Amine, Mouhamad & Anor v Bankstown City Council

The site and its context 5The site on the western side of Victoria Street, between Beaconsfield Road to the south and Carrington Road to the north. The site contains a dilapidated cottage and separate garage. 6There are two attached, two storey dwellings to the north of the site, with a single storey granny flat at the rear. 7There are detached dwellings, dual occupancies and villa developments within the vicinity of the site. 8Revesby Public School is opposite the site, on the corner of Victoria Road and Beaconsfield Road.

The proposal 9The proposal is to demolish the existing structures on the site and construct three detached villas. The eastern, streetfront villa, Unit 1, is two storeys with a double garage, living areas, four bedrooms and a rear courtyard; the middle villa, Unit 2, is two storeys with a single garage, living areas, two bedrooms and two courtyards; and the western, rear villa, Unit 3, is two storeys with a single garage, living areas, three bedrooms and two courtyards. Driveway access to the three villas is adjacent to the southern boundary.

Planning Framework 10The proposal is made pursuant to the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH), Part 2 'New affordable rental housing', Division 1 'In-fill affordable housing'. 11The relevant aims of SEPP (ARH) at cl 3 include: (a) to provide a consistent planning regime for the provision of affordable rental housing, (b) to facilitate the effective delivery of new affordable rental housing by providing incentives by way of expanded zoning permissibility, floor space ratio bonuses and non-discretionary development standards, (c) to facilitate the retention and mitigate the loss of existing affordable rental housing, (d) to employ a balanced approach between obligations for retaining and mitigating the loss of existing affordable rental housing, and incentives for the development of new affordable rental housing, 12Clause 10 of SEPP ARH provides the following in relation to what development is defined as infill affordable housing, for the purposes of the SEPP (ARH): (1) This Division applies to development for the purposes of dual occupancies, multi dwelling housing or residential flat buildings if: (a) the development concerned is permitted with consent under another environmental planning instrument, and (b) the development is on land that does not contain a heritage item that is identified in an environmental planning instrument, or an interim heritage order or on the State Heritage Register under the Heritage Act 1977. (2) Despite subclause (1), this Division does not apply to development on land in the Sydney region unless all or part of the development is within an accessible area. (3) Despite subclause (1), this Division does not apply to development on land that is not in the Sydney region unless all or part of the development is within 400 metres walking distance of land within Zone B2 Local Centre or Zone B4 Mixed Use, or within a land use zone that is equivalent to any of those zones. 13SEPP (ARH) prevails to the extent of any inconsistency between it and any other environmental planning instrument, at cl 8. 14Clause 14 of SEPP (ARH) 'Standards that cannot be used to refuse consent', includes, at (b), 'if the site area on which it is proposed to carry out the development is at least 450 square metres'. 15Clause 16A of SEPP (ARH) requires that a consent authority must not consent to an infill affordable housing development unless it has taken into consideration whether the design of the development is compatible with the character of the local area. 16State Environmental Planning Policy No 1 - Development Standards (SEPP 1) provides flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in section 5 (a) (i) and (ii) of the Act, at cl 3. 17The site is zoned 2(a) pursuant to the Bankstown Local Environment Plan 2001 (LEP 2001) and villas are permissible in the 2(a) zone, at cl 11. Villas is defined in the dictionary at Schedule 1 of LEP 2001 as follows: villas means three or more dwellings on a site sharing part of the site for access or open space or site facilities. 18The objectives of LEP 2001 include, at cl 2(v), 'new development in or affecting residential areas should be compatible with the prevailing suburban character and amenity of the locality of the development site'. 19Clause 30B, 'Height of buildings' commenced on 24 March 2014, after the proposal was lodged at Council on 28 January 2014. The savings and transitional provision, at cl 7A of LEP 2001, states: A development application made (but not finally determined) before the commencement of LEP 2001 (amendment no 46) may be determined and have effect as if that plan had not been made. 20Accordingly, the provisions of LEP 2001 (amendment no. 46) must be considered (s 79C(1)(a)(ii) of the Environmental Planning and Assessment Act 1979). 21Clause 30B includes the following: (1) The objectives of this clause are as follows: (a) to ensure that the height of development is compatible with the character, amenity and landform of the area in which the development is located, (b) to maintain the prevailing suburban character and amenity in the low density residential environment by limiting the height of development to a maximum of 2 storeys in Zone 2 (a), (c) to provide appropriate height transitions between development, particularly at zone boundaries, (d) to define focal points by way of nominating greater building heights in certain locations. (2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map. (3) Despite subclause (2), the following height restrictions apply to particular types of development within Zone 2 (a): (i) the maximum building height of any dwellings facing the street must not exceed 9 metres and the maximum wall height must not exceed 7 metres, and (ii) the maximum building height for all other dwellings at the rear of the lot must not exceed 6 metres and the maximum wall height must not exceed 3 metres. 22The draft Bankstown Local Environment Plan 2014 (draft LEP 2014) includes, at cl 4.3(5)(ii), a maximum building height for all other dwellings within Zone R2 Low Density Residential at the rear of allotment must not exceed 6m and the maximum wall height must not exceed 3 metres. 23Sub-clause 44(1) of LEP 2001 includes the following relevant objectives for the residential zones: (a) to complement the single dwelling suburban character of the residential areas of Bankstown City, and (b) to enable dual occupancy, rowhouse and villa development that is otherwise consistent with the objectives of the zone, and (c) to ensure that sites are of sufficient size to provide for buildings, vehicular and pedestrian access, landscaping and retention of natural topographical features, and (d) to ensure that development is of a height and scale which complements existing buildings and streetscapes (noting that 2 storey dwellings may occur throughout residential areas), and (e) to allow for some non-residential use that would not adversely affect the living environment or amenity of the area, and (h) to require satisfactory drainage 24The general restrictions on development, including development in the 2(a) zone, at sub-cl 45(1), requires it to be compatible with the character and amenity of existing and likely future buildings on adjoining land in terms of its (a) scale, bulk, design, height, siting and landscaping and (f) stormwater drainage. 