Home Horizons Group v Pittwater Council

CASES CITED: R v Regos and Morgan [1947] HCA 19; [1947] 74 CLR 613 Coady v JH Nelson Pty Ltd (1947) 74 CLR 629

APPLICANT Ms J Reid, solicitor SOLICITORS Pikes Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr M Staunton, barrister SOLICITORS Mallesons Stephen Jaques

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10745 of 2008 Home Horizons Group Pty Limited v Pittwater Council

JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal of Development Application N0184/08 by Pittwater Council (the council) for the demolition of an existing dwelling and the construction of a 4-unit housing development at 60 Park St Mona Vale (the site).

2 A threshold issue raised by the council is the categorisation of the proposed use and consequently whether the proposal is a permissible use in the zone. If the resolution of the categorisation issue allows the proposed development to be further considered, the merit issues raised by the council relate to the non-compliance with the density street frontage control and the consequent non-compliances with the side setback requirements, private open space requirements, landscaped area and site coverage requirements. Unacceptable internal privacy impacts were also an issue raised by the council. 3 A number of local residents provided evidence on site. In addition to the issues raised by the council, the local residents raised the following additional issues; o excavation impacts, particularly on adjoining properties o bulk, size and proximity to existing dwellings, o loss of sunlight, o construction noise, o overdevelopment of the site, o inconsistent with the existing two lot development pattern, and o overlooking impacts. The site 4 The site is Lot 25 in DP 11108. It is rectangular in shape with a street frontage of 15.24 m and a depth of 80.26 m giving a site area of 1223.3 sq m. There is a fall of some 6 m from the street to the rear of the site.

5 The site presently contains a single detached dwellings located near the front of the site. A garage structure is located behind the house and is used as a separate dwelling. A range of insignificant indigenous, introduced native species and introduced exotic species are located on the site. 6 The locality is predominantly residential in nature with a range of dwelling types consisting of a single storey detached dwellings, dual occupancy developments and a multi-unit housing. The proposal 7 The proposal provides for the demolition of all existing improvements and the construction of 4 x 3 bedroom dwellings within two buildings with a basement car park linking the two buildings. The proposal also provides for the landscaping of the site. Relevant planning controls 8 The site is within Zone Residential 2(b) under Pittwater Local Environmental Plan 1993 (LEP 1993). "Residential flat buildings" and "group building" are prohibited by cl 9. Multi-unit housing (that means, in part, a "group building") is permissible through the provisions of cl 21N(2) that state: Multi-unit housing in Zone No 2(a) or 2(b) 21N. (1) Except as provided by this clause, the erection of multi-unit housing on land within Zone No. 2(a) or 2(b) is prohibited. (2) Despite any other provision of this plan, multi-unit housing (except shop-top housing) may be erected with the consent of the Council on land within Zone No. 2(a) or 2(b) only in an area shown edged heavy black and identified by the symbols "MUH" on the multi-unit housing map. (3) Multi-unit housing referred to in subclause (2) shall not be erected at a density exceeding 1 dwelling per 200 square metres of site area. 9 Pittwater 21 Development Control Plan (the DCP) applies. The relevant parts are Definitions (Pt A1.9), Dwelling Density and Subdivision - Multi-Unit Housing (Pt B2.5), Landscaping (Pt C1.1), Solar Access (Pt C1.4), Visual Privacy (Pt C1.5), Private Open Space (Pt C1.7), Character as viewed from a public place (Pt D9.1), Side and rear of building line (Pt D9.7) and Site coverage - General (Pt D9.10).

10 The relevant parts of the Mona Vale Locality - Desired Character (Pt A4.9) are: Future development will maintain a height limit below the tree canopy and minimize bulk and scale. Existing and new native vegetation, including canopy trees, will be integrated with the development. Contemporary buildings will utilise façade modulation and/or incorporate shade elements, such as pergolas, verandahs and the like. Building colours and materials will harmonise with the natural environment. Development on slopes will be stepped down or along the slope to integrate with the landform and landscape, and minimise site disturbance. Development will be designed to be safe from hazards.

