Chehine-Nehmetallah v Bankstown City Council

Land and Environment Court (NSW)|2013-05-10

Mr M Bonanno (Respondent) Planning Law Solutions (Applicant)

Lindsay Taylor Lawyers (Respondent) File Number(s): 10036 of 2013

Background 1This appeal was lodged against council's refusal of a development application for the demolition of two existing dwellings and the construction of an in-fill affordable rental housing development comprising ten dwellings with basement parking for twenty-two vehicles. The subject property is located at the adjoining lots Nos 18 and 22 Catherine Street, Punchbowl. 2A number of contentions were identified for the appeal and this resulted in responsive amendments being undertaken. The amended plans were admitted into the proceedings. Consequently the remaining contentions concern:

The site 3The subject site is described as Lot 47 in DP 8422 and Lot C in DP 316937. The overall site has an area of 2023.2 sq m and a frontage of 35.9 m to Catherine Street. 4The surrounding development consists primarily of detached single storey residential dwelling houses, together with some examples of dual occupancy dwellings and villa/townhouse developments in the neighbourhood. The Bankstown CBD is located approximately 2 km west of the site and Punchbowl Boys High School is located to the south at the corner of Catherine and Kelly Streets.

The proposal 5As noted the development proposes demolition of the two dwellings on the site and construction of a ten-unit affordable rental housing development over basement parking for twenty-two vehicles. 6The dwellings are two-storey with face brick on the ground floor and timber finish on the first floor. The development comprises 1 x 2 bedroom dwelling, 3 x 3 bedroom dwellings and 6 x 4 bedroom dwellings. Unit 1 fronting Catherine Street is designated for adaptable housing. Units 7 and 8 are the designated affordable housing units. 7Units 1 and 2 front Catherine Street and are of a two-storey form with pitched roof. The other units then follow the contours down the site with the pitched roof form that includes attics within the roof. Each unit has landscaped private open space that abuts the common boundary with neighbouring properties. Unit 1 is the designated accessible unit.

Planning controls 8The following planning controls apply. 9State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). The relevant aims of this SEPP are: (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 ... 10Clause 8 provides: 8 Relationship with other environmental planning instruments If there is an inconsistency between this Policy and any other environmental planning instrument, whether made before or after the commencement of this Policy, this Policy prevails to the extent of the inconsistency. 11Clause 14 contains standards that cannot be used to refuse consent and they include a minimum site area of 450 sq m. Clause 16A deals with the character of the area considerations on the basis that: 16A Character of local area A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area. 12Clause 15 requires a consent authority to consider the provisions of the Seniors Living Policy: Urban Guidelines for Infill Development. These guidelines are to promote a balance between the need for greater housing choice and the need to safe guard the character of the neighbourhood. 13The Greater Metropolitan REP No 2 - Georges River Catchment - Deemed SEPP applies. 14Bankstown Local Environmental Plan 2001 (BLEP) is the relevant local control and the site is zoned 2(a) - Residential A, which permits 'villas' with consent. BLEP contains a number of objectives including that new development in or affecting residential areas should be compatible with the prevailing suburban character and amenity of the locality of the development site. 15Clause 45 deals with the general restrictions on development on the basis that "consent may be granted for a building on land within Zone 2(a) or 2(b) only if it would be compatible with the character and amenity of existing and likely future buildings on adjoining land in terms of a number of specified criteria. The objectives of Zone 2(a) include: (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 ... 16Relevantly cl 46 contains the following core residential development standards: (3) 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. 17The Bankstown Development Control Plan 2005 (DCP) contains the relevant detailed development controls including:

Definitions
Part D2 - Residential Zones
Part D8 - Parking
Part E1 - Demolition and Construction
Part E2 - Tree Preservation Order 18The DCP defines "loft" and the associated design restrictions. The stated objectives for visual and acoustic privacy are: (a) to minimise the overlooking of a living area and private open space of a dwelling; (b) to maximise privacy between buildings; and (c) to ensure the design and siting of a building provide acoustic privacy for residents and neighbours in their dwellings. 19Also relevant in this matter is the cl 10 open space requirements as follows: 10.8 Rowhouses and villas must provide a minimum 60m2 of private open space per dwelling. The private open space must be provided as: (a) a single space with a minimum area of 60m2 and a minimum width of 5 metres throughout, or (b) as two separate spaces provided each space contains an area greater than 25m2 and a minimum width of 5 metres throughout; and (c) the remaining spaces must have a minimum width of 2 metres throughout. GENERAL OBJECTIVES: to provide sufficient open space for the reasonable needs of residents for privacy, access, outdoor and communal activities, and landscaping;

The evidence 20Detailed evidence in the form of a joint report was presented by:

Ms M Samuel, Council's town planner
Mr G Chapman, Applicant's consulting town planner.