25The consent authority may grant consent to the subdivision of a single allotment of land within zone 2(a) to create not more than two allotments for the purpose of a dwelling on each allotment, provided the area of the allotment, exclusive of access corridor, is 450 square metres and each allotment contains a rectangle with sides of 10 and 15 metres behind the setbacks and the building line of the proposed dwelling, at sub-cl 46(2) of LEP 2001. 26The development standards for villas in LEP 2001, at sub-cl 46(3), include the following: The consent authority is not to grant consent to development for the purpose of villas on an allotment of land within Zone 2 (a) or 2 (b) unless: (a) the allotment has an area of 1,200 square metres or more, and (b) the allotment is at least 20 metres wide at the front building line, and (c) the site area per villa (excluding the area of access handles or rights of way for access) is not less than 300 square metres. 27Gross Floor Area is defined in the dictionary of LEP 2001 at Schedule 1 as follows: gross floor area means the sum of the areas of each floor of a building where the area of each floor is taken to be the area within the outer face of the external enclosing walls (or the roof structure, in the case of a loft) as measured at a height of 1,400 millimetres above each floor level, excluding: (a) columns, fin walls, sun control devices, awnings and any other elements, projections or works outside the general lines of the outer face of the external walls, and (b) lift towers, stairwells, cooling towers, machinery and plant rooms and ancillary storage space and air-conditioning ducts, and (c) car parking needed to meet any requirements of the Council and any internal designated vehicular or pedestrian access to it, and (d) space for the loading and unloading of goods, and (e) internal public arcades and thoroughfares, terraces, balconies with outer walls less than 1,400 millimetres high and the like, and (f) outbuildings, with an area of not more than 70 square metres used for purposes ancillary to a dwelling house. 28Loft is defined in Part C 'Definitions' of Bankstown Development Control Plan 2005 (DCP 2005) as follows: Loft means the gross floor area contained within the roof space of a dwelling where: (a) the pitch of the roof creating the space does not exceed 35 degrees; and (b) the external enclosing walls do not exceed a height of 300mm measured vertically from the floor level of the loft, but does not include gabled end walls; and (c) there is no balcony, terrace and the like forming part of the loft; and (d) the gross floor area of the loft does not exceed 60% of the gross floor area of the storey immediately below; and (e) one or more dormers may form part of the loft; and (f) the floor area of a stairwell to the loft is calculated once as part of the gross floor area. 29The objectives for villas at Part D2, Section 8 of DCP 2005 are as follows: (a) to ensure the building form, building design and landscaping of villas are compatible with the prevailing suburban character of the residential areas, particularly the single dwelling suburban character of the low density residential areas; (b) to ensure the building form and building design of villas provide appropriately amenity to residents in terms of private open space, access to sunlight and privacy; (c) to ensure the building form and building design of villas do not adversely impact on the amenity of neighbouring properties in terms of visual bulk, access to sunlight and privacy; (d) to ensure the building form of villas in the foreshore protection area preserves the existing topography, land and rock formations, and the unique ecology of natural bushland and mangrove areas; (e) to provide adaptable dwellings to cater for the needs of senior residents and residents with disabilities; and (f) to minimise the visual impact of off-street parking on the streetscape. 30The parties agreed that the planning principle in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 at pars 22-30 (the Project Venture planning principle) is a relevant consideration. The Project Venture planning principle was recently confirmed by the Senior Commissioner as a relevant and appropriate planning principle in Revelop Projects Pty Limited v Parramatta City Council [2014] NSWLEC 1167 at par 31. The Project Venture planning principle is as follows: 22 There are many dictionary definitions of compatible. The most apposite meaning in an urban design context is capable of existing together in harmony. Compatibility is thus different from sameness. It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve. 23 It should be noted that compatibility between proposed and existing is not always desirable. There are situations where extreme differences in scale and appearance produce great urban design involving landmark buildings. There are situations where the planning controls envisage a change of character, in which case compatibility with the future character is more appropriate than with the existing. Finally, there are urban environments that are so unattractive that it is best not to reproduce them. 24 Where compatibility between a building and its surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked. Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites. Is the proposal's appearance in harmony with the buildings around it and the character of the street? 25 The physical impacts, such as noise, overlooking, overshadowing and constraining development potential, can be assessed with relative objectivity. In contrast, to decide whether or not a new building appears to be in harmony with its surroundings is a more subjective task. Analysing the existing context and then testing the proposal against it can, however, reduce the degree of subjectivity. 26 For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment. In some areas, planning instruments or urban design studies have already described the urban character. In others (the majority of cases), the character needs to be defined as part of a proposal's assessment. The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping. In special areas, such as conservation areas, architectural style and materials are also contributors to character. 27 Buildings do not have to be the same height to be compatible. Where there are significant differences in height, it is easier to achieve compatibility when the change is gradual rather than abrupt. The extent to which height differences are acceptable depends also on the consistency of height in the existing streetscape. 28 Front setbacks and the way they are treated are an important element of urban character. Where there is a uniform building line, even small differences can destroy the unity. Setbacks from side boundaries determine the rhythm of building and void. While it may not be possible to reproduce the rhythm exactly, new development should strive to reflect it in some way. 29 Landscaping is also an important contributor to urban character. In some areas landscape dominates buildings, in others buildings dominate the landscape. Where canopy trees define the character, new developments must provide opportunities for planting canopy trees.