A balance will be achieved between maintaining the landforms, landscapes and other features of the natural environment, and the development of land. As far as possible, the locally native tree canopy and vegetation will be retained and enhanced to assist development blending into the natural environment, and to enhance wildlife corridors. Categorisation of use 11 The following definitions are relevant to the categorisation issue: "multi-unit housing " means residential development (other than dual occupancy development) which comprises: (a) a group building; or (b) shop-top housing consisting of more than one dwelling; or (c) cluster housing; or (d) integrated residential development. "group building" means a building consisting of 2 or more dwellings which are commonly known as group houses, villa homes, town houses, semi-detached or terrace buildings and the like, where each of those dwellings is designed, constructed or adapted for use as a separate dwelling; "shop-top housing" means a dwelling, group building or residential flat building in a business zone attached to and integrated with premises used for a non-residential purpose that is permitted in the relevant business zone. "cluster housing" means residential development which: (a) includes the subdivision of land into three or more residential allotments and the erection of a detached dwelling on each allotment; and (b) includes in the subdivision an allotment of land for private recreation or landscaping purposes for use by the occupants of all dwellings within such development. "integrated residential development" means residential development which includes a mix of detached dwellings and group buildings designed in accordance with an overall concept plan for the development site.

The council's submissions 12 Mr Staunton submits that the proposed development clearly cannot be classified as "shop top housing", "cluster housing" or "integrated residential development". Accordingly, if the development is to be permissible it must fall within the definition of "group building". In this regard, the definition contains three essential elements, that is, the building must consist of "2 or more dwellings", each of the dwellings contained within the building must be "designed, constructed or adapted for use as a separate dwelling" and each of the dwellings must be of the type "which are commonly known as group houses, villa homes, townhouses, semi-detached or terrace buildings and the like". Mr Staunton submits that the proposed development includes the first two elements but submits that the third element is missing. 13 Mr Staunton submits that the words "and the like" should be construed according to the "generis rule" (R v Regos and Morgan [1947] HCA 19; [1947] 74 CLR 613), that is in order for the proposed development to fall within the type of dwellings specified it must share common and dominant features. The Macquarie Dictionary definitions of "villa", "townhouse", "semi-detached" and "terrace" reveal that each of these dwelling types have the features of being partly at ground level and not stacked one on top of another. As a matter of building construction, these dwellings are usually built side-by-side with a separate footprint on the ground, with a common wall but otherwise with no overlap. The ordinary meaning of the terms "villa" and "townhouse" are consistent with the way those terms used in the Building Code of Australia, referred to in State Environmental Planning Policy No 65 - Residential Flat Development. 14 On this basis, the proposed development is not "multi-unit housing" but a "residential flat building" and as such is prohibited within the zone. The applicant's submissions 15 Ms Reid agrees that the development cannot be classified as "shop top housing", "cluster housing" or "integrated residential development". She however submits that the proposed development satisfies all three elements in the definition of "group building" identified by Mr Staunton, using the "generis rule". She submits that none of the categories of dwellings referred to in the definition of "group building" are defined in the LEP 1993 or the Model Provisions. Accordingly, the ordinary and plain meaning of the words must be used (Coady v JH Nelson Pty Ltd (1947) 74 CLR 629 per Dixson J at 647). It is clear from the definition of "group building" that the definition is not intended to be exhaustive, as this is made plain by the inclusion of the words "and the like". 16 Accepting that the "generis rule" applies, the common and dominant features of the kinds of development referred to in the definition of "group building" are: o there are two or more dwellings on each building; o each dwelling is capable of separate occupation; and o there are some kinds of shared infrastructure, such as car parking and landscaping but not infrastructure that is essential to separate occupation (such as kitchens and bathrooms).

