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[2013] NSWLEC 1144
Land and Environment Court (NSW)
2013-07-22
Original judgment source is linked above.
Judgment 1COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 10.2012.75.1 for the substantial redevelopment of an existing residential flat building (the proposal) by Ashfield Council (the Council) at 6 Kensington Road, Summer Hill (the site). 2The appeal was subject to mandatory conciliation on 13 March 2013, in accordance with the provisions of s34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 5 April 2013 pursuant to s 34(4) of the LEC Act.
Issues 3The Council's contentions in the matter can be summarised as:
The site and its context 5The site is located on the south-western side of Kensington Road, between Dover and Bogan Streets. The rear of the site backs onto the side boundary of 12 Dover Street. The site is 696.7 square meters in area and contains a Victorian Italianate two storey dwelling, with unsympathetic additions to the south-eastern side elevation and the rear. The existing building is divided into four apartments. There is a four car, single storey garage located at the rear of the site occupying the full width of the site, adjacent to the rear boundary. 6The locality is characterised by one and two storey freestanding and attached dwellings, mostly dating from the Victorian period, with several mid twentieth century residential flat buildings.
Background 7The parties brought to my attention two cases decided by the Court of Appeal concerning the site, which establish that the use of the building at 6 Kensington Road, Summer Hill is for the purpose of a residential flat building and that this is an existing use within the meaning of s 106 of the EPA Act (Ashfield Municipal Council v Armstrong [2002] NSWCA 269 at [51]) and that the existing use is not restricted to the surface area of the site and may include the provision of a basement carpark (Ashfield Municipal Council v L Armstrong [2003] NSWCA 353 at [45]). 8Mr Seton submits that a previous Class 1 appeal referred to in the Statement of Environmental Effects (Exhibit 4, tab 2, folio 27-28) (Armstrong L v Ashfield Municipal Council [2004] NSWLEC 166) concerned a different proposal for the site and is therefore irrelevant to my consideration of the proposal before the Court.
The proposal 9The proposal is to demolish the unsympathetic additions to the original Victorian dwelling, retaining only the front two rooms and foyer on the ground and first floors. The retained fabric is to be converted into a single, two storey unit (Unit 1), with a kitchen addition and courtyard on the south-eastern side, living areas on the ground floor and two bedrooms and bathrooms on the first floor. 10The proposal includes a rear addition to the retained dwelling, consisting of two studio units, Unit 2 on the ground floor and Unit 3 on the first floor, both entered on the north-western side, from the communal pathway adjacent to the north-western boundary. Unit 2 has a courtyard on the south-eastern side of the building, adjacent to the courtyard to Unit 1 and separated by planter boxes. Unit 3 has a balcony on the south-eastern elevation with a privacy screen projecting from the handrail at 45 degrees. 11The proposal includes a new structure to the rear of the front building, separated from the front building by 5.73m, which is to accommodate Units 4 and 5, with a living area, bedroom and bathrooms on the ground floor and a bedroom and bathroom on the first floor of each unit, within the roof space. Unit 5 occupies the south-eastern side of the new structure and Unit 4 occupies the north-western side. Both units are entered from the communal pathway along the north-western boundary of the site, with entries, via their courtyards, located on the north-eastern side of the new structure. The new structure is setback 2.3m from both side boundaries and 4.25m from the rear boundary. 12Parking is to be provided in a basement carpark, which is entered from the eastern corner of the site via a ramp, which descends from the street boundary to the basement level, under the courtyards to Units 1 and 2. The carpark is generally located under Units 2, 4 and 5 and consists of 6 car spaces (including an accessible space) and circulation. The stair access to the ground level is located to the rear of Unit 2. The basement carpark is setback from the rear boundary 3.8m.
State Environmental Planning Policy 65 - Design Quality of Residential Flat Development 13Both parties submit that State Environmental Planning Policy 65 - Design Quality of Residential Flat Development (SEPP 65) does not apply to the proposal on the basis that the subject development is not a 'residential flat building' as defined by SEPP 65, as a residential flat building must be three or more storeys, at cl 3(1)(a) of SEPP 65, as follows: residential flat building means a building that comprises or includes: (a) 3 or more storeys (not including levels below ground level provided for car parking or storage, or both, that protrude less than 1.2 metres above ground level) 14The parties agree that the proposed basement car parking level does not protrude above ground level more than 1.2m and therefore the basement does not comprise a level, as defined by SEPP 65 at cl 3(1)(a).
