Deng v Burwood Council

Statutory considerations

1. The site is zoned R3 Medium Density Residential under Burwood Local Environmental Plan 2012 (LEP). The objectives of the R3 zone are reproduced below: Zone R3 Medium Density Residential Objectives of 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.
2. Townhouses meet the definition "multi dwelling housing" in the LEP and are permissible in the zone.
3. The floor space ratio (FSR) development standard for the site under the LEP is 0.55:1. The proposed FSR is 0.86:1.
4. The application relies on State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP - ARH) which aims to facilitate delivery of new affordable rental housing in part by providing FSR bonuses under certain conditions. The applicant needs a gross floor area bonus 0.31:1. It is proposed to allocate four (identified) townhouse units, a total GFA of 433m2, as affordable housing. It is calculated in the plans (Exhibit A), and uncontested, that this would bring the permissible FSR to 0.87:1, thus bringing the proposal into compliance in regard to FSR.
5. SEPP - ARH establishes certain standards that cannot be used to refuse consent. These standards relate to: minimum site area, landscaped area, deep soil zones, solar access provisioning, parking, dwelling size. Pertinently, SEPP - ARH also directly requires a consent authority to consider local area character compatibility.
6. Council's Statement of Facts and Contentions cross-references relevant Burwood Development Control Plan 2013 (DCP) provisions.

The proposal particulars

1. ​The proposed townhouses would be accommodated in two x two-storey buildings, fronting Wyatt Lane, measuring approximately 36m (southern building) and 31m (northern building) in length, with a 4m separation. The application indicates (uncontested in the expert reports) that building heights are within the 8.5m height control in the LEP .
2. The plans show living areas on the ground floor and bedrooms on the first floor. Eleven of the townhouses propose their front door access from Wyatt Lane with varied front building setbacks. All of these have 1.1m wide balconies looking out to the west. The other townhouse fronts Wyatt Avenue.
3. Private open space is provided to each townhouse, at ground level, along the eastern property boundary. It is proposed to construct a pedestrian pathway, partly on the road reserve and partly on the site for the length of the Wyatt Lane (ie western) frontage.
4. The townhouses for the southern building are setback 2.5m from the Wyatt Lane boundary at the ground level and 3.5m at the first floor (with the exception of the corner unit which by scale is setback a little under 2m at ground level and has its balcony fronting Wyatt Avenue. The townhouses for the northern building have a similar setback for the first floor. But there is some variation at the ground floor with the new path, to the north west of the site, curving along the Wyatt Lane frontage to allow for the retention of two large trees. As a consequence, five of the townhouses (nos. 08 to 12) provide greater front building setbacks from Wyatt Lane which measures up to 4m at ground level.
5. The proposal provides for 22 car parking spaces, a driveway ramp and a passing bay at the Wyatt Avenue frontage adjacent to the site's eastern boundary leading down to the basement car park. Within the basement car park, two stairwells lead to Wyatt Lane, whilst another leads to the Wyatt Avenue frontage.
6. The proposal also involves the removal of trees along the Wyatt Avenue frontage, and along the eastern side boundary, in particular for the driveway ramp. Two large trees are retained along the western boundary fronting Wyatt Lane.

Issues

1. In accordance with the Court's requirements, in a hearing such as this, Council is required to identify matters that it contends should cause the Court, in exercising the functions of the consent authority, to refuse the application or impose certain conditions. These contentions represent contested issues between the parties and typically become the central point of focus in a hearing.
2. Prior to the hearing, there had been negotiations between the parties and amended plans had been prepared. The planning and traffic experts representing both parties gave evidence that the amended plans (leave for the use of which was granted by the Court), and associated agreed requirements by way of conditions, satisfied most of the respondent's contentions. The traffic and parking contentions had been entirely satisfied as far as the relevant experts were concerned, with amended plans and conditions. Outstanding contentions in regard to planning matters were in regard to Contention 5 ("bulky appearance to Wyatt Lane") and the related Contention 6 ("setback fronting a street"), in particular in regard to Wyatt Lane setback but also in regard to the arrangements for a stairway from the Wyatt Ave frontage to the basement parking area. The particulars are discussed below, but it can be said that Council's expert raised alternative responses in regard to each of these matters which, in his opinion, could have led to approval of the development.
3. The experts involved in the hearing should be mentioned for the record. The applicant's experts were: Mr A Minto (planning) and Mr O Sannikov (traffic and parking). The Council's expert was: Mr P Johnston (planning) and Mr J Scoufis (traffic and parking).
4. Land and Environment Court proceedings are adversarial proceedings and, subject to certain caveats, the Court is generally bound to evaluate matters that are contested (Segal v Waverley Council [2005] NSWCA 310). The matters raised by objectors as listed in the Council's contentions, and through on-site submissions, are also considered as contested issues. In this instance, certain (lay) submissions from objectors happen to raise the issues which are central to this case and are the primary focus of the rest of the judgment.
5. For analysis purposes here, the objections from the neighbours can be considered at two levels. One level is in regard to a wider concern about overdevelopment and fitting into the local area. The concerns raised here include: loss of an existing building seen as adding to the local streetscape including in regard to heritage conservation, loss of important trees with associated loss of bird life, loss of the "back lane ambience" at Wyatt Lane, parking inconvenience and traffic impacts and associated safety concerns. The second level went to the perceived effects on individual properties. I will commence with the latter.