17 Contrary to the submission of the council, there is nothing implicit in the definition that requires a finding that a common feature is that the dwellings are not "stacked" upon another dwelling. It is clear that the definition anticipates development of land, which is at ground level; such as shop top housing. When the phrasing question is viewed in its proper context there is no compelling factor which would require the limitation upon the term "group building" that the dwellings are not superimposed on one another. Findings 18 There was no dispute that the "generis rule" applies and that the common and dominant features of the kinds of development referred to in the definition of "group building" must be the basis for the consideration of whether the proposed development falls within the definition of a "group building". As I understand, there was also no dispute that the ordinary and plain meaning of the forms of residential development in the definition must be used in this consideration. 19 On this basis, I accept the submissions of Ms Reid. Mr Staunton's reliance on the fact that the dwellings are not "stacked" upon another dwelling, in my view, places excessive reliance on one particular element of the residential development identified in the definition. This approach needs to be considered against cl 21L(a) of LEP 1993 where the clause identifies an aim for multi-unit housing is to "encourage a greater diversity of housing types and wider housing choice in appropriate locations….". To accept Mr Staunton's submission would be to accept that the aim should be read so narrowly so as to limit housing types to those that are not "stacked" upon another dwelling. This clearly cannot be correct given the broad and general terms of the aim. The use of the term "and the like" is clearly consistent with the approach of encouraging different housing types and beyond those specifically identified in the definition, consistent with the aim in cl 21L(a). 20 In accepting that there are no specific definitions for the different housing types identified in the definition, and adopting a plain and ordinary meaning for the housing types, I am satisfied that there is an inherent and intended variation in the forms of identified housing in the definition to reject the council's reliance on the non-compliance with the single element of the dwellings not being "stacked" upon another dwelling. For example, villa homes are generally single storey with private open space and car accommodation under the roof form and may or may not be attached. Townhouses are generally two storeys with varied articulation at the streetscape and attached in groups with private open space, and car accommodation as part of the building form. Terrace buildings have a more traditional consistent regular streetscape appearance with a larger number of dwellings attached than town houses with car accommodation at the rear, if it is provided. In my understanding, group houses do not necessarily have a specific form but are simply grouped together to satisfy a particular purpose, for example to protect particular environmental features on the site while maintaining the same or similar density of development. 21 For these reasons, the proposed development is categorised as a "multi-unit housing", comprising a "group building" and as such is permissible in the zone. Density street frontage control 22 Part B2.5 provides dwelling density requirements for multi-unit housing. The relevant controls provide for a dwelling density of 1 dwelling per 300 sq m of site area for lots with a frontage of less than 18 m. There was agreement that the proposed development satisfies this requirement. 23 Part B2.5 also provides that: Multi-unit housing must not be carried out unless the street frontage is greater than or equal to one third of the length of the longest side boundary. 24 The length of the longest side of the site is 80.465 m, so the proposed development does not satisfy this requirement as a frontage of 26.82 m would be required.

25 Ms Kimberley Munn, a town planner with the council, states that the non-compliance with the density street frontage control results in a development that is not the most appropriate development on the site because of: o the inability to design within the controls for side setbacks, site coverage and landscaped area, o the isolation of the adjoining property at 62 Park Street, o overlooking of the upper level units of the private open space within the proposed development of the units below, and o non-compliance with the private open space areas for Unit 2 and Unit 4. 26 Ms Munn states that the proposed development fails to meet the outcomes of the control. In her opinion, the objective of the control is to achieve medium density housing as nominated within the desired future character statement of the Locality. Compliance with the density street frontage control will avoid canyoning of buildings (or the effect of a long building down the site) and design constraints that lead to reduced setbacks and inadequate private open space areas. 27 Mr Ross Fleming, a town planer, provided evidence for the applicant. He states that the site is zoned to permit the proposed development and given the incentive provisions within the DCP to consolidate sites, no planning purpose is provided by the site frontage to depth standard. He states that the locality already exhibits a character associated with multi-unit housing and given the absence of detrimental impacts generated by the development on adjoining residential development, the development satisfies the outcomes of the density control. The variations to the site cover, site setbacks and landscaped area requirements are not significant and can be accommodated through the opportunity available in the DCP to vary the requirements. Findings 28 The matters raised by Ms Munn that cumulatively lead to her to the conclusion that the proposed development is unacceptable, raise individual controls in the DCP. I will deal with these individually.

