Kakoz & Anor v Fairfield City Council

Issues

1. The Council contends (ex 8) that the application should be refused because: 1. the development as modified does not comply with the maximum floor space ratio (FSR) specified in the Fairfield City Wide Development Control Plan 2006 (the DCP) and as a result of the non-compliance has an excessive bulk and causes unacceptable amenity impacts on the adjoining property to the west; 2. the upper floor side setback is less than the minimum of 4m from the south and western boundaries specified in the DCP and as a result of the non-compliance has an excessive bulk and causes unacceptable amenity impacts on the adjoining property to the west; and 3. the proposed development is not in the public interest having regard to those contentions, and approval of significant, unauthorised works is likely to set an undesirable precedent and undermine public confidence in the Council's ability to regulate development and protect the public interest.
2. The applicants provided shadow diagrams with their Statement of Facts and Contentions in Reply (ex B), and contended that: 1. the additional floor space does not have an adverse impact on the streetscape appearance or the bulk and scale of the building and does not result in any significant amenity impacts on adjoining properties; 2. there is negligible impact on solar access and 5 Dunstan Street will achieve sufficient sunlight to living areas and private open spaces as required by the DCP; 3. high level windows are included for bedrooms 3 and 4 to ensure that privacy or view impacts are mitigated and/or minimised; and 4. the modification will have minimal environment impacts on the site and its surrounds and will satisfy the evaluation provisions of s 79C(1)(e) and will be in the public interest.

Planning controls

1. At the time of the granting of Development Consent No 910.1/2012 the relevant environmental planning instrument was the Fairfield Local Environmental Plan 1994 (the 1994 LEP). The proposed development was permissible with consent in the 2(a) Residential A zone; there were no development standards in the 1994 LEP applicable to the determination of the development application.
2. The Fairfield Local Environmental Plan 2013 (the 2013 LEP) came into effect on 31 May 2013. The site is now in the R2 Low Density Residential zone. Clause 4.4 of the 2013 provides a maximum floor space ratio (FSR) of 0.45:1; cl 4.6 of the 2013 LEP enables a variation of that development standard.
3. The DCP includes Chapter 5A Dwelling Houses. Section 5A.2 Built Form and Urban Design provides: The appearance, the position, and the height of a detached single dwelling house may affect the streetscape and character of the neighbourhood. How a dwelling addresses the street and integrates with its neighbours influences the streetscape. To ensure a high level of residential amenity is maintained various building design elements are regulated.
4. The relevant sections are section 5A.2.1 Floor Space Ratio, and section 5A.2.3 Setbacks.
5. The objective of section 5A.2.1 is: (a) Ensure building bulk, site coverage and open space provisions are compatible with neighbouring development.
6. The controls require compliance with the 2013 LEP FSR standards.
7. Section 5A.2.3 provides the following objectives for setbacks: a) Maintain and enhance established streetscape and character of the neighbourhood. b) Permit flexibility in the siting of the dwelling where no setback has been established or where circumstances might allow for a less rigid approach (eg corner sites). c) Ensure the visual focus of the development is the dwelling and not the garage. d) Lessen the impact of development on battleaxe blocks on the surrounding neighbouring properties. e) Protect the privacy and solar access of adjacent properties. f) Encourage more efficient use of often wasted land along the perimeter of sites and buildings. g) Ensure vehicular and pedestrian safety. h) Encourage on site parking.
8. The section 5A.2.3.2 Side and Rear Setback Controls require a minimum 900mm for side setbacks, and include: d) For a proposal with a combined void space greater than 20sqm, the upper floor side setback must be a minimum of 4m from the south and west boundaries of the property.

