Abstract Group Pty Ltd v Parramatta City Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10268 of 2003 Abstract Group Pty Ltd v Parramatta City Council

JUDGMENT

1. COMMISSIONER: This is an appeal against the council's deemed refusal of a development application to demolish the existing houses at 6-8 Winter Street, Telopea and to erect nine residential units being a multi-unit housing development.
2. These units will be erected over a basement carpark. On the ground floor of each unit there is a living room, dining room, kitchen and laundry. The bedrooms, study, or TV rooms are on the first floor, and each unit has an attic. The following types of units are proposed: one three-bedroom unit, one two-bedroom unit, and seven two-bedroom units. The plans have been amended a number of times, and the plans for which consent is now sought are contained in exhibit H. Reference should also be made to SK06.
3. At the hearing, evidence for the applicant was given by traffic engineer Mr C Hazell and consultant town planner Mr A Ludvik. For the council, expert evidence was given by consultant town planner Mr D Jones and there was also evidence from the adjoining neighbour Mr R Sanders who lives with his wife at the adjoining property to the south, 4 Winter Street. On behalf of the adjoining neighbour to the rear, which is a site containing buildings relating to the Presbyterian Church, a detailed written objection was made by Mr Chapman.
4. In considering all this evidence, I have been aided by a view of the site and the locality. There are various aspects of the proposal which in the amended plans could be regarded as satisfactory. However, for the reasons which I will elaborate on further I am not persuaded that consent should be granted to the particular plans now before the Court.
5. There are some deficiencies in the proposed development by way of poor solar access for some of the courtyards, and insufficient setbacks from side boundaries. The council also raised matters relating to the form and massing of the development, which I will refer to later.
6. The subject land is zoned residential 2(b) under the Parramatta Local Environmental Plan 2001. In this zone multi-unit housing is permissible with consent, but residential flat buildings are prohibited. The residential flat buildings are permissible in the more dense zones, namely 2(c) and 2(d) and in addition in the 2(d) zone high-density housing is permissible. I incorporate in my judgment objectives (a), (b), and (c) of the 2(b) zone: (a) to enhance the amenity and characteristics of the established residential area, and

(b) to encourage redevelopment of low density housing forms, including dual occupancies and multi unit housing, where such redevelopment does not compromise the amenity of the surrounding residential areas or the natural and cultural heritage of the area, and

(c) to ensure that building form, including that of alterations and additions, is in character with the surrounding built environment… 7. A proposed development in accordance with the LEP should be consistent with the objectives of the zone. 8. I also incorporate in my judgment the definitions in the LEP of floor space area of a building, height of a building, high-density housing, multi-unit housing, and residential flat building:

floor space area of a building means the sum of the gross horizontal areas of each floor of the building contained within the inner faces of the outer walls measured at a height of 1.5 metres above the floor, including the space occupied by internal walls, staircases, lobbies, corridors and toilets, but not including: (a) the horizontal cross section of lift shafts and vertical service ducts measured between the wall faces internal to the lift shaft or duct, or (b) any space permanently set aside within the building for underground parking, other than spaces used for public car parking which is more than 1 metre above natural ground level, and for the unloading or loading of vehicles, including ramps or other means of access to it, or (c) any space for the accommodation of mechanical or electrical plant or equipment servicing the building, or (d) any terraces and balconies with walls less than 1.5 metres high, or (e) attic rooms.

height of a building means the vertical distanc e measured in metres between natural ground level at any point above which any part of the building is sited, and the ceiling of the topmost floor of the building directly above that point.

high density housing means a building containing three or more dwellings which is four or more storeys in height.

multi unit housing means three or more dwellings on the same parcel of land where each dwelling has an individual entrance and direct private access to private open space at natural ground level for the exclusive use of the occupants of the dwelling, but (in the Table to clause 16) does not include any other form of dwellings elsewhere specifically defined in this plan.