Concerns about direct amenity impacts on certain properties

1. Submissions were heard on behalf of residents of 296 and 294 Burwood Road. These properties located in the Burwood HCA (under the LEP) and have their main private open space and rear parking backing onto Wyatt Lane, which separates them from the site. There were also concerns from a resident of the medium density site at 27 Wyatt Avenue which has a side-boundary with the northern half of the site along the eastern boundary. I come back to the question of impacts on 27 Wyatt Avenue later.
2. The concerns in regard to the Burwood Rd properties include loss of visual and acoustic privacy as the existing presentation of Wyatt Lane, as a "back lane" changes to a "street front" for the proposed townhouses. The submissions, both written and oral, raised concern about the windows and balconies of the townhouses providing opportunity for direct overlooking into the private outdoor space/garden (and swimming pool for No 296 Burwood Rd). A further concern was in regard to visual bulk and building massing suggested as leading to a major change to the ambience in the backyards of these properties. Another concern was in regard to changes within the lane carriageway (in particular provision of a footpath) and concerns that access and parking arrangements for those using the rear lane would be more difficult.
3. Having considered the evidence, and I refer to the other issues relevantly below, my core concern here is in regard to the impact of the proposal on the amenity enjoyed in the rear private open space areas of these Burwood Rd properties. The potential effects are in regard to impacts on visual and acoustic privacy and building bulk or the visual impact of the building massing. I will start with consideration of the evidence on the latter.

Building bulk

1. The applicant's expert, Mr Minto, was satisfied with the bulk of the proposal. He raised a number of points: (1) the height and number of storeys is compliant with controls, (2) the amending plans bring about changes to the roof (provision of hip end roofing to the north and south of each of the buildings, and deletion of attic bedrooms in the northernmost townhouses) which would directly reduce visual bulk from the west, (3) the breaking up effect of the proposal's varying setbacks and building modulation and fenestration to Wyatt Lane, (4) landscaping opportunities in the setback and the intention to retain two large trees to the north near the Wyatt Lane reserve boundary.
2. Mr Johnston remained concerned about the bulk of the building to Wyatt Lane: "… whilst the roof form is proposed to be changed, the lengths of the two buildings fronting Wyatt Lane presented a bulky appearance to Wyatt Lane, particularly where the front building setbacks are less than that for buildings fronting a street. In this regard, the character of the local area is compromised by building length and reduced front building setbacks"
3. The two factors raised by Mr Johnston need to be considered a little further. The first was in regard to the DCP control (Provision P6 of Part 4.3.2.1) on building widths to the street which provided as follows: "The maximum width of a building facing a street is 20 metres ..."
4. The expert report indicates the proposal provides buildings of 36m and 31m width (north-south) to Wyatt Lane.
5. Mr Minto linked this exceedance to the bonus provisions in SEPP - ARH: "… a variation is necessary in order to accommodate the bonus FSR permitted by (SEPP - ARH) noting that Council's controls are proposed in relation to a permitted FSR of 0.55:1 as opposed to the 0.86:1 FSR proposed and permitted under the ARHSEPP."
6. The Joint Expert Report provides a commentary between the experts which (although not altogether clear) indicated agreement that: (1) if the number of townhouse units were to be maintained, then (2) there was more sense in retaining two buildings and a 4m separation, than redesigning for three buildings: "It was generally discussed that, in any event, the two building lengths provided a greater street appearance than three separate buildings with 2m building separations between each of them, as discussed by the experts."
7. Mr Johnston's second factor, when considering the bulk of the building, was in regard to setback to Wyatt Lane. Mr Johnston thought that if agreement was reached on the issue of building width (ie the current arrangement was agreed) then the front setback to Wyatt Lane would need to be increased: "… the front setback of townhouse dwellings 2 to 8 shall be increased to meet set back requirements".
8. Here, Mr Johnston was noting that private open space to the townhouses (ie to the east) "exceed their area requirement". In forming his view, he also noted that "the DCP does not provide development guidelines for side setbacks for corner allotments".

