Ellis v Lane Cove Council

The Site

1. The site is a regular, rectangular shape, fronting Centennial Avenue for 15.24m, which forms the northern boundary. The total area of the site is 696.7m², with rear and side boundaries of 15.24m and 45.72m, respectively.
2. Around the site are generally one and two storey detached dwellings. Currently on the site is a single level brick dwelling, similar in character with many other residences in the street.
3. The site has a slope of approximately 3.1% (1.8 degrees), equating to a cross fall of 1.45 m across the length of the site, that is towards the street/front (in a northerly direction).
4. These facts are not in dispute by the parties.

Relevant Planning Controls

1. The site is located within the R2 Low Density Residential zone, as described in the Lane Cove Local Environmental Plan 2009 (LCLEP). The aims of the LCLEP, established in cl 1.2, and in particular cll 1.2(2)(b) and (c) (with emphasis added below), are relevant for the Courts consideration: 1.2 Aims of Plan (1) This Plan aims to make local environmental planning provisions for land in Lane Cove in accordance with the relevant standard environmental planning instrument under section 33A of the Act. (2) The particular aims of this Plan are as follows: … (b) to preserve and, where appropriate, improve the existing character, amenity and environmental quality of the land to which this Plan applies in accordance with the indicated expectations of the community, (c) in relation to residential development, to provide a housing mix and density that: … (ii) is compatible with the existing environmental character of the locality, and (iii) has a sympathetic and harmonious relationship with adjoining development, …
2. Pursuant to cl 2.3 of the LCLEP, the proposed development is permissible and the objectives of the zone are relevant (with those in italics that the parties draw the Court's attention to), as follows: Zone R2 Low Density Residential 1 Objectives of zone • To provide for the housing needs of the community within a low density residential environment (emphasis added). • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To retain, and where appropriate improve, the existing residential amenity of a detached single family dwelling area (emphasis added). • To encourage new dwelling houses or extensions of existing dwelling houses that are not highly visible when viewed from the Lane Cove River or Parramatta River. • To ensure that landscaping is maintained and enhanced as a major element in the residential environment (emphasis added).
3. The proposed development complies with the height development standard (of 9.5 m) in cl 4.3 of the LCLEP. The objectives for cl 4.3 (with those of specific relevance shown in italics) are of consideration by the Court: 4.3 Height of buildings (1) The objectives of this clause are as follows: (a) to minimise any overshadowing, loss of privacy and visual impacts of development on neighbouring properties, particularly where zones meet, and (b) to maximise sunlight for the public domain, and … (d) to relate development to topography (emphasis added). (2) 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.
4. The Lane Cove Development Control Plan 2010 (LCDCP) is relevant for the Courts consideration of the proposed development under appeal, specifically controls in Part C1, Sections: 1.1, dwelling house objectives; 1.2, streetscape; 1.3, setbacks; 1.6, cut and fill; 1.7, building design; and 1.9, carparking.

Evidence

1. The Court was provided written evidence from the following planning experts: Mr Kerry Nash for the applicant; and Mr Greg Samardzic for the respondent. The Court relies on their joint expert report, tendered as Exhibit 4.
2. The applicant's traffic expert, Mr Ken Hollyoak also provided written evidence tendered as Exhibit D.

Is the depth of the proposed excavation for a (basement) garage reasonable?

