lot area (m2) Floor space ratio … … ≥ 1,000 0.50:1

It is because the site has an area in excess of 1000 square metres and is in the R2 zone that the applicable FSR is 0.5:1. There is no issue that cl 4.4 is a relevantly clause setting out the objectives of the FSR control even though cl 4.4C provides for the control itself.
Strathfield Consolidated Development Control Plan 2005 (SDCP 2005) applies to the site.
The Introduction to SDCP 2005 identifies the manner in which SDCP 2005 is to be used in the assessment of development applications: "This Plan is a comprehensive guide for applicants to the minimum development and design standards required by Council for development within the Strathfield local government area. Each design element has two (2) components: 1. A set of objectives specified for each design element. The objectives represent the outcomes that Council wishes to achieve. Council will consider how well each of the relevant objectives has been addressed by a proposal when determining an application. 2. A set of development controls relating to each design element. The controls outline the methods of achieving the objectives. They are generally practical and often measurable development standards that provide clear guidelines for the applicant. General Introduction to Strathfield Consolidated DCP 2005 Page 5 Council expects that applicants will comply with the development standards and planning controls outlined in this Plan and the SLEP 2012. Council may refuse consent to a development which does not comply with this Plan, or may modify the development by way of conditions so that it does comply. However, where it can be demonstrated that a particular control is unnecessary or unreasonable in the circumstances of the case, or that the variation will result in a better design solution for the site and its surrounds and still satisfy the underlying objectives of each provision, Council may consider varying the controls. Applicants will need to provide written justification in their Statement of Environmental Effects to vary the development standard. Furthermore, compliance with this Plan does not necessarily guarantee the application will be approved. All applications will be assessed and determined on their individual merits" (Emphasis added)
This makes it plain that it is not merely the numerical controls which are the guide to appropriate development. The objectives are also a yardstick against which proposed development is to be measured.
The Council points to the objectives of Architectural and Streetscape Design in cl 2.1, objectives A, G and J which are: "A. To ensure that development respects the predominant height, scale character, type, form, colour, materials and architectural qualities of the existing dwelling house (in the case of alterations and additions) and surrounding neighbourhood especially any adjoining or nearby heritage item or heritage conservation area. ….. G. To retain a feeling of openness and space between built elements by maintaining landscaped setbacks and preserve the appearance of dwellings set in the tree-lined streets and park-like environment. … J. To protect and retain the amenity of adjoining properties."
A control under the heading Scale, Massing and Rhythm of Street in cl 2.2.2.2 provides: "Building height and mass must not result on loss of amenity to adjacent properties, open space or public domain."
The objectives of the Building Envelope controls in cl 4.1 are relevantly: "A. To ensure that dwellings are compatible with the built form of the local area and that overall bulk and scale, size and height of dwellings relative to natural ground level responds to the adjoining dwellings, topography and desired future character. B. To minimise impact on the amenity of adjoining properties. D. To create a perception or reinforce a sense of openness in the locality."
The control relied upon by the Council is cl 4.2.1.2 which provides: "Development must be compatible with the lot size. Larger sites should not allow dwellings that are so large and bulky that they would create undesirable environmental impacts. Smaller sites must provide for adequate sized dwellings."

Issues

Simply stated the issue is whether bedroom 4 is an unacceptable addition having regard to:

the reason for the decision to grant consent;
the objectives of the FSR control in cl 4.4 SLEP 2012;
the objectives and controls in SDCP 2005;
the presentation of its height and bulk to the neighbouring property to the east, Number 10;
the extent of the first floor addition towards the rear boundary.

