Fulford Properties Pty Limited v Albury City Council

CASES CITED: Zhang v Canterbury City Council [2001] NSWCA 167

DATES OF HEARING: 25/07/2007 and 26/07/2007

APPLICANT Mr M. Staunton, barrister Instructed by T. Falherty

LEGAL REPRESENTATIVES: RESPONDENT Ms S. Duggan, barrister Instructed by M Roger of Kell Moore Solicitors

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10160 of 2007 Fulford Properties Pty Limited v Albury City Council

JUDGMENT 1 This is an appeal under s 97 of the Environmental Planning and Assessment Act against Albury City Council's refusal of a development application for 18 townhouses at the property known as 254 Walsh Street East Albury, being Lot 91, and part Lot 271 Bernhardt Street.

2 The Court met on site yesterday and heard from a number of resident objectors viewed the subject property with the assistance of height poles and an understanding of their concerns. I also have the opportunity of hearing evidence from the expert witnesses in Court yesterday and today.

3 Access to the subject parcel of land is the allotment known as No. 254. This is a regular size allotment of a single dwelling house and it serves what is a large internal rectangular parcel of land. The total areas is some 7,000 square metres. 4 The Court heard from: o Mr Brown of 224 Fletcher; o Ms Bohr of 250 Walsh Street; o Mr and Mrs Gogoll of 260; Mr Landon of 257 Bernhardt; o Ms Arpke of 240 Walsh; o Mr and Mrs Eisenhauer of 284 Walsh; o Mr Taylor of 254 Walsh. 5 The residents expressed concerns about the proposed development in terms of: the density of the development; the number of medium density units proposed on the subject site; the lack of consultation; traffic; parking; the noise impact from the subject use of the site with the topography of the area being an amphitheatre; the poor design of the of the townhouses, that is their internal amenity; and the external impacts on the adjoining properties; no detailed site analysis; traffic noise; and headlight glare.

6 In summary the residents, main concern is about the proposed development not contributing to the special character of East Albury. 7 The dwelling houses surrounding the subject site were generally built in the middle to latter part of the last century and there is a variety of architectural styles and building materials, including weatherboard, brick and the like.

8 Many, of the dwellings are single-storey, but there are a number of two-storey elements to properties, in particular those to the north of the subject site.

9 The history of the development application is that the 18 townhouses originally proposed for the subject site was the subject of a report to council that recommended approval and council refused the development application and outlined a number of reasons in its determination. 10 There was subsequently as 82(A) review of the development application and once again approval was recommended and the determination made by the council was to refuse the application because the development was not in character or consistent with the area.

11 The experts who gave evidence to the Court are: Mr Lindsay Fletcher, the a single expert in town planning who was engaged jointly by the two parties to independently assess the development application; Mr Horsefall is the consultant town planner for the applicant; and Mr Sanders is the respondent's town planner. 12 Mr Sanders considers that the proposed development should be reduced by a minimum of three dwelling units. In particular the two-storey townhouse elements, on the northern part of the site.

13 Mr Fletcher gave evidence to the court and also provided his expert report. He is of the opinion that with the amendments that were undertaken after his initial preliminary comments the proposal is satisfactory. Amendments were undertaken to the proposal such that the townhouses on the southern boundary were generally reduced in size to be villa, or single-storey, as opposed to two-storey elements along the southern boundary because of the topography and the relationship of the height of the dwellings adjoining on the southern boundary. He suggested it would be more appropriate for those medium density dwellings to be reduced to provide a better fit. He considered the northern townhouses were appropriate, having regard to the increased steepness in topography and the relationship of the dwellings to the north. Many of the dwellings as I stated to the north are two-storeys at the rear. 14 The council provided a Statement of Issues and this details the provisions of council's planning regime and why the council considers the proposed development is not worthy of approval. In summary, these were contained in Exhibit E and in the judgment, the published judgment, these will be incorporated into same, but in summary the council considers that the development is intrusive; it is out of character with the area in terms of its design, form, bulk and scale; and furthermore that it is not compatible in terms of the development with the character of the amenity of the surrounding neighbourhood; the desirability of retaining or enhancing the character and visual integrity of the neighbourhood, particularly having regard to the tradition, scale, form, appearance, bulk and intensity of development; and the relationship and proximity of the development to existing residential development. 15 Whether the development will cause an increase in nuisance to residents within the development and externally to neighbours surrounding the development by way of vehicle movements; parking; headlight glare; and whether the development complies with the Albury DCP in terms of the medium density housing controls, and more minor matters under that heading included such things as visitor parking; garages; setbacks; garbage collection or waste management; and the shape of the subject parcel of land; and whether the development addresses the matters for consideration under the Act, in particular the likely impacts of the development, including the environmental impacts on the environment, and public interest considerations.

