DEVELOPMENT APPLICATION: affordable housingoverdevelopmentbulk and scalebuilt forminfill developmentcompatibility with the character of the local areaurban design considerationsaural and visual privacy impactslandscaping and open spaceamenity for future occupantsdisputed conditions
Judgment (5 paragraphs)
[1]
The applicant's arguments
Mr Minto argued that the proposal was compliant in terms of its height, FSR, landscaped area, and deep soil area, and would provide landscaping which would make a positive contribution to the landscape character of the locality, particularly given the site currently had little substantive landscaping.
He noted that the site is within the R3 zone where RFBs are permitted as is development up to a height of 12.5m. Further, there are 3-4 storey RFBs in the area, many of which have pitched roofs adding to their height.
These RFBs are of a varying age with the majority over 30 years old. They display a number of design attributes which would not be considered good contemporary design: at grade parking; driveways within side setbacks; extensive hardstand areas at the rear; a general absence of meaningful landscaping within side and rear setbacks; inappropriate areas of private and communal open space; and windows oriented towards adjoining properties without adequate separation or privacy features. These are all design features that are not desirable for a modern building which should instead adopt current design features. Further, as the site is not located within a heritage conservation area, it would be inappropriate for the proposal to strictly mimic existing development given the design shortcomings he described.
Mr Minto was also of the opinion that the proposal was 3 storeys with a fourth level contained within a pitched roof form which was responsive to the height and form of existing buildings within the visual catchment of the site and an appropriate compromise between the 3 and 4 storey RFBs with traditional pitched roof forms which dominate the locality.
The proposed building has a front setback of 9.5m which was consistent with the prevailing setback in this section of Cecil Street and a rear setback of 12m which he considered to be responsive to the surrounding locality. The rear setback would be landscaped, including with trees, which is different to the rear setbacks of a number of surrounding RFBs which instead contain paved parking and access areas.
Further, the Council had not contended that inadequate rear and/or front setbacks were provided, albeit raising a concern with the proposed length of the building. However, this length, of some 42m, was not excessive having regard to the building lengths within the locality, a number of which exceeded 42m. In addition, the development had landscaped and deep soil areas compliant with cl 14 of the SEPP-ARH, at 36% and 15% respectively. As such, the building could not be said to have excessive site cover.
Mr Minto also argued that the front façade design was appropriate in that it contained units with balconies orientated towards the street, consistent with surrounding development. The upper level of the building would be contained within a pitched roof form and there is both vertical and horizontal articulation with a range of materials proposed to ensure that the development makes a positive contribution to the character of the locality.
Whilst accepting that cantilevered elements were not typical in the local area, in his view, the cantilevering proposed would have no unreasonable visual or streetscape impacts and was a necessary element in order to gain access to the basement given the site width. An alternative approach would be to locate the entire basement entry under the building which would result in the majority of the ground floor level being taken up by this access which was undesirable.
In terms of side setbacks, Mr Minto argued that increased side setbacks could not be provided as the site would be undevelopable given its width of only 15.24m. Compliance with a 6m setback to each side boundary, as sought for new RFBs under the ADG, would result in a development width of 3.24m, effectively sterilising the site.
Further, the site is in an area where existing RFBs have side setbacks of less than 6m more typically in the order of 3m. The proposed development has side setbacks ranging between 2m to 4m with the majority of the building setback a minimum of 3m. The closer elements would also add articulation to the side elevations of the building.
The applicant took the Court to an aerial photo of development in Cecil Street (Exhibit B) to demonstrate: the variety in side setbacks of RFB's, building length and site cover; the variability in the landscaping within setback areas; and the dominance of street Brush box trees as the key landscape element in the area.
Mr Minto argued that the proposed side setbacks will not result in any unreasonable impacts upon either the amenity of adjoining residents or residents of the proposed development. All windows located within side elevations would be highlight windows with minimal opportunities for cross viewing, and landscaping within the side setbacks would assist with the setting of the building and provide an outcome compatible with the landscaped character of the locality.
