JS Architects Pty Ltd v City of Parramatta Council - [2023] NSWLEC 1578 - NSWLEC 2023 case summary — Zoe

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JS Architects Pty Ltd v City of Parramatta Council

[2023] NSWLEC 1578

Land and Environment Court (NSW)|2023-07-11

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Source facts

Court

Land and Environment Court (NSW)

Decision date

2023-07-11

Source

Original judgment source is linked above.

Judgment (25 paragraphs)

[1]

Judgment

This is judgment relates to an appeal under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of development application No. DA/145/2022 (the DA) for a multi dwelling housing development at 441 and 443 Wentworth Avenue Toongabbie, legally described as Lots 9 and 10 in DP 9909 (the site), by City of Parramatta Council (Council).

[2]

The site and setting

I rely on Council's Amended Statement of Facts and Contentions filed on 9 May 2023 (marked Ex 10 in the proceedings) for some of the descriptive particulars in this and the following two sections.
The site is a regular shaped mid-block allotment. The two parcels of land comprising the site have a total area of 1,953m2, with each of the parcels occupied by a single storey dwelling house and associated structures. The site has a total street frontage of approximately 31.46m to Wentworth Avenue, which runs generally in a north-south direction in the site environs. The site depth varies between around 66.4m and 62.1m. Topographically, the site falls some 850mm from the front south-western corner to the rear north-eastern corner. A large lemon scented gum tree is located in the front garden of 441 Wentworth Avenue, the southern of the two parcels.
The wider setting primarily consists of an established residential area characterised by low to medium density residential developments. Adjoining the site to the south is a two-storey townhouse development and to the north is a two-storey dual occupancy. The site is located west of the railway line and a little over 200 m from Toongabbie Railway Station. A small local shopping area is a similar distance away. A larger shopping precinct is also nearby, located to the west of the railway line.

[3]

Statutory setting

The current local environmental planning instrument applying to the site environs is Parramatta Local Environmental Plan 2023 (PLEP 2023), which was made on 2 March 2023. However, savings provisions at its cl 1.8A provide that: If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced.
The parties agree that, given the DA was lodged in February 2022, the DA must be determined as if PLEP 2023 had not commenced. In turn it is also agreed that the applicable planning instrument is Parramatta Local Environmental Plan 2011 (PLEP 2011).
Turning to PLEP 2011, the site and its general environs are located within the R3 Medium Density Residential zone. The zone objectives require consideration under cl 2.3 and are as follows: • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To provide opportunities for people to carry out a reasonable range of activities from their homes if such activities will not adversely affect the amenity of the neighbourhood. • To allow for a range of community facilities to be provided to serve the needs of residents, workers and visitors in residential neighbourhoods.
Multi dwelling housing is a nominated permissible use with consent in the zone.
The DA calls on the provisions of State Environmental Planning Policy (Housing) 2021 (SEPP Housing), something explained further when I describe the proposal in more detail. There are a number of other State Environmental Planning Policies, which are not contentious, but do require jurisdictional findings. These are considered later in the judgment.
Parramatta Development Control Plan 2011 (PDCP) also applies and arose in evidence.
It will be seen that Seniors Living Policy: Urban Design Guidelines for Infill Development published by the NSW Department of Infrastructure, Planning and Natural Resources in March 2004 (Seniors Living Policy) also arises in relation to SEPP Housing.

[7]

Introduction

It seems to me the major issue between the parties on the character compatibility question is that Ms McCredie would have it that to reasonably fit in with the character of the local area (both existing and desired future), the proposal would need to be varied significantly in its visual massing. At present, the five townhouse units fronting Wentworth Avenue and, separately, the six townhouses to the rear, are unbroken in their linear massing (although there are other architectural articulation devices incorporated which I will come to). The essence of Ms McCredie's suggestion was that the street front building massing be broken up into two, with a landscaped area in between them, resulting in four townhouses in the front (a reduction from the proposed five townhouses). There would also be a break in the line of the rear townhouses, resulting in five townhouses in the rear (a reduction from the proposed six).
Ms McCredie prepared sketches to illustrate the change she thought necessary which was tendered into evidence (Ex 13).
There were concerns raised by the applicant in regard to the reach of this issue in expert evidence, given that it received narrower attention in Council's nominated contentions (Ex 10). While I note these concerns (including reference to cl 93 of the Court's Practice Note Class 1 Development Appeals), for two related reasons I am accepting the evidence as given. The first reason relates to certain character compatibility-related considerations which need to be taken into account by a consent authority under s 19 of SEPP Housing. Here I note in particular s 19(3), as follows: (3) Development consent must not be granted to development to which this Division applies unless the consent authority has considered whether the design of the residential development is compatible with - (a) the desirable elements of the character of the local area, or (b) for precincts undergoing transition - the desired future character of the precinct.
The second reason is that, in the circumstances of this case, I had a sense of a reasonable opportunity for alternative views to be formed and expressed to the Court by Mr Cadogan.
Overall, I did not perceive an unreasonable prejudice imposed on the applicant from this line of interest explored by Ms McCredie and I did see this exchange between the parties' experts on this topic, including their relating of opinions to physical evidence in the local setting, as useful in relation to other mandatory considerations imposed on a consent authority under SEPP Housing.