Evidence

1. The parties consented to observations on the site view forming part of the evidence. Expert evidence was provided on behalf of the Council by Mr Karl Berzins, consultant town planner, and on behalf of the applicants by Mr Joe Bartone, architectural draftsman.
2. The experts agreed (ex 6) that the bulk of the building has increased, however they disagreed as to the impact of that increase. They agreed that as a result of the increase in bulk, neither overshadowing nor loss of privacy is an issue.
3. In his statement of evidence (ex 5) Mr Berzins noted that the relocation of bedrooms 3 and 4 over the approved al fresco area results in an increased floor space of 17.27sqm, equivalent to an FSR of 0.5:1, and the development control is exceeded by 6% or approximately 34.5sqm. The increase in floor space results in a two storey building setback approximately 915mm and 1815mm from the western boundary, presenting as a vertical wall approximately 7m high for a length of 9.3m. The section of the building that is 1815mm off the boundary will present as a vertical wall approximately 7m high for a length of 4.5m, and the combined length of the wall is 14.8m. The close proximity of this wall to the boundary and its dimensions lessen the amenity enjoyed by future occupants of 5 Dunstan Street, restricting their outlook to the east to a significant degree especially for windows on the ground floor on the eastern wall; the proximity of the wall decreases the design options for a future dwelling at 5 Dunstan Street. The close proximity of the wall and its areal extent increase the sense of enclosure experienced by future residents. The approved design provided a setback approximately 5.5m from the boundary, providing future residents on 5 Dunstan Street with an acceptable level of amenity. The western wall of bedrooms 3 and 4 protrudes from the upper storey towards the west, whereas the approved western wall would have been recessed approximately 2.8m behind the front rooms, and the modifications are therefore more bulky when viewed from the street. The increase in void space, to approximately 32sqm, increases the bulk and scale of the building with a resultant decrease in residential amenity for the adjoining property to the west, which is a loss of outlook or an increase in confinement. In oral evidence Mr Berzins commented that the change to the western wall to 915mm from the boundary means that the future occupant of 5 Dunstan Street will lose a considerable area of sky view, which he estimated at 20 degrees, at 900mm from the boundary.
4. In his statement of evidence (ex C) Mr Bartone referred to the additional shadow diagrams which illustrate that there will not be unreasonable shadow impacts on the adjoining property from additional overshadowing resulting from the modification, and a future dwelling would still be able to achieve at least 3 hours of direct sunlight to living areas and private open space areas; the shadow cast by the modified development falls only on a small section of the eastern elevation of 5 Dunstan Street. The modification would not significantly alter the existing approved streetscape appearance, and the side setback is reduced by only 0.3m on the western elevation. In his opinion the visual impact is very low as the areal extent is only the first floor portion of the western wall, as the ground floor level on the western side is an al fresco area; and future windows at 5 Dunstan Street will not see a blank brick wall. In his opinion the design of the building is no more bulky when viewed from the street than the previous approved dwelling house.

