COMMISSIONER: This is a judgement in the matter of Celik v Bayside Council appeal number 2017/273603. This appeal was lodged against the deemed refusal by the Bayside Council of development application DA/286/2017. The application sought approval for demolition of the existing one and two storey dwelling house and the construction of a four storey attached dual occupancy. The development is proposed at 10 Lambert Road, Bardwell Park.
The appeal was subject to mandatory conciliation on 1 March 2018 (34AA of the Land and Environment Court Act 1979 (LEC Act)), however agreement was not reached and conciliation was terminated. The proceedings were dealt with as a hearing. The parties consented to the admission of evidence given during the conciliation conference in the hearing (s34AA(2)(b)(ii) LEC Act).
In hearing the appeal the role of the Court (cl 39 LEC Act) is to assess and determine the development application based on the evidence in the proceedings and the amended plans.
The issues for the Court to determine are:
1. whether the applicant's requested variation to the maximum height control is worthy of support; and
2. whether following an assessment of the merits of the application it warrants approval.
[2]
Public Submissions
The assessment of the original development application involved public notification to the surrounding neighbourhood in accordance with the Rockdale Development Control Plan 2011 (DCP 2011). Concerns raised in these submissions can be summarised as follows:
Overdevelopment and unsuitable development on site
Tree removal
Protection of the reserve and environment
Multiple occupancies with insufficient parking
Privacy
Physically dominant
Illegal truck access through reserve
Parking issues
Impact of biodiversity corridor
Construction issues i.e. noise/access
Large development in low density area
Clause 4.6 inadequate FSR and Height
Inadequate tree information
Ability of all cars to park within the site and not overhang
Inconsistencies in documentation
Building costs underquoted
Revised plans needed
Design of car parking inadequate
Not consistent with streetscape
Width of road and street parking insufficient
Garbage collection storage of bins
Council maintains the application should be refused on the following grounds:
1. the development is not compatible with the character and the locality;
2. the height, bulk and scale of the proposed development are excessive and result in unsatisfactory adverse impacts, and result in overdevelopment on the site;
3. the proposal has an unreasonable impact on the existing trees and biodiversity on and in proximity to the site;
4. the lack of appropriate interface with the public park that adjoins the site's rear boundary; and
5. adverse drainage impacts on the public reserve;
At the commencement of the hearing the applicant sought leave of the Court to rely on amended plans. These plans seek to respond to the issues raised by the Council in their Statement of Facts and Contentions (Exhibit 1). The applicant was granted leave to rely on these plans in the proceedings.
The Council made no formal submissions in relation to whether the changes were categorised as "minor" and therefore whether as costs order should follow. Following a review of the changes made between the two versions of the architectural plans I am satisfied that: following consideration of the tests in Future Space Pty Ltd v Kuring-gai Council [2009] NSWLEC 153 that the changes are appropriately classified as minor. As such I make no order as to costs.
[3]
Site and Locality
The subject site is located at 10 Lambert Road, Bardwell Park and is legally identified as Lot 92 Section A in DP 11368. The area of the subject site is 797sqm.
The topography surrounding the subject site slopes significant down towards the north-west, towards Wolli Creek. In the vicinity of the site, the pattern of development is relatively consistent with a predominance of one and two storey dwelling houses, with the prevalent building materials being red brick construction with terracotta tiled roofing. There is a fairly consistent pattern of street trees and roads are moderate in width. The site directly adjoins Lambert Road Reserve at the rear (to the north-west). The Reserve is readily accessible to the public by way of an access way between 4 and 6 Lambert Road.
To the north east of the site is 12 Lambert Road, a recently constructed two and three storey dwelling house of rendered masonry construction with parapet roofing. The dwelling is set back 4.7m from the street frontage, with a garage incorporated within the main building volume, setback 4.1m from the street boundary. A swimming pool is located to the rear of the dwelling. The front boundary to Lambert Rd is delineated by at 1.2m high sandstone faced fence. The pedestrian entrance to the dwelling is centrally located, whilst vehicular access to the site is via a driveway and crossover at the southern periphery of the site.