1. The Council contends that the proposed depth of excavation is excessive for the site and inconsistent with the relevant controls, specifically cl 1.6, of the LCDCP.
2. The applicant relies on the slope of the site for the proposed excavation, which is therefore reasonable and responsive to the topography.
3. The parties agree that the proposed width of the excavation is not an issue due to the reduction in its extent, as shown in the amended plans, which now accommodates a two car garage with storage and a turntable.
4. The Council contends that the provisions of the cut and fill control (cl 1.6), as described in the LCDCP, and specifically (a), (b) and (d) are not satisfied because the proposed depth of excavation does not respond to the slope existing on the site: "1.6 Cut and Fill Objectives The objectives for cut and fill in low density residential developments are to: 1 Retain the natural ground levels as much as possible of a site and its existing landforms particularly in relation to the street or adjacent private open space areas (emphasis added). 2 To achieve reasonable landscaping within development. 3 To minimise the extent of cut and fill and its impact along side boundaries. 4 To create a consistent relationship between the dwelling and the street (emphasis added). 5 To ensure that excavation and filling of a site does not result in unreasonable amenity impacts to adjoining dwellings. 6 To minimise change to water run-off patterns. Provisions a) All dwellings are to relate to the existing topography of the land at the time of the adoption of this DCP. b) The area of the site contained within the building footprint can be excavated or filled only where it is necessary to reasonably construct a dwelling on steeply sloping sites. ... d) Development is limited to a maximum depth of excavation or fill of 1m at any point on the site unless it is demonstrated that the site's slope is too steep to reasonably construct a 2 storey dwelling with this extent of excavation. …"
5. The experts agree that the proposed excavation to accommodate the garage, as shown in the amended plans, is considered a 'basement' and exceeds 1m in depth.
6. Mr Staunton explains that the requirements of s 4.15(3A) of the EPA Act, require that, whilst the controls of the LDCP must be considered by the Court, if the proposed development satisfies the relevant requirements of the LCLEP, more onerous standards cannot be imposed and the DA cannot be refused. He refers to the proposed development's compliance with the objectives and provisions of cl 1.7, as it relates to building design, below: "1.7 Building Design Objectives The objectives are to: 1 Ensure new dwellings and alterations and additions to existing dwellings reinforce the typical bulk and scale of existing dwellings within the street and the area. 2 Ensure that alterations and additions to existing dwellings maintain the integrity of the design and style of the existing building. 3 Ensure elevations to the street and public domain are well proportioned and designed. 4 Minimise impact in terms of overshadowing, loss of privacy, light spillage to adjoining properties, loss of views and amenity. Provisions 1.7.1 Height a) The maximum wall height to the underside of eaves for any floor above ground level (existing) is 7.0m to minimise the bulk and massing. b) The maximum height to the underside of undercroft areas above ground level (existing) is to be 1.0m. Refer to controls relating to cut and fill for additional requirements. c) The maximum height of a parapet roof is to be 600mm above the maximum wall height of a dwelling. d) The maximum height for a pitched roof house is 9.5m above ground level (existing). e) A maximum of 2 storeys plus basement is permissible at any point above ground level (existing). No building will be permitted to have an appearance (in elevation) exceeding three storeys in height. f) In the case of a detached dual occupancy, the dwelling furthest from the street is to be single storey."
7. Mr Nash explained that the amended excavation depth for the proposed garage satisfies the objectives for the cut and fill control (cl 1.6) of the LCDCP because the excavation is located wholly within/beneath the building footprint and achieves reasonable landscaping along the sides and rear of the site. The provision of basement parking relates well to the street and the proposed dwelling. He considers that the LDCP contemplates a 'basement', and that the proposed development responds to the topography (slope) of the site. He contends that with the reduction in the basement garage as proposed, as shown in the amended plans, the garage design is appropriate (for two cars plus a turntable and storage) and the excavation has been sufficiently 'minimised'.
8. Mr Nash also considers that the excavation control limit of 1m depth (cl 1.6 of the LCDCP) relates to excavation for habitable rooms, and the garage is not considered a 'habitable room'. Cl 1.6 of the LCDCP, he states, relates to a dwelling and not a basement. The applicant accepts that the control (cl 1.6) requires a 'dwelling' to relate to the topography of the site.
9. Mr Samardzic however contends that the proposed development relies on an unnecessary depth of excavation to accommodate the basement garage. He does not consider the slope of the site as being 'steeply sloping', and refers to it as being 'gently sloping'. Therefore, the excavation is not responsive to the slope of the land (site) as referred to in the LCDCP. The proposed depth of excavation, of up to 2.54m, to accommodate a two storey dwelling with basement garaging on the site, is neither reasonable, nor necessary. He considers that a two storey dwelling with an excavation less than 1m depth could reasonably be constructed on the site.