Ashfield Local Environment Plan 1985 15The site is zoned Residential 2(a), under Ashfield Local Environment Plan 1985 (LEP 1985). 16The adjoining allotments to the south-east, 2 and 4 Kensington Road (group of two houses) and the allotment to the rear, 12 Dover Street are listed as heritage items, Schedule 7 of LEP 1985. The site is within the Summer Hill Heritage Conservation Area (Summer Hill HCA) (Exhibit 4, folio 147). Cl 37 of LEP 1985 states the following in relation to development in the vicinity of heritage items and within heritage conservation areas: The Council must assess and take into consideration the likely effect of the proposed development on the heritage significance of a heritage item, heritage conservation area, archaeological site or potential archaeological site, and on its setting, when determining an application for consent to carry out development on land in its vicinity. 17A residential flat building is prohibited in the 2(a) zone, however the site has the benefit of existing use provisions, pursuant to s 106 and 107 in the EPA Act, as follows: 106 Definition of "existing use" In this Division, existing use means: (a) the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for Division 4 of this Part, have the effect of prohibiting that use, and (b) the use of a building, work or land: (i) for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and (ii) that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse. 107 Continuance of and limitations on existing use (1) Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use. (2) Nothing in subsection (1) authorises: (a) any alteration or extension to or rebuilding of a building or work, or (b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or (c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of an existing use, or (d) the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 80A (1) (b), or (e) the continuance of the use therein mentioned where that use is abandoned. (3) Without limiting the generality of subsection (2) (e), a use is to be presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months. 18The parties agree that the planning principle in Fodor Investments v Hornsby Shire Council [2005] NSWLEC 71 (Fodor planning principle) is relevant to my consideration of this matter. The Fodor planning principle, at [17], is as follows: Four questions usually arise in the assessment of existing use rights developments, namely: · How do the bulk and scale (as expressed by height, floor space ratio and setbacks) of the proposal relate to what is permissible on surrounding sites? While planning controls, such as height, floor space ratio and setbacks do not apply to sites with existing use rights; they have relevance to the assessment of applications on such sites. This is because the controls apply to surrounding sites and indicate the kind of development that can be expected if and when surrounding sites are redeveloped. The relationship of new development to its existing and likely future context is a matter to be considered in all planning assessment. · What is the relevance of the building in which the existing takes place? Where the change of use is proposed within an existing building, the bulk and scale of that building are likely to be deemed acceptable, even if the building is out of scale with its surroundings, because it already exists. However, where the existing building is proposed for demolition, while its bulk is clearly an important consideration, there is no automatic entitlement to another building of the same floor space ratio, height or parking provision. · What are the impacts on adjoining land? The impact on adjoining land should be assessed as it is assessed for all development. It is true that where, for example, a development control plan requires three hours of sunlight to be maintained in adjoining rear yards, the numerical control does not apply. However, the overshadowing impact on adjoining rear yards should be reasonable. · What is the internal amenity? Internal amenity must be assessed as it is assessed for all development. Again, numerical requirements for sunlight access or private open space do not apply, but these and other aspects must be judged acceptable as a matter of good planning and design. None of the legal principles discussed above suggests that development on sites with existing use rights may have lower amenity than development generally. Justice Pain found, in Stromness Pty Limited v Woollahra Municipal Council [2006] NSWLEC 587 (Stromness) at [87]-[90], the following in relation to existing use rights and the Fodor planning principle: There is no entitlement to a development consent for a rebuilding, only an entitlement to make a development application. No case to which I have been referred has said that in the assessment of a development application to rebuild or intensify an existing use it is a given that the new proposal must be assessed as against what it replaces to determine if it is satisfactory. Principle 2 in Fodor states that where an existing building is proposed for demolition there is no automatic entitlement to another building of the same floor space ratio, height or parking provision. That is correct in my view, given the provisions of the EP&A Act I have outlined. If a merit assessment under s 79C is applied to a new building which is a rebuilding for the purposes of continuing an existing use, it is possible that the existing use holder will not be allowed to build something identical to that which already exists if a merits assessment results in the conclusion that the impacts under s 79C are unacceptable. 88 That is not to say that consideration of the building intended to be replaced is irrelevant to the merit analysis under s 79C. It may well be appropriate depending on the circumstances that the building intending to be replaced is considered, and I consider it is appropriate in this case to do so. The merits assessment is not confined to that comparison only however, it is also necessary to consider the development application more broadly under s 79C. The planning principles in Fodor can assist in that consideration. 89 Principle 1 in Fodor states that it is acceptable to consider the relevant planning instruments as these apply to the area surrounding the proposed development because these determine the nature of development in that area. That principle is not inconsistent with s 108(3) as the Applicant submitted. Care must be exercised, however, against the possibility that such an assessment leads to a de facto application of standards in environmental planning instruments to the existing use rights site. Failure to comply with standards in an environmental planning instrument cannot be a consideration in the assessment of the application based on existing use rights. The same can be said in relation to Principles 3 and 4 but these can clearly otherwise apply to assist in the merit review under s 79C. 90 I do not agree that matters such as the context of the proposed development cannot be taken into account as the Applicant argued when submitting that Mr Ingham's approach was incorrect. If the assessment under s 79C is to be adequate it must consider the proposal in its surroundings, and that is clearly a fundamental part of any analysis required under s 79C(1)(b) and (c).