Adjoining the subject site to the south-west, is an older style one and two storey dwelling house of face brick construction with a terracotta tiled hipped roof. The dwelling is setback approximately 7m from the front boundary to Lambert Rd and the setback area contains some vegetation. The front boundary to Lambert Rd is delineated by metal fencing atop a low height brick fence, with two pedestrian access gates. A detached single car garage is located at the eastern corner of the site and is built with a nil setback to the front boundary and side boundary, adjoining the garage of the subject site. Pedestrian access to the dwelling is via a set of stairs down from street level to a central front entrance portico. Vehicular access to the site is via a concrete driveway crossover to the garage in the eastern corner.
[4]
Terrestrial biodiversity
A significant portion of the rear of the site is marked as "Biodiversity" on the Terrestrial Biodiversity Map under Rockdale LEP 2011. That portion forms part of a corridor of mapped land, which incorporates the majority of Lambert Road Reserve to the north west.
The application seeks to remove a number of trees at the rear of the site. The tree removals can be summarised as:
2 x trees of high landscape significance - Tree numbers 2 and 5;
2 x trees of moderate to high landscape significance - Tree numbers 3 and 4;
6 x trees of moderate landscape significance - Tree numbers 6, 7, 12, 13, 14 and 15;
1 x dead tree of low landscape significance - Tree 8.
(Exhibit 4)
[5]
Expert Evidence
The Court heard expert planning evidence from Mr Lewis Adey for the applicant, and Mr Lincoln Lawler for the Council. The experts participated in a joint conferencing process prior to the hearing which sought to address the issues in contention. As a result of the conferencing process they prepared a joint expert report which was tendered as Exhibit 3.
The Court heard expert arboricultural evidence from Mr Ross Jackson for the application and Mr Guy Paroissien for the Council. The joint report arriving from the joint conference was tendered as Exhibit 4.
An individual expert report on engineering was prepared by Mr Pulak Saha of Bayside Council. This evidence was tendered as Exhibit 2.
[6]
Planning controls
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies to the development. A BASIX was submitted with the original development application, but not with the amended plans on which the applicant relies. If the Court was minded to approve the application an updated BASIX certification would be required prior to the issue of a consent.
Rockdale Local Environmental Plan 2011 (LEP 2011) applies to the site. Pursuant to this instrument the site is zoned R2 Low Density Residential. The objectives of the R2 zone are as follows:
To provide for the housing needs of the community within a low density residential environment.
To enable other land uses that provide facilities or services to meet the day to day needs of residents.
To ensure that land uses are carried out in a context and setting that minimises any impact on the character and amenity of the area.
The proposal is defined as a 'dual occupancy development and torrens title subdivision'. Both are permissible with consent in the zone.
Pursuant to cl.4.3 Height for Buildings, the maximum height for buildings on the site is 8.5m. The non-compliance with the maximum height varies along and down the slope due to the existing topography of the land. The maximum exceedance relates to the parapet of the first floor which is described as varying the height plane by some 2.95m (Exhibit E).
The objectives of the height control are:
(a) to establish the maximum limit within which buildings can be designed and floor space can be achieved,
(b) to permit building heights that encourage high quality urban form,
(c) to provide building heights that maintain satisfactory sky exposure and daylight to buildings, key areas and the public domain,
(d) to nominate heights that will provide an appropriate transition in built form and land use intensity.
LEP 2011 at cl. 4.6, provides a degree of flexibility in the application of development standards to achieve better outcomes in certain circumstances.
However, consent must not be granted for a development that exceeds the development standard unless the Court has considered a request that adequately addressed the matters required to be demonstrated by cl. 4.6(3), namely:
1. Compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and
2. That there are sufficient environmental planning grounds to justify contravening the development standard.
Whether the Court accepts the applicant's cl. 4.6 variation request in relation to the variation of the maximum height of the development is a jurisdictional precondition to consent.
Given this provision must be satisfied to provide the consent authority power to approve the proposed development I will address the cl. 4.6 variation request, prior to consideration of the merit contentions.