Side setbacks 29 The controls in Part D9.7 provide for a minimum 3 m setback where the wall height is 3 m or less. Where the wall height is more than 3 m, the DCP provides an equation to determine the appropriate side setback. The parties helpfully marked a plan indicating the non-compliance with the side setback based on the equation in the DCP. The variation ranged from around 1.5 m (excluding the chimney) on part of the south-west elevation of the building near the street frontage to a complying setback on the north-eastern elevation of the same building. The building at the rear has side setback variations ranging from a complying setback to around 0.3 m. Most of the variations to the side setback are around 0.5 m to 0.7 m. Ms Munn and Mr Fleming described the variations as minor although Ms Munn maintained that the reduced setback impacted on the ability to landscape the site. 30 A variation to the side setback requirement is permitted in Part D9.7 where the outcomes of the clause are achieved and where the adjoining properties will not be adversely affected. The relevant outcomes are: o Achieve the desired future character of the Locality o The bulk and scale of the built form is minimised, o Substantial landscaping, a mature canopy and an attractive streetscape. 31 I am satisfied that the variations to the side setback requirements can be supported because of the relatively small variations and because the outcomes of the clause are achieved. The desired future character of the Locality will be unaffected by the variation to the side setbacks, as will the bulk and scale of the built form and any suggestion of canyoning because of the proposed landscaping. For reasons mentioned later in the judgment, sufficient landscaping and an attractive streetscape will be still be provided notwithstanding the proposed variation. There was agreement between Ms Munn and Mr Fleming that adjoining properties will not be adversely affected. 32 Site coverage/ landscaped area The controls in Part D9.10 provide for a maximum site coverage of 50% and a minimum landscaped area of 50%. Ms Munn calculated the minimum landscaped area at 32.7% and Mr Fleming calculated the area at 49.3% (and a consequent site coverage of 50.7%). The difference between the experts was the inclusion of the area above the basement car parking and the use of planter boxes. 33 Part D9.10 provides the opportunity for variations to the requirements in this clause if the outcomes of the control are achieved and the bulk and scale of the development is not increased. Variations can be permitted for areas with a soil depth greater than 800 mm above built structures for both site coverage and landscaping. 34 The relevant outcomes are: o Achieve the desired future character of the Locality o The bulk and scale of the built form is minimised, o Vegetation is retained and enhanced to visually reduce the built form o A reasonable level of amenity and solar access is provided and maintained o Soft surface is maximised 35 I am satisfied that the opportunity for variation to the landscaped area available in the DCP can be utilised in this case. I can comfortably conclude that the proposal satisfactorily addresses the outcomes of the controls and does not add to the bulk and scale of the development. The plans indicate that the area in dispute between Ms Munn and Mr Fleming is to contain a soil depth greater than 800 mm together with planters to provide landscaping. There was no evidence to suggest that this area could not provide practical and useful open space and recreational areas for the future occupants of the building. In my view, it is not necessary for all areas to be able to accommodate canopy trees and I note that deep soil areas are available in other locations around the site to accommodate canopy trees. I note that Part C1.1, in addition to the requirement for canopy trees, provides that a range of low-lying shrubs, medium-high shrubs must also be provided to soften the built form.

36 Consequently, I accept the calculations of Mr Fleming for site coverage and landscaped area and while the areas are marginally below the requirements of the DCP, the consequences of the non-compliances would be unnoticeable . Private open space 37 The controls in Part C1.7 provide for a minimum of 15% of the floor area of the dwelling with no dimension less than 2.5 m and a grade no steeper than 10%. Also, dwellings are to be designed so that private open space is directly accessible from living areas enabling the areas to function as an extension of internal living areas.

38 There was no disagreement between Ms Munn and Mr Fleming that the proposed units satisfied the minimum area of private open space. Ms Munn however maintained that the proposal was unacceptable as Unit 2 and Unit 4 have two separate areas of private open space in the form of balconies. While one area for each unit has good solar access and is directly accessible from living areas, the other area does not and should be excluded from the calculations of private open space. Mr Fleming disagrees and states that a private open space area of around 28 sq m off the living area for each unit is excessive and that the proposed areas with direct access off the living areas (16.6 sq m for Unit 2 and 18 sq m for Unit 4) are adequate for private open space purposes. The secondary balconies provide a separation of activity spaces within the unit as well as permitting a surveillance area to the street.