Submissions 19Mr Jackson submits that the Ashfield Development Control Plan 2007 (DCP 2007) Part C5 Multi-unit Development in Residential Flat Zones is relevant to my consideration of the merits of the proposal, because although residential flat buildings are not permitted in the Residential 2(a) Zone, Part C5 will give me some guidance on the development standards applied by the Council to permissible residential flat buildings. 20Mr Seton submits that Part C5 of DCP 2007 is irrelevant to my consideration of the matter, because residential flat buildings are prohibited in the Residential 2(a) Zone and therefore Part C5 gives no guidance to the kind of development that can be expected if and when surrounding sites are redeveloped.
Findings 21The Fodor planning principle states that it is acceptable to consider the relevant planning controls for surrounding sites as they indicate the kind of development that can be expected if and when surrounding sites are redeveloped and Justice Pain confirms this in Stromness at [89]. 22According to the Fodor planning principle, the only relevant planning controls are those that apply to surrounding sites, because they determine the nature of development in the area. Part C5 of DCP 2007 does not apply to the sites surrounding the proposal, because the surrounding sites are all zoned Residential 2(a) and residential flat buildings are prohibited in the Residential 2(a) Zone. 23Therefore I agree with Mr Seton, that Part C5 of DCP 2007 is irrelevant to my consideration of this matter, because the controls in Part C5 do not apply to surrounding sites. 24The following parts of DCP 2007 are relevant to my consideration of this matter, as they apply to the Residential 2(a) Zone and indicate the likely nature of development in the locality, however, as cautioned by Her Honour in Stromness at [89], failure to comply with these standards cannot be determinative in an application based on existing use provisions:
Public submissions 34The owner and resident of 12 Dover Street, adjoining the site to the rear, provided evidence at the commencement of the hearing on site and the Court, in the company of the parties and their experts, viewed the site from his garden at 12 Dover Street. He objects to the proposal because it is an overdevelopment of the site and the proposed structure in the rear garden is uncharacteristic within the locality and adjacent to heritage items. He acknowledges that he welcomes amendments to the proposal made prior to the hearing, including increasing the rear setback to 4.25m at the ground floor level (3.8m at the basement level) in order to preserve the root ball of the canopy trees located on his property, adjacent to the shared boundary and providing obscure glazing in the windows of the first floor rear dormers to prevent overlooking. 35A number of written submissions were tendered to the Court (Exhibit 5) and the reasons provided for objecting to the proposal are generally addressed by the Council's contentions.
Expert evidence 36Expert planning evidence was provided by Mr Gerard Turrisi on behalf of the Applicant and Mr Anthony Betros on behalf of the Council. 37The Council submits that the 'Landscape Calculations' shown on each plan are incorrect, following amendments made to the drawings and the applicant does not dispute this. The parties agree that the front setback is not a private courtyard to Unit 1 as shown on the architectural plans.
Impact on the amenity of 12 Dover Street 38The experts agree that the proposal has little or no impact on the amenity of 12 Dover Street.
