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[2014] NSWLEC 1212
Land and Environment Court (NSW)
2014-09-17
Ms P
Original judgment source is linked above.
Judgment 1COMMISSIONER: This is an appeal against the refusal of Development Application DA2013/212 by Strathfield Municipal Council for the demolition of all existing structures and construction of a multi dwelling housing development comprising 11 x 4 bedroom townhouses and a common basement car park at 43 Mackenzie Street, Strathfield (the site). 2The development provides for a detached four bedroom dwelling at the Mackenzie Street frontage (townhouse 1), a block of two townhouses (townhouses 2 and 3) and a block of three town houses (townhouses 4, 5 and 6) facing east and a block of two townhouses (townhouses 7 and 8) and a block of three town houses (townhouses 9, 10 and 11) facing west. Access is provided from Mackenzie Street, past townhouse 1 to the basement car park. 3The contentions raised by the council at the hearing are:
The site 6The site is Lot 1 in DP 12502. It is a battle-axe block and has a 13.715 m frontage to Mackenzie Street that provides access to the rest of the site. The site area is approximately 3,168 sq m. Improvements on the land include a dwelling and out buildings located in the access handle. The area beyond the access handle contains three loam tennis courts. Vegetation of different species, height and condition are scattered largely around the perimeter of the site. 7Development in the immediate vicinity of the site is primarily single and two storey dwelling houses of a mixed style and character. The dwellings consist of relatively intact Federation/Californian bungalow style dwellings, Federation/Californian bungalow style dwellings with second storey additions, new contemporary dwellings and dwellings identified as heritage items. Dwellings are generally large and located on large blocks of land with landscaping in the front setback area and rear yards.
Relevant planning controls 8The site is within Zone R3 Medium Density Residential under Strathfield Local Environmental Plan 2012 (LEP 2012). Multi dwelling housing is permissible with consent in this zone. Clause 2.3(2) states: (2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. 9The zone objectives are: · 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. 10Clause 4.3(2) provides requirements for the height of buildings and states that "the height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map ". The maximum height on the Height of Buildings Map is 9.5 m. It was agreed that the proposed development satisfies this development standard. 11Clause 4.4(2) provides requirements for the floor space ratio (FSR) and states that "the maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map". The FSR on the Floor Space Ratio Map is 0.65:1. It was agreed that the proposed development satisfies this development standard. 12Strathfield Consolidated Development Control Plan, Part C, Multiple-Unit Housing (the DCP) applies in relation to requirements for Density, Bulk and Scale (cl 2.2), Solar Access (cl 2.4.2), Open Space and Landscaping (cl 2.7) and Privacy and Security (cl 2.8).
The potential rezoning of the site The history 13The site has been the subject of action by the council to change the zoning of the site from Zone R3 Medium Density Residential to Zone R2 Low Density Residential, A brief chronology of events is as follows:
Findings 18The questions to be answered are first, is the draft environmental planning instrument (or the Planning Proposal, in this case) certain and imminent, and if so what weight should it be given in the consideration of the application and second, does the proposal undermine the expressed future planning objectives as set out in Planning Proposal. 19On the first question, I accept that weight should be given to the Planning Proposal. It has been prepared by the council, the Gateway Determination has been issued to allow the council to proceed with the exhibition of the Planning Proposal. The council considered the submissions following advertising and referred the Planning Proposal to the Department of Planning and Environment on 16 September 2014. 20I would also add that the question of the minimum lot size is not necessarily certain. The Department of Planning and Environment, in the Gateway Determination, requested the council to consider reducing the minimum lot size control to increased dwelling yield for the site. The council, at its meeting of 16 September 2014, resolved to maintain the 560 sq m minimum lot size under LEP 2012. I note that the applicant in these proceedings placed a submission before the council to reduce the minimum lot size on the site to 405 sq m. The practical effect is that depending on the minimum lot size, the site may accommodate 5 lots (minimum 560 sq m lot size) or 7 lots (minimum 405 sq m lot size) with a consequent change to the perception of any development on the site from adjoining properties. 