Density 21Council's contention is that the application should be refused because it does not satisfy the density control in cl 46(3)(c) of the BLEP requiring a minimum site area of 300 sq m/villa. Compliance with this standard would only allow a maximum of six villas, which subsequently influences the desired future character of the area. Consequently, the proposed ten units represent an overdevelopment, which is not consistent with this desired future character. 22Against this, the Applicant contends that this is not the prevailing control because the application is made under the provisions of SEPP ARH, which effectively encourages affordable housing development by allowing a 40% bonus in terms of an increase in the maximum FSR to 0.7:1. 23Notwithstanding this, for caution Mr Chapman lodged a SEPP 1 objection to the development standard in cl 46(3)(c). Ms Samuel says that the SEPP 1 Objection is required in order to vary provisions of cl 46(3)(c) of BLEP. She considers that the density development standard should be satisfied because it determines the maximum number of dwelling permitted on the site, whereas the FSR in the SEPP - ARH is then designed to control the bulk, scale and built form of the structures occupying the site. Ms Samuel does not support the application because she considers the site density is exceeded by about 32.5%. The resulting site density would be one villa/202.32 sq m of site area, significantly below the designated 300 sq m/villa. 24Mr Chapman's opinion is that the appropriate development control is the SEPP - ARH, which allows a bonus 0.2:1 FSR (i.e. total FSR 0.7:1) for affordable housing. As the proposal has a FSR in the order of 0.65:1, it comfortably complies with the density and scale controls of 0.7:1 in cl 13 of the SEPP - ARH. 25Consequently, he says that the density control of 1 villa/300 sq m contained in cl 46(3) of the BLEP 2001 is an additional layer to the FSR to achieve a similar outcome with regard to the scale of development on a site, noting cl 46(3)(c) of the LEP applies to site area for a villa development. 26Furthermore, it is unreasonable and unnecessary to comply with the site density (1 villa per 300m2) because the development proposal has been designed to be compatible with the character of the locality and meets the relevant planning controls including floor space ratio, landscaped area, building height, setbacks, solar access, and parking which indicates that the development is of an appropriate scale for the site.

Character of the area 27In response to the various controls, the planners initially considered the character of the area, on the basis of a defined "visual catchment" along Catherine Street. According to Mr Chapman:

Catherine Street contains a variety of building forms including single storey dwellings, two-storey dwellings, two-storey dual occupancy development and two-storey multi-dwelling developments. The properties have a landscape setback punctuated by driveway access and in some cases garages/carports forward of the dwellings. The dwelling houses, dual occupancies and multi-unit developments have pitched roof forms. 28Mr Chapman then supports the proposal because:
The proposed two storey (at the street frontage) and attic style (at the rear) buildings with pitched roof forms are compatible with the scale and form of existing buildings/dwellings in Catherine Street.
It provides a landscaped front setback consistent with the residential character of Catherine Street. It meets the front, side and rear setback controls.
The side and rear setbacks exceed the minimum separation requirements and provide an appropriate transition with green corridors along the rear and side boundaries. This deep soil area can accommodate canopy tree planting shown on the landscape plan submitted with the original DA.
The landscape area for the development under SEPP - ARH (30% of site area and 15% - deep soil area) is greater than Bankstown DCP creating green corridors that would not be required for villa development.
The backyard zone has been lost by villa developments at 2 - 4 Catherine Street, 31 Catherine Street, 33 Catherine Street, 34 - 36 Catherine Street and 74 - 76 Catherine Street. The planning controls contained in the BDCP do not require the provision of green corridors and subject to redevelopment this will not be a predominant character of development in the locality. 29However Ms Samuel says that the proposal fails to meet the character test under cl 16A of SEPP ARH. For this assessment she refers to the planning principle in Project Venture Developments v Pittwater Council [200] NSWLEC 191, which provides a useful structure within which to analyse the compatibility of the proposal with the local area. This poses the following two questions:
Are the proposal's physical impacts on surrounding development acceptable? The physical developments 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? 30Accordingly, Ms Samuel considers the proposal unacceptable because:
It will have impacts on the neighbouring properties as a result of the over developed built form, loss of private open space and loss of privacy afforded to adjoining properties compared to that which is characterised in the local area. These impacts are in terms of loss of visual amenity due to the bulk and scale of the building and a loss of "openness" for their rear yards.
The streetscape is typified by the small scale of the older single storey dwelling houses with some infill two- storey developments. The character of the local area is the visual catchment of the site in which the development is viewed. The character of the local area is not only perceived from the street but from within the properties themselves. Whilst it is acknowledged that the visual catchment includes villa-type developments, these developments are consistent with cI 46(3) of BLEP, which sets the desired future character of the area. As the proposal fails to comply with the density control cI 46(3) of BLEP, the development cannot be considered to meet the desired future character of the area and therefore not in harmony with the buildings around it and the character of the street.
The proposed development has a character, which is inconsistent with the character of the local area. In particular, the building extends along the length of the allotment into the "green zone". When viewed from neighbouring properties the pattern of rear yards would be disjointed by development such as that which is proposed. 31However, cl 15 of SEPP ARH requires consideration of the Seniors Living Policy (SLP). It provides design guidelines and a number of 'rules of thumb' to achieve the desired outcome. In particular it states that: New development should contribute to the overall character of the area, or, in other words, have a good 'neighbourhood fit'. The starting point for achieving 'neighbourhood fit' is an appreciation of the defining characteristics of the neighbourhood that new development could retain or reinforce, Often discussions about neighbourhood character focus on the existing buildings and their particular architectural style or detail, losing sight of the wider range of elements that contribute to neighbourhood character, including topography and landform, the type and function of streets, and trees and vegetation in both streets and gardens. 32I note that Mr Chapman says the proposal satisfies this Policy and that in para 25 of the joint planning report, Ms Samuel agrees that the design meets the principles in this Policy. Therefore, I give her abovementioned qualifications on the non-compliance with the character of the area diminished weight.