Bulk and scale 39The experts disagree on the whether the proposal is an overdevelopment of the site. Mr Turrisi says that the front building (Units 1, 2 and 3) occupies a similar building footprint to the existing building and that the proposed rear building (Units 4 and 5) occupies an additional 15m2 when compared to the existing garage, which is to be demolished. He says that neighbouring residential flat buildings have little or no landscaping in their rear yards. 40Mr Betros, on the other hand, says that the bulk, scale and siting of the proposed development is inappropriate because the proposal introduces a substantially greater bulk than the existing, which results in amenity impacts on 4 Kensington Road and which is uncharacteristic in the residential area. He says the height and scale of the development at the rear will overwhelm surrounding properties and that the proximity of the site to heritage items and its setting within a heritage conservation area requires a more sensitive design response.
Impact on the adjoining dwelling 41The experts disagree on the impact of the proposal on the adjoining dwelling, 4 Kensington Road. According to Mr Turrisi, the proposal retains a similar relationship to the adjoining allotment in terms of levels and overlooking and the proposal introduces additional planting along the south-eastern boundary to enhance the privacy between dwellings. He says because Unit 2 is a studio, it will have low occupancy numbers utilising the private courtyard. He says that the main external living areas of 4 Kensington Road are at the rear of the allotment. 42According to Mr Betros, the side-facing living areas of Units 1 and 2 and their private open space face towards the side elevation of 4 Kensington Road which results in amenity impacts on the outdoor area to the side of the adjacent property and represents a poor design solution. 43The Applicant submits that the 1.8m high privacy screens to the courtyards of Units 1 and 2 are deleted, despite being shown on DA05 South East Elevation.
Internal amenity 44The experts agree that in mid-winter Unit 2 will have less than 15 minutes of sunlight internally and approximately 1.5 hours of sunlight in the private courtyard; Unit 4 will have approximately 1 hour of sunlight internally and 1 hour of sunlight in the private courtyard; and Unit 5 will have approximately 45 minutes of sunlight internally. Mr Turrisi says the private courtyard of Unit 5 will have 1.5 hours of sunlight and Mr Betros says that the 1.8m fence on the boundary of the private courtyard of Unit 5 will overshadow the courtyard and it will therefore have no sun in mid-winter. 45Mr Turrisi says that the constraints and orientation of the site prevent the living rooms and private open spaces of Units 2, 4 and 5 from receiving a more generous amount of sunlight between 9am and 3pm in mid winter. 46Mr Betros says that the lack of solar access to living areas and private open spaces of Units 2, 4 and 5 between 9am and 3pm in mid-winter demonstrates the poor design resolution of the proposal. 47Mr Turrisi says that the two windows in the rear façade of the front building have sills at 1.5m above floor level and this, coupled with the adequate separation between the two buildings, means that the privacy of the private courtyards and north-eastern elevations of Units 4 and 5 are not compromised. 48Mr Betros says that the internal amenity for Units 4 and 5 is poor and this is demonstrated by their lack of outlook, limited access to sunlight, limited access to useable private open space and poorly resolved bedroom layouts. 49According to Mr Turrisi, the main bedrooms of Units 4 and 5 are 3.7 x 3.8m and the area under the dormer is 1.8m wide x 3.1m long, which is adequate space for a chair. Mr Betros says that the layout of the main bedrooms of Units 4 and 5 is poor and their only access to light and ventilation is at the end of the recess for the dormer window.
Landscaping 50According to Mr Betros the site layout leaves little opportunities for canopy trees as there is a lack of meaningful landscape setbacks and Mr Turrisi says that 2-3 canopy trees can be accommodated on the site, at the rear of the site and in the courtyard of Unit 4.
Findings 51This site is constrained by the desire to retain the existing portion of the original Victorian building; its orientation, coupled with the scale of the residential flat building to the north of the site which creates significant overshadowing during winter; and its location within an established historic and aesthetic precinct, including adjoining heritage items and the Summer Hill HCA. These constraints require a very skilful design response in order to achieve a well designed building that contributes to the existing historic character of the locality.