21Blackmore, at [30] states that even if the Planning Proposal is imminent and certain, that does not mean that there is no further inquiry. The second question asks whether the proposed development will preserve the character anticipated by the proposed zone and whether the proposed development will undermine the objectives of this zone, in a substantial way (my emphasis)(Terrace Towers at [7]). Answering this question I can conclude that the proposed development will not, for a number of reasons. 22First, the objectives for the R2 Zone are: · 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 development of housing does not adversely impact the heritage significance of adjacent heritage items and conservation areas. 23The objectives for the R3 Zone are: 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. 24In comparing the different objectives; the only significant difference in the relevant objectives is a reference to "a low density residential environment" for the R2 Zone and a reference to "a medium density residential environment" in the R3 Zone. Unfortunately, neither phrase is defined in the Dictionary to LEP 2012. 25Second, and in considering character, it is helpful to look at the form of development anticipated by the R2 Zone and R3 Zone. Clause 4.3(2) provides for the height of buildings and states that "the height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map. The maximum height on the Height of Buildings Map is 9.5 m for both the R2 Zone and R3 zone 26Clause 4.4(2) provides for floor space ratio (FSR) and states that "the maximum FSR for a building on any land is not to exceed the FSR shown for the land on the Floor Space Ratio Map. The FSR on the Floor Space Ratio Map for the R3 Zone is 0.65:1. Clause 4.4C states that despite cl 4.4, the maximum FSR for a building on a lot being land in Zone R2, with an area specified in Column 1 of the Table to this clause, is the FSR specified opposite that lot in Column 2 of the Table. Column 1 Column 2 Lot area (m2) Floor space ratio < 500 0.65:1 500-599 0.625:1 600-699 0.60:1 700-799 0.575:1 800-899 0.55:1 900-999 0.525:1 ≥ 1,000 0.50:1
27Curiously, the form of development anticipated in the R2 Zone and the R3 Zone through the height and FSR controls in LEP 2012 are surprisingly similar with the same height requirement and only a small difference in FSR for lots with an area of 560 sq or the same FSR for lots less than 500 sq m. 28Third, and on the question of bulk and scale, Ms Kerry Gordon, the council's town planner and Ms Meg Levy, the applicant's town planner disagreed on the appearance of the proposed development from the adjoining residential properties. Ms Gordon's preference was for the development to be reorientated in an east-west direction rather than a north-south direction. This would provide for the side elevations to face to the residential properties to north and south rather than the longer rear elevations. Ms Gordon also suggests that the blocks that contain three townhouses should be reduced to two townhouses in a similar design to the other two town house blocks. In her opinion, these measures would reduce the bulk of the development from adjoining residential properties. Ms Levy disagrees and states that these measures are unnecessary as it unacceptably reduces the yield particularly when, in her opinion, there are no issues associated with bulk or any consequential amenity concerns. 29On bulk and scale, I am not satisfied that the amendments suggested by Ms Gordon are necessary. The proposed development has an FSR of 0.52:1 and while FSR is not the only indicator of bulk, it nonetheless provides some measure of bulk. This needs to be compared to the maximum FSR in Zone R2 of 0.625:1 (for 560 sq m lots) and 0.65:1 in Zone R3. Also, and if the council's minimum lot area of 560 sq m is adopted, then the part of the site that excludes the battle-axe handle would likely accommodate four lots. Given the shallow depth of any new lot in this area, it is likely that any future dwellings would occupy a large portion of the lot with the minimum possible boundary setbacks. In support of the previous comments, Ms Gordon raised no issue with the blocks containing two townhouses and only expressed concern over the blocks containing three townhouses. Ms Gordon and Ms Levy both agreed that any new dwelling on the site would likely be " a very large dwelling" based on recent developments in the area. Even if the blocks containing three townhouses were larger than a potential dwelling, I do not accept that any difference would be that significant, in terms of bulk when viewed from the adjoining areas, that this would warrant the refusal of the application. 