There are two additional sub-issues which can be dealt with at this stage because their determination has no bearing on my findings and decision.
The Applicant argued, albeit faintly, that the objectives of the FSR control in cl 4.4 are not relevant considerations because the proposal is not in breach of the development standard. This submission is contrary to authority founded in the decision of Moore J in Barrak v Parramatta City Council [2018] NSWLEC 67 (Barrak) at [49]-[58]. Whilst I am not strictly bound by the decision, I would follow it as a matter of comity unless persuaded it is plainly wrong (eg Challenger Listed Investments Ltd v Valuer General (No 2) [2015] NSWLEC 60 at [28]-[31]).
The submission by the Applicant was brief because it was accepted that in any event the objectives of SDCP 2005 referred to above were a relevant consideration and that those objectives effectively included the substance of the objectives of the FSR control in cl 4.4 of SLEP 2012.
Because I have formed the view that the application fails upon consideration of the provisions of the SDCP 2005 it is not necessary for me to deal with the question of the correctness of Barrak. I would add however that there is nothing I perceive which would dissuade me from accepting the principle enunciated in Barrak that the objectives of a development control can be a relevant consideration in a merit assessment even when the proposal complies with the numerical control to which the objectives relate.
The parties disagreed as to whether the proposal complied with the FSR control, based on a disagreement as to whether certain space in the basement/garage fell within the exception to the definition of gross floor area in SLEP 2012 being: Carparking to meet any requirements of the consent authority (including access to that car parking)
In order to meet the particular needs of the Applicant's family, there is an area in the nature of a disabled parking space in the garage. It is a regular sized car space with an area immediately adjacent, protected by a bollard, which provides access for a person with a disability. The Council says that the adjacent area is in excess of Council requirements for parking and therefore should be counted as gross floor area.
The Applicant says that the area is access to the carparking and therefore not gross floor area. In the alternative, the Applicant says, a condition could be imposed requiring the area to be enclosed and become a storage area and therefore clearly not counted as gross floor area.
Whatever the outcome the impact of the addition of bedroom 4 is unchanged. Whether the area adjacent to the parking space be excluded as gross floor area because it is access to parking, or enclosed and excluded because it is a storage area, there will be no breach of the FSR control. Whilst I tend to the view that the area is properly excluded as access to car parking, I do not finally decide and will consider the principal issue on the assumption that one way or the other the building as proposed with the addition of Bedroom 4 does not exceed the FSR control.

Evidence and submissions

The neighbour at Number 10 retained Mr Brett Daintry, an experienced town planner to lodge an objection to the modification application and gave evidence at the hearing. Mr Daintry's evidence was not expert evidence, but evidence and submission on behalf of his client.
Mr Daintry said that the proposal was excessive in its bulk and scale, that the internal voids and unenclosed areas create a building larger than would be expected having regard to the FSR control, and that the impacts on the amenity of Number 10 are unacceptable. Mr Daintry also pointed to the ground level of Number 10 being lower compared to the site as exacerbating the impact of the proposed addition.
Expert town planning evidence was given by Mr Mark Boutros, retained by the Applicant and Mr Steven Layman, retained by the Council. They prepared a joint statement and gave oral evidence.
The Applicant's architect produced a photograph of the site taken from Number 10 with a red line depicting the extent of the proposed addition. There are obvious limitations with such a photograph in that it is from only one location in the rear yard of Number 10 and is not a three dimensional reproduction of what is proposed. Nevertheless, it is a useful image which assists in the assessment of the application. The image is reproduced below.
Cross examination of Mr Boutros and further consideration by both experts led to the common conclusion that the red line showing the outline of what is proposed should be more correctly drawn somewhat higher and extending further to the left (southwards) than is presently shown. I accept that, but it is not necessary for the line to be re-drawn.
The oral evidence of the experts, and examination of a survey, also disclosed that there was a height difference between the ground levels of Number 10 and the site in the order of 0.5m to 1m in the vicinity of the proposed addition.
The experts agreed that there was no breach of the height controls in SLEP 2012 and SDCP 2005, and that there was no unreasonable overshadowing impact. There is no privacy impact because the eastern windows of bedroom 4 are to be highlight windows.
Mr Boutros highlights compliance with every numerical control and so opines that the proposal is within the expectation of a form of development in this location which is therefore acceptable. He analyses the objectives in cl 4.4 of SLEP 2012 and SDCP 2005 concluding that the objectives are met. He points to the visibility of development in rear yards nearby, whilst acknowledging the only two storey development which protrudes as much as the proposal is three dwellings away (including one intervening dwelling which is on a double block).
Mr Layman says the voids and unenclosed BBQ Pavilion significantly increase the visual impact, that the extent of the rear protrusion is inconsistent with the pattern of the rear of buildings and the modification proposed does not retain and protect the amenity of adjoining properties because of its height and bulk relative to the adjoining property, Number 10.
I do not intend to do a disservice to the experts with that short summary, and I have considered the whole of their written and oral evidence. Similarly, without disservice to counsels' considered and capable assistance, I summarise their submissions in the following paragraphs.
The Applicant relies strongly on the compliance with the controls. It follows, it is said, that either the objectives of the controls must thereby be met or that the controls create an expectation which is reasonable and so the proposal reflects a reasonable expectation of the development which can occur. That there are none of the usual impacts generated by excess bulk such as overshadowing and reduced privacy to neighbours reinforces the conclusion that the proposal is acceptable.
The Council argues that SDCP 2005 identifies impacts, some of which are measurable and some which are not. Compliance with a measurable and therefore numerical control is not the complete assessment required, and compliance with a numerical control is no answer to an impact which is not measureable. The apparent height from Number 10 is greater than the control and the extent of the proposed addition adjacent to the rear yard of the neighbour exposes the bulk of the building to an unacceptable level.