Private open space 33Following the amendment of the proposal, the concerns regarding adequacy of the private open space refers only to the front Units 1 and 2. Unit 1 is an adaptable unit the fronts directly onto Catherine Street. Subsequent to the amendment for the location of the car space and associated 'shared area' to facilitate vehicle access, this unit has a total area of 117 sq m. 34This area comprises approximately 63 sq m in the front setback area and 54 sq m adjacent to and wrapping around the living room. This section includes approximately 39.6 sq m that is 5 m wide and an adjoining area of 14.4 sq m that is approximately 3.8 m wide where the clothesline is located. Mr Chapman considers this overall area satisfactory because it obtains reasonable solar access and provides adequate private areas and associated area at the front of the dwelling, as allowed by the SLP. 35Ms Samuel does not consider this open space configuration satisfactory because it does not provide the designated minimum width of 5 m for open space throughout. 36Similarly, Unit 2 also fronts onto Catherine Street and it is located over the basement car park entry. Whilst it also has access to private open space within the front setback, its main open space area is at the back of the dwelling off the living room and kitchen. This comprises a total area of 75 sq m, of which 53.5 sq m satisfies the 5 m wide minimum width requirement. 37Ms Samuel says this is unsatisfactory because the proposed development does not provide sufficient private open space area behind the front building line. The open space area within the front setback is not considered to be a "private" area because the proposed 1 m high, open style front fence allows direct overlooking from the street. Also, the irregular, wedged-shaped area of unit 2 provides insufficient space for reasonable amenity and useability to future residents and the open space area within the front setback of unit 2 adjoins the development's entrance/driveway to the basement. She considers that acoustic privacy impacts would be an issue due to the siting of the open space area. 38However, I consider Ms Samuel's approach in respect of these front lots not consistent with the SLP guidelines, which indicate that satisfactory residential amenity can be achieved by locating private open space in the front setback to minimise negative impacts on neighbours.

Privacy 39This issue mainly concerns the privacy relationship between the proposed Unit 3 and a neighbouring living room window in No16 Catherine Street. The living room is elevated, with potential to overlook the courtyard of Unit 3 and correspondingly allow viewing back into the window area. A secondary concern is a loss of outlook from this window. 40However, Mr Chapman says that with the installation of a 600 mm high lattice section atop the existing Colorbond fence (i.e. 2.7 m above ground level), together with complementary boundary landscaping and allowing for the separation of 7.5 m between windows, then the relative privacy impacts are acceptable for this form of development. 41Ms Samuel does not consider the proposed fencing results in an acceptable privacy outcome. In particular she considers the proposal is of excessive bulk and scale, which does not satisfy the cl 45(1) in terms of compatibility with the character and amenity of existing and likely future buildings on adjoining land. 42With respect to the loss of outlook, Mr Chapman says that the current controls would allow a complying two- storey dwelling with a 900 mm boundary setback, which would result in a worse outlook from this side boundary window.