30Fourth, the DCP provides the following relevant objectives in Part C: Clause 1.2 Objectives of Part C 1. To maintain and improve the amenity and character of medium density residential areas in the Council area. 2. To ensure that new residential development is of a type, scale, height, bulk and character that is compatible with the particular streetscape characteristics of the area in which it is proposed. 3. To promote residential development that is attractive, functional, innovative and is of a high quality. Clause 2.2 Density, Bulk and Scale Objectives: a) To establish appropriate building envelopes for multiple-unit residential development throughout the Strathfield Municipality, while allowing flexibility in siting buildings; b) To ensure that the amenity, character and environmental quality of the Strathfield Municipality is maintained by grouping together compatible residential development; c) To clearly define appropriate site requirements for multiple-unit residential development; and d) To encourage vertical, rather than stepped or terraced building forms, as appropriate to an area's predominant built character. Clause 2.5 Streetscape and Building Orientation Objectives: a) To ensure that residential development is of a type, height and scale that is generally compatible with or which improves the appearance of existing buildings and contributes positively to the future character of the street; b) To provide design solutions which will assist in achieving residential development which is attractive, functional and convenient for residents; and c) To ensure street facing facades incorporate appropriate decorative elements to provide interest to the development and address the street frontage. 31I am satisfied that the proposed development will be compatible with these objectives. I have adopted the meaning of compatible as set out in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 at [22] where it states: 22 There are many dictionary definitions of compatible. The most apposite meaning in an urban design context is capable of existing together in harmony. Compatibility is thus different from sameness. It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve. 32Fifth, the Planning principle in Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117, deals with development at the zone interface and relevantly states at [25] 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. 33I am satisfied that the proposed development "recognise(s) and take(s) into account the form of existing development and/or development likely to occur in an adjoining different zone". 34Sixth, the Planning principle in Veloshin v Randwick Council [2007] NSWLEC 428, deals with height, bulk and scale, and relevantly states at [29 and 30]: 29. .The terms excessive height, bulk and scale and overdevelopment are probably the most frequently used phrases in councils' Statements of Contention. While bulk and scale tend to be used interchangeably, strictly speaking, bulk refers to the mass of a building and scale is properly used only when referring to the relative size of two or more things. When scale is used to mean apparent size, it is better to use those words. When scale is used to denote the character of an area, it is better to use that word. All the above are highly subjective terms, since a building that one person perceives as too big, another person finds appropriately sized. This is the reason why in almost all disputes about height and bulk the Court receives evidence from an expert who thinks that these attributes are excessive and one who thinks that they are appropriate. 30 The debate about height and bulk can be meaningful only against the background of local planning controls, such as maximum height, floor space ratio, site coverage and setbacks. While these controls are usually also based on subjective judgment, they have been through a statutory process involving exhibition and the consideration of public comment. They therefore express the subjective preferences of a local community and should be given greater weight than the subjective preferences of individuals. 