Darwich v Liverpool City Council

Outcome of the Appeal

1. Having appreciated the site, its context at the view, considered the submissions of the parties and undertaking an assessment of the application I am satisfied consent should be granted to the development application. My reasoning is contained in full later in the judgement, but in brief I find:

• the relevant preconditions to the grant of consent are satisfied.
• the development application meets the numeric requirements for the provision of both resident and visitor parking as detailed in Part 1 Section 20 of DCP 2008. To the extent that the development does not delineate the visitor parking as separate to the resident parking and to be held as common property, I accept that on merit what is proposed in the development application is an acceptable outcome in this instance and that the requirement at Part 1 Section 21.7 of DCP 2008 should be varied pursuant to s 4.15(3A)(b) of the EPA Act.
• that there is no requirement in the planning controls for the development to provide a bedroom on the ground floor and the evidence does not support a conclusion that the failure to do so warrants refusal of the application.
• I accept the evidence of Mr Nehme that the proposed development is compliant with the requirements of Part 3.6 of DCP 2008 which require firstly, the garages to be set back 1m behind the main façade of the building and secondly, the requirement that the main entrance and where possible at least one living area to face the street.
• After applying the planning principle in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 ('Project Venture') at [22]-[31], I am not persuaded that the proposed development is of a scale (height, setbacks, provision of landscaping), material and design that results in its appearance lacking harmony or compatibility with the character of the locality.
• Further, I am not persuaded that the proposed garages will dominate the architectural form or streetscape presence of the development and I accept the evidence of Mr Nehme that the provision of garages in lieu of carports will result in an improved public domain outcome. On this basis, in my view, it is appropriate to vary development control 1 at Part 3.6 Section 4 of DCP 2008, again utilising s4.15(3A)(b) of the EPA Act.

1. As a result, I find that the appeal should be upheld, and the development application should be determined by the grant of consent subject to the consent conditions in Annexure A.

Site and Locality

1. The subject site is located on the northern side of Lucas Avenue and is a regularly shaped allotment of 671.4m². The site has an arced frontage to Lucas Avenue of 20.16m and a maximum depth of 33.5m.
2. The site is located in a medium density residential area which is predominately characterised by single and double storey detached dwellings. Some medium density developments are located within the visual catchment of the site.

Public Submissions

1. The development application was notified by the Respondent from 1 September to 15 September 2021 in compliance with DCP 2008. A single submission in objection was received. The submission raised concerns with the inconsistency of the development with the values of the locality, the density of the development on a single allotment and concerns about traffic generation.

Expert Evidence

1. The Court was assisted by town planning experts, Mr George Nehme for the Applicant and Mr Greg Mottram for the Respondent. The joint report of these experts was tendered as Exhibit 2. In addition to their joint report the experts were called for cross examination.

Preconditions to Consent

1. Prior to considering the contentions raised by the Respondent in support of the refusal of the development application or undertaking an assessment of the merit of the development application, it is necessary to address any relevant preconditions to the grant of consent: HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135 at [16]. My consideration of the relevant preconditions follows.
2. The development application was made with the consent of the owner of the land.
3. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) Ch 11: Georges River applies to the subject site. I am satisfied that the proposed development meets the objectives of SEPP BC. In determining the development application, I have given consideration to the principles at ss 11.6 and 11.7 of SEPP BC and I am not persuaded that any warrant refusal of the application.
4. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) came into force on 1 March 2022. SEPP RH transfers the provisions of State Environmental Planning Policy No 55 - Remediation of Land 1998 to the new instrument. In determining the development application consideration has been given as to whether the subject site is contaminated as required by s 4.6 of SEPP RH. Aerial images and Council records indicate the site has a long history of residential use. Having given consideration to whether the site is contaminated, I am satisfied that the site is suitable for the purpose for which the development is proposed to be carried out.
5. Pursuant to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2000 the development is BASIX affected development. The development application is accompanied by the required BASIX certificates.
6. The site is zoned R3 Medium Density Development under the Liverpool Local Environmental Plan 2008 (LEP 2008) and development for the purpose of multi dwelling housing is permitted with consent in the zone. Demolition is permitted with consent pursuant to cl 2.7 of LEP 2008. In determining the development application, I have given consideration to the following objectives of R3 Medium Density Development zone: • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To provide for a concentration of housing with access to services and facilities. • To provide for a suitable visual transition between high density residential areas and lower density areas. • To ensure that a high level of residential amenity is achieved and maintained.
7. Pursuant to cl 4.3 of LEP 2008: Height of Buildings the maximum height standard applicable to the site is 8.5m. The architectural plans detailing the proposed development demonstrate that the development is compliant with the maximum height standard.
8. Pursuant to cl 4.4 of the LEP 2008: Floor Space Ratio the subject site has a maximum FSR of 0.50:1. The proposed development falls within Area 2 and meets the requirements of cl 4.4(2A) of LEP 2008 which allows the subject site a maximum FSR of 0.55:1. The architectural plans detailing the proposed development demonstrate that the development is compliant with the maximum FSR standard.
9. As required by cl 6.5 of LEP 2008: Public Utility Infrastructure I am satisfied that any public utility infrastructure that is essential for the proposed development is currently available to the site.
10. As required by cl 7.31 of LEP 2008: Earthworks in determining the development application I have given consideration to the matters at subcl (3) and I am not persuaded that any warrant refusal of the application.