residential flat building means a building containing three or more dwellings, but (in the Table to clause 16) does not include a building elsewhere specifically defined in this Dictionary. 9. The definition of multi-unit housing has been considered by Cowdroy J in Australand Holdings Limited v Parramatta City Council [2003] NSWLEC 229. His Honour held that natural ground level appearing in the definition could be the finished ground level of the development. Without finally deciding the matter it could be that a different meaning is to be given to the words "natural ground level" where they appear in the definitions of floor space area of a building and in the definition of a storey. To give these definitions a practical working operation, it could be that the appropriate interpretation of the expression "natural ground level" should refer to the ground level as at the date of consent. Because there is doubt as to the meaning of the expression "natural ground level" in other parts of the LEP, leaving aside the meaning for the purpose of multi-unit housing which has been decided by Cowdroy J, it could be desirable that the council have an amendment made to the LEP to define the meaning of the expression. 10. Under the LEP, multi-unit housing is limited to a height of two storeys. As can be seen from the definition of storey, there is a particular meaning given for the purpose of the LEP. It is not clear what is meant by the lowest point on the site in that definition. Literally, if one ignored the proposed development, it would be the lowest existing natural ground level on the whole site, but that could entail great difficulties where there was, for example, a steeply sloping site or a valley towards one part of a site. It could be that there should be implied into the definition that the measurement should be made from the lowest point of the site underneath the ceiling of the carparking area. Regard also should be had to State Environmental Planning Policy 6 - Number of Storeys in a Building. For the purpose of this appeal, and without finally deciding the matter, I will assume that the measurement is made underneath the ceiling of the carpark to the lowest point on the site under that ceiling rather than to the lowest point on the site irrespective of where the carpark is placed. Taking that interpretation, the proposed development is not three storeys, and no objection under State Environmental Planning Policy No 1 - Development Standards is required. 11. The parties agreed that I should proceed to determine the merits of the matter; and that if I was minded to allow the appeal, the proceedings should be adjourned in order to enable an objection under SEPP 1 to be lodged for abundant caution. In view of the decision I have come to, it will not be necessary to adjourn the proceedings. For the purpose of this case I have assumed (without deciding it) that no objection is required. 12. The proposed development has a height above the natural ground level to the underside of the ceiling of the carpark to a maximum of 0.9 m, which falls under the prescription that the space above natural ground level should not be more than 1 m. 13. Under the LEP, multi-unit housing must not have a floor space ratio greater than 0.6:1. The subject land has a total area of 1483.2 sq m. The town planners were agreed as to the floor area of the building, but their agreed figure should be amended to take into account the subsequent amendment to the carparking area which included approximately 20 sq m of garbage storage area. The resulting floor space ratio is approximately 0.586:1, which is just under the maximum FSR. 14. It appears to me that there is an important principle to be considered in relation to FSR. It might be argued that one can depart from other planning controls, such as solar access and setbacks, in order to achieve the maximum FSR mentioned in the LEP or DCP. However, in my opinion the planning controls should be read together; and the maximum FSR might not always be achievable taking into account the need to comply with other planning controls. The appropriate principle to apply in this case is set out in par (g) of the objectives of the Design Elements (section 4.4 at p 96) of Parramatta Development Control Plan 2001: "Ensure that the maximum FSR permitted on any site does not inhibit any other objective, performance criteria, design solution, or design control contained within this plan." 15. I shall consider in more detail now the form and massing of the proposal, solar access and setbacks. In relation to the form and massing of the proposal, regard should be had to the objectives of the zone which I have referred to earlier, and in particular objective (c). Also, in the DCP at p 96 one of the objectives is to ensure that building heights respond to the scale of the street and surrounding buildings. 16. Winter Street is a short street. It does not have any two-storey buildings in it at the present time. Until recently, all the buildings were single storey. Immediately to the north of the subject site is the property at 8-10 Winter Street and the development on that land has now been removed in order to allow for the construction of an approved two-storey dual occupancy. Immediately to the south of the subject land at 4 Winter Street is a single-storey dwelling house with a landscaped front yard. Returning to the northern side of the subject site, further to the north of the adjoining property there is a villa development at 12-14 Winter Street. The garages and most of the habitable rooms of that development appear to be more or less at existing ground level. However, on the western elevation because of the fall of the land the single-level units are elevated about 1 m or 1.5 m above ground level. Otherwise the villas have a low-scale appearance. 