[8]

Evidence

I understood the concerns of Ms McCredie, in relation to the application before the Court mainly related to proposed visual massing. Ms McCredie noted that pre-defined finished floor levels (elevated to meet flood level controls), set the design off on the "wrong foot". This constraint has been adopted as a fixture in the design and results in a large raised flat slab, or wide deep platform sitting above the ground (for all eleven units, but noting the street front in particular). This was inappropriate as it increased the visual dominance of the proposal, already taller than adjacent development, and resulting in the development reading as one mass, rather than as individual townhouse elements. Generally, the proposal was contrary to the current spatial organisation of buildings along the street, according to Ms McCredie. In Ex 13, Ms McCredie had prepared a sketch of the spatial arrangement of development up and down the street from the site, highlighting a regularised pattern of spaces between buildings which would not be replicated with the proposal, given that it occupied two blocks.
Mr Cadogan expressed the view that the platform was quite low above the footpath, ranging between about 500mm and 800mm. The rear buildings were not seen to affect the streetscape presentation at all. Mr Cadogan did not see this scale of raising of the slab as a design problem and was rather a reasonable response to the circumstances. Mr Cadogan noted that (Ex 9 par 2.6): "[the] built form is also separated by a landscaped area of approximately 7m depth. I also note that the level is unlikely to be prominent in views from the public domain as it will be largely covered by the planting and landscaping of the front setback areas and behind the front garden fencing of each townhouse."
Looking at the levels shown on Drawing A003 (Ex N), for street-front townhouses, the proposed floor level (RL 31.2) would range from about 0.9m above ground level (towards the northernmost townhouse) to about 0.7m above ground level (towards the southernmost townhouse). While acknowledging the spatial pattern in the immediate site environs, Mr Cadogan pointed to development further to the south which was more consistent with the proposal. Mr Cadogan also expressed the view that there was more than sufficient visual articulation to the proposed building with the agreed amendments.

[9]

Findings

I have considered s 19 of SEPP Housing in relation to the design of the proposal. This requires me to give consideration to the Seniors Living Policy (provided in Council's bundle of documents filed 30 June 2023 (Ex 1) Tab 9). Of particular pertinence, here, are Part 1 ("responding to context") and Part 3 ("impacts on streetscape"). I do note the reference in the Part 3 "design principles…" to: "designing new development to be sympathetic to existing streetscape patterns"; and "allowing breaks in rows of attached dwellings". Council also pointed out similar provisions in PDCP.
I will note that I found the description of "local area" provided by Ms McCredie in her oral evidence as frank and useful. That is that the local area goes beyond the visual catchment. It might readily occupy 300-400m. In this instance, I also accept the position argued by Council that a distinctive and different visual setting needs to be assigned to the area north of Barangaroo Road, beyond which is the local centre and higher density controls apply. However, I think it is also useful, when considering the "local area", to be mindful of other R3 Medium Density zoned land near the site. That means that the land north again of the local centre, where a similar desired future character might be thought to apply to that in the environs of the site, has some resonance when considering character compatibility.
Having regard to the expert evidence and relevant planning provisions, my finding is that the development would sit satisfactorily in the streetscape and the design provides a reasonable visual character response to its setting. While there is some stepping up of the proposed building from Wentworth Avenue, the proposal would still meet the relevant height control. There is also evidence of similar stepping up of buildings in residential development further to the south in the relevant R3 zone (eg 511 Wentworth Avenue), as viewed during the site inspection. More important to me, is the architectural and landscape particulars of the proposal. Here I note the considerable, and generally unconstrained, deep soil area available at the front of the street-side townhouses (around 7.5m wide) and the proposed landscape scheme for this area (Ex B Tab B).
Thus, there are a series of points which together suggest to me no need, from a streetscape compatibility viewpoint (and despite the flood-related raising of ground floor levels), for a physical break in the street-side townhouse grouping (at a cost of one townhouse units). These points are: 1. the front setback and landscaping configuration identified above; 2. the visual stepping of the massing of townhouse units with the street angle; 3. architectural detailing (including now proposed eave overhangs and the vertical and horizontal framing elements as articulation features); 4. that the street-side five townhouse frontage, as proposed in the design, is not of great relative length; and 5. there are other examples in the local area (eg 511 Wentworth Avenue) with lesser credentials in regard to the points raised above and which present reasonably.
I agree with Mr Cadogan that the rear line of six townhouses will have minimal effect on the streetscape. My finding is that this general rear configuration is also inoffensive and effective.