35Veloshin at [32] further states: The appropriateness of a proposal's height and bulk is most usefully assessed against planning controls related to these attributes, such as maximum height, floor space ratio, site coverage and setbacks. The questions to be asked are: Are the impacts consistent with impacts that may be reasonably expected under the controls? For complying proposals this question relates to whether the massing has been distributed so as to reduce impacts, rather than to increase them. For non-complying proposals the question cannot be answered unless the difference between the impacts of a complying and a non-complying development is quantified.) How does the proposal's height and bulk relate to the height and bulk desired under the relevant controls? Where the planning controls are aimed at preserving the existing character of an area, additional questions to be asked are Does the area have a predominant existing character and are the planning controls likely to maintain it? Does the proposal fit into the existing character of the area? Where the planning controls are aimed at creating a new character, the existing character is of less relevance. The controls then indicate the nature of the new character desired. The question to be asked is: Is the proposal consistent with the bulk and character intended by the planning controls? Where there is an absence of planning controls related to bulk and character, the assessment of a proposal should be based on whether the planning intent for the area appears to be the preservation of the existing character or the creation of a new one. In cases where even this question cannot be answered, reliance on subjective opinion cannot be avoided. The question then is Does the proposal look appropriate in its context? 36In this case, and applying the principles in Veloshin, I am satisfied that the impacts are consistent with impacts that may be reasonably expected under the controls given the previous comments on height and FSR. The setback of the proposed development to the adjoining residential properties was not a matter raised by the council (except in terms of overlooking and this is addressed later in the judgment). The setbacks range from 5.5 m to 7 m to the east, 6 m to 7m to the west, 5 m to the north and 7.5 m to 10.5 m to the south. The DCP provides for a minimum side setback of 4 m although for buildings of 2 or more storeys, there is a reference to a building envelope although this was not discussed in the expert evidence. 37On the second question in Veloshin, namely the relationship of the proposal's bulk to the bulk desired under the relevant controls, I am satisfied that the relationship is acceptable even though the site adjoins a different zoning largely because the form of development anticipated in each zone is not that significantly different. In my view, the proposed development looks appropriate in it's context. 38The last two questions in Veloshin are not relevant, in this case.
Solar access 39Clause 2.4.2.2 of the DCP states: 2. Residential buildings are to be designed to maximise solar access to living areas and private open space. The following guidelines indicate the preferred levels of solar access for new developments, and any departures from these standards will require justification that resulting energy efficiency and solar access is acceptable: (i) the main living areas and at least 50 percent of the principal private open space of each dwelling shall have at least three hours of sunlight between the hours of 9am and 3pm on June 22 (winter solstice); and (ii) solar access to the windows of habitable rooms and to the majority of private open space of adjoining properties must be substantially maintained or achieved for a minimum period of 3 hours between 9.00am and 3.00pm at the winter solstice (June 22). 40Ms Gordon and Ms Levy agreed that the proposal does not meet the requirement for 50% of the area of all courtyards to receive direct sunlight for 3 hours between 9am and 3pm at the winter solstice. It was also agreed that solar access could be improved by reducing the height of fences to courtyards in certain locations. 41It was agreed that the living rooms of townhouses 1, 2-6 and 11 achieve 3 hours of solar access at midwinter between 9am and 3pm however the living rooms of townhouses 7-10 do not comply, receiving in the order of 1 hour. It was noted and agreed that the afternoon sun (after 3pm) does benefit the living rooms of townhouses 7-11, but that it is outside of the 9am-3pm guideline for preferred levels of solar access. 42Ms Gordon states that it is appropriate to provide solar access to 50% of all the courtyards however this is not possible with the chosen orientation of the proposed townhouses. If the orientation of the townhouses is accepted then the courtyards as currently proposed, not only breach the control but also provides an unacceptable level of amenity due to the lack of solar access 43Ms Levy states that sufficient sunlight is available to allow a table and chairs in the rear yard for the townhouse occupants. Specifically, townhouses 1-6 and 11 are very satisfactory. Townhouse 7 receives an acceptable level of sun from 12.30pm -2pm (about 50% of the main courtyard) and this is reduced to about 25% at 3pm). Townhouse 8, 9, 10 each have about 33% of the main courtyard in sun at 12 noon increasing to about 60% at 1pm-2pm. While townhouse 7,8,9 and10 do not achieve the required DCP solar access, Ms Levy considers that there is still an acceptable/useable area of sunlight to the courtyards that residents can reasonably enjoy. 