The applicant's Landscape Architect, Mr Frew, also argued that the outcome of suitable screen planting adjoining the side boundaries could be achieved with proposed planters on slabs with minimum soil depths of between 600mm and 1m. With a 600mm soil depth, shrubs could be planted which achieve a growth up to 3m whilst 1m deep planters could contain small trees up to a height of 6m.
Mr Minto also argued that the side setbacks proposed allowed for the additional floor space permissible under the SEPP-ARH and was responsive to the aims of that SEPP which seek to facilitate the effective delivery of new affordable housing. This is achieved by providing incentives such as increased FSR and requirements to only meet nondiscretionary development standards under the SEPP, which the application meets.
An appropriate unit mix and range of sizes was proposed. Of the 17 units, including two that were adaptable, there were 11 x 1 bedroom, 3 x 1 bedroom with study, and 3 x 2 bedroom, units. Mr Minto accepted that there were two undersized 2 bedroom units but indicated that the non-compliance was minor at only 1.38m² and that the ADG allowed for smaller than minimum sized units where they are well designed. He believed the undersized units were well designed with a good layout, would be easily furnished and used, and had good cross ventilation.
Mr Minto also argued that the proposed bedrooms have either a combination of a highlight windows and a full height slot window or two slot windows. All bedrooms have a window oriented perpendicular to the boundary and protected by a projecting blade wall. As such they would be openable allowing natural ventilation.
The balconies to units 7, 12 and 16 would generally have a northerly orientation and overlook the proposed central landscaped courtyard. Mr Minto therefore considered these balconies to be appropriate in an urban area. The applicant therefore opposed imposition of a condition sought by the Council that these three balconies have a minimum 6m setback from the eastern boundary.
In terms of the Council's contentions on inadequate deep soil landscaping and communal open space, Mr Minto argued that the applicable controls are those in cl 14 of the SEPP-ARH which prevails over the requirements of the DCP. The proposal complies with the requirements of cl 14 which does not have a minimum provision for communal open space, only for landscaped area and deep soil landscaping, with the required provision of both met.
Mr Minto did accept however, that, whilst the plans show 36% of the site area as communal open space, only the front and rear portions have areas, landscaping and facilities which would allow those spaces to function as genuine communal open space. These spaces equate to 21% of the site which he considered represents an appropriate percentage of the site area in the circumstances.
Finally, Mr Minto was of the opinion that the proposal would not create an undesirable precedent given that the development is permissible under a State policy, complies with the requirements of that policy, is of good design, and is compatible with the character of the surrounding locality.
[2]
Conditions in dispute
In addition to disagreement over a proposed condition of consent requiring increased setbacks to the balconies of units 7, 12 and 16, the parties disagreed on two further proposed conditions when final conditions were filed with the Court after the hearing, as I required. This was notwithstanding the applicant had indicated acceptance to these conditions during the hearing.
Accordingly, the parties were required to provide written submissions on the two disputed conditions. The applicant accepted both conditions should I not be persuaded to delete them.
The first condition requires the provision of a recycling storage area in the foyer on every level. The applicant opposed this arguing that there was adequate and accessible storage in the basement for this purpose. The storage was therefore unreasonable and unnecessary, particularly given the small size of the units. The Council referenced the requirement in the DCP, which is based on an ADG guide, that every dwelling contains a waste storage area for recycling.
The second condition in dispute requires the nominated 'adaptable and accessible dwellings' to be compliant with 'Class A Adaptable Houses' of Australian Standard 4299 (AS4299) and the requirements of the DCP. The applicant opposed this condition arguing the DCP did not reference the required class under AS4299, and that any reference to the standard should be to Class C which, experience suggests, is most commonly applied to apartment buildings.
The Council indicated that the reference to classes in AS4299 relates to the adaptable design features (of the 119 features listed in AS4299) that should be required within the nominated adaptable dwellings. Class A requires all essential and desirable features to be incorporated into the design whereas Class C only requires essential not desirable features. The Council did not accept that the dwellings should not contain both, particularly given the applicant had not presented any argument to limit the features to only those that were essential, nor provided any evidence that Class C was typically applied to apartment buildings.
