Fobitu Pty Limited v Marrickville Council

Relevant planning controls 5The site is zoned R2 Low Density Residential under Marrickville Local Environmental Plan 2011 (LEP 2011) which was gazetted on 12 December 2011. Brook Lodge is listed in Schedule 5, Part 1 Heritage items of LEP 2011 as a heritage item of Local significance. It is described as a "Victorian rustic gothic villa". Residential flat buildings or multi dwelling housing are not identified as prohibited uses within the Land Use Table of LEP 2011 however cl 6.9 prohibits the granting of development consent for a residential flat building or multi dwelling housing unless "the development relates to a building that was designed and constructed for an industrial or warehouse purpose...". The effect of cl 6.9 is to prohibit a residential flat building or a multi dwelling housing development on the site. 6As the proposed development was submitted to the council on 20 March 2011, it is captured by cl 1.8A that states: 1.8A Savings provision relating to development applications If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced. 7Prior to the coming into effect of LEP 2011, the site was zoned Residential 2(A) under Marrickville Local Environmental Plan 2001 (LEP 2001). Brook Lodge is not identified a s a heritage item in LEP 2001. Residential flat buildings are a prohibited use within the Residential 2A zone however the development application relies on State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP-ARH) for its permissibility. 8The development application was made on 20 March 2011 and SEPP ARH was amended on 19 May 2011 (SEPP ARH). The amending SEPP ARH provides savings provisions at cl 54A where the effect is to permit the development application to be assessed under the former version of SEPP ARH (cl 54A(2)) with the exception of the "character test" (cl 54A(3)) which states: (3) if an existing application relates to development to which Division 1 or 3 of Part 2 applied, the consent authority must not consent to the development unless it has taken into consideration whether the design of the development is compatible with the character of the local area. 9State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65) applies by way of cl 16 of SEPP ARH. Clause 30 requires consideration to be given to the design quality principles in Part 2 (cl 30(2)(b)) and the publication Residential Flat Design Code (cl 30(2)(c)).

The dispute 10The council maintains that the proposed development must be refused as SEPP-ARH does not apply as all or part of the development is not within 400 m walking distance of a bus stop used by a regular bus service ((cl 11(a)(i)). 11The council further maintains that the proposed development should be refused as:

1. the proposed development is sufficiently incompatible with the character of the local area to warrant refusal (cl 54A(3)),
2. the development results in a building on the land with a height of more than 8.5 metres (cl 11(a)(i)), and
3. the proposed development has inadequate solar access.

The evidence 12Expert evidence was provided for the applicant by Mr Stuart Harding (town planning), Mr Rohan Dickson (urban design), Mr Craig McLaren (traffic), Mr Steve King (solar access) and Mr Adam Clerke (surveying). 13Expert evidence was provided by the council from Mr Ali Hammoud, a town planner. 14At the site inspection a number of local residents provided evidence opposing the development for a number of reasons. Those matters not raised by the council include:

• the unacceptable impact on the heritage significance of Brook Lodge and the undesirable precedent,
• unacceptable increased levels of traffic and parking demand,
• overshadowing and overlooking,
• potential impact on the existing trees in Hoskins Park,
• inadequate off street visitor parking,
• the dwellings at 34 and 36 Pigott Street have heritage value and should not be demolished,
• the consolidation of the lots would be inconsistent with the established subdivision pattern in the area,
• insufficient private open space areas and deep soil areas,
• noise from the proposed swimming pool, and
• noise, dust and air pollution during construction.