Visual privacy

1. This matter was raised in Council's contentions (Contention 13 "Public interest" - Particular a) iii) "Privacy/overlooking from 2nd storey balconies upon adjoining private open spaces to the west"). The experts' comment on this, and other nominated "public interest" matters, was as follows: "The experts agree that the issues raised by the public submissions will be appropriately articulated by the objectors during the hearing and will be matters for consideration by the Court."
2. I put the question of visual privacy impact direct to the experts during the hearing. Mr Minto indicated that the proposal exceeds commonly adopted separation standards of 9m (he was referring here to the Wyatt Lane reservation width of 6m and a 3m+ on-site building setback for the proposal I believe). Mr Johnston agreed, indicating that he had heard the objection raised during the site view, but believed that there was sufficient building separation. There was a common view on the part of the experts that the balconies were relatively small and to a bedroom, only, and would "not be used as an entertaining area". It was seen as more just a space to "open the (bedroom) doors to". It was further noted by Mr Minto that the balustrade was solid which meant less likelihood of overlooking than would an open balustrade. The point of the role of the balconies as an architectural feature (in providing for building modulation) was noted. Mr Minto said that visual privacy impacts were properly seen as a "perceived issue", rather than real.

Consideration

1. With the last remark above, Mr Minto gets to a key question. It is concerned with the Court's treatment of lay evidence, and in particular evidence from objecting neighbours. Lloyd J considered this question in New Century Development Pty limited v Baulkham Hills Shire Council [2003] NSWLEC 154 at [61] - [62]. "61. In circumstances such as the present case, however, the consent authority must not blindly accept the subjective fears and concerns expressed in the public submissions. Whilst such views must be taken into consideration, there must be evidence that can be objectively assessed before a finding can be made of an adverse effect upon the amenity of the area (Dixon at [53]). In Broad, de Jersey J explained (at 304) that whilst the court is clearly entitled to have regard to the views of residents of the area, those views will be accorded little, if any, weight if there is no objective, specific, concrete, observable likely consequence of the establishment of the proposed use. 62. A fear or concern without rational or justified foundation is not a matter which, by itself, can be considered as an amenity or social impact pursuant to s 79C(1) of the EP&A Act (Newton v Wyong Shire Council, NSWLEC, McClelland J, 6 September 1983, unreported, Jarasius v Forestry Commission of New South Wales (1990) 71 LGRA 79 at 93 per Hemmings J; Perry Properties Pty Ltd v Ashfield Municipal Council (2000) 110 LGERA 345 at 350 per Cowdroy J). Where there is no evidence to support a rational fear it will be irrelevant that members of the community may have modified their behaviour arising from such an unjustified fear (Dixon at [71])."
2. Along with hearing evidence from the planning experts, the Court had the opportunity to "observe" and consider the visual bulk and visual privacy impact, directly, during the site view stage of this hearing. The challenge of "objective assessment" of the evidence is before me in this judgment. I also note and agree with the experts that the DCP has little in the way of particulars to help deal with the idiosyncratic arrangement at hand here, involving use of an otherwise rear lane for frontage for a townhouse development. "Likely impacts" of a development are of course a direct consideration under s 4.15(1)(b) of the EPA Act.
3. In regard to visual privacy, I note that the townhouse balconies are accessed off bedrooms only, for the most part off the main bedrooms in the townhouses. While I also accept that "entertainment" is not the purpose of these balconies, this does not mean they cannot bring impact.
4. Despite the evidence of Mr Minto, I cannot accept that it is irrational or unjustified to think it reasonable that townhouse occupants will occupy the balcony from time to time; and that this could, again, from time to time, clash with the use of the private open space and pool in the properties to the west, and bring real impacts on privacy, rather than just "perceived".
5. The objectors, in arguing visual privacy impact, indicated that there would be an adverse consequence, suggesting the way they use the private open space would significantly change for the worse. It seems to me reasonably likely that this would occur. It is reasonable to consider this use of pool and backyard areas as quite private. Rather than only an "unjustified fear", a (new) neighbour sitting or standing on the near balcony just 10m or so away and looking down into the pool or backyard may, reasonably, change the way residents use the pool and backyard areas.
6. While evidence was given on behalf of the residents of Nos 296 and 294 Burwood Road, No 296A at least seems to be in a similar position. I do note the intended retention of trees across from No 294, but see this has having insufficient effect of itself in regard to the privacy question.
7. I have a different assessment in regard to the question of visual bulk. I do agree with the objectors that there would be an adverse effect, a reduction in the ambience enjoyed in the backyard, but in my assessment, this visual massing would not have the same scale of effect on the private enjoyment of these areas, as would the balcony settings and their potential privacy impacts.