Other Relevant Planning Provisions

1. The following sections of DCP 2008 are relevant to the issues in dispute between the parties:

• Part 1 Section 20: Carparking and Access Objectives a) To facilitate an appropriate level of on-site parking provision to cater for a mix of development types. b) To minimise the visual impact of on-site parking. c) To provide for adequate space for parking and manoeuvring of vehicles including service vehicles and bicycles. d) To enable the conversion of above ground parking to other future uses. e) To recognise the complementary use and benefit of public transportation and nonmotorised modes of transport such as bicycles and walking. Controls
• Part 1 Section 21.7: Strata Subdivision Applications for strata subdivision of buildings, space or land will need to ensure that the strata plan is consistent with the development consent particularly the allocation of private and common property. In particular visitor or customer car parking identified in a development consent shall remain as common property. There must be a minimum requirement of three buildings, spaces, or land parcels for strata subdivision.
• Part 3.6: Multi Dwelling Housing (Villas and Town houses) a) To provide controls for residential development to ensure that it achieves a high standard of urban design, that is compatible with the amenity and character of the area. b) To provide for a variety of housing choice within residential areas with Liverpool. c) Additional objectives are listed in the detailed controls for the various land uses.
• Part 3.6 Section 2: Lot size and Width Controls The minimum lot size for multi dwelling housing is 1,000m2. Where development pursuant to section 4 is proposed, the minimum lot size shall be 650m2. The minimum lot width for multi dwelling housing is 22m. Where development pursuant to section 4 is proposed, the minimum lot width shall be 18m.
• Part 3.6 Section 4: Townhouse and Villa Development on an 18m frontage block Objectives a) To provide for a wide range of medium density dwellings, including two bedroom dwellings. b) To ensure compatibility with the surrounding development density by requiring acceptable site area requirements and setbacks. c) To provide for accessible dwellings Controls 1. At least two dwellings must have a maximum floor space of 80sqm. - These dwelling must have a maximum of two bedrooms. - These dwellings must have a carport, rather than a garage. This control applies over Section 7 - Car Parking and Access. 2. Dwellings at the rear of the property must not be more than 1 storey high. An attic is permitted. - The rear of the property for Section 4 means all land 15m from the rear property boundary. 3. At least one dwelling should face and address the street. 4. All dwellings built must conform to the Controls listed within this Part.
• Part 3.6 Section 5: Setbacks Objectives a) To set dwellings back from the street and adjacent properties to provide reasonable space for landscaping, private open space and solar access b) To set back dwellings from one another to provide visual and acoustic privacy. c) To provide setbacks that minimise impacts on adjoining neighbours by minimising overshadowing and overlooking. d) To establish a streetscape of a scale and sense of enclosure appropriate to the locality. e) To maximise the amount of area capable of allowing the growth of trees and shrubs. Controls … 2. Garages or Carports must be set back a minimum of 1m behind the main face of the dwelling. (The main face is the first wall of a habitable room). …
• Section 7: Cut and Fill, Building Design, Streetscape and Layout Building Design and Appearance: Objectives a) To encourage designs that will enhance the character of the neighbourhood. b) To promote variation of building facade and design. … e) To discourage garages and in particular garage doors, from visually dominating the streetscape. f) To ensure that the building design, detailing, colour and finish shall add visual interest to the street and shall compliment the street. g) To ensure habitable rooms address the street. … Controls 1. Unit/s with a street frontage shall orientate the main entrance and where possible at least one living area towards the street. … 3. The first floor of the townhouse developments must be no greater than two thirds of the ground floor area. … 7. A sidewall must be articulated if the wall has a continuous length of over 10 m. … 16. Blank walls in general that address street frontages or public open space are discouraged. Where they are unavoidable building elements or landscaping must be used to break up large expanses of walls. In some cases an antigraffiti coating will need to applied to the wall to a height of 2 metres. Internal Design Objectives a) The internal design must contribute to personal safety and to the protection of property by permitting casual surveillance of public spaces from private windows and entries. b) To provide natural surveillance from a room addressing the street. … e) To ensure that each unit provides a sufficient amount of storage for elements such as garden and sports equipment. Controls 1. Multi Dwelling Housing located on street boundaries shall have habitable rooms located to the front of the dwelling for security and surveillance to the street. … 6. Each dwelling must provide a minimum storage area of 8m3.
• Part 3.6 Section 8: Car Parking Objectives a) To provide car parking facilities on site that are convenient, safe and have sufficient space for vehicular manoeuvrability, whilst being visually unobtrusive. b) To ensure adequate onsite parking is available to occupants and visitors. Controls: Access Driveways 1. Driveways to the street shall be kept to a minimum. 2. Driveways may be permitted to individual dwellings provided that the streetscape is not adversely affected, and the application complies elsewhere with the DCP. …