10. He also contends that the proposed development does not 'retain the natural ground level as much as possible' and does not relate to the street. He observes that there are no other garages on the street that rely on basement garaging (with depths in excess of 1m).
11. The issue for the Court's consideration, as it relates to the excavation, appears to centre on the reasonableness of the proposed depth of excavation (up to 2.54m) to accommodate a (two car) basement garage, and whether the development responds reasonably to the topography/slope of the site. Based on the amended plans, the maximum excavation depth proposed exceeds the 1m control provision by a maximum of 1.54 m (154%).
12. Neither the LCLEP, nor the LCDCP provide a detailed description of the terminology for 'steep' or 'slope', particularly as it relates to ground level.
13. To interpret the provisions of the EPA Act, LCLEP and LDCP where there is a need for clarity, it is appropriate in seeking the meaning and intent of the terminology to be relied upon, to refer to s 34 of the Interpretation Act 1987: 34 Use of extrinsic material in the interpretation of Acts and statutory rules (1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material: (a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or (b) to determine the meaning of the provision: (i) if the provision is ambiguous or obscure, or (ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable.
14. To define 'steep slope' or 'steeply sloping' as relied on in cl 1.6 of the LCDCP, I refer to the Merriam-Webster Dictionary for the terms of 'steep' and 'slope', which occur individually as: "Steep: making a large angle with the plane of the horizon; being or characterized by a rapid and intensive decline or increase." "Slope: ground that forms a natural or artificial incline; upward or downward slant or inclination or degree of slant."
15. Slope, as existing on the site, is a three dimensional concept. When assessed from the plans in evidence before me it is defined on the vertical and horizontal planes. For this site, the parties agree that the slope is 3.1%, equivalent to 1.8 degrees.
16. I therefore do not accept that the slope of the site can be described as 'steeply sloping'. I agree with Mr Samardzic.
17. A slope of 1.8 degrees is not a 'large angle with the plane of the horizon', nor a 'rapid or intensive decrease'.
18. Further to this, Mr Nash does not adequately describe how the steepness of the slope of the site requires and relies on the proposed depth of excavation. The applicant has not demonstrated that it is unreasonable to construct a dwelling on the site, including with garaging without an excavation exceeding 1m in depth. The applicant has not demonstrated that the depth of excavation proposed is necessary for the stability of the land surface, engineering design of the dwelling/garage, to reduce amenity impact or any other reason. I do not accept Mr Nash's logic that the proposed development responds to the topography/slope of the site, and therefore requires a deeper excavation for the construction of a basement garage.
19. Based on the evidence before me, I find that the slope of the land is not 'steep', and that the provisions of the cut and fill control (1.6) of the LCDCP to limit the excavation depth to 1m are reasonable and appropriate to be applied to a residential development, consistent with the R2 zoning, on the site.
20. I do not accept the applicants assertion that the control (cl 1.6) for cut and fill in the LCDCP relates only to the dwelling and not to a basement garage. The control relates to 'cut and fill', to which excavation for the basement garage applies. I find that the cl 1.6 objectives, specifically (1) and (3) do not limit themselves to the dwelling only, as interpreted by Mr Nash.
21. The proposed cut/excavation does not satisfy the objectives of the cut and fill control (1.6 of the LCDCP), specifically: (1) does not seek to retain the natural ground levels beneath the building envelope, and; (3) does not minimise the extent of cut and fill. No part of the proposed excavation satisfies the 1m maximum excavation provision. The minimum proposed cut/excavation depth is 2m, which is well in excess of the provision as specified. The site is not steeply sloping and I am satisfied that with the slope of the site it could reasonably accommodate a two storey dwelling with a garage excavated less than 1m in depth.
22. I accept that the EPA Act, specifically s 4.15(3A)(b), provides for flexibility in applying development controls. However in this appeal, I do not find it reasonable to vary the provisions of the cut and fill control (cl 1.6 of the LCDCP), as the proposed development is not responsive to the slope of the site, and imposes an unnecessary alternative solution that does not achieve the cl 4.3 objective (d) of the LCLEP, 'to relate development to topography' (emphasis added).
23. Mr Seton states that Council accepts that the cl 4.3 (of the LCLEP) numerical standard is satisfied, however the objectives of the standard are not achieved, He notes this approach is consistent with the decision of Moore J in Barrack v City of Parramatta Council [2018] NSWLEC 67 at [59].
24. I find that despite the numerical compliance of the proposed development with cl 4.3(2) of the LCLEP, the proposed excavation does not 'relate to the topography of the site' (emphasis added). Therefore, the proposed development does not satisfy the objective of the height development standard, cl 4.3(1)(d) of the LCLEP.
25. I find that the proposed development is not reasonable in its response to the topography/slope of the site, and standards more onerous than required are not being sought, pursuant to s 4.15(3A) of the EPA Act.
26. I am not satisfied to grant consent to the DA under appeal due to the excessive excavation proposed on the site, which I find is inconsistent with s 4.15(1)(a)(i) and (iii) of the EPA Act.