The Rockdale Development Control Plan 2011 (DCP 2011) applies to the application. The provisions of the DCP relevant to the contentions in the proceedings are identified in Council's Statement of Facts and Contentions at Section 5.4 (Exhibit 1).
[7]
What is the height exceedance?
There is a contrast between the planning experts as to the extent of the height exceedance.
In oral evidence Mr Adey detailed his assessment of the height exceedance as an interpretative exercise utilising the survey floor plan and elevations to determine where the building has the greatest building height by reference to the applicable definition in LEP 2011.
He concludes that the maximum building height is 10.75m, a variation of 2.25m.
In contrast Mr Lawler relies on the elevational drawings. He utilises the natural ground line shown on the South elevation and the roof RL to conclude the maximum building height exceeds the control by 2.7 - 2.8m.
[8]
Findings
In undertaking a proper assessment of this application under cl 4.6 of LEP 2011 it is necessary to be clear what the extent of variation sought is.
The subject site is steeply sloping with a notable cross fall.
In these proceedings there are no constraints that would preclude the applicant determining the level directly beneath the highest parts of the building at relevant locations across the site and determining the maximum building height. I find that given the fall across the site I am not satisfied that the applicant has provided sufficient evidence or analysis to verify the variation sought in accordance with the LEP definition of building height.
Notwithstanding the above an overlay of the architectural plans, survey and elevations indicate the maximum height of the building is in the range of 11.5m (by reference to spot RL's 32.40 and 32.32 and the roof RL of 43.90 in proximity to the lift core shown on the plans).
On the basis of this analysis, the evidence of the planners and the site view I am satisfied I am capable of making an assessment of the merit of the variation request.
[9]
Is the request to vary the height standard well founded and worthy of support?
It is clear from a reading of cl. 4.6 of LEP 2012 that the onus is on the applicant to meet the tests of cl 4.6 in seeking flexibility to the height or FSR standards by demonstrating that the breaches of the development standards are justified. In this matter the applicant relies on a variation request for height.
In Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7 Preston CJ outlines that Commissioners, in exercising the functions of the consent authority on appeal, have the power to grant consent to developments that contravene the building height standard (cl.4.6(2)). However they cannot grant such a development consent unless they:
1. are satisfied that the proposed development will be consistent with the objectives of the zone (cl. 4.6(4)(a)(ii)).
2. are satisfied that the proposed development will be consistent with the objectives of the standard in question (cl. 4.6(4)(a)(ii)).
3. have considered a written request that demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and they are satisfied that the matters required to be demonstrated have been adequately addressed (cl. 4.6(3)(b) and cl. 4.6(4)(a)(i)).
I have applied these tests to the current application in the following.
[10]
Consistency with the zone objectives:
The site is with the R2 Low Density Residential zone, the objectives of which were provided earlier in the judgment.
Council contends that the development is inconsistent with the final objective of the zone namely to "ensure that land uses are carried out in a context and setting that minimises any impact on the character and amenity of the area."
On the basis of the impact to outlook and solar amenity of 8 Lambert Road, Bardwell Park and the impact on the adjoining reserve Council argues the development is inconsistent with the objective of providing housing in a low density residential environment.
Council's submission is supported by the evidence of Mr Lawler who states:
In the amended plan the height non-compliance "still creates an impact in regards to bulk and dominance and impacts on neighbours and adjacent reserve" (Exhibit 3).
The height non-compliance is in part a result of the architectural design not responding to the topography of the site and a lack of utilisation of void spaces.
Further Mr Lawler says that "by working with the site and stepping the development down the site, the impacts to the neighbour to the north in terms of solar access would be further reduced" (Exhibit 3).
that a detailed site analysis recognising the constraints and opportunities of the site, and working with the site, an appropriate architectural response could be achieved that is compliant with the controls.
In the tendered clause 4.6 variation request Mr Adey provides no assessment of the developments consistency with the zone objectives and focuses primarily on the proposal's achievement of the objectives of the height standard.
[11]
Findings
On the basis of the preceding evidence and submissions I am satisfied that the development as proposed is compatible with the objective of the provision of residential accommodation in a low density residential environment.
