Forty Twenty Pty Ltd v Marrickville Council

CASES CITED: Fodor Investments v Hornsby Shire Council [2005] NSWLEC 71

APPLICANT Mr G Green, solicitor Pike Pike & Fenwick LEGAL REPRESENTATIVES:

RESPONDENT Mr G Christmas, solicitor Marrickville Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11428 of 2004 Forty Twenty Pty Ltd v Marrickville Council

1 COMMISSIONER: This is an appeal against the refusal by Marrickville Council (the council) of a development application (200400622) at 246 Wardell Road, Dulwich Hill (the site). 2 For the reasons set out in this judgment I have concluded that the appeal should be dismissed and development consent refused. The site and its context 3 The site is close to Dulwich Hill Railway Station and is located on the eastern side of Wardell Road between Ewart Street and Dudley Street with rear lane access to Murray Lane. It is rectangular in shape with an area of 646sqm. It has frontages of approximately 12.39m to Wardell Road and Murray Lane and a depth of between approximately 51.89m to 54.10m. 4 The site is developed with two single storey shops on the Wardell Road frontage, a single storey dwellings and a double carport. There is no significant vegetation on the site. 5 Adjoining development to the north and south is detached single storey dwellings. Other development on the eastern side of Wardell Road is a mixture of retail, commercial and associated residential uses. The western side of Wardell Road is generally two-storey retail and commercial development. The opposite side of Murray Lane is developed with two to three storey residential flat buildings. The proposal and its history 6 The application was lodged on 29 September 2004 and was notified to adjoining and nearby residents. Council received three objections which raised concerns relating to loss of privacy, noise, loss of solar access, reduction in market value and loss of amenity. Council refused the application on 7 December 2004. 7 The proposal is to demolish the existing dwelling house and carport, carry out alterations to the existing shops, construct a second storey dwelling above the existing shops and four two-storey dwellings over basement parking for seven cars and two off street parking spaces accessed off Murray Lane. Planning Framework 8 The site enjoys existing use rights and the provisions of planning instruments that would derogate from those rights do not apply. The application is required to be assessed on it merits under s79C of the Environmental Planning and Assessment Act 1979. 9 The site and surrounding development to the north and south is zoned Residential 2(a) under Marrickville Local Environmental Plan 2001 (LEP 2001). Shops and mixed use development are prohibited within the zone. Multi unit housing is not permissible on a site the size of the subject site. 10 Surrounding development along Dudley Street, Ewart Street and on the opposite side of Murray Lane is zoned Residential 2(c), which permits multi unit housing and residential flat buildings but not commercial development. 11 The opposite side of Wardell Road is zoned 3(b) Neighbourhood Business which permits multi unit housing attached to a permissible use, such as commercial. 12 While not applicable, the standards in LEP 2001 are a guide to the likely future context anticipated by the planning controls. It specifies a maximum floor space ratio (FSR) in the 2(c) and 3(b) zone of 1:1 and a maximum height of 10m in the 2(c) zone. No height limit is specified for the 3(b) zone. 13 The LEP does not specify a maximum FSR or height for single dwelling houses in the 2(a) zone. Dual occupancy development is permissible in this zone and the LEP specifies a maximum FSR of 0.6:1 and a maximum height for a second dwelling of 3.6m. Multi unit housing is permissible in the 2(a) zone on sites over 1500sqm with a maximum FSR of 0.7:1 and a maximum height of 7.2m. 14 No development control plans were tendered The issues 15 The Statement of Issues before the Court contained 6 issues. The parties agreed that Issue 1 could be resolved by the submission of a contamination report if the appeal on the other issues were to be upheld. The key remaining issue can be categorised as:

i) Whether the proposal is compatible with the existing and future character of the area, and

ii) Whether the proposal provides acceptable amenity to adjoining residents and future occupants, particularly solar access. The evidence 16 The following experts provided evidence: 17 For the council: Mr S Faridy, town planner 18 For the applicant: Mr J Lovell, town planner Mr R Cox, landscape architect 19 The Court also heard evidence from the following residents: Mrs Cirillo, on behalf of her parents in law, the owners of 248 Wardell Road Mr A Tichon, executor of the estate of 244 Wardell Road Planning Principle - Existing Use Rights 20 The following planning principles of Roseth SC in Fodor Investments v Hornsby Shire Council [2005] NSWLEC 71 provide a useful framework for the assessment of proposals on land with existing use rights.

