Gorgievski v Willoughby City Council

Applicant: Mr B Hones, solicitor of Hones Lawyers LEGAL REPRESENTATIVES: Respondent: Ms H Irish, barrister instructed by Ms E Duenow of Mallesons Stephen Jaques

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10398 of 2005 Steven Gorgievski v Willoughby City Council

JUDGMENT 1 Senior Commissioner: This is an appeal against the refusal by Willoughby City Council of a development application to demolish the existing house and erect three two-storey townhouses on lot 14 DP 10390, known as 190-196 Penshurst Street, North Willoughby.

The site 2 The site is on the corner of Penshurst and Owen Streets. It has an area of 583m2, with a frontage to Penshurst Street of 20m and to Owen Street of 34m. Penshurst Street is a State Road, while Owen Street is a minor cul-de-sac. Development on Penshurst Street to the south is two-storey commercial. The immediately adjoining property, 188 Penshurst Street, is built to the street alignment. To the north development is residential. At the northwest corner of Penshurst and Owen Streets stands a group of four townhouses, set back 7.5m from Penshurst Street. The development in Owen Street is mainly single-storey houses in large gardens.

The proposal and its history 3 The applicant proposes to demolish the existing house and erect three two-storey townhouses over basement parking for six cars. Vehicular access is via a ramp from Owen Street. 4 The applicant lodged the application in March 2003. Following notification, the council received 46 objections of which 24 were form letters. Following negotiations, the applicant amended the proposal by reducing the number of dwellings from four to three. I note, however, that in reducing the number of dwellings, the applicant appears to have increased the footprint and decreased the setback to Penshurst Street. The applicant achieved this unexpected result by increasing the size of the dwellings. I do not therefore understand the council's planners' support for the amended proposal, which had a larger footprint and came closer to Penshurst Street than the original proposal that they did not support. 5 In February 2005 the council received a planning report from its Group Leader, Development Planning, recommending deferred commencement approval. The council did not accept the recommendation and refused the application on 18 July 2005.

Relevant planning controls 6 Willoughby Local Environmental Plan 1995 (LEP 95) zones the site Residential 2(b), a zone in which townhouses are permissible. Development Control Plan 15 - Multi Unit Residential Development in Residential 2(b), 2(c) and 2(d) Zones (DCP 15) establishes detailed controls. The applicant has submitted an Objection under State Environmental Planning Policy 1 - Development Standards (SEPP 1) to the minimum allotment size standard of 850m2 and allotment width of 27m at the front alignment, established by LEP 95).

The issues 7 The council submitted a Statement of Issues containing ten issues. The main issue, in my opinion, is whether the variation of the minimum allotment size of 850m2 is justified in this case.

Allotment size and frontage 8 Clause 22 of LEP 95 establishes the minimum allotment size of 850m2 for sites zoned 2(b) having a frontage to a State or Regional road. The LEP does not contain objectives for the development standard. The development standard is repeated in DCP 15, which also provides criteria for varying the standard. Council may consider variation to the minimum allotment size and consolidation requirements subject to circumstances such as: * The development is on an existing allotment that cannot be consolidated with another lot; * Remaining allotments in the adjoining area are not left isolated by the proposal; * The other standards of this Plan are achieved; * The neighbouring landowners are unwilling to be party to the consolidation. 9 The applicant submitted an Objection under SEPP 1 to the strict application of the minimum allotment size and width standard. The Objection quotes the criteria of DCP 15 for considering varying the minimum allotment size. The Objection deals with the first, second and fourth of the criteria. It does not deal with the third, namely the question whether the other standards of the DCP are achieved. 10 DCP 15 establishes the following control on front/street setbacks. 1) In established areas, new developments should reinforce the streetscape character by ensuring the front setback is generally consistent with those of adjoining development, though not necessarily identical. 2) Subject to conforming with the existing front setbacks of the street, the following setbacks are to apply: Minimum setback from front street boundary 2(b) 7.5m