The 400 m walking distance 15Clause 10(2) of SEPP ARH states: 10 Land to which Division applies (1) (2) Despite subclause (1), this Division does not apply to a development site in the Sydney region unless all or part of the development site is within: (a) (b) (c) 400 metres walking distance of a bus stop used by a regular bus service (within the meaning of the Passenger Transport Act 1990) that has at least one bus per hour servicing the bus stop between 06.00 and 18.00 each day from Monday to Friday (both days inclusive). (3) . (4) In this clause: walking distance means the shortest distance between 2 points measured along a route that may be safely walked by a pedestrian using, as far as reasonably practicable, public footpaths and pedestrian crossings. 16Mr Hemmings, for the council, submits that the proposed development does not satisfy cl 10(2)(c). The consequence being that the development must be refused as the 400 m requirement is not a development standard, and as such is not amenable to an objection under State Environmental Planning Policy No.1 - Development Standards (SEPP 1). Mr Hemmings submits that the proposal does not satisfy the 400 m requirement because:

1. the point used to measure the distance from the site of the development is incorrect,
2. the point used to measure the distance to the bus stop is incorrect, and
3. the route between the site and the bus stop is impractical. 17Mr Galasso SC, for the applicant, disagrees with the submissions of Mr Hemmings and submits that there is compliance with cl 10(2)(c). The applicant has undertaken 14 detailed surveys for a range of potential pedestrian walking routes (but using the same streets) that satisfy the 400 m requirement. Of the surveyed routes, the distances range from 385.7 m to 399.5 m (Exhibit O). Mr Galasso also disputes the concerns expressed by Mr Hemmings over the points from which the 400 m distance is to be measured. For caution, a SEPP 1 objection to the 400 m requirement has been submitted, if the Court finds that the 400 m requirement is not satisfied and cl 10(2)(c) is a development standard and not a prohibition.

The measurement point at the site 18The measurement point at the site, for the purposes of cl 10(2)(c), is at the most southerly end of the Denison Road frontage. Unsurprisingly, it is the closest part of the site to the bus stop in Canterbury Road. The dispute centred on the meaning of the words "all or part of the development site" in cl 10(2). 19Mr Hemmings submits that it is necessary to adopt a qualitative approach to the interpretation of the words "all or part of the development site". In this context, the measurement point should be, at best, the main entrance to the development in Denison Road. Mr Hemmings notes that access to other parts of the site, such as Piggot Street, are at a considerably greater distance from the bus stop in Canterbury Road. Even if the applicants routes are accepted, any variation to the measurement point at the site will result in a breach of the 400 m requirement. 20Mr Galasso submits that the meaning of the words "all or part of the development site" is clear. The location of the measurement point at the site for the purposes of cl 10(2)(c) is at the most southerly end of the Denison Road frontage - it is part of the site and as such, no further inquiry is required. 21On this matter, I agree with Mr Galasso. I see no reason why the words "all or part of the development site" should not be given their ordinary meaning. The location of the measurement point at the most southerly end of the Denison Road frontage is clearly part of the site. If the draftsperson meant to provide greater specifity or include qualitative criteria, in the manner suggested by Mr Hemmings, then this could have easily formed part of cl 10(2)(c).

The location of the bus stop 22Mr McLaren and Mr Hammoud differed on the location of the bus stop in Canterbury Road and consequently whether the 400 m requirement was satisfied. The experts agree that at this location there are two bus stops, a standard bus stop operating during the day and a Nightrider bus stop operating between to midnight and 6 a.m. daily. There was agreement that the Nightrider bus stop did not meet the service requirements in cl 10(2)(c) and that the evidence focused on the standard bus stop. The standard bus stop in Canterbury Road is identified in the following way (Annexure A to Exhibit H):