16 That is, in particular, would the development result in a density of medium development, which would cause an unacceptable impact to the amenity of the local area, and the impact in terms of privacy, solar access and visual amenity of the units themselves, and the residential character of the area. 17 The statutory planning framework or regime in which the court must assess the development application is that contained in the Albury Local Environmental Plan 2000, and the purposes of this plan include to promote sustainable urban development by providing for efficient management of urban growth and resource utilisation, and to promote community involvement in the planning process.

18 The subject development is medium density housing in terms of the LEP. This means two or more dwellings on an allotment of land. The Albury LEP provides for one living area where all forms of housing are permitted and then there are further guidelines or controls contained in council's Development Control Plan. 19 For the zone objectives the consent authority must not grant consent unless the consent authority is of the view that development is consistent with the objectives of the zone.

20 Clause 9 of the LEP sub-clause (3): The consent authority may grant consent if it is inconsistent with one or more of the objectives in special circumstances, that is in particular a perceived inconsistency between objectives, and non-compliance with the objective would not result in any significant adverse social, economic, or environmental effect. The consent authority must have regard to any provisions of a development control plan that specify development standards and matters for consideration when assessing a particular development application. 21 The principal objective of the living area zone is to identify land for residential land uses and other land uses that are compatible with residential uses.

22 The relevant particular objectives of the living area zone include: (a) to promote the efficient, orderly and sustainable development of the city of Albury living areas and adjoining future urban lands. (d) To provide freedom from intrusive, offensive, hazardous, aesthetically displeasing and environmentally unsatisfactory development. (e) To promote an adequate range and choice of housing types, particularly affordable housing to meet the needs of the community. (f) To recognise and improve residential character of different parts of the city through detailed planning guidelines in DCPs. (g) To encourage medium density housing that is designed to achieve a high standard of amenity that is located in an evenly balanced manner throughout the residential areas. 23 It is interesting to note that in terms of this zone that the minimum size of an allotment of land is 450 square metres for a single residential dwelling.

24 In my assessment I must give proper real and genuine consideration to the provisions of the development control plan. The council does not contend that the proposed development does not numerically satisfy many of the provisions of the DCP. Chapter C of this DCP relates to the living area zone and it includes a number of matters for consideration. That is, "the compatibility of development with the character and amenity of the surrounding area; whether the development would be a nuisance to residents; and whether it is possible to provide adequate community facilities to meet the demand which is likely to be generated by the development". There are particular zone objectives in the DCP to reflect those of the LEP. That is: "to promote an adequate range and choice of housing types, particularly affordable housing to meet the needs of the community; to recognise and enhance the residential character of different parts of the city; and to promote the efficient, orderly and sustainable development of the city's living areas." 25 The Court was taken to the relevant provisions for medium density housing and they are based on council's intent to identify in a practical way minimum standards of living required for residents of a housing development of higher than conventional density, including traditional dual occupancy development as well as other forms of medium density development.

26 The DCP also provides guidance in terms of the neighbourhood character, development character, open space and solar access, setbacks, privacy, car parking and access.

27 In terms of neighbourhood character, which is central or seminal to these proceedings, the council has sought to promote housing choice and principles of urban consolidation through medium density housing controls that allow both locational choice and a level of certainty to prospective purchasers. 28 The principal issue in the proceedings relate to the suitability of this site for the intensity of development proposed.

29 The Court appreciates that existing residents will not always embrace change, that is not to say that the residents consider that no change is appropriate or that no development should occur on the subject site. It is understandable that where there are changes and where a different form of development, that is medium density development is proposed for a living area zone, that are concerns may well be expressed by residents.

30 However, The role of the Court is to assess the development application in the context of the local planning regime as set out, or articulated in council's LEP and DCP. In this regard, I cite the Court of Appeal judgment of Zhang v Canterbury City Council [2001] NSWCA 167, the Court must provide give focus the development control plan guidelines. That is not to say that DCPs are mandatory, they are discretionary but the Court must give proper real and genuine consideration to same.

31 I have assessed the application in the context of the controls and my role is to assess not so much the change in what would be the area pre and post development, but whether in fact the impacts that would arise from the proposed development are unreasonable, unnecessary, or unwarranted in the context of council's controls.