44It is agreed that townhouses 7-10 achieve 1 hour of sunlight into the living rooms while the remainder townhouses receive 3.5 hours to over 7 hours direct sunlight. While it is preferable that all dwellings receive 3 hours of sun, Ms Levy notes that had the development triggered the use of State Environmental Planning Policy No 65 - Design of Residential Flat Buildings, the Residential Flat Design Code (RFDC) provisions for solar access would apply. The RFDC at Part 3, provides a "Rule of Thumb" that "living rooms and private open spaces for at least 70 percent of apartments in a development should receive a minimum of three hours direct sunlight between 9am and 3pm mid winter". This would equate to 3.3 dwellings not receiving 3 hours sunlight, which is comparable to the subject proposal, which has 4 dwellings in this category. 45On the question of solar access, I agree with the conclusions of Ms Levy, that while not optimal, the proposed development is acceptable in terms of solar access. I accept that strict compliance with the DCP requirements is difficult given the orientation of the site and the shadows cast by the internal courtyard walls. Ms Gordon's suggestion that the development be reorientated may potentially achieve a higher number of compliant townhouses however any theoretical design may also raise other issues. There are always alternate designs available but the question that needs to be answered is whether the proposed development is acceptable and not whether there is another suitable design for the site. While not strictly applicable, the Rule of Thumb in the RFDC, highlights that strict compliance is often difficult to achieve and consequently provides a sensible level of flexibility in the provision of solar access. The DCP adopts a similar flexible approach (but without quantifying any variation) in cl 2.4.2.2, where it states that the "following guidelines indicate the preferred levels of solar access for new developments, and any departures from these standards will require justification that resulting energy efficiency and solar access is acceptable". I am satisfied that sufficient justification has been provided by Ms Levy to support the variation to the DCP requirement.
Overlooking 46The objectives for Privacy and Security in cl 2.8 are: (a) To ensure the siting and design of buildings provides visual privacy for residents and their neighbours in their dwellings and open space areas; and (b) To provide personal and property security for residents and visitors and enhance perceptions of community safety. 47Following the provision of screens to the upstairs bedroom windows, Ms Gordon and Ms Levy agreed that the proposal provides adequate privacy to the adjoining residents with the exception of the west facing townhouses 7 to 11 where Ms Gordon maintains that privacy is unacceptable as the ground floor level of these town houses are about 1 m above natural ground level. With the natural slope of the land away from the townhouses, occupants of the townhouses can view into the adjoining residential properties from the family/dining areas and from parts of the stairs down the courtyard of townhouses 9 to 11 and from parts of the stairs down the courtyard of townhouses 7 and 8. Ms Gordon, with the help of some sightline diagrams, suggests that any overlooking issue could be addressed by lowering the two buildings containing townhouses 7-11 by 300 mm. Ms Levy offered additional screening to be placed on the proposed 1.8 m fence to achieve the same effect. 48On this matter, I agree with Ms Gordon that an overall reduction in height of townhouses 7-11 by 300 mm is required even though some screening is proposed on the landing to the stairs that leads to the private courtyards. I do not accept that a 2.1 m high fence is acceptable in the location suggested by Ms Levy as a fence of this height is inappropriate in a residential setting, particularly when the purpose it to address an issue with the design of the proposed development. 49On the matter of acoustic privacy, I am satisfied that there is good separation between the dwellings on the adjoining residential properties and the proposed townhouses to provide a sufficient buffer to minimise any noise impacts. I also note that the five west facing townhouses directly adjoin four residential dwellings and there are five townhouses that directly adjoin three residential dwellings to the east. On this basis, I do not accept that the additional townhouses are likely to unreasonably add to the noise between properties.