Equally, I am satisfied that the proposed residential land use is not sufficiently inconsistent with the objective of minimising impact on the character and amenity of the area to conclude the proposal is contradictory to the zone objectives.
In reaching the proceeding conclusions I accept that consistency in this context means 'agreeing or concordant', 'compatible', 'not self-imposed or self-contradictory' (Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190).
Pursuant to clause 4.6 (4)(a)(ii), I find the proposed development is compatible with the zone objectives.
[12]
Consistency with the objectives of the standard
In the preceding I listed the objectives of the height standard.
Council contends that the variation to the building height is inconsistent with achievement of: a "high quality urban form"; the objective to "maintain satisfactory sky exposure and daylight to buildings"; and is contrary to the objective to provide "an appropriate transition in built form and land use intensity."
Council argues that:
The height non-compliance, although reduced in the amended plans, is still prevalent in the proposed development and is a result of not responding to the topography of the site;
The development is not responsive to the constraints and opportunities of the subject site;
The development as designed provides a dominant, bulky and inappropriate façade to the public reserve which is contrary to the objective of providing a "transition in built form and land use intensity."
Further it is Mr Lawler's evidence that:
… whilst the height and floor space ratio controls set out the build and scale of development of the site, various degrees of intensity can be difference in relation to permissible land uses. The intensity and as such character of a dual occupancy development is difference to that of a dwelling house.
Given the difference degree of intensity associated with the amended development and the sensitivity of the landform and interface to the reserve the remaining non-compliance with the height has a dominance impact that is resultant from a design with significant void spaces, coupled with a repetitive façade results in impacts that are considered unacceptable (Exhibit 3).
Mr Lawler concludes "that a detailed site analysis recognising the constraints and opportunities of the site and working with the site that an appropriate architectural response could be achieved which is compliant with the controls" (Exhibit 3).
In the alternative Mr Adey, in the cl. 4.6 variation request argues (Exhibit R):
The height and scale of the proposed development relates to the topography of the site and the street character and does not unreasonably impact on the amenity of neighbouring and nearby properties in terms of overshadowing, privacy, visual intrusion and view loss.
The building is designed to step down its steep site whilst simultaneously retaining horizontal levels and context relative to immediately adjoining developments, particularly the recently constructed development at 12 Lambert Road, This stepping results in some small areas of height non-compliance which would not be visible from the street and are not readily visible from the reserve. This is because the building will align with, and will be visibly lower than, its neighbour.
The proposed height will contextually relate to its neighbours and enable a stepped development on the site. This ensures adequate outlook to the sky and of the district, both from the proposed dwellings and from existing neighbouring dwellings. Daylight and sub-light is satisfactory and compliant with Council's DCP requirements for solar access to the subject site and adjoining properties.
The property adjoins a public reserve and in this regard the stepped nature of the development, in addition to its horizontal alignment with neighbours ensures that the small areas of height non-compliance, which are towards the centre of the site, ensure a better presentation to the public domain. This is because a lower building would not align with its neighbours and could appear out of context.
(Exhibit R)
Further Mr Adey places weight on the benefit that arises from the development being designed for accessibility for persons in a wheelchair.
In conclusion Mr Adey argues:
…the proposed development is consistent with the established form of development on this side of Lambert Road, when viewed from the rear and the reserve. In particular the recently approved and constructed development at 12 Lambert Road, immediately adjacent to the subject site is significantly higher overall and more bulky in appearance that the subject proposal. This was approved under the current LEP and DCP and, as such, represents the anticipated and emerging character of the area. This appears as a 5 storey mass, due to the double height supporting wall at the rear adjacent to the reserve.
(Exhibit 3)
In oral evidence there was a divergence of opinion between the experts in relation to the projected impact of the proposed development on the solar amenity of 8 Lambert Rd, Bardwell Park. Part of the applicant's development application is a set of overshadowing diagrams depicting the projected shadows from the existing and proposed development.
It is Mr Adey's evidence that the proposed development would not have an adverse impact on the private open space of 8 Lambert Road and that this property will retain a level of solar access compliant with Council's DCP requirements.