[11]

Raingarden or stormwater retention/absorption swale

The first concern related to the effect of a required system nominated as a "shallow raingarden" by the stormwater experts (Ex 7 p 7) and a "stormwater retention/absorption swale" in consent conditions. What I will henceforth call the "swale system" would be located within the rear grassed private open space areas of the rear townhouses. The swale system would run from south to north, and be offset at varying distances from the rear boundary. Its stormwater management purpose would be to manage otherwise uncontrolled surface flows into the rear neighbouring properties (Ex 7 p 7). The actual final agreed configuration for the swale system was subject to three distinctive although related planning ambitions: tree root protection, stormwater management and providing quality useable private open space for residents.
Ms McCredie and Mr Santos had concerns that the profile of the swale system would adversely affect the utility of the limited rear yard private open space and that it provided a trip hazard. After further conferencing between stormwater engineers and tree specialists, refinements to the design detailing of the swale system were agreed. These changes softened previous abrupt edges, and provided for a 200mm sleeper edging along the boundary with a gradual downslope to the swale. With these changes I am satisfied that the now proposed drainage swale (under Conditions 11 and 13), does not prevent a good degree of utility in these rear yards and that useable, reasonable quality, private open space for residents would be provided. There is no disagreement that there is adequate tree root protection available.
There remained a dispute in relation to conditions on any consent relating to maintenance of the swale system. Council's proposed Condition 90 would provide for a positive covenant on the use of the land, burdening each of the owners with the requirement to maintain the swale system within their properties. It would read, relevantly, as follows: "Prior to the issue of an Occupation Certificate a Positive Covenant on the Use of Land under Section 88E of the Conveyancing Act 1919 must be created, burdening the owner with the requirement to maintain the retention/ absorption swale system on the units."
The applicant's Condition 90 would read: "The Owners of Townhouses numbered TH6, TH7, TH8, TH9, TH10 and TH11 shall maintain the retention/absorption swale system in their rear courtyard."
The applicant cited the findings of Lloyd J in MacDonald v Mosman Municipal Council (1999) 105 LGERA 49;[1999] NSWLEC 215 (MacDonald), among others, as "part of a long line of caselaw stating the inappropriateness of imposing a condition requiring a public covenant (either positive or restrictive) on development consents" (Applicant's Submissions on Conditions at [8]). I do note here that one of the reference cases did make a positive finding in relation to a "Positive Covenant and Restrictions on Use of Land" relating to on-site stormwater detention (NTL Australia Ltd v Willoughby Council [2000] NSWLEC 244 [69]).
I have given some consideration to the topic of conditions of consent imposing restrictive covenants on land titles fairly recently in PJM Group Pty Ltd v The Hills Shire Council [2022] NSWLEC 1020 (PJM) [37]-[50]. Conclusions I drew there included that the finding in MacDonald (at [14]), that such conditions (restrictive covenants on land titles) are not "generally appropriate", does not rule out that they may be sometimes appropriate. There would need to be some distinct and substantive (planning) need before the significant threshold is reached to require the imposition of a condition of the form proposed by Council's Condition 90 (see PJM [50]). In this instance I have little difficulty in finding that this threshold is reached. This is because of the particulars of the swale system itself. I have indicated above that, in response to the three distinctive although related planning ambitions, an unusual (swale system) configuration has been seen as a positive outcome by the parties. But to maintain the ambitions relating to tree root protection (and tree retention), stormwater management and providing quality useable private open space for residents, maintenance of the rear garden areas of these units needs to be undertaken in a quite particular way. All of the rear townhouses need to maintain the swale for these different ambitions to be delivered into the future. For example, if a downstream resident blocks the swale (eg by filling) then it will potentially affect the private open space useability of upstream residents. Were there to be some opening up of the mounding there is the possible result of some uncontrolled surface flows into the rear neighbouring properties.
The applicant's submission was that its proposed Condition 90 would satisfactorily ensure maintenance of the swale (Conditions 11, 13, 79, and 89, otherwise referenced by the applicant, are not related to maintenance, but only to delivery of the swale system). The applicant's proposed Condition 90 gives insufficient attention to the maintenance obligation on future residents. I am not convinced that the case has been made against imposing Council's proposed Condition 90 in all of the circumstances.