How do the bulk and scale (as expressed by height, floor space ratio and setbacks) of the proposal relate to what is permissible on surrounding sites? While planning controls, such as height, floor space ratio and setbacks do not apply to sites with existing use rights; they have relevance to the assessment of applications on such sites. This is because the controls apply to surrounding sites and indicate the kind of development that can be expected if and when surrounding sites are redeveloped. The relationship of new development to its existing and likely future context is a matter to be considered in all planning assessment.

What is the relevance of the building in which the existing takes place? Where the change of use is proposed within an existing building, the bulk and scale of that building are likely to be deemed acceptable, even if the building is out of scale with its surroundings, because it already exists. However, where the existing building is proposed for demolition, while its bulk is clearly an important consideration, there is no automatic entitlement to another building of the same floor space ratio, height or parking provision.

What are the impacts on adjoining land? The impact on adjoining land should be assessed as it is assessed for all development. It is true that where, for example, a development control plan requires three hours of sunlight to be maintained in adjoining rear yards, the numerical control does not apply. However, the overshadowing impact on adjoining rear yards should be reasonable.

What is the internal amenity? Internal amenity must be assessed as it is assessed for all development. Again, numerical requirements for sunlight access or private open space do not apply, but these and other aspects must be judged acceptable as a matter of good planning and design. None of the legal principles discussed above suggests that development on sites with existing use rights may have lower amenity than development generally. 21 Three of the above four principles apply to the issues in the present case; namely the proposal's impact on the existing and future character of the area, the impact on the adjoining residential properties, and internal amenity.

Impact on the existing and future character of the area. 22 In relation to the first principle, Mr Christmas, for the council, and Mr Green for the applicant, disagreed on the context into which the development should fit. Mr Christmas submitted that it was only relevant to consider the relationship of the new development to the existing and likely future context of the area zoned 2(a) and that weight should be given to the zone objectives. 23 Mr Green submitted that the general compatibility of the proposal to its physical context should be assessed regardless of zone boundaries as it was within this context that the proposal is to fit. He stated that the test for compatibility was that the proposal should not be antipathetic or so unreasonable that it would not fit into its context. 24 I agree that the principle expressed by Roseth SC should not be limited to the zone but to the physical context into which the proposal must fit. In this case the proposal relates to three zones with different planning controls that determine their likely future character. The proposal clearly cannot meet the objectives of the 2(a) zone and as a proposal under existing use rights is not required to do so. The objectives of the zone are relevant only to the extent that they indicate the desired future character for surrounding sites. The 2(a) zone is further complicated by the existing use rights that may be enjoyed by 9 of the 12 sites within this zone. 25 The existing context of the area is also varied with no consistent character. It can best be described as an area that exhibits the results of "bad planning" and poor development. Existing development in the 2(c) zone is mainly two to three storey residential flat buildings with little landscaping, car parking or open space. The zoning and planning controls for the 2(c) zone generally reflect the existing form of development. While buildings may be upgraded and individual sites re-developed, this zone is unlikely to experience a great deal of change. 26 Existing development in the 3(b) zone is one and two storey retail/commercial buildings, some with associated residential accommodation. The proximity of this area to the railway station and its location along a main road mean that the area is likely to change with sites being redeveloped. The evidence of Mr Lovell was that the form of development was likely to be two storeys, mixed commercial/retail with residential, similar to that proposed. 27 Existing development in the 2(a) zone, immediately adjoining the site, is two detached single storey houses to the south (No 248) and a detached single storey house to the north (No 244). The experts agreed that these houses did not enjoy existing use rights and that their maximum redevelopment under the current planning controls would be limited to a two storey house with a separate single storey dual occupancy. 28 In Mr Faridy's opinion the context should be limited to the eastern side of Wardell Road and that the height and bulk of the proposal did not respond to these existing single storey dwellings. He considered two storeys to be acceptable if the second storey is contained within a roof space. He also raised concerns about the wrap around balcony, setback of the upper floor and extension of the building towards the rear. 29 Mr Lovell's held the contrary view that the wider context should be considered and that the proposal was an appropriate response to the existing and future context. He stated that:

the balustrade of the wrap around balcony is the existing parapet, and that the building steps down towards the rear of the site…..the majority of the existing buildings along both sides of Wardell Road in the vicinity of the site extend to the side boundaries., and towards the rear. 30 I find that the proposal when viewed from Wardell Road will have an acceptable impact on the existing and future streetscape. The difference in height between the single storey houses and the two storey proposal is not so great as to be out of scale, particularly when there are a number of other two storey developments on either side of the street. In a streetscape with no clear character and no development control plan to guide the type of development proposed, it is difficult to assess whether the detail of a balcony, setback and roof form are appropriate. 31 As a mixed use development, I consider that the proposal should respond to the two storey mixed use developments built to the street alignment with parapets and flat roofs on the opposite side of Wardell Road. The proposal has instead attempted to respond to its residential context, particularly through its pitched roof. In the context of the existing streetscape, the existing use rights of the site and the lack of evidence on desired future character, this level of detail is not a reason to warrant refusal of the application as the overall form and bulk of the development from Wardell Road is acceptable. However, this level of detail would be important for future development to achieve a consistent streetscape on both sides of Wardell Road. 32 The experts did not raise issue with the relationship of the proposed development to Murray Lane. The height, form, bulk and setback of the proposal is acceptable when viewed from the lane however, the treatment of the setback area is less than adequate. This lane is narrow and mainly provides access for developments with driveways, large areas of hard stand and little landscaping. In the setback area, the proposal provides a basement driveway, two surface car spaces, a garbage area, side entry to the dwellings and a single palm tree. It can be argued that this responds to the existing context, but I see no point in responding to a context that is degraded. A redevelopment of the site and other sites along the lane should endeavour to change and improve this context, particularly through landscaping. The constraints of the site, particularly its width, and the amount of development result in little opportunity for landscaping. 33 I find the relationship of the proposal to the context of the adjoining properties to be unacceptable. Its relationship to the future context is also unacceptable, whether this envisages residential development, consistent with the current zoning, or a multi unit development which Mr Lovell considers would be a more appropriate zone. 34 The subfloor of the existing shops, the basement car park and its access ramp occupy most of the site. Units 2 and 3 are separated by a 3.5m gap between the buildings. From the northern boundary, the ground floor of the new dwellings is set back 1m with recessed entries setback 1.8m. The first floor is setback 1.8m. 35 From the southern boundary, the new dwellings are set back between 2m and 3.8m. The ground floor terraces are built to the boundary. These terraces are elevated above existing ground level. To provide privacy a masonry wall is proposed to extend about 27m along the boundary at a height ranging from about 2.4m (adjacent to the dining room window of No 248 Wardell Street) to about 3.2m. 36 The applicant proposed a condition for part of this wall to be reduced by 1m with privacy screens or alternatively for amended plans which reduced the level of the car park and the terraces and consequently the height of the wall. This would assist in reducing the impact of the wall from No 248. However, the bulk of the development extends along the length of this boundary. The gap between the buildings, their articulation and variation on setbacks and the landscaping in planter boxes would assist in breaking up the bulk of the building but not sufficiently to achieve an acceptable relationship with the adjoining property. 37 The bulk of the proposal when viewed from No 244 is likely to have greater impact due to the lack of setback and landscaping along the boundary other than vines. The landscaping in the plater boxes under awnings is unlikely to provide screening that would mitigate the bulk of the building. While the height is no different to that to be expected from the development of a two storey house, the length of the development along almost the whole boundary results in an unacceptable impact. 38 The use of the setback areas as outdoor spaces and for access to the dwellings is also different to a dwelling house where side setbacks have limited use and can therefore be of minimal width. 