32 As I stated, there were a number of more specific issues that were raised of a more minor matter, in particular such matters which should not be dismissed because they are matters that go to the general amenity of an area as well. That being, for example, the garbage collection. Through the process it became clear that the garbage would be collected from within the site such that external impacts would not be unreasonable on adjoining properties, and this matter was resolved in so far as the council is concerned. 33 In terms of the issues of overshadowing, the Court could see from the overshadowing diagrams that there is minimal impact in terms of overshadowing of adjoining properties by the proposed development and this certainly would not warrant refusal of the application. All the surrounding properties of this land, lot parcel of land surrounded by low density residential single dwellings on larger allotments will receive more than the adequate solar access in terms of the standards.

34 Similarly in terms of privacy to the adjoining residential properties, I am satisfied the design of the development is such that the units will not unreasonably impact on the privacy of the surrounding dwellings.

35 The issue of stormwater was raised and it is noted that it is proposed to relocate the stormwater, to the driveway in the centre of the site, the lowest natural contour, and as such the capacity for the stormwater would be improved by the development of the site with the proposed amplification of the infrastructure. This was raised as an issue by residents as of being concern and the post development result would be an improvement in terms of stormwater management.

36 In terms of the issue of noise, from the driveway I have the benefit of an acoustic report by Atkins Consulting, I am satisfied the driveway noise will be contained and appropriately treated with acoustic barriers. The advice of the acoustic engineer, is for the acoustic barriers to be some 750 millimetres fro the side of the driveway to provide the necessary attenuation of vehicle nose levels for the adjoining properties on either side of the lot that serves as the entry and exit for the development.

37 Also the regrading of the driveway to the road to reduce the gradient will improve the concern about headlight glare from the subject property and whilst there will be some impact in terms of car headlights exiting the subject property from time to time, once again with the frequency of the use of the driveway and the amelioratory effect of the reduced gradient, I am satisfied that this would not warrant refusal of the proposal. 38 Similarly, in terms of the traffic generated by the subject development, there is a traffic report. And while it is not raised by council as an issue, it could be seen on site that the environmental, and the actual capacity of the wide road pavement of Walsh Street is one that can accommodate the traffic generated by the proposed development, that is estimated to be between 74 and 80 traffic movements per day.

39 The issue of landscaping was also raised by residents, in particular the difficulties establishment of landscaping with the level 4 water restrictions that have been imposed on Albury City In this regard the applicant amended the plans to provide for rainwater tanks to allow for the establishment and maintenance of the landscaping.

40 It is important to note that I allowed amended plans at the beginning of today's proceedings, and these have the effect of reducing the number of units. I allowed the amended plans on the basis that there was no prejudice caused to the respondent council by the amended plans and the experts were available to give their views and considered opinions today on the amended plans. 41 The amended plans reduced the number of townhouses, such that there are now nine townhouses proposed for the northern part of the site, as opposed to ten. This has the effect of providing additional space between the townhouses. In many respects this is more of an ameliorative effect for the internal amenity as opposed to the viewing of the townhouses externally from the site, that is in particular from the properties to the north. The reduction in one townhouse allows for the tree towards the northern boundary to be retained and it also provides the necessary space for additional canopy trees to be planted, which will have the impact of providing more of a landscaped setting for the proposed development both when viewed internally and externally.

42 The amended plan also shows a reconfiguration or a reduction in the garage for villa 1, such that the other tree on the subject site can also be retained. In the event that these trees decline the space for replacement canopy trees remains. 43 The Court has the opportunity of assessing the amended landscape plan, and has also has the benefit of the expert's comments to allow increased opportunities for further canopy trees in the context of the removal of certain car parking spaces. In this regard I consider that two of the car parking spaces should be deleted. While there is parking provision well in exceedance of council's controls for both the number of residential units and also in terms of visitor parking, and that is appropriate because of the juxtaposition or the relationship of the long driveway to the development itself, and also it will reduce impacts for existing residential properties in terms of on street parking in Walsh Street.

44 The Court in its overall assessment must have regard to the character of the area, and it is not just a matter of developments complying in a numeric sense and this is not contested by the applicant.

45 The Court must also assess the proposal in terms of the qualitative assessment of what the controls and what the intent of council's LEP and DCP provide for. That is the character of the area. And I am satisfied that the proposed development will not be inconsistent, or out of character with the area. There was a great deal of discussion of what is compatible, harmonious and consistent. 46 The development is a medium density development, and it will read as a medium density development. The fact that it is different to surrounding homes is not the test, and indeed this was not submitted by the council. It is whether the relationship is appropriate in terms of the character of the area, and in my assessment, having regard to the relationship of the northern townhouses to the northern external properties, and the relationship of the single-storey townhouses, predominantly single-storey townhouses on the southern part of the property to the dwellings fronting Walsh Street, I am satisfied that the relationship is satisfactory and not discordant, and the proposed development will sit comfortably with in this single detached dwelling house area is marked by large allotments.