Consideration

Applicants are often reminded that numerical controls are usually maximum controls. There is no right to develop to the maximum permitted of a development standard. Similarly controls and objectives, where relevant, are to be considered as a whole; a suite of controls designed to define and control development. By way of example, a control such as FSR only deals with the gross floor area of a development and its comparison to the area of the site. It does not deal with the location of that gross floor area. Other controls and objectives play a role in determining where that gross floor area should be.
That said, an Applicant should not be criticised simply because they seek to maximise a building envelope in accordance with controls, because often non measurable impacts are difficult to assess, and reasonable minds may differ as to their acceptability.
In my opinion the proposal fails to meet the expectation for design created by the controls and objectives in SDCP 2005 for the following reasons, generally reflective of the Council submissions and evidence.
The two important elements of the proposal plainly are its height when perceived from Number 10 and its length, protruding into the area or space adjacent to the rear yard of Number 10 and indeed to the other immediate neighbours.
It is characteristic of the dwelling houses in the vicinity that there is an open rear yard and that the dwellings, substantial though they are, do not extend, at first floor level particularly, into that rear yard area. The property at Number 22 (some four dwellings to the east) is an exception rather than a characteristic. Its form is not repeated relevantly nearby.
This proposal does not respect that dominant form because of its protrusion to the rear beyond the line of the adjacent and nearby dwellings, and is thereby inconsistent with Objective A in cl 2.1 of SDCP 2005 reproduced at [28] above, to respect "… the predominant height, scale character, type, form,..of the surrounding neighbourhood …". It could also be described as inconsistent with the scale of the surrounding neighbourhood, given the size of the protrusion, and inconsistent with character, accepting that the form of the buildings are an element of character.
The feeling of openness and space between built elements is also significantly diminished. Instead of the occupants of Number 10 looking westward over single level development and landscaping from their rear yard and outdoor entertainment area, as is the reasonable expectation, they are faced with a two storey building in the order of 10m in perceived height. It is an intrusion which does not meet the objective to retain the sense of openness.
As a consequence Objective G of cl 2.1 of the SDCP 2005 is not met, being "to retain a feeling of openness and space between built elements by maintaining landscaped setbacks".
The amenity of the occupants of Number 10 is not protected and retained consistently with Objective J of cl 2.1 SDCP 2005 and the control in cl 2.2.2.2. The two storey element adjacent to the principal area of the rear yard clearly not only interferes with the sense of openness but will affect the enjoyment of the area by its very presence as a high bulky built form element constantly in view, in a location unexpected in the immediate neighbourhood.
The additional element for consideration in the objectives of the Building Envelope Controls (reproduced at [30]), is the need to ensure compatibility of built form by reference to, amongst other matters, the topography. Here there is a change in topography between the site and its neighbour to the east, Number 10, the latter being somewhat lower than the site. That obviously means that the perceived height of the addition from Number 10 is higher than the actual height when measured on the site itself. Accordingly, where the proposal is to the maximum height permissible, it is perceived as higher than the maximum from Number 10.
The proposal has not responded to the change in topography between the site and its neighbour. Whilst it is a reasonable position to adopt to submit that a neighbour should expect a building at or less than the prescribed maximum, that expectation is qualified by the need to account for, or consider, any change in topography. Here that very expectation of height is qualified by the change in topography. Regardless of the location of the proposed additional bedroom, its height relative to natural ground does not respond to the topography and adjoining dwellings and so is not consistent with Objective A of cl 4.1.
That failure to account for the change in topography contributes to or exacerbates the failure to meet the objectives and controls in SDCP 2005 referred to in the preceding paragraphs.
It is for those reasons that the proposed reinstatement of bedroom 4 is not acceptable - it protrudes too far towards the rear and it is too high when perceived from its eastern neighbour and so is not consistent with the objectives and controls of SDCP 2005, which I have identified above.
It is not necessary to deal separately with the objectives of the FSR control in cl 4.4 of SLEP 2012, nor any additional argument that could be made, if any, relating to the reasons for the grant of the consent by the Panel and the Council.

Conclusion

The application must fail for the foregoing reasons. I make the following orders: 1. Appeal dismissed. 2. Application to modify development consent DA 2018/176 is refused. 3. Exhibits other than exhibits A and B to be returned.

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. Decision last updated: 06 October 2020

At a glance

Court

Decision date

Source

Judgment (10 paragraphs)

Parties

Cases Cited (2)