[3]
Findings
The Council, in submissions, indicated there was no objection to the site containing affordable housing, which is permissible with consent in the zone and acknowledging that it is adjoined on both sides by RFBs, but argued that other multi-storey development in the locality provided more compatible site coverage, setbacks and building typology than the proposed development.
However, it is the case that other multi-storey development in the local area comprises predominantly older style RFBs which, as Mr Minto argued, have a number of design features not sought or desirable in new multi-storey development. These include extensive paved areas for access and parking in setback areas and balconies and/or windows close to and overlooking side boundaries.
It was agreed that Cecil Street contains a diversity of development styles with the older RFBs at 3-4 storeys. The streetscape plan (comprising an aerial photo) at Exhibit B shows building footprints for buildings at four sites either side and opposite the site. It indicates a variety in building length and site cover, landscaping of a number of side setback areas on properties on the same side but not opposite, and the dominance of street trees as a landscape element in the area. However, it also confirms that a number of side, front and rear setbacks are paved not landscaped and that there is a variety in the width and use of side setbacks.
There was no suggestion or evidence that these older RFBs would likely be redeveloped in accordance with SEPP 65 or ADG requirements in the foreseeable future. I also can not accept Mr Bas's inference that the paved areas of these older RFBs would be replaced with landscaping (particularly canopy trees) even if they may have the potential for this to occur in terms of the setbacks provided.
The older RFBs make up the dominant building typology evident in the visual catchment of the site, particularly in close proximity, even if they numerically do not make up the majority of the dwelling stock in the street.
Having regard to this context, I did not discern a local character that could or should be readily replicated in the proposal before the Court, other than the pitched roof form, relatively consistent front setbacks, and low front fences.
As Exhibit B demonstrates, or was evident on the site view, whilst there are large canopy trees visible from the street in the rear of some properties, the dominant landscape element in Cecil Street are the Brush box street trees. Further, whilst there are developments with landscaping in side setbacks, including canopy trees, there are also a number with minimal landscaping in order to provide paved side, front or rear access to paved parking areas or garages. The length of buildings also varies, notwithstanding front setbacks are relatively consistent, given the variety in rear setbacks.
In this regard, the 'Existing Northern Cecil Street Streetscape' presented in Exhibit B, indicates that the existing single storey semi-detached dwelling on the site is somewhat anomalous in the streetscape given the row of adjoining RFBs, albeit I accept that, on the opposite side of the street, lower rise dwellings are equally evident. The 'Proposed Northern Cecil Street Streetscape' (also presented in Exhibit B) indicates to me that, relative to the existing development on the site, the proposed development will be equally, if not more, compatible with its neighbours given its scale, use and form, albeit in a narrower, slightly taller building and of a modern appearance.
Whilst I accept the proposed roof form does not meet the DCP requirement of a fourth storey attic form within a roof, it is at least within the roof. That roof is pitched at 30 degrees in its presentation to the street to reflect the prevalence of pitched roofs in the locality. The site is also not located in a heritage conservation area and there was no suggestion that new multi-storey development in the area would be other than of contemporary design up to the maximum permissible height under the LEP.
The application complies with this height, despite the building having a pitched rather than a flat roof, with flat roofs often sought by applicants to maximise development whilst staying height compliant. The height proposed could therefore not be considered out of character with likely future development of sites in the local area that do not already contain RFBs given the planning controls permit RFBs up to a height of 12.5m.
Furthermore, there are 4 storey RFBs already in the street, the difference being that these older buildings have 3 residential storeys over at grade garaging as opposed to the subject application where 4 residential storeys are proposed over a basement car park. As Mr Bas himself stated, basement parking was not a feature of older multi-storey development with the resultant requirement to provide paved at grade access, parking and garaging instead. There was no suggestion by the Council that this form of parking, typical of older multi-storey development in the local area, should be replicated.
The application, in responding to contemporary design objectives of basement rather than at grade parking, could not therefore be of the same character as the older RFBs in the local area in that sense. However, this does not make what is proposed incompatible having regard to the principles in Project Venture.