11 The proposal has a setback of 4.5m from Penshurst Street (scaled from the drawing). The adjoining building to the south is built on the street alignment. It was built as a shop and, although it is now used as residential in the rear, it still appears as a commercial building. The development to the north, across Owen Street, is a group of townhouses set back 7.5m from Penshurst Street. The question arises: what is the appropriate setback for the subject development, given that it is between a building that has no setback and a group of dwellings that observes the generally required 7.5m. 12 The Court had appointed Ms D Laidlaw as the planning expert in this case. In her opinion, the setback of 4.5m is appropriate, since there is no established setback in Penshurst Street. I do not think that this is correct. The building to the south appears clearly as part of an old shopping strip. The building to the north is, and appears as, a townhouse development. The proposal has the same character and should observe the required setback of 7.5m. 13 I note that an earlier proposal containing four dwellings had a setback of 5m from Penshurst Street. If one of the dwellings were removed (without expanding the three remaining dwellings), the proposal would be 9m from Penshurst Street. I conclude therefore that it would not be difficult for the proposal's designer to observe the 7.5m setback. 14 The criteria in DCP 15 for varying the minimum allotment size standard are reflected in CSA Architects v Randwick City Council [2004] NSWLEC 179. In that judgment the Court established principles for assessing proposals on small and narrow sites, stating that: The main criterion for assessing the proposal on its own site is whether it meets other planning controls, eg: + Does the proposal meet density, setback and landscaping controls? The most critical control for small and narrow sites is that for setbacks. + Is its impact on adjoining properties and the streetscape worse because the development is on a small or narrow site? Where an application meets other planning controls and the area and width of the site does not exacerbate its impacts, the failure of the site to meet the preferred area or width would usually not be a reason for refusal. 15 The import of DCP 15 and the principle established in CSA Architects v Randwick City Council is that, where a small and/or narrow site cannot be amalgamated, it would be unreasonable to deprive it of all development potential. However, a proposal on such a site should meet all other planning controls. This means that the development potential of an undersized allotment is usually lower than that of a complying allotment, since maintaining setbacks on a small site leaves proportionately less space for development than maintaining the same setbacks on a larger site. The reduced potential is one of the consequences of developing an allotment that is smaller than the minimum specified in the planning controls. 16 I return to the question of the SEPP 1 Objection. In my opinion, the proposal does not meet the requirement set out in DCP 15 for considering applications on undersized allotments, because it does not achieve the setback requirements of the DCP. The earlier proposal containing four dwellings demonstrates just how easily the application could achieve the required setback. Since the proposal does not meet the criteria for varying the development standard, it also does not meet the objectives of the standard. The SEPP 1 Objection is therefore not well founded. 17 I accept that it is unlikely that the site can be amalgamated with its southern neighbour. The neighbour to the west is not zoned 2(b), so amalgamation would not serve any purpose. The site will probably have to be developed on its own. However, the applicant cannot expect to develop it to the same intensity as if it were a complying allotment. On the basis of an earlier version of the application, I am satisfied that a proposal containing three small dwellings or two large ones could achieve the required 7.5m setback from Penshurst Street.

Conclusion 18 Given my conclusion on the variation of the minimum allotment size standard, it is not necessary for me to deal with the issues raised by the objectors. In any case, most of the objectors were concerned about non-compliance with the minimum allotment size and width. Among the council's issues there remains one that should be dealt with, since it might arise in the consideration of a future application. That issue is whether basement parking is appropriate for this site. Ms Laidlaw pointed out that basement parking allows the proposal to have one entry and exit point for vehicles situated on Owen Street at the maximum distance from the intersection with Penshurst Street. In Ms Laidlaw's view, this benefit outweighs possible disadvantages, such as the location of a ramp adjacent to the western neighbour. I agree with her. 19 I have taken into consideration that the council's planning staff and the Court-appointed expert supported the proposal; however, in my opinion, both have accepted a solution that is short of acceptable. Given that a satisfactory solution is achievable (and almost suggests itself by removing a dwelling from the four-dwelling version of the proposal but without making the dwellings bigger), it would not be in the public interest to grant consent to the application. The appeal is therefore dismissed.

2. Development application to demolish the existing house and erect three two-storey townhouses on lot 14 DP 10390, known as 190-196 Penshurst Street, North Willoughby is determined by refusal.

      Dr John Roseth
      Senior Commissioner

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