Expert Evidence

1. It is the evidence of Mr Mottram that the development application should be refused on the basis of the issues raised by the Respondent. His reasoning can be summarised as follows:

• A primary concern for the Respondent is the design choice of the Applicant to have each of the four dwellings facing Lucas Avenue with garages occupying the majority of the streetscape elevation at ground floor. The Respondent argues that as a result of this design choice, the garages dominate the streetscape and, due to the width of the block and do not allow for habitable spaces to address the street. In his evidence Mr Mottram supports this concern of the Respondent and concludes: "The garage dominance of the proposed development in the streetscape remains a contention and has not been addressed in the amended plans. From a street perspective, the frontage of the design is dominated by a large blank wall with no living areas as required by Control 1 for Building Design and Appearance in Section 7 of Part 3.6 of the DCP. The proposed design, with only entry doors breaking up the ground floor is not considered to address many of the objectives of this section including a) To encourage designs that will enhance the character of the neighbourhood. b) To promote variation of building façade and design. c) That the building enhances the streetscape through the use of suitable built form design and landscaping. e) To discourage garages and in particular garage doors, from visually dominating the streetscape f) To ensure that the building design, detailing, colour and finish shall add visual interest to the street and shall compliment the street. Setting the garages 1m behind the upper setback is not considered to reduce the impact of the garage's dominance from the street perspective. The garage dominance is a result of the narrow width of each unit in the proposed development of four units in the approximately 20m wide site and is indicative of an overdevelopment of the site." (Exhibit 2)
• that the lack of provision of a dedicated visitor parking space within the development is indicative of the overdevelopment of the site. Further, that if the lack of visitor parking is repeated in the locality it may lead to a detrimental impact for on street parking availability.
• the two driveways proposed in the development application result in the dominance of driveways (and garages) in the front setback and limits the ability to provide landscaping in keeping with the character of the locality.
• that whilst there is no specific control requiring the provision of an accessible room on the ground floor of a development, that such a requirement is supportive of objective (c) of Section 4 Part 3.6 in DCP 2008 which states: 'To provide for accessible dwellings'. The development application does not detail how the upper floor units are to be accessible either via a lift or stair climber to provide accessibility.
• the design fails to provide living spaces fronting the street and the design is not an active frontage due to the narrowness of units, the extent of garage frontage and the length of the proposed hallways.
• the development fails to comply with the requirement of Section 4 Part 3.6 in DCP 2008 to provide a carport to two of the dwellings and instead provides garages to all four dwellings. This results in a larger scale development with greater garage dominance than is anticipated by the controls.
• the proposed 1m setback of the upper floor from the alignment of the garages does not effectively reduce the dominance of the garages in the streetscape. Mr Mottram concludes that '(t)he dominance of the garage doors and the associated hardstand areas presents a stark façade to the development which is out of character to the existing development in the street and that which is intended by the objectives and the controls of the DCP and is indicative of an over development of the site'.