17. Moving out of Winter Street in a southerly direction, the predominant housing form is single-storey houses in Adderton Road to the south and in Manson Street. There are some two-storey dwellings, however. In particular there is a development carried out under State Environmental Planning Policy 5 - Housing for Older People and People with a Disability in Manson Street on a property which is located a walking distance from the subject land of around 240 m. Some comments relating to this development would be apposite. Unlike the proposed development, the SEPP 5 development is set down in its site and its ground floor is at a lower level than the footpath level. There is no underground parking and the garages are also at ground level. It has a setback of about 6 m to 7 m from the street alignment. There is a low-pitched roof above the upper storey. It is not an altogether attractive development insofar as there is a long facade facing Manson Street. It is to be noted that this development was carried out under a different planning regime than the regime that applies to the proposed development. The SEPP 5 development is also a little remote from the subject land. 18. In relation to the appearance of the proposed development, much emphasis was placed on other development further from the subject site. Having regard to this other development it was the opinion of Mr Ludvik that the subject site was located in a high-density area. I cannot accept that opinion and prefer the opinion of Mr Jones, the town planner engaged by council. As I mentioned, apart from the dual occupancy development, Winter Street is single storey in built form. The predominant housing form in the 2(b) zone is generally one storey although there are two-storey dwellings. The higher density development referred to by Mr Ludvik is in fact in the 2(c) zone in the vicinity of Polding Place and Sturt Street. The walking distance to Polding Place from the subject land is around 450 m, and Polding Place is much closer to the railway station. 19. Having regard to the context of development in Winter Street, some criticism was made by the council of the proposed development in that it was set back from the street alignment with some raised courtyards in front of the units themselves and that the attics above each dwelling made the units prominent. The roof pitch to achieve these attics is 35 degrees. Certainly, there would be a lower-scale appearance if the attics were deleted. Also the springing point from which the pitched roof could commence could be lower than the ceiling; that is, the eaves could be at or even slightly lower than the ceiling level, which is not the case for the proposed development. 20. Multi-unit housing, of course, need not contain townhouse-type development of two storeys, but may include villa homes. The proposed development is bordering on medium-density housing, although that term is not defined, and I note that the objectives do not limit multi-unit housing in the 2(b) zone to any particular form. However as I mentioned, regard should be had to the objectives of the design elements of the DCP and to objective (c) of the LEP. By itself I probably would not have refused the application because of the attics and the appearance in the streetscape of the proposed development. However, that is one matter to be taken into account with the other matters, each of which, separately, I do not think would be a reason for refusal, but taken together on balance I have decided that it is not appropriate to approve the development. 21. Solar access is dealt with in the DCP and of concern in this particular case was the amount of solar access received by courtyards 1, 2, 3, and 9. In order to better understand this issue it is also relevant to note that the DCP provides at p 137 that private open space should desirably contain a contiguous area of 40 sq m at ground level with minimum dimensions of 4 m and directly accessible from a main living area. The main courtyards for units 2 and 3 are on the southern side of those units. During midwinter from 9 am to 3 pm the whole of those courtyards would be in shade. Those courtyards each have an area of 40 sq m. The clotheslines in those courtyards also would be in shade having regard to the extent to which the shadow is cast on the adjoining property. 22. In order to alleviate the problem of poor access to sunlight for the outdoor areas of these units, a small private courtyard is also provided for each of units 2 and 3 on its northern side. The areas of these courtyards are respectively 23.9 sq m and 21.1 sq m. The depth of the courtyards from the inside of a privacy fence that would have to be erected to the face of each unit is approximately 2.8 m. Because of the privacy fence that would be erected to a height of 1.6 m, and because of side projections on the western side of courtyard 2, and on the eastern side of courtyard 3, those courtyards would not have adequate solar access, although there would be some solar access to them. 23. When considering solar access, regard should be had to its extent, and as I mentioned the minimum area for private open space is 40 sq m, but only about half of the small front courtyards of each of units 2 and 3 would receive sunlight on the ground for about two hours. In the context of what is a desirable size for a courtyard area, a greater area than 10 to 15 sq m of courtyard would appear to be desirable to receive sunlight. 24. I take into account the submission of Mr Goldsmith that the DCP appears to have been amended after the lodgement of the original application to require the provision of 50% sunlight access to courtyards. Nevertheless, in the absence of such a provision a general assessment of the solar access for this type of development, which is generally in the nature of a low-density development, would result, in my opinion, in a conclusion that there is quite poor access to sunlight in the private outdoor areas of units 2 and 3. I think that this is probably the worst aspect of the proposed development. 