Conclusion 43For the determination of this matter I have considered the evidence, including the objector's concerns, the submissions and undertaken a view. It is apparent that the threshold issue concerns the density of the proposal and its consequential compatibility with the character of the area. 44This issue arises due to the different numeric controls in BLEP and SEPP ARH. The submission for council is that the density standard of 300 sq m/villa in cl 46(3)(c) should be given significant weight and accordingly a development of only six units would be appropriate for the site. Compliance with this standard then establishes the likely future character of the area to which new development should be compatible. 45Whilst the applicant accepts that cl 46(3)(c) is a matter for consideration, nevertheless Mr Pickles submits that the application is made under the provisions of SEPP ARH, which is the prevailing control pursuant to cl 8 of the SEPP. Therefore, the existing allowable FSR in this residential zone is 0.5:1, plus a bonus of 0.2:1, resulting in a total of FSR of 0.7:1, to which the application complies. 46The matter of appropriate weight to various planning controls has been considered in a number of other cases with various outcomes depending on the circumstances. I rely on the case of Succar v Bankstown City Council [2012] NSWLEC 1255, wherein Dixon C dealt with the relationship of AH SEPP and found: 13 Adopting the plain meaning of "inconsistency" in cl 8 it provides that if a planning provision is inconsistent with the AH SEPP then the provision in the Policy prevails: per Young J in Hastings Point Progress Association v Rosemount Estates Pty Ltd 168 LGERA 99 at p118 para 84 "If there is a situation where there is a "can do" under the SEPP - SL and a "can't do "under the local environmental plan then the SEPP - SL prevails": Dem (Aust) Pty Ltd v Pittwater Council (2004) 136 LGERA 187. 14 However, where the AH SEPP is silent about certain matters, the parties have different views. The applicant submits cl 8 intends that the AH SEPP covers the field and that the LEP and DCP provisions cannot be used to fill in the void in order to justify a refusal of the application. Only when the AH SEPP invites the Court to take into consideration a matter such as the character of the local area under cl 16A does the applicant concede that the provisions of the LEP and DCP are relevant considerations under s 79C. However, that consideration does not extend to matters that are inconsistent with the AH SEPP such as the core residential development standards in cl 46 of the LEP. In this case, the applicant contends that I should place no weight on provisions in cl 46 because the AH SEPP displaces those provisions. 15 The Council, however, submits that the LEP and the DCP and any other relevant planning instrument should be taken into account in my assessment under s 79C of the Act. This includes the core residential development standards in cl 46 of the LEP or building controls for villa houses on this site, which inform the character of the local area under cl 16A. The Council contends that because the AH SEPP requires that I consider the design's compatibility with the character of the local area there is no inconsistency in taking cl 46 into account for the purposes of cl 16A: Hastings per J at p 120 para 96. Finding 16 The AH SEPP is not a code. It is a Policy which aims to provide a consistent planning regime for the provision of affordable housing: cl 3(a); and, to facilitate the effective delivery of new affordable housing by providing incentives by way of expanded zoning permissibility, floor space ratio bonuses and non discretionary development standards: cl 3(b). It sets out non-discretionary development standards in cl 14 and design considerations in cll 15(1) and 16 and 16 A. 17 The fact that the AH SEPP enlivens the power of a consent authority to determine a development application for affordable housing on land to which the AH SEPP applies does not mean that the power is to be exercised in only one way; the grant of a consent. The consent authority has a discretion, which must be exercised in accordance with the law and having regard to the merits of the application. In exercising the discretionary power in s 80(1) of the Act, the consent authority must consider the relevant matters in s 79C(1) and ss 79C(b) to (e) of the Act: Australian Lifestyles Corporation Pty Ltd v Wingecarribee Shire Council [2008] NSWLEC 284 per CJ Preston at paras [34] - [41]. Therefore, in my opinion all relevant planning instruments must be considered and in the event of an inconsistency cl 8 prescribes that the Policy is to prevail. (my emphasis) 47Considering these findings in the light of the current matter, there is an apparent inconsistency between the SEPP ARH and cl 46(c) of BLEP. In line with the authorities, I have considered both controls, noting that both allow for the proposed "villa" type development. The only difference is that SEPP ARH allows a bonus FSR in encouraging this form of affordable rental development. 