In cross examination Mr Adey's assessment was that any additional overshadowing arising from the variation would only create an increase in overshadowing of the roof of number 8 Lambert, not a decrease in solar gain for the private open space. It was Mr Adey's conclusion that any impact from the variation in height was not classified as an "adverse impact"
In contrast is the evidence of Mr Lawler that the application provides insufficient information to determine that the neighbouring property (8 Lambert Rd) receives appropriate levels of solar access. Further he argues that given 83% of the length of the elevation most proximate to number 8 is non-compliant in height, there is uncertainty as to where the impact of this non-compliance is for the adjoining neighbour.
In oral evidence it was also Mr Lawler's conclusion that in terms of accessibility the development did not indicate the door and corridor widths, or bathroom configurations typical of an accessible design
Relevant to the assessment of the proposal's compliance with the final objective of the height standard is the evidence of the arboricultural experts. It is their agreed evidence that:
" the proposed removal of vegetation is inconsistent with Clause 4.17 of the DCP. In particular, the development does not meet the objectives "to ensure the existing urban forest amenity within the Rockdale City Council area is maintained and preserved does not meet the objective of 4.1.8 Biodiversity which is "to sustain and enhance biodiversity through the protection and conservation of locally occurring flora and fauna, the environment they live in and the way they interact".
(Exhibit 4)
[13]
Submissions
Mr Cole submits that the proposed development is inconsistent with the objectives of the height standard. In particular objective (d) which requires the proposed development to provide an appropriate transition in built form and land use intensity between the R2 zoned land of the subject site and the RE1 zoned land of the adjacent public reserve. It is his submission that this is not achieved by the application.
Mr Cole submits that the Court should apply the planning principles established in Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117. At [25] as quoted below:
25. As a matter of principle, at a zone interface as exists here, any development proposal in one zone needs to recognise and take into account the form of existing development and/or development likely to occur in an adjoining different zone. In this case residents living in the 2(b) zone must accept that a higher density and larger scale residential development can happen in the adjoining 2(c) or 2(d) zones and whilst impacts must be within reason they can nevertheless occur. Such impacts may well be greater than might be the case if adjacent development were in and complied with the requirements of the same zone. Conversely any development of this site must take into account its relationship to the 2(b) zoned lands to the east, south-east, south and south-west and the likely future character of those lands must be taken into account. Also in considering the likely future character of development on the other side of the interface it may be that the development of sites such as this may not be able to achieve the full potential otherwise indicated by applicable development standards and the like
Mr Cole relies on the evidence of Mr Lawler that the form of the development and the height exceedance is inappropriate and the application lacks sufficient information to determine the solar impact of the height exceedance on number 8 Lambert Road.
It is Mr Cole's submission that on this basis the application fails to meet the required test in cl. 4.6 and the variation should not be upheld by the Court.
In the alternative Mr Rigg acknowledges that cl. 4.6 is a precondition to consent and if not upheld by the Court the development is prohibited. It is his submission that the purpose of cl.4.6 is to provide flexibility exactly for circumstances such as this site where the topography, vegetation, and the adjoining zone of the site are considerations that warrant a flexible approach. Further he argues the outcome may be benefitted by an exceedance of height subject to any impacts being appropriate.
He relies on the evidence of Mr Adey that the part of the development that exceeds the height standard does not cause an impact to the solar access for number 8 Lambert Road. Further Mr Rigg argues that given the solar access remains compliant with Council's DCP controls, it cannot reasonably be classified as an "adverse" impact.
It is Mr Rigg's submission that the intent of cl.4.6 is that the variation results in a better planning outcome. This outcome he argues is equally "for" development as "from" development and it is appropriate for the Court to give weight to the benefit of the provision of a dual occupancy form of development in the locality and that the development will provide accessible housing.
Mr Rigg also made submission in relation to the merit of potential amendments to the application through an "Amber Light" approach. However these submissions are not pertinent to the consideration of the cl.46 variation request.