Expert evidence 31Expert planning evidence was provided on behalf of the Council by Ms Kirsty Bova and on behalf of the applicant by Mr Benjamin Black. 32The experts agreed that the local area, for the purposes of cl 16A of SEPP (ARH) consists of Victoria Street and Beaconsfield Street (exhibit 5) and that there are examples in the local area of development that extends to the rear of the allotment. 33The experts disagreed on whether the proposal is permissible. According to Ms Bova, the SEPP 1 objection to the development standard for villas at cl 46(3) of LEP 2001 is not well founded and consequently the proposal is not permissible in the 2(a) zone, which does not satisfy cl 10(1)(a) of SEPP (ARH). 34The experts disagreed on whether the proposal is consistent with the character of the local area. According to Ms Bova, the character of the local area is a mix of single dwellings, dual occupancies, with some amalgamated lots for townhouses. In her view, the bulk and scale of the proposal, in particular, the two storey form of the rear dwellings, Units 2 and 3, is inconsistent with single storey (or single storey with lofts) development at the rear of sites in the area. 35According to Mr Black, the local area is residential, with low and medium density development, with consistent setbacks. In his view, the bulk and scale of the rear dwellings of the proposal is consistent with development in the local area. He cited the Project Venture planning principle in justifying his view that that compatibility does not mean sameness. 36The experts disagreed on whether the rooms in the roofs of the rear dwellings could be classified as lofts. According to Ms Bova, the design of Unit 3 does not meet the definition of 'lofts' in DCP 2005, as the northern facade of the kitchen and master bedroom, adjacent to the courtyard, is greater than 300mm measured vertically from the floor level of the loft and is not a gabled end wall. In her view, the large voids in the roof spaces of Units 2 and 3 could be used as habitable area without changing the envelope of the villas. According to Mr Black, the floor area of the first floors of Units 2 and 3 does not exceed 60% of the gross floor area of the ground floor. 37According to Ms Bova, the proposal, if approved, would provide a planning precedent for villa development on smaller lots in the Bankstown Local Government Area (Bankstown LGA). 38The experts agreed that the proposal complies with the minimum private open space requirements of 60sqm per dwelling.