Similarly, the older RFBs in the vicinity do not have 6m side setbacks as required by contemporary ADG building separation controls. In this context, given the location of the site as a narrow infill (isolated) site with a width just over 15m and situated between two older RFBs, it is not reasonable that such setbacks be required for the proposed development, a fact which Mr Bas accepted.
Further, whilst I accept some sites have canopy trees within their side setbacks or at the rear (creating a backdrop of large trees including conifers, jacarandas and eucalypts), based on the site view of the local area that I was taken on by the parties; this is not the case for all properties. Irrespective, as I have already indicated, the Brush box street trees are the major contributory and dominant landscape element in the streetscape. This includes the street tree in front of the site which will be required to be protected and retained as part of the proposed development.
The proposed front setback is consistent with that prevailing in the vicinity and was not raised as a contention by the Council. The applicant also agreed to conditions requiring deletion of the front portico and the replacement of the open steel front fence with a lower face brick front fence to assist in achieving compatibility with the local area as sought by the Council.
Based on the evidence provided, the development will appear in the streetscape and local area not dissimilar in bulk, scale and use to existing RFBs which are a dominant streetscape element, irrespective of their number and which in any event are somewhat screened by the street trees. I, therefore, find it will be compatible with the character of the local area which I am required to consider under cl 16A of the SEPP-ARH, albeit on a narrower site than is typical of multi-storey development in the vicinity.
Even though I have found that the development is compatible with the local character and is acceptable in the streetscape, it is still necessary to consider the amenity impacts on neighbours and on future occupants of the building.
In terms of the amenity of neighbouring properties and having regard to Davies, there was no evidence that the development would cause adverse impacts in terms of solar access or view loss, and privacy impacts are reasonably addressed. The development is not seeking to exceed or even maximise the bonus FSR available to the site, nor the height control, and to some extent the adjoining RFBs are vulnerable to the impact given the location and orientation of windows relative to the side boundaries of the site.
In this regard, while I accept that a minimum of 3m side setback would be desirable to maximise the opportunity for landscaping and increase amenity, I also consider what is proposed of between 2m and 4m to be reasonable on a site with a width only in the order of 15m, and given the impacts are not, in my view and on the evidence provided, significant or unreasonable.
These setbacks also provide articulation to the side elevations of the building, as Mr Bas accepted. They enable blade walls to assist with privacy, which I consider a reasonable design response in the circumstances. Privacy measures also include windows on the eastern and western elevations having a minimum sill height of 1.5m above floor level and window panels that are less than 1.5m above floor level being permanently fixed and of obscure glass.
In terms of the condition sought by the Council that the balconies to units 7, 12 and 16 have a minimum 6m setback from the eastern boundary, such a requirement in my view is unnecessary and would have an unreasonable impact on the development. Whilst of limited value, the balconies will still offer a degree of amenity for future occupants which I consider appropriate to affordable housing on an inner city constrained infill site. I also accept the applicant's argument that there are a number of older RFBs in the local area whose balconies have limited amenity. Accordingly, that requirement and condition is not imposed.
Further, the SEPP-ARH does not enable refusal on the basis of landscaping or deep soil landscaping if at least 30% of the site is landscaped, and at least 15% of the site is deep soil landscaping. Both of these controls are met. Furthermore, much of the deep soil landscaping is in the rear year, which the SEPP-ARH supports, providing amenity to the communal open space that is located in this area, and addressing a concern raised by Mr Hyde in the only submission lodged on the amended application. Provision of adequate outdoor clothes drying facilities is also required, addressing another concern raised by Mr Hyde.
I do not accept that the impacts that do arise are as a result of poor design, particularly given the core development standards of the SEPP-ARH and the LEP are met, other than in terms of the size of two units which do not meet the minimum size by less than 2m². The standards that are met or exceeded include the development having the required site area, providing the required parking, and achieving solar access requirements.
The application is for affordable infill housing on an isolated site which is therefore constrained by its width, area and context. In my view, the application as amended proposes a form of development that has had due regard to both this context and its neighbours. It is approved accordingly.