Consideration

1. The plans approved in Development Consent No 910.1/2012 (ex 3) provide on the ground floor for an alfresco area covered by colourbond roof sheeting along the western side of the dwelling, behind a theatre room at the south western corner of the dwelling; bedroom 2 above the theatre room; and bedrooms 3 and 4 on the northern side of the dwelling above the dining room.
2. As constructed, the first floor wall is approximately 915mm from the western boundary for a length of 9.3m, and at the south western corner, 1815mm from the boundary for a length of 4.5m. Internally, bedrooms 3 and 4 have been relocated to the western side of the building, above the al fresco area, with the provision of a walk in robe to bedroom 3, and walk in linen area next to the bathroom on the north eastern side of the dwelling, and a void area above the dining room. It was common ground that the effect of the relocation of the bedrooms is to move the first floor western wall approximately 3.5m closer to the boundary, and that the distance between the ground floor at the theatre room has been reduced from 2115mm to 1815mm.
3. It was common ground that the FSR of the dwelling as approved was 0.48:1, and that the relocation of bedrooms 3 and 4 over the approved al fresco area on the western side of the building increases the floor space by 17.27sqm, resulting in an FSR of the development as modified of 0.51:1. There was no dispute that the creation of the void space above the dining room results in total void areas greater than 20sqm; the increase in internal void area triggers the requirement for a 4m side setback; and the building would otherwise comply with the 900mm side setback control.
4. The applicants accept that the western wall does not comply with the DCP setback control, however submit that the objective of that control concerns the streetscape character of the neighbourhood. The modified development satisfies privacy and solar issues, and while there are minimal issues with loss of sky views, any future development on 5 Dunstan Street would have its living areas on the northern side. The impacts on 5 Dunstan Street and on the street from the increase in void areas to 32 sqm are minimal, and will be less noticeable once 5 Dunstan Street is developed. At ground floor level the al fresco area has an open space feel, and someone would have to look up to get any confined feeling. The applicants submit that while the proposal exceeds the requirements, it complies with the objectives of the controls in the DCP. The impacts of the increase in FSR are minimal.
5. The Council submits that the effect of the increase in floor space and the relocation of the bedrooms to the western side of the house means that the bulk of the building when viewed from 5 Dunstan Street will be much greater, and the first floor section of the house containing the relocated bedrooms will be visible from Dunstan Street to a greater degree than previously. The increase in void spaces increases the bulk and scale of the building with a resultant decrease in residential amenity for the adjoining property. The building as constructed does not meet the maximum 0.45:1 FSR or as previously approved, 0.48:1, which results in a building of excessive bulk causing an unacceptable impact on the amenity of the adjoining property, and which is antipathetic to the objective of the FSR control in respect of any future development on the adjoining property. There is no justification for not complying with the side setback control in the DCP and the dwelling as constructed has no regard for the impact of the additional void space on the adjoining property. Construction of the dwelling not in accordance with the plan and statutory controls has deprived the Council of making a proper assessment of the application, and it is in the public interest that the statutory controls be complied with to ensure that the regulatory provisions are upheld; and it is inconsistent with the objectives of the DCP.
6. Section 96(1A) of the Act enables modification of a development if the consent authority is satisfied that the proposed modification is of minimal environmental impact, and that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted, and if the application has been properly notified and any submissions are considered. Section 96(3) provides that in determining an application for modification of a consent, the consent authority must take into consideration such of the matters referred to in s 79C (1) of the Act as are of relevance to the development the subject of the application.
7. The modification application seeks retrospective planning approval for those elements of the building that have not been constructed in accordance with the approved plans. The fact that the development has already been carried out is not a barrier to approval being granted: Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240. It is no part of the assessment required by s 96(3) that works contrary to the conditions of the development consent have been undertaken on the site; there are other avenues for the Council to pursue in that regard.
8. As noted above, at the time Development Consent No 910.1/2012 was granted, the 1994 LEP did not impose any development standard as to maximum FSR. The assessment of the development application dated 19 March 2013 (ex 4, tab 1) noted the then provision in the DCP of a maximum FSR for single dwellings of 0.45:1, and commented that while the proposed FSR of 0.48:1 was non-compliant, in the past Council had varied its maximum FSR based on merit. The report noted: The proposed 0.48:1 FSR is considered reasonable due to the minimal impacts not being increased arising from the departure of the FSR. The bulk and scale, privacy and design of the proposed are considered acceptable. The proposed development complements and is consistent with the existing streetscape of its location. I am of the opinion that the building 'fits' the locale and the additional FSR is a reasonable allowance in this instance. The proposed FSR is considered to be satisfactory.