Submissions 39According to Mr Zoppo, the SEPP (ARH) only applies if the Court is satisfied that the proposal is permitted under another environmental planning instrument and until the Court considers and deals with the SEPP 1 objection, the requirement for a 20m frontage for a villa development in LEP 2001 acts as a constraint to the granting of development consent. 40The parties agreed that sub-cll 10(2) and (3) of SEPP (ARH) are satisfied. 41The parties agreed to a deferred commencement condition requiring the applicant to obtain an easement for drainage over the property to the rear of the site and Mr Zoppo submitted that the deferred commencement condition satisfies Council's contention regarding drainage.

Permissibility and development standards 42The proposal is permissible, as it satisfies sub-cl 10(1)(a) of SEPP (ARH). Villas are a permissible form of development in the 2(a) zone and the proposal is consistent with the definition of villas in the dictionary of LEP 2001, therefore the proposal satisfies sub-cl 10(1)(a) of SEPP (ARH) as it is permitted with consent under another environmental planning instrument, LEP 2001. Whether or not a proposal meets the underlying environmental or planning objectives of the development standards is a separate question and has no bearing on the permissibility of a proposal. 43The development standards for villas, at cl 46 of LEP 2001, requiring a minimum site area of 1200sqm, an allotment 20m wide at the front building line and a minimum site area per villa of 300sqm, are all inconsistent with sub-cl 14(b) of SEPP (ARH), requiring a minimum site area of 450sqm (otherwise a standard can be used to refuse consent). The development standards for villas in LEP 2001 cannot be used to refuse consent, at cl 14 of SEPP (ARH), as the site area is 923sqm. 44One of the aims of SEPP (ARH) is to promote the provision of affordable rental housing by the private sector, by providing incentives for development to include a component of new, affordable rental housing, including, at sub-cl 3(b), expanding non-discretionary development standards. The development standards for villas, at cl 46 of LEP 2001, work together to require villa developments to be sited on large, amalgamated sites. Importantly, this proposal is not solely a villa development, it includes a component of new, affordable rental housing and as such, the incentives of the SEPP (ARH) provisions, designed to encourage the supply of affordable rental housing, permit this development to occur on a smaller site that would otherwise be required for a villa development under LEP 2001. For this reason and pursuant to cl 14 of SEPP (ARH), the development standards for villas in cl 46 of LEP 2001 cannot be used to refuse consent and therefore a SEPP 1 objection is not required. 45However, there is no inconsistency in taking the development standards for villas, at cl 46 of LEP 2001, into consideration for the purposes of cl 16A of SEPP (ARH) (Succar v Bankstown City Council [2012] NSWLEC 1255 par 15). 46Furthermore and for the same reason, I reject the Council's assertion that this proposal, if granted consent, would act as a precedent for villa development on smaller sites in the Bankstown LGA.