(Exhibit 2)

1. In the alternative it is the evidence of Mr Nehme that the Respondent's contentions are not made out and that the proposed development is acceptable and worthy of approval by the Court. His reasoning is as follows:

• that the proposed number of driveways, and the related hardstand service to service the development, have been minimised by combining the vehicular cross overs to two, rather than four individual driveways.
• the development application meets the numerical requirement for parking spaces for the development contained in DCP 2008. In addition, the driveway design provides for an onstreet parking space within the frontage of the lot. To the extent that the proposed development represents a variation to the control at Part 1 Section 20 of DCP 2008, the proposed development is consistent with the objectives, namely, to facilitate an appropriate level of onsite parking to cater for the development, to minimise visual impact of onsite parking and to provide adequate space for parking and manoeuvring of vehicles including service vehicles and bicycles. As such it would be appropriate, on merit, to vary the development standard applying a flexible approach consistent with s 4.15(3A) (b) of the EPA Act.
• that the proposed development will provide for landscaping consistent with Section 3.6, Part 9, control 9, namely: 'a maximum of 30% of the front setback is to be paved or sealed, unless the area is used for direct access to a garage, carport or dwelling entry'. Further, the treatment of the front setback of the proposed development is consistent with the desired future character established by recent developments in the vicinity of the site.
• the scale of the design (a single site), and its design of four front facing dwellings, make the provision of a visitors parking space inappropriate. The quantum of spaces is compliant with the requirements of DCP 2008 and the onstreet parking space means that the demand of the development, including from visitors, will be accommodated.
• there is no control within DCP 2008 that requires the provision of bedrooms on the ground floor of the proposed dwellings.
• that the design of the development limits the visual dominance of the garages by setting back the garages more than a metre from the first floor balcony wall (the first wall of a habitable room). The development is compliant with the control in DCP 2008.
• There is no requirement that the relevant habitable room must be located on the ground floor. The development provides first floor bedrooms (habitable rooms) which face the street, complying with Section 3.6, Part 7, control 1 of DCP 2008 which states: 'Multi Dwelling Housing located on street boundaries shall have habitable rooms located to the front of the dwelling for security and surveillance to the street'.
• the garages have been designed with light coloured materials and with a streamlined design to further reduce their dominance.
• that providing enclosed garages in lieu of carports will result in a better streetscape presentation for the development, greater safety for the residents and provide improved integration with the architectural design of the development.

