Bushland Developments Pty Ltd v Warringah Council

CASES CITED: Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75

APPLICANT Mr D Thomas, solicitor SOLICITORS Hones Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr N Howie, solicitor SOLICITORS Wilshire Webb

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10537 of 2006 Bushland Developments Pty Ltd v Warringah Council

JUDGMENT This determination was given extemporaneously and it has been edited prior to publication 1 This is an extempore judgment for an appeal under s 97 of the Environmental Planning and Assessment Act against Warringah Council's refusal of a development application for the conversion of what is in existing storage area at the property known as 3 Evans Road, Harbord. The existing building on the subject site is a residential flat building which contains some 18 units and was built in the mid to late 1960's. The development is one that provides for 18 units and a communal open space area in terms of the curtilage (or the leftover areas from where the building does not occupy the land to the boundary) such that there is limited communal open space on the subject property. It provides for car parking for all of the residential units by way of hardstand or garaging. It provides for service areas in terms of communal clothes line and communal laundry area where individual washing machines are to the 18 units. It is an older style red textured brick building that sits on the corner of Evans Road and it is surrounded by generally residential dwelling houses although there are other residential flat buildings within the vicinity of the subject site.

2 The site is some five minutes walk to freshwater beach and there are other open space areas within the vicinity.

3 By way of background it is noted that a strata subdivision of the building was carried out in the 1970's and the storage space now proposed to contain a dwelling unit was attached to the residential unit immediately above. A subsequent strata title application to divide what was then Lot 1 was made such that the residential flat building on the floor above was severed from the storage space and the garage and the other storage lots known as Lots 20, 21 and 22 in the new strata title. At this time there was 'a restriction as to user' in terms that the space (that the Court is considering in terms of an additional dwelling unit) could not be used for habitable purposes except if it was owned by the company known as Bushland Developments. The unit above was subsequently sold after the 1990 re-strata subdivision and the (original and current) owner of this subterranean space is now seeking approval for it be used as a dwelling unit.

4 The Court must assess the development application in the context of the planning regime which includes the Warringah Local Environmental Plan 2000 and there is also a locality description for the Harbord locality in terms of Appendix H in that "the freshwater beach locality will remain characterised by detached style housing in landscape settings interspersed by existing apartment style housing and a range of complimentary and compatible uses".

5 Under the zoning of the subject site development for medium density and higher density purposes is no longer permissible within the area shown on Map 36 of the LEP. There is a small area only in Queensclilff that permits medium density development.

6 For the assessment of this development application the Court must assess the use of the storage space for a dwelling not whether it is prohibited in the zone. It is clear that the space currently exists and there are minor alterations required to the fabric of the building, that is the window configuration. The proposed unit can be described as subterranean in that the ground level for the living area is at a height of some 1.3 m below the natural ground level. The floor to ceiling height of the space is 2.4 m and of this 1.1 m is above the ground. This external wall area is to contain a window to service the main living area of the proposed unit. The floor space of the proposed unit is a similar size to many of the units within the building that is some 53 sq m, exclusive of the garaging and other storage area. There are two bedrooms and a bathroom with a combined kitchen, living area in the space under consideration.

7 The applicant contends that the constraint of the conversion provides a basis as to why the development should be approved and that the mitigating circumstances are that the location of the unit block is excellent in terms of its proximity to beaches and other open space areas. I have considered the relevant clauses under the LEP suffice to say have I refer to cl 12(1)(a) where the consent authority must be satisfied that the development is consistent with any relevant general principles of development in Pt 4. Part 4 in particular contains cl 64 and this requires that private open space be provided for all housing clearly set apart for private use and directly accessible from a living area of the dwelling and capable of serving as an extension of the dwelling for relaxation, dining, entertainment, recreation and children'/s play. Private open space must be capable of receiving not less than two hours of sunlight between 9 am and 3 pm during the winter solstice for 50% of the area of private open space. In the case of ground level private open space, other than for apartment style housing, in particular the minimum area and dimensions of private open space required for different forms of housing (that is dwellings other than apartment style) at ground level is 35 sq m. For apartment style which council does not concede that this particular proposal would fall under, it is 10 sq m. with a minimum dimension of 2.5 sq m. There are various other elements in terms of the standard such as privacy, building bulk, conservation and energy, etc., that the consent authority must take into consideration in an assessment of the application.

8 The other clauses that were brought to the Court's attention is cl 14(a). The proposed use is a category 1 development and as such it enjoys, for want of a better description, existing use rights for the residential flat building and therefore this could be extended to this space.

9 Clause 14(a) states despite other provisions of the plan the consent authority can consent to the carrying out of development if it is satisfied (a) of minor environmental impact; (b) does not to any significant extent or to the bulk, size, etc. (c) results in the improvement of the existing character of the locality and (d) is confined to the past lot. The applicant contends that the proposed development satisfies this clause.

10 In my assessment of this application, I must have regard not only to the planning regime but to accepted planning principles in terms of amenity for residential dwellings. On the one hand the applicant contends that constraints of the space should be taken into consideration and that allowances be made because of mitigating circumstances, are as I stated proximity to the beach. Amenity in the applicant's expert's opinion for internal amenity is partly due to how people take care of their dwelling or decorate their dwelling. I do not agree internal amenity is fundamental to the design and in terms of the suitability of this site that is the space of this storage unit, the Court is of the opinion in terms of 79C(1)(c) alone that the site is not suitable for its conversion to a dwelling.