[12]

Accessibility

The second concern on private open space useability related to accessibility for those with relevant physical disabilities. The adopted ground floor levels meant that up to seven or eight steps down from rear courtyards to the rear private grassed open space areas would be involved. Two of these rear townhouses were to be earmarked as adaptable units. Council had suggested the need for platform lifts, or a shared platform lift, to be provided for those units.
It is noteworthy that the accessibility specialists agreed in their joint expert report that "[no] lift access is required to the rear backyard as this is not a requirement under (AS 4299-1995 Adaptable housing)" (AS 4299)(Ex 4 par 1c). I also note other concerns about the resultant loss of private open space (to make way for the platform lift) and practical problems associated with private lifts of this kind.
By way of background, I note that originally the two adaptable units were intended to be located in the middle area of the street-front townhouse grouping, with wheelchair access via either a platform lift or a ramp at the front. A better solution seemed to be that these adaptable units be provided within the group of rear townhouses, with more level (front door) access. While both the street-front townhouse grouping and the rear townhouse grouping have similar sized outdoor courtyards running off living areas, it is only the rear townhouses which have the (lower level) grassed private open space area behind (and below) the outdoor courtyards. The changed arrangements (ie shifting the adaptable housing to the rear townhouse grouping) clearly provides for an improved setting for the adaptable units. There is now easier accessibility to the dwelling units themselves which comprise the principal area of occupation of course. There is also an at-grade outdoor courtyard to be provided for these adaptable housing units. These would be located off the main living area, similar to the configuration originally proposed when the two adaptable units were to be located within the street-front townhouse grouping.
The relocation of the two adaptable units now means they would also have a rear grassed private open space area. While this would only be accessible via the stairs, the grassed area can be seen to have potential to benefit the household generally. That is, were there to be occupants with the physical ability to do so, they could access the grassed area. There is also the opportunity to sit in the courtyard area and view into the rear grassed area.
The applicant pointed out that PDCP requires any adaptable housing to comply with AS 4299, and that according to the experts (Ex 4 par 1c) there was no requirement for a platform lift under AS 4299. The point suggested was that there was no power to impose a condition requiring something in excess of AS 4299 having regard to s 4.15(3A)(a) of the EPA Act.
Moreso for me, there seemed to be some reticence on the part of the experts on the provision of the platform lifts within these private properties. For example, in his oral evidence, Mr Santos referred to problems with platform lifts on private land, with maintenance seen as a challenge. Ms McCredie was concerned about the loss of grassed area, within the limited rear yard areas, as a consequence of providing for the platform lift (and access). In circumstances where accessibility experts also make clear there is no requirement under the relevant Australian Standard (AS 4299) for lift access to these grassed backyards, on balance, I am more inclined to not adopt such lift access as a requirement in the circumstances. This means Council's proposed Condition 8(c)(ii) would not be imposed.

[13]