• a bus zone sign with an arrow pointing east near Dulwich Street (sign 1),
• a bus zone sign with an arrow pointing west near Lewisham Street and the Nightrider sign (sign 2).
• a bus zone sign with an arrow pointing both east and west located generally between signs 1 and 2 (sign 3), and
• a bus stop sign (sign 4) located generally between signs 1 and 3. 23Based on inspections of the operation of the bus zone, Mr Hammoud states that passengers waiting for a bus were seated or standing in front of sign 4 on all occasions and that buses utilise the area at sign 4 to pick up passengers. From this reason, Mr Hammoud concludes that sign 4 is the appropriate location for the measurement of the walking distance required by cl 10(2)(c). 24Mr McLaren takes a different view. He states that the measurement of the walking distance required by cl 10(2)(c) should be at sign 2, a distance of some 10 m shorter from the site than the sign relied upon by Mr Hammoud. Mr McLaren states that the terms "bus stop" and "bus zone" are interchangeable based on cl 104 of the Passenger Transport Regulation 2007 Mr McLaren explained that the terms "bus stop" and "bus zone" are interchangeable as they are used in different circumstances but largely perform the same function. A "bus stop" (or a single point) is generally more appropriate in a residential environment whereas a "bus zone" (or an area between two points) is likely to be more appropriate in a busier location such as a commercial area. 25Mr McLaren also includes an extract of Appendix E4 of Bus Stop Installation Guide for Local Councils that identifies a bus stop as being the entire area between the two sign posted ends of the bus zone, not merely the spot identification sign designating the particular bus stop. This demonstrates that the bus stop comprises the entire designated bus zone and a particular "stop identification sign" does not equate to the bus stop. On this basis, the appropriate point for the measurement of the walking distance required by cl 10(2)(c) should be at sign 2. According to Mr McLaren, a "bus stop" also includes the area of the footpath adjacent to curb between the two bus zone signs (pp 10,12 and 22 Appendix E4 of Bus Stop Installation Guide for Local Councils) 26On this matter, I accept the evidence of Mr McLaren. Clause 10(2)(c) uses the words "a bus stop used by a regular bus service". Bus stop has a particular meaning in cl 10(2)(c) with a specific reference to Passenger Transport Act 1990 and consequently the Passenger Transport Regulation 2007. While the observations of Mr Hammoud are undoubtedly correct, they cannot influence the proper meaning of "bus stop" in cl 10(2)(c). I accept that the reference to a "bus stop" is a reference to a "bus zone", this being an area between signs 1 and 2 and occupying an area of the footpath. For the purposes of cl 10(2)(c), the appropriate location for the measurement is at a point around half the width of the footpath and perpendicular to the bus zone sign with an arrow pointing west near Lewisham Street (sign 2).

The route between the site and the bus stop 27The parties addressed the route between the site and the bus stop in forensic detail. The applicant provided 14 alternate routes, within the same road reserve, but with variations for the natural walking paths based on observations of pedestrian movements, whether roads were crossed at an angle of 5° or 20° and whether the defined path touched corners or were clear of corners. Irrespective of the variations, the paths plotted by Mr Clerke, a registered surveyor, all fell below a distance of 400 m between the site and the bus stop. 28The definition of walking distance in cl 10(2)(c) requires the walking distance, firstly to be the shortest distance, secondly able to be safely walked by a pedestrian and thirdly, using, as far as reasonably practicable, public footpaths and pedestrian crossings. Based on this definition, there was no dispute that the route was the shortest distance, safe and used public footpaths. The route contained no pedestrian crossings. 29Having found that the appropriate measurement points are those used by the applicant and given the paths plotted by Mr Clerke were all below 400 m between the site and the bus stop, I accept that the 400 m requirement in cl 10(2)(c) is satisfied. 30While the paths plotted by Mr Clerke appeared to finish at the property boundary and perpendicular to sign 2, rather than at a point around half the width of the footpath and perpendicular to sign 2 (see par 24), I am satisfied the difference in distance to the site would not alter the finding that the 400 m requirement in cl 10(2)(c) is satisfied.

The character test - is the proposal compatible with the character of the local area? 31There was general agreement that cl 54A(3) requires consideration of the following matters:

• what is the "local area"?
• what is the character of the "local area"?
• is the design of the proposed development compatible with the character of the "local area"?