Is the proposed development, specifically the basement garage, consistent with the (existing and emerging) character of the area?

1. Council contends that the proposed basement garage with a ramped driveway access located in the front setback will result in a development that is inconsistent with the streetscape along Centennial Avenue, and character of the locality and R2 zone.
2. The Council argues that the proposed (basement) garage will results in a dwelling that presents to the streetscape as three stories, which does not relate to the street, is out of character for the local area and inconsistent with the relevant objectives controls of the LCDCP, specifically cll 1.2(1), 1.6(4), 1.7(1), and 1.9(2).
3. The Council accepts that based on the amended plans before the Court the proposed (two storey) dwelling does not itself present inconsistently with the streetscape, however the addition of the basement garage in the built form is uncharacteristic.
4. The applicant however considers that the basement garage does not present as a three storey feature of the proposed dwelling, because it is largely obscured by the proposed landscaping, fencing and gate. The garage is a basement to a two storey dwelling, not a storey itself.
5. The planning experts agree, which I concur, that the character of the area and the (R2) zone consists of one and two storey brick dwellings with driveway entry and landscaping in the front setback. Garages are located generally either at the rear of the dwelling or within the front building footprint, at grade. There is a period of transition in the area where single storey brick detached dwellings are being replaced by larger, two storey detached dwellings, which is consistent with the emerging character of the area.
6. The parties agree, and I accept, that there are no amenity impacts to residents of the proposed development or to adjoining properties from the proposed development. They also agree that all numerical development standards of the LCLEP are satisfied by the proposed development.
7. All the experts agree that vehicles leaving and entering the site should be in a forward motion to ensure safety of pedestrians. The concept of the proposed car turntable within the garage is accepted by the experts as being appropriate and reasonable, as it would minimise hard paving and landscaping in the front setback.
8. Mr Nash considers that the proposed development achieves the objectives of the R2 zone, as defined in cl 2.3 of the LCLEP, particularly by the improvement of amenity and landscaping relative to the existing dwelling. With respect to the relevant objectives of the LCDCP, the proposed development achieves cl 1.2, by providing a two storey dwelling of consistent scale to surrounding residences, with enhanced landscaping in the front and rear setbacks. The proposed development satisfies the relative development standards, specifically height (cl 4.4 of the LCLEP) and FSR (cl 4.4 of the LCLEP), which directly define the bulk and scale required for the area. The objectives of cl 1.7 of the LCDCP for building design are achieved by the proposed development.
9. He explains that the proposed basement garage is consistent with cl 1.9 (car parking) of the LCDCP, whereby the design of the garage structure relates to the topography, proposed dwelling and the streetscape. He says that cl 1.9.2 provides for driveway ramps and cl 1.7.1, and in his assessment, provides for basement parking that is not limited to 'steeply sloping' sites. Therefore, the ramped driveway entry to the basement garage is consistent with the provisions of the LCDCP. Further to this, the driveway and garage door will be obscured by appropriate fencing/gate and landscaping that also enhances the streetscape.
10. Mr Samardzic considers that the proposed development does not respond to the topography of the site or streetscape. He explains that there are no other examples of basement garages with ramped driveways within Centennial Ave, or in the immediate surrounds, which have a similar topography/slope to that found on the site. Therefore, in his opinion, the proposed development is not consistent with the present or emerging character of the local area, and inconsistent with the relative controls of the LCDCP that define the streetscape. He contends that the proposed excavation for the basement garage does not 'respond to the street' because of the ramped driveway, and it cannot be effectively hidden behind a fence with gate. The reliance on these structures and landscaping to obscure the effect of the ramped driveway is unreasonable.
