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.