[14]
Findings
In considering the difference evidence on the consistency of the proposed development with the height standard objectives I accept the evidence of Mr Lawler that the development fails to meet the test of being consistent with the objectives of the development standard.
In summary I find that:
1. The applicant places undue weight on number 22 Lambert Road as a precedent for development on the subject site;
2. There is insufficient certainty, based on the information before the Court, to conclude that the breach of the height limit does not cause an adverse solar impact to number 8 Lambert or that the impact of the non-compliance will maintain satisfactory sky exposure as required by objective (f) of the height standard;
3. The onus is on the applicant to demonstrate by evidence reasoning that the variation is warranted and in the absence of the information mentioned in the preceding, this threshold is not met;
4. I find the height exceedance is exacerbated by the extent of exceedence adjacent the boundary with 8 Lambert, the overall volume of the building, its placement on the site and the material selection proposed. These factors and the vegetation removal proposed result in an overbearing building when viewed from the public reserve.
I am satisfied that the non-compliant building height and the proposal overall fails to achieve objective (b) to permit building height that encourages high quality urban form.
In my an assessment of the variation I have given consideration to the planning principal in Seaside Property Developments Pty Ltd v Wyong Shire Council. I conclude that the non-compliant building height fails to achieve objective (d) of the height control, namely to nominate heights that will provide an appropriate transition in built form and land use intensity.
For these reasons, and pursuant to cl. 4.6(4)(a)(ii), I find the proposed development is not consistent with objective (b) (c) and (d) of the height standard.
[15]
It is established that compliance is unreasonable or unnecessary?
Wehbe v Pittwater Council [2007] NSWLEC 827 at [44]-[48] detailed a number of approaches which may establish that compliance with a development standard is unreasonable or unnecessary for the purposes of cl.4.6(3)(a). Namely that: the objectives of the standard are achieved notwithstanding non-compliance with the standard (Wehbe test 1); the underlying objective or purpose of the standard is not relevant to the development (Wehbe test 2); that the objective would be thwarted if compliance was required (Wehbe test 3); that the standard has virtually been abandoned or destroyed by Council's own actions in departing from the standard (Wehbe test 4); or that the zoning of the land is unreasonable or inappropriate.
In this appeal the applicant has utilised the Wehbe test 1, namely that compliance is unreasonable or unnecessary because the development proposal complies with the objectives of the standard and the zone, and test 3, that the underlying objective would be thwarted if compliance was required.
Given my findings in the preceding that the development proposed does not comply with objective (b) (c) and (d) of the height standard I find that I cannot be satisfied that the applicant's written request adequately demonstrates the matters in cl.4.6(3)(a) of the LEP and it is not necessary to determine if there are sufficient environmental grounds to justify the variation.
Clause 4.6 is a precondition that must be satisfied before consent can be granted. For the above reasons, I am not satisfied under cl 4.6(4) and consequently there is no power to grant consent to the development application which does not comply with the height control in cl 4.3 of the LEP and the application must fail.
[16]
Other contentions
Having found that the height standard should not be varied the development application must be refused. Consequently, it is not necessary to deal with the other contentions in the proceedings.
[17]
Orders
The Court orders:
1. The applicant is granted leave to rely on amended plans;
2. No order as to costs;
3. The objection pursuant to cl4.6 of the Rockdale Local Environmental Plan 2011 is not sustained;
4. The appeal is dismissed;
5. Development Application No 2017/286 for demolition of the existing one and two storey home and the construction of a four storey dual occupancy development and subdivision at 10 Lambert Road, Bardwell Park is refused;
6. The exhibits are returned with the exception of Exhibit 1, A and R
…………….
D M Dickson
Commissioner of the Court
[18]
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: 09 March 2018
In oral evidence the arboricultural experts agreed that whilst tree number two is the most significant tree on the subject site, and tree number three is significant, it would be acceptable for them to be removed if the impact was offset by retention of the remaining canopy trees.
The agreed evidence of the arborists that the design of the stormwater system for the development is inappropriate and has the potential to impact the structural integrity of two large trees within adjoining lands.
This agreed evidence is inconsistent with the architectural plans before the Court.