Fodor planning principle 52The Fodor planning principle and its clarification by Justice Pain in Stromness, essentially says that the suite of controls that apply on surrounding sites gives guidance to what development may be expected in the locality and therefore what is envisaged for the context of the proposal benefiting from existing use provisions, however non-compliance with the controls that apply on surrounding sites is not sufficient grounds for the refusal of the proposal. It also says that the amenity impacts of the proposal on adjoining sites are a relevant consideration. 53The four questions posed by Fodor are as follows: 1. How do the bulk and scale (as expressed by height, floor space ratio and setbacks) of the proposal relate to what is permissible on surrounding sites? 2. What is the relevance of the building in which the existing takes place? 3. What are the impacts on adjoining land? 4. What is the internal amenity?
How do the bulk and scale of the proposal relate to what is permissible on surrounding sites? 54The requirement for a minimum of 50% of the site to be landscaped area for surrounding sites (DCP 2007, Part C15, Section 2 at 2.0) and 70% of the landscaped area to be deep soil planting areas (DCP 2007, Part C15, Section 2 at 4.7) with open space areas at the rear to be provided for private recreation, clothes drying and planting, means that surrounding sites generally have vegetated backyards which provide a buffer between properties and links to vegetated adjoining rear yards. 55I note that attached dual occupancy dwellings are mandatory in heritage conservation areas (DCP 2007, Part C15, Section 3, at 1) in order to ensure that both dwellings are designed to appear as one large dwelling, with no isolated houses placed where there would otherwise be gardens. This is particularly relevant, as it seeks a 'single house look' with a garden at the rear for multiple dwellings on one allotment within heritage conservation areas. This highlights that the proposal, with a 'single house look' at the front and a separate dwelling at the rear, is uncharacteristic in the locality and not what is envisaged by Council's development controls to be appropriate within a heritage conservation area. 56I am satisfied that the bulk and scale of the front building relates appropriately to what is permissible on surrounding sites. 57However, the position of the rear building of the proposal, occupying the majority of the rear yard, is uncharacteristic in the locality when compared to what is permissible on surrounding sites. The descent of the driveway from the front boundary into the basement carpark is also uncharacteristic when compared to existing front setbacks in the area, as basement garages and driveways to access those garages, which are visible from the street, are not supported for surrounding sites (DCP 2007, Part C15, Section 2 at 3.8). 58As the majority of the fabric of the existing building is proposed for demolition, there is no automatic entitlement to another building of the same floor space ratio, height or parking provision. 59In my view, the design of the rear building is unarticulated and expedient and the private courtyards associated with the rear building are accidental, left over spaces that lack composition. 60There is little relationship between the addition to the front building and the original fabric, which is evidenced by the contrast in roof pitch between the front and rear of the building, the detailing of the balustrade to Unit 3, the positioning and proportions of the windows in the rear façade and the position of the ventilation stack.
What are the impacts on adjoining land? 61I accept the experts' agreement that there are no amenity impacts on 12 Dover Street, to the rear of the site. 62I agree with Mr Betros' evidence that the side-facing private open space of Units 1 and 2 result in amenity impacts, including visual and acoustic privacy impacts, on the outdoor area at the side of 4 Kensington Road, which represents a poor design solution. Both courtyards are the only outdoor private open space for each unit and they are located 900mm from the shared boundary with 4 Kensington Road, with a clear view to the ground floor windows of the north-western elevation of the adjoining dwelling.
What is the internal amenity? 63The internal amenity of the units is compromised by the awkward spatial planning of the units and unresolved design issues, as follows:
Conclusion 65The proposal is not based on careful analysis of the site and its relationship to the surrounding context, nor the opportunities and constraints of the site and it does not achieve a well designed building. 66The position of the rear building of the proposal, occupying the majority of the rear yard, is uncharacteristic within the locality, when compared to what is permissible on surrounding sites. 67I am not satisfied that the proposed 900mm setback of the private outdoor spaces of Units 1 and 2 and proposed planting along the south-western boundary is sufficient to avoid impacts on the visual and acoustic privacy of the neighbour at 4 Kensington Road. 68I am not satisfied that the spatial layout of the units is functional and well organised and that they provide an adequate standard of residential amenity.
Orders 69The orders of the Court are: (1)The appeal is dismissed. (2)Development Application No. 10.2012.75.1 for the substantial redevelopment of an existing residential flat building is refused. (3)The exhibits, other than exhibits 1 and A, 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: 06 August 2013
Armstrong
Ashfield Council