Defining the applicable floor space ratio

The FSR standard under cl 4.4 of PLEP 2011 is 0.6:1. However, there is agreement among the parties that Pt 2 Div 1 of SEPP Housing applies to the proposal, providing a FSR bonus related to the proposal's nomination of four of the townhouse units (Units TH4, TH5, TH6 and TH7) for affordable housing. Relevantly, the application meets the provisions of s 16(1)(b) of SEPP Housing in that "at least 20% of the gross floor area of the building resulting from the development will be used for the purposes of affordable housing". The development would also be located in an accessible area, given its proximity to Toongabbie Station, meeting the requirements of s 16(1)(c) of SEPP Housing.
The experts also agree on the quantum of the applicable floor space bonus under s 17 of SEPP Housing. The experts indicate that a total maximum FSR of 0.93:1 applies, inclusive of the bonus (Ex 8 par 1.2). By inference, the agreed bonus is 0.33:1 I can accept this agreed figure given that four of the proposed eleven townhouses, all of similar footprint, would be used for affordable housing purposes.
Where the planning experts disagree, is in relation to gross floor area (GFA) calculations for the proposal. The difference relates to the fact that the rear townhouses have "basements" that protrude by greater than 1m above existing ground level. The definition of basement under PLEP 2011's Dictionary (consistent generally with the numerous local environmental plans made under the Standard Instrument (Local Environmental Plans) Order 2006) is: "basement means the space of a building where the floor level of that space is predominantly below ground level (existing) and where the floor level of the storey immediately above is less than 1 metre above ground level (existing)."
The definition of GFA is selectively reproduced as follows: gross floor area means the sum of the floor area of each floor of a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor, and includes - (a) the area of a mezzanine, and (b) habitable rooms in a basement or an attic, and (c) any shop, auditorium, cinema, and the like, in a basement or attic, but excludes - (d) any area for common vertical circulation, such as lifts and stairs, and (e) any basement - (i) storage, and (ii) vehicular access, loading areas, garbage and services, and (f) plant rooms, lift towers and other areas used exclusively for mechanical services or ducting, and (g) car parking to meet any requirements of the consent authority (including access to that car parking), and (h) any space used for the loading or unloading of goods (including access to it), and …
Mr Santos indicated in his evidence that, based on the above definition, much of the area excluded as basement in the applicant's GFA calculations needs to be included. This is because the relevant areas (which are clearly not "less than 1 metre above ground level") cannot meet the definition of basement under PLEP 2011 (Ex 8 par 1.12). The total GFA was calculated at 1912.46m2, which indicated an FSR for the proposal at 0.98:1 given the site area of 1953m2 (Ex 8 par 1.11). An odd situation arose where Mr Foltarik indicated in his written evidence that he agreed with this position (Ex 8 par 1.2) but departed from that position in his oral evidence to rely on the architectural drawings, which had excluded the disputed area from GFA calculation. The FSR calculated in the architectural drawings is 0.647:1 (Ex N Sheet A 400 Rev M).
My finding in relation to the differences between the experts on the question of GFA is to favour the view expressed by Mr Santos who was more persuasive under cross examination. This means the proposal breaches the applicable FSR control, notwithstanding the applicable FSR bonus under SEPP Housing. I accept the breach accords with that indicated jointly by the planning experts in Ex 8 (par 1.2). That is, the applicable FSR standard is 0.93:1 and the proposed FSR is 0.98:1.

[15]

Whether compliance with the standard is unreasonable or unnecessary

Mindful of cl 4.6(3)(a) of PLEP 2011, the written request seeks to demonstrate that compliance with the standard is unreasonable or unnecessary on the basis that the objectives of the standard are met, notwithstanding the numeric contravention. The objectives of the FSR standard at cl 4.4 of PLEP 2011 are as follows: (a) to regulate density of development and generation of vehicular and pedestrian traffic, (b) to provide a transition in built form and land use intensity within the area covered by this Plan, (c) to require the bulk and scale of future buildings to have regard to heritage sites and their settings, (d) to reinforce and respect the existing character and scale of low density residential areas.
Nominated objectives (a) and (b), above, need to be differentiated from the other two objectives. Objectives (a) and (b) are explanatory of the purpose of the FSR standard (Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61 at [49). It is through the assignment of a FSR standard, in different spatial areas, that PLEP 2011 regulates density and the related traffic generation. Similarly, it is through geographic variation in the FSR standard under its Floor Space Ratio Map that PLEP 2011 provides for a transition in built form and land use intensity. Objectives (a) and (b) are simply explaining that. There is no need for the written request to demonstrate achievement of these objectives as they are already achieved through the provisions of PLEP 2011.
The written request explains that objective (c) is not in jeopardy because the proposal is not in relevant proximity to heritage sites or their settings. In regard to objective (d), the written request outlines the existing mixed residential character and scale of the site environs, which includes low density detached dwellings. The written request explains how the design appropriately reinforces and respects the existing character and scale of low density residential areas. Examples of how this is achieved include the reference to carefully minimising overlooking and how sensitive management of on-site stormwater detention has allowed for a maximisation of landscape presence at the street frontage.
The written request has adequately demonstrated that the objectives of the development standard are achieved notwithstanding the contravention; and therefore, that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case.