Compatibility with the character of the local area 47Consent cannot be granted unless consideration has been given to whether the proposal is compatible with the character of the local area, pursuant to cl 16A of SEPP (ARH). 48The provisions of cl 30B of LEP 2001 (amendment 46), requiring at 3(ii) the dwellings at the rear of the allotment to not exceed a height of 6m, must be considered, pursuant to the savings and transitional provision at cl 7A. 49The key dispute between the experts is focused on the two storey form of the rear dwellings, Units 2 and 3. Ms Bova is of the opinion that the bulk and scale of these two dwellings is inconsistent with the single storey and single storey with lofts development at the rear of sites in the area and Mr Black is of the opinion that the bulk and scale of Units 2 and 3 is consistent with the low and medium density development in the local area. 50Unit 2 has a gable roof with the ridge running east to west, parallel with the side boundary and a lower roof over the garage on the eastern side of Unit 2. The roof plan (DA005 exhibit A) indicates a stepped ridge, however this is not reflected in the elevations of Unit 2 (DA003 exhibit A). The ridge of Unit 2 is 10.5m long and 6.8m above ground level (DA003 exhibit A) (scaling from the drawings as there are no levels shown on the site survey, exhibit B). 51Unit 3 has a gable roof with the ridge running north to south, parallel to the rear boundary. The ridge of Unit 3 is 12.4m long and 8.2m above ground (DA002, exhibit A). Again there are inconsistencies between the roof plan and elevations of Unit 3, as the ridge is shown at a constant height on the western and eastern elevations, however the southern elevation shows the roof ridge over the southern portion of the dwelling slightly lower, without showing the rest of the dwelling beyond. The roof plan (DA005, exhibit A) shows the roof over the southern portion of Villa 3 as a separate and slightly lower roof. 52While I accept Ms Bova's evidence that the height of the northern wall to the courtyard of Unit 3 means that the first floor of Unit 3 does not meet the definition of a loft in DCP 2005, not a great deal turns on whether or not the proposal meets the definition of lofts in DCP 2005. The test is whether the proposal is compatible with the character of the local area. 53The parties agreed that the proposal's physical impacts on surrounding development are acceptable. The question posed by the Project Venture planning principle is then, is the proposal's appearance in harmony with the buildings around it and the character of the street? The existing character of the local area is a mix of single dwellings with traditional back yards, dual occupancies and villa development, some on amalgamated lots, with the two storey component of these developments confined to the front portion of the site and with predominately single storey development at the rear of allotments, so that the bulk of the more intensive development in the local area is not easily visible from adjoining back yards. 54The proposal does not respond to the essential elements that make up the character of the surrounding built environment. It consists of high and large, unrelieved and steeply pitched gable roof forms for Units 2 and 3, which will result in the height, bulk and appearance of large, two-storey dwellings when viewed from adjoining back yards and the public domain. The two-storey form of Units 2 and 3 at the rear of the site is uncharacteristic when considered in the context of the local area and the design of the dwellings will result in imposing visual bulk at the rear of the site. 55The height and bulk of Units 2 and 3 belies the amount of accommodation provided by each dwelling, as the envelopes of the two dwellings are significantly greater than the floor space warrants, resulting in vast areas of wasted space, inefficient and poor circulation, awkward room layouts and poor connectivity. 56In my view, a more skilful design could provide probably much the same accommodation within a significantly lower and less bulky building envelope for Units 2 and 3, with better facade articulation and with much greater internal amenity and an efficient and functional layout, which is more likely to be compatible with the character of the local area.

Easement 57I accept the parties' agreement that the proposed deferred commencement condition (requiring the applicant to provide Council with a detailed design for the stormwater discharge pipeline from the site to the street drainage system in Albert or Beaconsfield Street and evidence of the creation and registration of an easement to drain water over one or more of the adjoining lots fronting Albert or Beaconsfield Street within 12 months of the consent) deals with the Council's contention regarding drainage.

Conclusion 58The proposal is permissible, as it satisfies sub-cl 10(1)(a) of SEPP (ARH). 59The development standards for villas, at cl 46 of LEP 2001 are all inconsistent with sub-cl 14(b) of SEPP (ARH), requiring a minimum site area of 450sqm (otherwise a standard can be used to refuse consent). The development standards for villas in LEP 2001 cannot, therefore, be used to refuse consent, at cl 14 of SEPP (ARH), as the site area is 923sqm. However, there is no inconsistency in taking the development standards for villas, at cl 46 of LEP 2001, into consideration for the purposes of cl 16A of SEPP (ARH). 60The proposal consists of high and large, unrelieved and steeply pitched gable roof forms for Units 2 and 3, which will result in the height, bulk and appearance of large, two-storey dwellings when viewed from adjoining back yards and the public domain. The two-storey form of Units 2 and 3 at the rear of the site are uncharacteristic when considered in the context of the local area, which consists of either back yards or predominately single storey development at the rear of allotments. 61The design of Units 2 and 3 will result in unacceptable and imposing visual bulk at the rear of the site and for this reason, I am not satisfied that the design of the development is compatible with the character of the local area and consequently, development consent should be refused.

Orders 62The orders of the Court are: 1.The appeal is dismissed. 2.Development Application No. 63/2014 for three villas at 66 Victoria Street, Revesby, is refused. 3.The exhibits, other than exhibit 2, are returned. Susan O'Neill Commissioner of the Court

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: 10 September 2014