What is the "local area"? 32Mr Hammoud and Mr Dickson accept the approach in Peninsula Developments Australia Pty Ltd v Pittwater Council [2011] NSWLEC 1244 where" local area" is described as: ....principally the visual catchment in which the development will be viewed.... The wider catchment is also relevant.... 33They however disagree on the extent of the visual catchment with Mr Hammoud adopting the properties in Pigott Street between Denison Road to the southeast and the disused goods railway line to the north-west and Hoskins Park. Mr Dickson extends to this area by including the views to the west terminating at a row of three tall buildings, including Waratah Mills, approximately 7 to 10 storeys. Mr Dickson also includes the highly visible building forms behind a consistent row of street trees along Pigott Street and views to the east along Pigott Street, defined by street tree canopies.

What is the character of the "local area"? 34Mr Hammoud states that the existing character of the area is defined by predominantly single storey and limited two-storey dwelling houses, most of which observe side boundary setbacks of approximately 900 mm and have a consistent front setback to the street frontage. 35Mr Hammoud further states that any future character of the area is defined by LEP 2011 and DCP 2011 and LEP 2001. The R2 Low Density Residential zone is mostly limited to single dwelling houses and single dwelling houses with secondary dwellings. Other forms of shared residential accommodation are also permissible within the zone but would be subject to the built form controls for single dwelling houses. Multi dwelling housing and residential flat buildings are prohibited within the "local area" and wider catchment. The notable change between LEP 2001 and LEP 2011 is that the low density residential zoning is now more widespread and covers a greater proportion of the wider catchment. The retention of the lowest residential zoning for the site and the "local area" and the down zoning within the wider catchment area is a clear indication of council's strategic direction for a low density residential development character of the "local area," and wider catchment. 36Mr Dickson states that the character of the area is defined by:

• building heights that are predominantly one-storey but with some two-storey development,
• detached and attached/duplex residential dwellings, built close to the side in front boundaries,
• consistent front setbacks along the north and south side of Pigott Street,
• side setbacks along Pigott Street are consistent with the south side being slightly narrower than the north side, and
• the side setbacks on both sides of Pigott Street are occupied by a carport or entry structure, albeit setback further from the street.

Is the design of the proposed development compatible with the character of the "local area"? 37The experts differed on the answer to this question although they agreed that the word "compatible" had the meaning attributed to it within Project Venture Developments v Pittwater Council [2005] NSWLEC 191 where it states: Planning principle: compatibility in the urban environment 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. 23 It should be noted that compatibility between proposed and existing is not always desirable. There are situations where extreme differences in scale and appearance produce great urban design involving landmark buildings. There are situations where the planning controls envisage a change of character, in which case compatibility with the future character is more appropriate than with the existing. Finally, there are urban environments that are so unattractive that it is best not to reproduce them. 24 Where compatibility between a building and its surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked. Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites. Is the proposal's appearance in harmony with the buildings around it and the character of the street? 25 The physical impacts, such as noise, overlooking, overshadowing and constraining development potential, can be assessed with relative objectivity. In contrast, to decide whether or not a new building appears to be in harmony with its surroundings is a more subjective task. Analysing the existing context and then testing the proposal against it can, however, reduce the degree of subjectivity. 26 For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment. In some areas, planning instruments or urban design studies have already described the urban character. In others (the majority of cases), the character needs to be defined as part of a proposal's assessment. The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping. In special areas, such as conservation areas, architectural style and materials are also contributors to character. 27 Buildings do not have to be the same height to be compatible. Where there are significant differences in height, it is easier to achieve compatibility when the change is gradual rather than abrupt. The extent to which height differences are acceptable depends also on the consistency of height in the existing streetscape. 28 Front setbacks and the way they are treated are an important element of urban character. Where there is a uniform building line, even small differences can destroy the unity. Setbacks from side boundaries determine the rhythm of building and void. While it may not be possible to reproduce the rhythm exactly, new development should strive to reflect it in some way. 29 Landscaping is also an important contributor to urban character. In some areas landscape dominates buildings, in others buildings dominate the landscape. Where canopy trees define the character, new developments must provide opportunities for planting canopy trees. 38Mr Dickson states that the physical impacts of the proposed development are acceptable, as there will not be adverse impacts to neighbours in terms of overshadowing and privacy, and setbacks to neighbouring properties will not constrain development of surrounding sites. Mr Hammoud accepts that there are no unacceptable privacy, overshadowing, or overlooking impacts created by the proposed development. 39Mr Dickson and Mr Hammoud disagree on the important question of whether the proposed development is compatible with development in the local area. Mr Hammoud states that the span of the building, when viewed from Pigott Street and Hoskins Park is excessive and disrupts the harmony of the built form along Pigott Street and overwhelms Hoskins Park and in practical terms, privatises the park. 40Mr Dickson states that the proposal will be read as a predominantly two-storey building behind the fence/wall with openings visible on the upper floor, within the roof space. The building will not read as being excessively bulky because of:

• modulation to the elevation that faces Hoskins Park,
• vertical bays associated with the building walls as defined elements in the facade,
• the existing tree canopies within Hoskins Park assist in mitigating views to the development,
• the Pigott Street setback integrates with the existing setback in the street and provides a strong physical and visual relationship to the adjacent dwellings,
• the setback to Hoskins Park provides a defined edge to the park when viewed from Pigott Street, and
• the compatibility of the side setback with the pattern of a side setbacks in Pigott Street.

Findings 41There was agreement that the "local area" consisted of the visual catchment and also the wider catchment. On this basis, the site has three distinct visual catchments, when viewed from firstly, from Denison Road, secondly, from Pigott Street and thirdly, from Hoskins Park. 42As the council raised no issue with the alterations and additions to Brook Lodge and the presentation and setting of the heritage item to Denison Road was clearly improved through the proposed development, I can comfortably conclude that the proposed development is compatible with a local area when viewed from Denison Road. I am also mindful of the mixed building character in Denison Road that includes single residential dwellings and reasonably new residential flat buildings. 43When viewed from Pigott Street and with the benefit of the site inspection, I am not satisfied that the proposed development would be seen as being compatible with the local area. Pigott Street displays a consistent single storey residential character made up of early 20th century bungalows and semi-detached dwellings on both sides of the street. While an obvious two-storey residential dwelling is located at 73 Pigott Street and there are some dwellings with unobtrusive second storey additions to the rear, the overwhelming form of development in Pigott Street is single-storey bungalows or cottages. While the "local area" is not necessarily restricted to Pigott Street given the adoption of the approach of identifying "local area" in Peninsula Developments, I do not accept that the Waratah Mills development should play any part in the assessment of the character of the local area, even though it is visible from parts of the site and Pigott Street. In my view, it is sufficiently distant from the site and within a different zone, to allow this development to dilute the dominant single storey character displayed in Pigott Street. 44While Mr Dickson sought to address the question of compatibility through the modulation and other architectural features of the building, I am not satisfied that it successfully addresses the stark contrast in two storey form of the proposed development in Piggot Street with the predominantly single storey character of the existing cottages, even though they may share a similar street setback. The two storey form of the proposed development will be visible from most the viewing locations in Pigott Street notwithstanding the attempts to vary the street and side setbacks and create the impression of distinct and separate elements in the Pigott Street streetscape. 45The view from Hoskins Park is also, in my view, not compatible with the local area. Hoskins Park was clearly an area of community focus, unsurprisingly given its relatively large size and facilities for young children. It was a highly regarded local community facility by those residents who gave evidence on the site inspection. Presently, the interface with Hoskins Park consists of a metal fence with a single storey development and ancillary structures visible above the fence. Existing development, adjoining Hoskins Park, is unobtrusive from the park. This is to be replaced by a three-storey building with the ground level accommodation behind a new fence and the third level setback from the Hoskins Park boundary in a mansard-style roof structure. The building extends some 40 m and occupies most of the common boundary with Hoskins Park. 46The test in Project Venture is compatibility and not replication. SEPP ARH is a State wide planning policy and clearly allows for a form of development that may not necessarily reflect the exact form anticipated by a local government authority. This is highlighted by cl 8 that gives primacy to SEPP ARH over any other environmental planning instrument but only so far as any development is compatible with the character of local area. The words in Project Venture about compatible developments being "capable of existing together in harmony" and "generally accepted that buildings can exist together in harmony without having the same density, scale or appearance" are importance considerations in assessing the character of the local area. Relevantly, cl 9 of SEPP 65 in relation to Principle 1: Context, states: Good design responds to its context. Context can be defined as the natural and built features of an area. Responding to context involves identifying the desirable elements of a locations character..... New buildings will thereby contribute to the quality and identity of the area. 47In this case, I have little trouble in concluding that despite the evidence of Mr Dickson, no amount of setbacks, fenestration, modulation or architectural treatment can disguise the bulk and massing and overbearing appearance of the building from Hoskins Park. The proposed development could not be seen to respond to its context, as required by SEPP 65, given the planning controls under LEP 2001 and planning controls under LEP 2011 in relation to density and the likely scale and appearance of any development under these planning instruments. 48Clause 54A(3)) requires the Court not to grant consent to the development unless it has taken into consideration whether the design of the development is compatible with the character of the local area. Having considered whether the development is compatible with the character of the local area, I am satisfied that the degree of incompatibility is such that the development application should be refused. 49For completeness I will do will briefly with the other issues in dispute.