Findings

1. I am satisfied that the Respondent's contentions are not made out on the evidence and that the development application warrants approval subject to the annexed conditions. My reasoning follows.
2. I am satisfied that the development application meets the numeric requirements for the provision of both resident and visitor parking as detailed in Part 1 Section 20 of DCP 2008. As such there is no unmet parking demand that will be generated by the proposed development. I accept and adopt the reasoning of Mr Nehme, summarised at [21] that to the extent that the development does not delineate the visitor parking as separate to the resident parking and to be held as common property, the design is an acceptable outcome in this instance and that the requirement at Part 1 Section 21.7 of DCP 2008 should be varied utilising the flexibility afforded by s 4.15(3A)(b) of the EPA Act as the objective of the controls is met.
3. The Respondent argues that the development application does not comply with objective (c) of Part 3.6, Section 4 of DCP 2008 which states: '(c) to provide for accessible dwellings'. The relevant controls for this section are extracted at [19] and the development application is compliant with those controls, with the exception of the provision of garages in lieu of the provision of carports to two of the dwellings required by control 1.
4. Plainly the regime of the planning controls does not mandate that a development application is required to meet the objectives as a separate requirement to compliance with the stated development standards/controls: s 4.15 (3A)(a) of the EPA Act. I accept Mr Gough's submissions in this regard. Accordingly, I find that the asserted non-compliance with the stated objective is not a foundation to refuse the application. Further, on merit I am not persuaded that the provision of bedrooms on the ground floor of a dwelling is the only means of achieving the objective to provide for accessible dwellings. I find that there is no requirement in the planning controls for the development to provide a bedroom on the ground floor and the evidence does not support a conclusion that the failure to do so warrants refusal of the application.
5. In relation to the asserted non-compliance with control (3) I am satisfied that the control is met by the proposed development, namely at least one dwelling will face and address the street. The Respondent seeks to assert a more onerous standard than that required by DCP 2008 by requiring a habitable room to face the street.
6. Further, I am not persuaded that the proposed garages will dominate the architectural form or streetscape presence of the development as asserted by Mr Mottram, or that the variation of the control results in an inappropriate bulk and scale of development. I accept the evidence of Mr Nehme that the provision of garages in lieu of carports will result in an improved public domain outcome. On this basis, in my view, it is appropriate to vary development control 1 at Part 3.6 Section 4 of DCP 2008 as the objectives of the controls are met, notwithstanding the variation to the control. I am satisfied that the development application will provide medium density dwellings that are compatible with the density of the surrounding area and comply with the DCP requirements for site area and setbacks.
7. I accept and adopt the evidence of Mr Nehme that the proposed development is compliant with the requirements of Section 5 of Part 3.6 of DCP 2008 which require garages to be set back 1m behind the main façade of the building being the first wall of a habitable room. I am not persuaded by Mr Mottram's evidence that the setback control should be interpreted as being directing the provision of a habitable room at ground floor to be compliant.
8. I am satisfied that the requirement that the main entrance and where possible at least one living area to face the street is met by the proposed development. It is plain from the architectural plans that each dwelling has an entry facing Lucas Avenue in compliance with the controls. Further, each dwelling incorporates a bedroom overlooking the street at the upper level. To the extend the controls direct it, providing habitable bedrooms on the first floor still provides the ability for surveillance of the street. I am satisfied that the proposed development does not seek to vary control 1 of Section 7, Part 3.6, in DCP 2008.
9. The development application seeks to vary control 3 of Section 7, Part 3.6, in DCP 2008, namely 'the first floor of the townhouse development must be no greater than two thirds of the ground floor area'. The Applicant has taken a conservative approach to the interpretation of the control and has included the area of the upper floor balconies as part of the first-floor area of the townhouse. The variation sought by the development application is as follows: - Unit 1: 5.83m² - Unit 2: 1.6m² - Unit 3: 1.6m² - Unit 4: 5.38m²
10. The development application is compliant with the remaining controls in this section which are also directed to the design of the building and its appearance. I am satisfied that on merit it is appropriate to vary control 3 of Section 7 Part 3.6 in DCP 2008 as the objectives of the control are met. I am satisfied that: the design is compatible with the character of the neighbourhood and will add interest to the street; has appropriate façade variation and design; the built form and scale is appropriate which is demonstrated in part by the compliance of the development with setback, landscaping and height controls; addresses Lucas Avenue; and does not result in the garages provided dominating the street. Further, I have reviewed and given consideration to the material provided by the Applicant demonstrating recent approvals in the vicinity of the site. These approvals demonstrate the emerging future character of the locality which gives weight to the acceptability of varying the control in this instance.
11. It follows from the preceding that I find that after applying the planning principle in Project Venture, I am not persuaded that the proposed development is of a scale (height, setbacks, provision of landscaping), material and design that results in its appearance lacking harmony or compatibility with the character of the locality. The Respondent asserts that the dominance of the proposed garages and the lack of street presentation result in the development not being compatible with the character of the locality. I find those assertions are not made out. I am satisfied that the proposed development is compatible with the existing character of Lucas Street and is compatible with the emerging character responding to the R3 Medium Density zoning, the planning controls and the existing consents in the locality issued as detailed in Exhibit C.

Conclusion

1. After an assessment of all the evidence under s 4.15 of the EPA Act including the evidence of the objectors, I am satisfied that the amended development application is acceptable on merit. In my opinion the development application warrants approval subject to the annexed conditions.

Orders

1. The Court orders that: 1. The appeal is upheld. 2. Development application DA727/2021 seeking consent for demolition of all structures and construction of multi dwelling housing at 34 Lucas Avenue, Moorebank (Lot 4 DP 238178) is determined by the grant of consent subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of Exhibits A, B and 3. D Dickson Commissioner of the Court

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Annexure A 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: 17 January 2023