39 The side setbacks and bulk of the building would not fit into a future character were the adjoining sites to be developed with large dwellings or dual occupancies. Such development could adversely impact on the proposal through overlooking of the outdoor areas and overshadowing of the north facing windows. This would be exacerbated were the adjoining sites to be developed individually for multi unit development as this would involve a greater number of dwellings in close proximity with associated amenity and bulk issues, particularly on the northern boundary where a setback of 1m is clearly inadequate for multi unit development. This results in a form of development that has an unacceptable relationship with its existing and likely future adjoining properties. Impact on adjoining development. 40 In addition to the impacts of bulk addressed above, the proposal will increase overshadowing of the rear yard at No 248, however, Mr Faridy and Mr Lovell agreed that this was acceptable. The proposal would remove the existing solar access into the dining room of No 248, although this is likely to result from the development of even a two storey house on the site. The experts agreed that the proposed fixed anodised glass louvres on the north façade eliminate overlooking of No 244 and that there was acceptable visual privacy between No 248. There will be overlooking of 248 from the first floor level of the proposal from bedroom windows which is acceptable however, the potential for overlooking from the kitchen of Unit 1 has not been addressed by the experts. 41 Mr Faridy considered that the proposal would have an unacceptable aural privacy impact due to the proximity of the terraces to No 248 and the access footpath along No 244. Mr Lovell held the contrary opinion that given the size of the development these impacts are reasonable. I accept Mr Lovell's opinion. Amenity of the development 42 Mr Faridy and Mr Lovell agreed that Unit 4 would not achieve an acceptable level of solar access either internally or to its open space due to the existing adjoining development to the north. They agreed that Units 1 and 5 would achieve acceptable solar access both internally and externally, but disagreed on whether the solar access to Units 2 and 3 was acceptable. 43 Mr Lovell stated that despite the obscure glass louvres, Units 2 and 3 would receive three hours sunlight to the living dining area. Mr Faridy stated that the areas would receive daylight not sunlight and that this would not be a meaningful amount for three hours as it would fall on corners of the kitchen in Unit 2 and be limited by the walls in Unit 3 to a narrow shaft. 44 In relation to solar access to the out door areas, this was not raised as an issue and Mr Faridy considered it to be of less importance than solar access to the internal areas but considered it to be unacceptable for units 2, 3 and 4. Mr Lovell considered it to be acceptable for Units 2 and 3. The shadow diagrams indicate that the courtyards adjoining the southern boundary will receive no sun in midwinter. The terrace of Unit 3, which is covered will receive sun above the balustrade and below the roof at 9am but not at other times of the day. The terrace of Unit 2 will be largely in sun between 12-2pm with limited amount at other times of the day. 45 Given the constraints of the site, the proposal has been designed to try to maximise solar access to the units. However, Unit 4 will not receive an acceptable level of solar access and while there will technically be solar access to Units 2 and 3 through obscure glass, for three hours in midwinter, the extent and usefulness of this is questionable. The solar access to the outdoor spaces Units 2 and 4 also does not achieve an acceptable standard. Due to the lack of setback from the boundary, the level of solar access would be difficult to maintain with any future redevelopment of the No 244. 46 The outdoor spaces of Units 1 and 5 receive an acceptable level of solar access however, the amenity of these areas is questionable as they provide little privacy and in the case of Unit 5, overlook a main road with no noise attenuation. Unit 1 overlooks the surface car park and Murray Lane. The amenity of this unit could be improved if a landscaped setback were provided. Orders 47 For the above reasons the Orders of the Court are:

1. The appeal is dismissed. 2. The development application (200400622) to demolish the existing dwelling house and carry out alterations to the existing shops and construction of one shop top dwelling and four two-storey dwellings over basement car parking for seven vehicles and two off street parking spaces, at 246 Wardell Road, Dulwich Hill, is determined by refusal. 3. The exhibits, except exhibits 4 and 5, may be returned. 4. No order as to costs

      Annelise Tuor
      Commissioner of the Court

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