48Accordingly, I think it appropriate to follow Commisioner Dixon's approach and give determinative weight to the provisions of cl 8 of the SEPP ARH, in accordance with Mr Pickles submission. Therefore, I am satisfied the cl 13 SEPP ARH FSR control is satisfied and I do not consider that non-compliance with cl 46(3)(c) of BLEP is fatal to the application. In these circumstances, I do not consider it necessary to assess the SEPP 1 Objection because I proceed to assess the merits of the proposal, including the other "character" controls in the BLEP. 49Insofar as council submits that cl 46(3) is a density control, its application to the subject site on the basis of a "villa development" would permit six units. But I accept the applicant's submission that the proposal is for an "affordable rental housing" development and it obtains the benefit of the 0.2:1 FSR bonus allowing ten units. In this regard, I note Mr Pickles submission that if the bonus was applied to the (cl 4(3)(c)) 6 unit yield, then approximately 9.4 units could be allowed. To some extent this confirms the different outcomes anticipated for the two distinguishable categories of development. 50Clause 16A in SEPP ARH then requires consideration of the compatibilty of the development with character of the local area. Having undertaken an assessment of the various elements identified by the planners as contributing to the character of the subject area, it is firstly apparent that this area is an older area that is undergoing change. That is evident by the existence of new, larger two-storey dwellings, dual occupancies and villa homes that cl 45 of BLEP recognises. 51Accordingly, I give reduced weight to Ms Samuel's opinion regarding the likely future character because it is overly focussed on the retention of the older housing stock and doesn't adequately allow for the form of new development permitted by the controls. Consequently, I then accept Mr Chapman's evidence that the proposed streetscape impact in the streetscape is compatible with the character of the area, which is undergoing change. 52As the villa type of development is permissible in the area, I also note that the proposal demonstrates satisfactory compliance with the front, side and rear setback controls so as to achieve a satisfactory relationship with the adjoining developments. 53In this regard, I have considered Ms Samuel's opinion that the proposal will adversely impact on the "green zones", mainly along the rear boundaries. But it is evident from the view that any green zones have been fragmented over the years by the construction of sheds, garages, granny flat and other medium density developments. However the proposal satisfies the DCP rear setback control of 5 m and incorporates landscaping and vegetation in this area. In terms of the impact on the "green zone", I consider the proposal demostrates reasonable satisfaction of the Section 10 - Open Space objectives in the DCP. 54With regard to the adequacy of the private open space (POS) provision for Units 1 and 2, I firstly note that the required minimum area is comfortably exceeded in both cases. The DCP does allow the POS to be split into two separate spaces providing they achieve the minimum width of 5 m thoughout. Insofar as both units don't achieve this width, nevertheless I am satified to rely on Mr Chapman's evidence that the proposed areas are well located adjacent the living areas and comfortably allow for outdoor table and flexibilty of use. Therefore, I consider the s 10, Objectives (a), (b) and general objective are satisfied. I also consider that the POS for Units 1 and 2 is consistent with the SLP guidelines for open space at the front of dwellings. 55The other is issue of concern to Ms Samuel is the privacy relationship between No 16 Catherine Street and the proposed Unit 3. As stated by Mr Chapman it is envitable that there will be some change in the neighbourhood relationship when the permitted form of villa developments extend along the lot side boundary. In particular the retention of open amenity when side windows have a predominant outlook over neighbouring yard areas. 56In this case the applicant's proposal to erect an additional 600 mm lattice screen, together with landscaping seems to result in a reasonable balance of privacy amenity, particularly considering the setback between buildings in the order of 7.5 m. Furthermore, importantly, I am satisfied to rely on the evidence that the proposed screening will not materially affect the attractive solar access enjoyed from the window area. I do not consider this issue should result in the refusal of the application. 57In summary then, I am satisfied that this proposed affordable housing development on the larger, consolidated lot satisfies the aims and controls of SEPP ARH, on the basis that it allows a bonus FSR, to which the proposal complies. Despite Ms Samuel's objections to specific design details, nevertheless she agreed that the proposal satisfies the Seniors Living guidelines, which is consistent with Mr Chapman's opinion resulting in the proposal meritting consent. In this regard I give determining weight to the provisions of cl 8 of SEPP ARH where there is an apparent inconsistency with the provisions of cl 46(3)(c) in terms of the site density. Otherwise the proposal comfortably complies with the minimum area and frontage requirements in cll 46(b) and (c). 58I have considered the objections in conjunction with the planners evidence and conclude that the application is compatible with the character of the local area and merits conditional consent.

Court orders 59The Court orders that: (1)The appeal is allowed. (2)Development consent is granted to DA - 495/2012 for the demolition of existing structures on the land and construction of an affordable housing development comprising 10 units over basement parking at No 18 and 22 Catherine Street, Punchbowl subject to the conditions in Annexure A. (3)The exhibits may be returned except 1, 5, 6 A, B, C and H. R Hussey 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: 21 May 2013

(2004) 136 LGERA 187

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Judgment (13 paragraphs)

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Cases Cited (3)