In terms of the proposed condition on appropriate recycling storage, what the Council proposes appears a reasonable compromise between what the DCP requires (and ADG supports), which is that each unit contain recycling storage facilities, instead requiring that each level only provide an appropriate facility. However, I have amended the condition to enable either the requirement sought by Council or provision of storage in each dwelling as required by the DCP, in order that the applicant can provide either.
In terms of requiring both the essential and desirable design features for the adaptable dwellings under AS4299, on the submissions made by the parties there was no compelling reason given as to why all such design features should not be required. Accordingly, the condition as sought by the Council is imposed subject only to correcting the reference to the relevant section of the DCP.
[4]
Orders
The orders of the Court are:
1. The appeal is upheld;
2. Development Application 10.2017.039.1 for demolition of existing buildings and construction of an infill affordable housing development at 24-24A Cecil Street, Ashfield is approved subject to the conditions set out in Annexure "A";
3. The exhibits are returned other than Exhibits A, B, F, 1 and 6.
Jenny Smithson
Commissioner of the Court
Annexure A (225 KB, pdf)
[5]
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: 14 December 2018
Parties
Applicant/Plaintiff:
Formzen Pty Limited
Respondent/Defendant:
Inner West Council
Cases Cited (2)
The Council's argument
Built form and urban design were raised as separate contentions by the Council but in essence the concerns were the same, namely that the development did not comply with a number of SEPP 65 design principles and numerous DCP and ADG requirements.
The Council considered this was a consequence of overdevelopment of the site resulting in excessive bulk and scale. This made it unsympathetic to the character of the local area.
In particular, the DCP nominates a scale of 3 storeys with any fourth storey comprising an attic located within the roof structure with a pitch of no more than 30°. The Council contended that what was proposed was not attic accommodation in accordance with the intent of the DCP and resulted in an unsympathetic roof structure and an inappropriate built form which was not consistent with the existing and desired future character and scale of the locality.
The other primary concern was that the side setbacks were uncharacteristic of the R3 zone where new RFBs would ordinarily be required to have a minimum 6m side setback in accordance with the recommended ADG separation distances between buildings. This would also enable the provision of canopy trees in side setback areas to screen the building and improve privacy between neighbours.
Mr Bas argued that a site with a width of 15.24m was not suitable to accommodate the FSR bonus under the SEPP-ARH. Consequently, the relationship of the built form to the surrounding space created by the roof form, side setbacks and inadequate side landscaping resulted in a development incompatible with the local area thus not complying with cl 16A of the SEPP-ARH.
In terms of cl 16A, Mr Turner, solicitor for the Council, took the Court to Project Venture Developments v Pittwater Council [2005] NSWLEC 191 (Project Venture) at [22], [24] and [26] which state as follows:
"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.
…
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 surroundding sites.
Is the proposal's appearance in harmony with the buildings around it and the character of the street?
…
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 the 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."
Mr Bas considered that the character within the visual catchment of the site comprised 2-3 storey development of face brick with traditional tiled hipped pitched roofs and side setbacks of more than 3m that were either landscaped, or had the potential to be landscaped. Front setbacks were also landscaped with low brick front fences. Canopy trees were an important attribute to the character of Cecil Street evident by the placement of street trees on the road reserve and tree planting within the private domain, including within side setbacks.
His evidence was that there are 35 allotments fronting Cecil Street. Six of these contain 4 storey buildings, ten have 3 storey buildings, and the remainder contain dwellings of 2 storeys or less. The existing 4 storey buildings are essentially 3 storey RFBs over at grade car parking, as basement parking was not commonly utilised at the time of their construction. In his view, 2 to 3 storey buildings fronting Cecil Street set its character.
In contrast, the proposed development presents as 4 residential storeys with an unsympathetic roof design element which would detract from the traditional building typology within the visual catchment. Mr Bas described the fourth storey as a penetration within the roof with gablet roof ends, a treatment which does not relate to the street or contribute to the character of the area.
Mr Bas also raised concern with the combined impact of the proposed building length and site coverage arguing the length was greater than that of the adjoining RFBs. Further, the proposed architectural treatment and composition of the front façade, including the proposed entry portico, did not contribute to the visual interest of the building or the streetscape. In addition, the ground floor did not relate to the floors above giving the impression that upper floors are suspended in mid-air, with the cantilevering above the driveway an alien element not sympathetic to the character of the area.