Other matters 50Other matters arose as part of the evidence of Ms Gordon and Ms Levy. These include: The location of the entry to the basement carpark 51Ms Gordon suggests that the location of the entry to the basement carpark should be located nearer to the street as it currently provides a "gun barrel" form with little landscaping. Ms Levy states that the location is appropriate as it more closely replicates a domestic driveway and any change would require a redesign of the basement carpark and the visitor spaces. I agree with Ms Levy although there was agreement that some redesign could take place to allow for more landscaping. The location of the common open space 52Ms Gordon maintains that the common open space should be more centrally located and have greater passive surveillance. Ms Levy states that the location is accessible to future residents and can be observed by two townhouses and the central communal corridor. I agree with Ms Levy. The noise from the access to the basement carpark 53While no expert acoustic evidence was provided, Ms Gordon and Ms Levy agreed that a 1.8 m high acoustic fence should be constructed on the northern boundary. I accept this agreed position. Townhouse 1 54Townhouse 1 was the subject of further discussion between the parties prior to the hearing that resulted in a design that was more acceptable in the streetscape to Ms Gordon. I agree that there is no need to provide a dwelling design that draws on the more traditional housing styles in the area, particularly when there are more contemporary designs nearby. I accept that the townhouse 1 is acceptable when viewed from Mackenzie Street.
The resident concerns Vehicular and pedestrian safety, access to visitor parking, traffic congestion. 55Traffic, parking and safety are addressed in the Traffic and Parking Assessment Report by Varga Traffic Planning (21 November 2013) where the report states "that the projected increase in traffic activity as a consequence of the development proposal is minimal and will clearly not have any unacceptable traffic implications in terms of road network capacity" (p10) and " the proposed parking facilities satisfy the relevant requirements specified in Council's Parking Code as well as the Australian Standards and it is therefore concluded that the proposed development will not have any parking implications"(p13). I note that no safety issues were identified in the Varga report. 56In the absence of any expert evidence to contradict these conclusions, I accept the conclusions of the Varga report. Impact on trees on adjoining properties, loss of trees on the site. 57The expert report of Mr Stuart Pittendrigh, a landscape architect and arborist, concluded that the proposed development would not unacceptably impact on any existing trees on the site to be retained and on adjoining properties based on applying the Tree Protection Zones and Structural Root Zones methodology in Section 3 of Australian Standard 4070-2009 Protection of trees on development sites. 58In the absence of any expert evidence to contradict these conclusions, I accept the conclusions of the Pittendrigh report. Unsightly bin storage. 59As I understand, the bin storage area has been located to a more suitable location. Lighting impacts. 60This matter is to be addressed through a condition of consent. Lack of heritage assessment. 61A document titled "Heritage Impact Statement" was provided by the project architect and while this document would not necessarily suffice if there were realistic potential impacts on the two nearby heritage items (12 Arthur Street and 9 Shortland Avenue), I am satisfied that the proposed development does not affect the heritage significance of these two items. Unsatisfactory provision of common open space., 62It was agreed that the quantum of common open space was acceptable and the location of the common open space is addressed earlier in the judgment and was found to be acceptable. Overshadowing. 63While the proposed development will cast shadows onto some adjoining residential properties, the impact of overshadowing is similar to that likely to be experienced if the site was developed for single dwelling houses. Noise from use of driveway. 64This matter is to be addressed through a condition of consent. Inadequate information on stormwater disposal. 65Adequate information has been submitted to satisfy the council that this is not a matter that warrants the refusal of the application. Inadequate basement setbacks 66This matter is to be addressed through a condition of consent. Inadequate information on contamination. 67Adequate information has been submitted to satisfy the council that this is not a matter that warrants the refusal of the application.
Future directions Based on these findings, amended plans and amended conditions will need to be prepared. An appropriate timetable will be discussed with the parties when the findings are handed down. Also, a number of matters were agreed by Ms Gordon and Ms Levy as requiring amendment. These matters include, but are not limited to:
Clause 2.3(2) 68Having regard to the zone objectives , there is no reason why development consent should not be granted subject to the satisfactory provision of plans and conditions identified in the preceding paragraph.
Planning principles 69In this matter, a number of planning principles have been relied on to conclude that the proposed development may be acceptable, subject to the provision of amended plans and conditions. The planning principles are:
G T Brown 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: 16 October 2014
Doolan
Strathfield Municipal Council