39 The relevant outcomes are: o Dwellings are provided with a private, usable and well-located area of private open space for the use and enjoyment of the occupants. o Private open space is integrated with, and directly accessible from, the living areas of dwellings. o Private open space receives sufficient solar access and privacy. 40 On this issue, I agree with Mr Fleming. Based on the requirements of this part, the total areas of private open space to be provided are relatively large. I am satisfied that the outcomes of the clause are addressed through the provision of the two areas of private open space, largely because private, usable and well located areas are provided directly accessible from living areas of the units. If these areas were smaller and restricted the use of the areas for the future occupants of the dwellings then Ms Munn's arguments would have more force. Visual privacy 41 The controls in Part C1.5 provide for the protection of visual privacy. In this case, Ms Munn identifies internal potential overlooking from the upper level balcony of Unit 2 into the private open space area of the lower level Unit 1. Mr Fleming states that the design deals with this issue by recessing the principal private open space areas of the ground floor units beneath the upper floor deck areas. Conditions (conditions 34,36, 37 and 38) were proposed that required the construction and maintenance of a pergola-type structure over part of the private open space area of Unit 1.

42 The owner of the property directly behind the site at 133 Darley Street West also raised an issue of visual privacy from the balcony of Unit 4. To address this issue, a condition (condition 35) was proposed that required the construction of a privacy screen on the edge of the balcony of Unit 4. This approach was generally seen as acceptable however a dispute over the height of the screen remained with the applicant preferring a height of 1.3 m above the finished floor level of the balcony while the owner of 133 Darley Street West required a height of 1.7 m. 43 On the issue of visual privacy, I accept that a screen should be constructed on the balcony of Unit 4 to minimise overlooking to the property at the rear. Based on my understanding of the relationship between the two properties and plans provided by the applicant, a height of 1.3 m will provide more than adequate visual privacy protection. I also accept that the private open space area of Unit 1 should be protected from overlooking from Unit 2 above. The conditions to address this through the use of a pergola-type structure over part of the private open space area of Unit 1 are overly complicated in my view, and an equally satisfactory result could be achieved through the construction of a screen identical in construction to that proposed for the balcony of Unit 4. The conditions will be amended to reflect this change. Consolidation with 62 Park Street ? 44 A consistent theme running through the evidence of Ms Munn is the need to consolidate the site with the adjoining site at 62 Park Street. In her opinion, this will allow the density street frontage control to be satisfied and allow a development to comply with all the requirements of the DCP that the proposed development currently fails to satisfy. The consolidation of the site with the adjoining property was also an issue raised by a number of residents. 45 The DCP provides no specific requirements for the consolidation of lots. The density street frontage control does not advocate consolidation but only a relationship between the street frontage and the longest side boundary. While there are benefits in terms of increased density for lots with larger frontages (presumably achieved through consolidation), the DCP does not mandate consolidation. Part B2.5 provides controls for lots with a primary street frontage of less than 18 m so the DCP effectively contains no minimum lot frontage requirement for the development of multi-unit housing. Clearly, the narrower the lot the more difficult it is to develop and achieve satisfaction with the requirements of the DCP. The greater number of variations and the extent of the variations are relevant considerations in assessing the appropriateness of the development, particularly when tested against the desired future character of the Locality. 46 It must also be remembered that Part B2.5 also provides density controls in the form of the number of dwellings per site area. There was no dispute that the proposed development satisfied this density requirement. The density street frontage control cannot be considered in isolation from the other density control in Part B2.5, as advocated by Ms Munn. Non compliance with the density street frontage control cannot automatically lead to a refusal. Similarly, it does not follow that a development that complies the density street frontage control will comply the other DCP requirements.

47 Overall, I can conclude that the proposed development is consistent with the desired future character of the Locality, in that the proposed building will sit comfortably in the streetscape because of the modulated facade treatment, proposed landscaping, choice of building materials and a design that integrates with the topography by stepping down the site. In this case, the proposed development satisfies a number of the DCP requirements, such as density and height and where there are variations to the DCP, the variations can be supported. Resident concerns 48 Of the concerns raised by the residents and not dealt previously in the judgement, I accept that excavation impacts and construction noise are adequately addressed through the imposition of conditions C6 and A7 respectively. Orders 49 The orders of the Court are: 1. The appeal is upheld. 2. Development Application N0184/08 for the demolition of an existing dwelling and the construction of a 4 multi-unit housing development at 60 Park St Mona Vale is approved subject to the conditions in Annexure A 3. The exhibits are returned with the exception of exhibits 1 and A.

      G T Brown
      Commissioner of the Court

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.