In his view, the composition and detailing did not assist in reducing the scale of the building with protruding stairwells and side elevations without well composed horizontal and vertical elements. Finally, low brick fences were consistent in the area and such a fence would better integrate with the proposed building.
In terms of the side setbacks, Mr Bas acknowledged that the site has a limited frontage. However, he considered that no reasonable attempt had been made to provide appropriate separation to alleviate visual and privacy impacts. Instead the proposal incorporated highlight windows to avoid visual privacy resulting in inadequate amenity for future occupants who will experience poor outlook and sunlight penetration, particularly to bedrooms.
The proposed side setbacks would also result in unacceptable amenity impacts for existing residents of adjoining buildings given they did not comply with the required 6m separation distance under the ADG.
Further, the inability to provide deep soil zones in the side setbacks precluded canopy trees; therefore the development would be unable to continue the established rhythm and pattern of spacing between buildings in the area and detract from this established character of the streetscape.
The Council's arborist, Mr Mogensen, also considered that the side setbacks should contain some deep soil landscaping to provide screening. This could not be achieved given the proposed basement extends from the eastern to the western boundaries. He acknowledged the contribution made by proposed raised planters but considered the landscaping fell short of the targets outlined in the NSW Government's draft Urban Tree Canopy Guide of providing a minimum of 25% tree canopy coverage in urban residential (medium to high density) areas. He also considered the proposed plantings within the side setbacks would do little to soften the impact of the building on adjoining properties.
In terms of the proposed dwelling sizes, Mr Bas argued that a new development should be able to provide a greater mix and a better quality of units. However, the proposed mix would not support diversity of household types (including families) or social inclusion. Some 82% of the units were 1 bedroom and the majority at the ADG minimum size. Two units were below the ADG minimum internal floor area which would result in reduced amenity for future occupants. A number of units had windows within 3m of a common boundary, the proposed narrow windows to bedrooms would do little to allow good penetration of sunlight and outlook, and the projecting blade walls would only add to the problem.
Mr Bas also argued that the balconies for three of the proposed middle units (7, 12 and 16) would offer little amenity to future occupants and would impact the aural and visual privacy of the neighbours in contravention of the DCP and SEPP 65 design principles. These balconies were not setback a minimum of 6m from the common side boundary, were of a limited size, and were enclosed on three sides.
Mr Bas also considered that the proposed communal open space would not meet the needs of future occupants whereas adequate and sufficient communal open space is critical when considering the poor amenity provided by some balconies. He argued that only the rear portion of the site could function as genuine communal open space and this area comprised only 15.5% of the site area, being grossly deficient of the ADG required 25%.
Finally, Mr Bas was of the opinion that the proposal would create an undesirable precedent as the site is not suitable to accommodate increased FSR (given its width) and the proposed development is not compatible with the character of the surrounding area and will result in poor amenity for future occupants and impact adjoining neighbours.
Mr Turner submitted that, in considering impacts to neighbours, regard needed to be had to the Court's planning principles established in Davies v Penrith City Council [2013] NSWLEC 1141 (Davies) at [121]:
"The following questions are relevant to the assessment of impacts on neighbouring properties:
• How does the impact change the amenity of the affected property? How much sunlight, view or privacy is lost as well as how much is retained?
• How reasonable is the proposal causing the impact?
• How vulnerable to the impact is the property receiving the impact? Would it require the loss of reasonable development potential to avoid the impact?
• Does the impact arise out of poor design? Could the same amount of floor space and amenity be achieved for the proponent while reducing the impact on neighbours?
• Does the proposal comply with the planning controls? If not, how much of the impact is due to the non-complying elements of the proposal?"
Mr Turner submitted that what is proposed needs to be acceptable in terms of overshadowing and privacy, bulk and scale, building setbacks and landscaping. The proposal does not meet a number of SEPP 65 design principles or ADG requirements in terms of building separation, setbacks, communal and private open space, and apartment layout, sizes and mix. Accordingly, the Court should refuse the application.