The 8.5 m height requirement 50Clause 11(a)(i) of SEPP ARH states: 11 Development to which Division applies This Division applies to the following development on land to which this Division applies: (a) development for the purposes of dual occupancies, multi dwelling housing or residential flat buildings where at least 50 per cent of the dwellings in the proposed development will be used for affordable housing, but only if: (i) the development does not result in a building on the land with a building height of more than 8.5 metres, and 51There was agreement between the parties that Brook Lodge exceed the 8.5 m building height in cl 11(a)(i). The extent of the breach was helpfully shown in the evidence of Mr Hammoud. 52Mr Gallaso submitted that the height of Brook Lodge did not fall within cl 11(a)(i) as it was an existing building and did not "result" from the proposed development. While this was not necessarily submission accepted by Mr Hemmings, he did accept that the 8.5 m requirement was a development standard and that the SEPP 1 objection, submitted by the applicant, was well founded and that strict compliance with the 8.5 m development standard was unreasonable and unnecessary in the circumstances of this case. 53Having reviewed the SEPP 1 objection, I accept that the SEPP 1 objection is well founded.

Solar access 54Mr King and Mr Hammoud prepared a joint report on the issue of solar access to the proposed development. They agree that the proposed development achieves the SEPP ARH requirement in cl 14(1)(e) of at least 70 percent of the units receiving at least three hours of direct solar access between 9 a.m. and 3 p.m. in midwinter. However, Mr Hammoud maintains that, on a qualitative basis, solar access is unacceptable because of the shadows cast by the existing trees in Hoskins Park adjoining the site, on some units that face the park. 55I acknowledge that if the solar access requirements in cl 14(1)(e) are satisfied, development consent cannot be refused for this reason. I am also satisfied that shadows cast by trees are not necessarily a valid reason to refuse the application (The Benevolent Society v Waverley Council [2010] NSWLEC 1082 at [144]).

Orders The orders of the Court are:

1. The appeal is dismissed.
2. Development Application DA 2010000022 for the redevelopment of 34 and 36 Pigott Street and 174 Denison Road, Dulwich Hill for affordable rental accommodation is refused.
3. The exhibits are returned with the exception of exhibit 1.

G T Brown Commissioner of the Court

Amendments 20 September 2012 - Amendment to name of urban design planner. Amended from Nigel Dickson to Rohan Dickson. Amended paragraphs: Paragraph 12 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: 21 September 2012