47 The proposed development does not represent an overdevelopment in my assessment. Clearly, even though the numerics are not the be all and end all, when one looks at the site area per unit without the driveway allotment to Walsh Street, it represents 404 square metres per unit. If the driveway lot is included this represents on dwelling unit per 466 square metres. Either way clearly, the proposed development is at the low end of a medium density development and I am also satisfied that the relationship of the design of the two-storey townhouses to the north, having regard to the topography and the context and the existing dwellings that the relationship is appropriate.

48 The proposal is respectful of the neighbours in terms of not creating external impacts to neighbours. That is, there is very minimal overshadowing, the privacy impacts are not an issue and the built form in terms of bulk is appropriate. Furthermore in my assessment this integrated approach to a large land locked parcel of land will not create unreasonable or undue impacts on surrounding properties. In many respects the development of the subject site for a medium density development provides for greater certainty in terms of the final outcome of the development, than if the land was subdivided into single residential allotments. Impacts are more clearly understood with an integrated approach to the developments of the site and in my assessment of the proposal the impacts have now been carefully considered to maintain amenity for the adjoining properties.

49 I am also satisfied that the internal amenity of the development in terms of townhouse to townhouse or villa is satisfactory and would not warrant refusal of the application. The amenity has been improved for the townhouses in terms of their open space provision, in particular the solar access that is gained to the open space areas and clearly there is the opportunity to provide glazing to improve solar access into the lower, or the first storey ground level portion of those townhouses that face north. This is to be the subject of a condition of approval.

50 The built form in the context of the proportion of unbuilt upon area and the appropriate setbacks, that is one to each other and from the adjoining properties, is a most important element in terms of assessing whether a medium density development can fit with the low density residential nature of the area. Whilst the council does not consider the removal of an additional townhouse to be a panacea in terms of the overall design of the development in my assessment it provides for an increased opportunity for the strategic placement of canopy trees to suitably balance the built form.

51 I have given central, real and genuine consideration to the provisions of the DCP and clearly in terms of the local environmental plan the provisions of the living area objectives and consistency with the living area objectives as required under the plan in terms of cl 8 and 9. I am satisfied that the proposed development will provide "freedom from intrusive, offensive and aesthetically displeasing and environmentally unsatisfactory development."

52 I am also satisfied that the proposed development promotes an adequate range of choice in housing, particularly affordable housing, to meet the needs of the community without unreasonable impacts on adjoining properties, and without impacting on the character of the area generally. The proposed development in my assessment also satisfies the requirement to encourage medium density housing designed to achieve a high standard of amenity. I am satisfied that appropriate internal amenity will also be achieved. 53 As I stated earlier, I do appreciate that the development will represent change, but the role of the Court is to assess the proposal against council's planning controls. Clearly, medium density housing is contemplated by the LEP in low density residential areas. The rationale, or philosophy of council's local environmental plan is to not segregate medium density development from low density development, but to ensure that the character of the area is maintained in terms of the provision of medium density housing within the living area zone.

54 This particular development at the lower end of the medium density spectrum and in the context of the site, in the context of the topography that we see, in the context of the shape and the relationship of the subject land to adjoining properties, is worthy of approval.

55 There are some minor matters in terms of the driveway to be resolved. That is there needs to be provision for a eucalypt canopy tree apart from the native frangipanis, such that the middle one of those at least needs to be replaced by either a lemon scented gum or a eucalypt. Two visitor spaces one to be deleted will provide for eucalypts of a suitable size and scale for the spaces represented on the plans. The car spaces to be deleted are between units 5 and 6, so there would be a eucalypt of a suitable size there, and also between town houses 15 and 16, on the southern side. I have considered what other trees exist on the site and other canopy trees are located, and then also having regard to an additional tree in that driveway. 56 I note that there have been a number of amendments to the proposal since it was first submitted to the council. That is often the nature of development applications that come to the Court where they are placed under greater scrutiny including issues that may have been raised previously that are also then incorporated into the plans.

57 I appreciate that the amended plans are ones that have also had the benefit of the input and the comments from the community, as well as the experts themselves and also council's assessment. 58 Accordingly, the formal Orders of the Court are: 1. The appeal in respect of the property known as 254 Walsh Street East Albury is upheld. 2. The development application submitted to Albury City Council and as amended for a medium density development of 15 dwelling units, is approved subject to the conditions contained in Annexure A. 3. The Exhibits, with the exception of 1, 2, 3, 4 and 15 and Exhibits A, H, J and K are returned to the parties.

      J S Murrell
      Commissioner of the Court
      DK/ljr

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