8. Overall, this setting seems to me to be inconsistent with the objectives for multi-unit housing "site planning" at cl 4.3.2.1 of the DCP: "O1 To ensure new development responds to the scale and form of the existing context (streetscape and adjoining properties) and site elements (landscaping and services). O2 To ensure new development provides appropriate levels of amenity for the private and public domain. O3 To ensure the street setbacks enhance the setting of the building and maintain amenity between neighbouring sites."
9. Having reached the view that visual privacy impacts would be real (rather than irrationally held) and significant, and the result is inconsistent with certain DCP objectives, does not end the matter. The proposal is lodged under SEPP - ARH and I agree with Mr McKee's remarks that there would be significant community benefits as a consequence of the provision of low cost rental accommodation in four of the townhouse units for 10 years.
10. I also note the LEP objective "(to) provide for the housing needs of the community" which applies to both the R2 and R3 zones (albeit with slightly different caveats applied). That is to say, it is reasonable to consider there is a need for townhouses like that proposed here.
11. But I also recognise that SEPP - ARH directly requires a consent authority to consider local area character compatibility at cl 16A: 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.
12. When I consider the "character of the local area", I acknowledge a point raised by the planning experts that the R3 Medium Density zoned land (ie the land east of Wyatt Lane) is in something of a transition stage. There is already townhouse style development at 27 Wyatt Lane and a further medium density development proposed, according to the Council, between it and the subject land. The fact of the R3 zoning and the apparent ongoing changes expected in Wyatt Avenue presents one "local character" situation in regard to that part of Wyatt Avenue east of Wyatt Lane. It results in less concern about the development's relationship with 27 Wyatt Lane, and here I accept the experts' opinions, of no unreasonable impact, in regard to the issues raised by the objector from that property.
13. But there is a different "local character" evident in the immediate environs of Wyatt Lane, with the low density living and R2 Low Density Residential zone. It is reasonable to expect that there would be some degree of cushioning of impact at what might be termed this "character-interface". And it can be said that some degree of cushioning has occurred (eg with the modulation of the building and roof changes, both to reduce visual bulk; and through efforts to retain two large trees). I would also acknowledge that the incorporation of balconies act to improve the building presentation to Wyatt Lane. Visual presentation is not unimportant even in the lane, but not so important as in Wyatt Avenue, and must take a secondary status to visual privacy in this particular setting in my judgment. The proposal's relatively narrow front setbacks seem to prevent adequate screen planting.
14. I see this conclusion as generally consistent with the Court's Planning Principle on zone interface treatment in Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117. That is, that lower density areas, adjacent to a higher density zones, can reasonably expect that impacts "within reason" may well occur. In this instance, a form of medium density development can be expected on the site; and in my view, and contrary to the opinion of Mr Johnston, the visual bulk of the proposal would be representative of the kind of acceptable impact that might be expected. But conversely, the Planning Principle supports a view that development in the higher density zone must not go beyond that step of "within reason" impacts, even if it prejudices otherwise development potential. The overlooking balconies are not essential for medium density development to occur on the site, and in my opinion, the expert evidence has focused overly on numerical separation standards and not properly considered the substance of the before and after impact of direct overlooking of private open space in these low density areas from townhouse balconies.
15. Overall, when I consider the test of local character compatibility in this second "situation" (ie the immediate environs of the site to the west), I don't see the proposal as "capable of existing together in harmony" with this low density setting (see Dem Gillespies v Warringah Council (2002) 124 LGERA 147). Visual privacy is a high level concern at this interface and it is clear to me that the proposal as currently designed, and in particular the incorporation of balconies which would allow for direct overlooking, presents something that would be antipathetic to the local character and is not compatible. In my judgment, this is determinative for the application.

Other issues

1. I acknowledge the other issues raised as contentions and mentioned above. However, in this matter I have come to the conclusion that the proposal is unsatisfactory in regard to visual privacy impact and that on balance the otherwise benefits that the proposal would provide (in particular, in regard to affordable housing) are insufficient to warrant approval of the development in the face of these impacts. In the circumstances, it is unnecessary to adjudicate on these further issues in this judgment.

Orders

1. The orders of the Court are: 1. Leave granted to rely on amended plans. 2. The appeal is dismissed. 3. Development Application No. DA172/2016 for the demolition of the existing single storey brick dwelling, removal of trees and pool and the construction of twelve townhouses and underground parking at 31 Wyatt Avenue Burwood is refused. 4. The exhibits are returned with the exception of Exhibits A, B, 2, 3 and 4.

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P Walsh 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: 12 October 2018