11. Based on my observations from the photographs of the site and the surrounding area, provided in Exhibit 2, together with the expert evidence, I agree with Mr Samardzic that garages in the streetscape and R2 zone, are predominantly at the rear of a dwelling or incorporated into the dwelling at grade. There are no examples of basement garages in the street, provided in evidence.
12. Basement garaging has not been necessary on adjoining properties to respond to the existing topography/slope in the street. There is no evidence that the topography of the site is any different from adjoining properties or that the size of the lot is insufficient to design a dwelling with at grade parking, and therefore necessitate basement parking. The proposed development with a basement garage is not consistent with the streetscape or with the emerging character of the area, and does not present a reasonable alternative solution.
13. The development standards of the LCLEP and controls of LCDCP provide the framework to define the emerging character of the area.
14. I have previously found that objective (d) of cl 4.3 of the LCLEP has not been achieved by the proposed development. The basement garage with a ramped driveway is not responsive to the topography of the site, or to the street. I agree with Mr Samardzic that the proposed basement garage is inconsistent with the character of the area, and is not reasonable to respond to the slope of the site from the building envelope to the street.
15. With respect to the objectives of the LCDCP, I find that the proposed development, namely the basement garage with ramped driveway, is not consistent with the existing or emerging, future character of the locality. It is not "compatible with the surrounding context and enhance the streetscape within the area" (emphasis added), an objective (2) specified in cl 1.1 of the LCDCP. For the reasons provided above, the appearance of the basement garage with ramped driveway as proposed: is not consistent with the "predominant traditional or emerging street and neighbourhood character'' (emphasis added), namely cl 1.2(1); does not "create a consistent relationship between the dwelling and the street", namely cl 1.6(4); and does not have "minimal impact on the streetscape" (emphasis added), namely cl 1.9(2).
16. The proposed development with ramped driveway, gate, and fencing does not benefit the landscaping nor enhance it "as a major element in the residential environment" (emphasis added). The ramped driveway, I agree is obscured from the street when the gate is closed. However, when the gate is open it is visible to external observers, and visible at all times to internal occupants, which would have the effect to draw the eye to this driveway structure, taking away the enhancement of the landscaping as a 'major element'. As a consequence, objective (5) of the R2 zone, as described in cl 2.3 of the LCLEP is not satisfied.
17. Further to this, I find that the aims of the LCLEP, specifically cll 1.2(2)(b) and (c) are not satisfied by the proposed development, as the basement garage with ramped driveway: does not "improve the existing character of the land'; is not 'compatible with the existing environmental character of the locality'; and is not 'sympathetic … with adjoining developments" (emphasis added).
18. For the reasons provided above, namely consistency with the R2 zone objectives, and objectives of cl 1.2, 1.6 and 1.9 of the LCDCP, I find that the proposed development is not in the public interest, and inconsistent with s 4.15(1)(e) of the EPA Act.

Conclusion

1. The proposed development has been assessed by the Court, based on the evidence before me, including the DA's (amended) supporting plans, documents, draft conditions of consent, expert reports and photographs. The DA does not satisfy the requirements of the relevant planning instruments, namely: the EPA Act, specifically subss 4.15(1)(a)(i) and (iii), (1)(e) and (3A); cll 2.3 and 4.3(1)(d) of the LCLEP; and cll 1.2, 1.6 and 1.9 of the LCDCP.
2. Therefore, the appeal for DA 188/2018 is refused, pursuant to s 4.16(1)(b) of the EPA Act.

Orders

1. Consequently, the orders of the Court are as follows: 1. Leave is granted to rely on amended plans revision set 2A, dated 31 March 2020. 2. The appeal is dismissed. 3. Development Application (DA) 188/2018 which relates to demolition of existing structures and construction of a two storey dwelling with basement garaging on Lot 18 DP 9653, also known as 60 Centennial Avenue, Lane Cove is refused. 4. The exhibits are retained.

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: 23 April 2020