25. Courtyard 1 at the rear of unit 1 would also be totally in shade during winter, including its clothesline. However, there is an additional courtyard to the front of unit 1 right up to the street boundary. There are problems in relation to that courtyard insofar as it would not be very private if there was a fence only 0.8 m high as was submitted. Alternatively, if a higher fence was erected as seems to be indicated in the western elevation of the plans in exhibit H, there would be some overshadowing from that fence. Another matter affecting the amenity of the streetfront courtyard of unit 1 is that the drainage plans proposed that that courtyard will be a detention basin. So after periods of continuous rain that area might not be readily useable because the land would be sodden. 26. Solar access is also not altogether good for unit 9, but because unit 9 has a courtyard extending a little further west than the front alignment of that unit, there would be some degree of solar access in midwinter. I take into account that there is a small communal open space also in front of unit 9, but again that communal open space at the street alignment is also proposed to be an open detention basin. 27. I have had regard to a decision of Commissioner Brown in Raouf and Rita Hanna v Parramatta City Council [2004] NSWLEC 175 where on the facts of that case the Commissioner considered that solar access was acceptable. Unlike that particular case, the common area which mainly provides access together with private courtyards located between the northern and southern lines of units in the subject proposal will be totally in shade during midwinter except for the small portions of the small courtyards of units 2 and 3. 28. In relation to setbacks it is required under the DCP for multi-unit housing that there be a 6 m setback. The situation is different for dual occupancies where there can be a 1.5 m setback so that development which is proposed to the north of the subject land meets the DCP requirements. In addition, although there is a smaller setback for the dual occupancy development, the extent of walling close to the common boundary with the subject land compared with the extent of walling in the proposed development along the common boundary is quite different. Relatively, only a small amount of development is close to the common boundary in the dual occupancy development, unlike the situation with the proposed development in its relationship to the house at 4 Winter Street. 29. In oral evidence Mr Sanders, who lives at No 4, was quite concerned after seeing the shadow diagrams of the proposal about the extent to which his rear yard would be overshadowed. In his rear yard there is a swimming pool which is not shown on the site plan of the proposal, although his house is shown. The extent of overshadowing of No. 4 can be seen in drawing DA08B. This overshadowing is contributed to by the non-compliance with the side setback requirements. In particular, units 2 and 3 are set back from the common side boundary with No. 4 by only 4.5 m. A development better complying or completely complying with the side setback requirements on its southern side would clearly be more desirable as regards the relationship to the adjoining property to the south. In assessing the shadowing impact I have had regard, as I mentioned, to DA08B which is part of exhibit H, but regard should also be had to the 3D drawings, part of exhibit B. 30. The DCP has other provisions in respect of which there is non-compliance by the proposed development. The internal separation of two rows of units should be 12 m. However, looking at the DCP that separation might be more applicable where there was a row facing the street and then another row further to the rear of the site. Of course, if there was a greater separation internally between the rows created by units 1 to 4 on the one hand and units 6 to 9 on the other hand, there could be a larger north-facing courtyard for units such as units 2 and 3. However, there are constraints on the site and increasing the internal setback would constrain the building area for the units if it was required that there be a setback of 6 m also on the northern side. Because the setback on the northern side does not have the same impacts as on the southern side, perhaps some dispensation could be granted. However, in the present proposal there is a setback of only 4.5 m for units 8 and 9 from the common boundary with No. 10, and in that setback area the main courtyard for unit 8 is provided. 31. There could be some overlooking of the adjoining property because of the raised ground levels in the courtyard of unit 8, although by itself I do not think it is a reason for refusal of the application. 32. Other matters were the subject of evidence, or were raised in the issues, but I do not intend to deal with them in any detail. I note that the number of carparking spaces complies with the DCP and that according to the evidence of Mr Hazell, manoeuvring and access and ramp gradients would be satisfactory. 33. The council raised, not as an independent matter for refusal but a matter which could be taken into account as not being altogether satisfactory, the fact that there could be some conflict with pedestrians using the garbage storage area or the visitor carparking space near the base of the ramp, and also presented some evidence to the Court that the carting gradients for the waste storage bins do not comply with a document entitled Better Practice Guide for Waste Management in Multi-Unit Dwellings published by Resource NSW, February 2002. 34. So for those reasons, and in particular for poor solar access for some of the private courtyards of the proposal, and the inadequate setbacks on the southern side of the development, the proposed development does not merit approval. 35. The orders of the Court are: 1. The appeal be dismissed. 2. The exhibits, other than exhibit H, may be returned. _________ A J Nott Commissioner of the Court mp

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