11 It was agreed by the experts both for the applicant that is Mr Fletcher and council's expert town planner Ms Kaalsen that subterranean units are not only not common but they are not aware of consent being granted subterranean units. It would be irresponsible for the Court to allow for the conversion of a subterranean storage area for the purposes of a dwelling unit. I am not satisfied that the amenity of this space is appropriate for habitation and it would be an undesirable precedent in terms of other storage units in other residential flat buildings being converted. Precedent is not the determinative reason but it is a matter that the Court can take into consideration in its assessment and in this regard I am guided by the judgment of Lolyd J in Goldin & Anor v Minister for Transport Administering the Ports Corporation and Waterways Management Act 1995 [2002] NSWLEC 75.

12 On the question of the amenity issues first of all I will look at the issue of open space. I accept the respondent's submission that this on its own is fatal to the application. It would not be so fatal if the other amenity issues including such things as aspect, solar penetration, solar access compensated for the lack of private open space for of this dwelling. It could be seen on site that the amenity of the other units within this residential flat building do not enjoy private open space areas and rely on the communal open spaces and around the building but nonetheless the aspect and the general amenity of these dwellings is not overwhelmed by the oppressive nature of being a subterranean unit. Furthermore these units have an aspect and greater light and ventilation being entirely above ground level.

13 The proposal is not acceptable in terms of the expectations of the community and planning must have regard to safeguarding these in terms of today's guidelines. This includes the benefit of higher standards or guidelines included in SEPP 65 concerning amenity. Whilst I have not rigorously assessed the development application in terms of SEPP 65, nonetheless it does provide a guide and principle 7 for amenity "good design provides amenity to the physical environmental quality of the development and optimising amenity requires appropriate room dimensions and shapes, access to sunlight, natural ventilation, visual and acoustic privacy, storage, indoor and outdoor space, efficient layout and service areas, outlook and ease of access for all age groups and degrees of mobility". While not all developments will provide for the various tenets of this principle this particular space fails in that will not provide for basic elements of appropriate natural ventilation and access to sunlight or any outdoor open space area.

14 In terms of visual outlook the proposed space is also poor, with a sill height of 1.3 or 1.3 m below ground for the living area. This is not an appropriate outlook to compensate or mitigate for the lack of private open space that would be provided to this unit. There is no alternative space and no choice but to be within the confines of the space and this would be of an oppressive environment. Furthermore, the stair or the entrance doorway to the unit is not satisfactory and would not meet the standards of today. This is accessed off what is a communal passageway for access to the laundry facilities and the garaging for the other units.

15 It is noted that the layout of the units when built in the 1960's was that this area the lower ground floor having regard to the slope of the land provides at grade garages behind all the service requirements or communal facilities for a residential flat building that is a communal laundry and car parking areas, communal hanging space or clothes line area and perimeter planting for the building. The amenity of the units of the building generally would not meet the standards of today for new development and while this may not test, the test is whether the amenity of this storage space would provide for an appropriate outcome in terms of the provision of a dwelling in this subterranean area.

16 The suitability of the site for conversion it is not appropriate in terms of a merits assessment under s. 79C. As I said what is fatal to the application is the lack of any open space irrespective of whether that be by way of a balcony of only 10 sq m or whether it be assessed against other standards. This combined with the limited solar access and other issues of the access doorway, and aspect are also reasons for refusal. The central issue in the Court's mind is about the poor amenity of the proposed dwelling. When the building was built in the 1960's it was designated as a storage area and the expectations and standards of dwelling units today is much greater than in the 1960's. It would be a retrograde step and inexcusable for a consent to be granted for the use of this as a habitable space today.

17 The applicant said that the benefit to the public would be that it provides for an additional dwelling unit well located near facilities in particular the beach. This is not the test. The dwelling does not provide for acceptable amenity in terms of the internal living space. The fact that it is well located may in fact be a matter that people consider in their choice of other units within the residential building that do not have balconies but it could be seen on site that the amenity of this space is far less than the amenity afforded to the other residential units within the complex.

18 The issues in terms of a minimum of 450 sq m and other standards within council's controls I must have regard to but these are not fatal to the application. But rather an assessment under s 79C(1)(c) is fatal to the application in that the space is not suitable for a habitable dwelling unit. One cannot use the constraints of the existing building or the configuration of the building as an excuse to provide for substandard housing. This would be a most undesirable precedent in the Court's assessment. The application therefore would also fail in terms of s 79C - the public interest.

19 The issue of owner's consent does not need to be addressed because the application fails even if I was satisfied about the owner's consent. For cl 14(a)(iv) I recognise the proposal would not alter the bulk or scale of the building however, the internal environmental impact in terms of amenity for a future occupier is unacceptable. Furthermore the proposal will not result in an improvement to the existing character of the locality and a substandard dwelling is not in the public interest.

20 Accordingly on the basis of the Court's assessment, the formal orders of the Court are: 1. The appeal in respect of the property known as 3 Evans Street, Harbord, is dismissed. 2. The development application submitted to Warringah Council, and as amended is determined by the refusal of consent. 3. The exhibits may be returned, with the exception of the Plan, Exhibit 'A'.

              J S Murrell
              Commissioner of the Court
              Rjs/ljr

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