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.