9. The 2013 LEP now provides the maximum FSR in the form of a development standard in cl 4.4. A development application for a proposed development exceeding that standard would require variation under cl 4.6 of the 2013 LEP. However, a modification application may be approved notwithstanding the development would be in breach of an applicable development standard were it the subject of an original development application: North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468; if introduced prior to the modification application, the development standard would have to be taken into consideration because of s 79C(1)(a) of the Act: Michael Standley at 481 (Mason P), 483 (Sheppard AJA).
10. In this instance, the DCP itself requires that consideration, through its current provision in section 5A.2.1 that the maximum permissible FSR for any development must comply with the floor space ratio standards prescribed in the 2013 LEP. The provisions of the DCP are, by virtue of s 79C(1)(a)(ii) of the Act, a fundamental element in, or a focal point to, the decision-making process, but are not determinative: Zhang v Canterbury City Council [2001] NSWCA 167. Section 79C(3A)(b) of the Act now requires flexibility in the application of provisions of a DCP that set standards with respect to an aspect of a proposed development where a development application does not comply with those standards, and the consent authority is to "allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development". While in terms s 79C(3A) applies to consideration of a development application, rather than a modification application pursuant to s 96 of the Act, consideration of the application of standards by reference to the objectives of those standards is consistent with Zhang. In this instance, there is only one objective for the FSR standard, relevantly to ensure that the building bulk is "compatible with neighbouring development".
11. There are no specific objectives provided for the side and rear setback controls in section 5A.2.3.2 of the DCP, which include the requirement for a minimum 4m side setback given that the dwelling has a combined void space greater than 20sqm. Those controls also specify a minimum side setback of 900mm, and state that upper floor side walls may need to be setback further than 900mm to comply with the DCP requirements for solar access and privacy. In this instance, on the agreed expert evidence there is no issue with solar access or privacy for adjacent properties, including the adjoining property at 5 Dunstan Street. The only relevant objective of those objectives applicable to setbacks generally is (a), to "maintain and enhance" the established streetscape and character of the neighbourhood.
12. Mr Bartone's evidence, based on the shadow diagrams, was that the shadow cast by the modified development falls only on a small section of the eastern elevation of a future dwelling constructed at 5 Dunstan Street and that such a future dwelling would still be able to achieve at least 3 hours of direct sunlight to living areas and private open spaces. One of the photographs provided in the Council's bundle of documents (ex 4, tab 10) confirms a minor increase in shadowing. Mr Berzins' evidence was that the reduction in amenity was not related to overshadowing, but rather to a loss of outlook or sense of confinement. I accept the agreed expert evidence that overshadowing is not an issue. The view confirmed the agreed evidence that privacy is not an issue, the high level windows in bedrooms 3 and 4 preventing overlooking. On that basis, the proposed modification is consistent with objective (e) in section 5A.2.3, to protect the privacy and solar access of adjacent properties.
13. The Council submits that the increase in height above the al fresco area and the closeness of the western side wall of the dwelling is an increase in bulk that results in a monolithic structure, relying on Mr Berzins' description of a sense of confinement.
14. I accept the agreed expert evidence that there would be a loss of sky view from the eastern side of any future dwelling on 5 Dunstan Street. There is clearly an increase in bulk, observable on the view, and confirmed in the photographs provided in the Council's bundle of documents (ex 4, tab 10). The relocated bedrooms 3 and 4 are still recessed behind the front façade, albeit to a significantly lesser extent than on the approved plans, and on the view were visible from the street on the western side of the building, but not on the eastern side.
15. The issue is whether the increase in bulk is acceptable, in the context of the bulk of the building as approved which exceeded the FSR, and which at 8.1m exceeded the building height limit by 100mm (ex 4, tab 1), and which has a setback along the eastern boundary to 3 Dunstan Street ranging from 900mm to 2.3m.
16. The acceptability of the increase in bulk needs to be considered in the context of the objectives of the planning controls, relevantly in this instance the DCP. The concern of section 5A.2 is with impacts on streetscape and character of the neighbourhood; and in relation to FSR, compatibility with neighbouring development (5A.2.1(a)). There being agreement that privacy and solar access of adjacent properties, relevantly 5 Dunstan Street, is protected, the relevant objective of the setback controls is to "maintain and enhance established streetscape and character". The assessment of the original development application concluded that the proposed development "complements and is consistent with the existing streetscape of its location", and "fits" the locale. I accept that the section of the western wall above the al fresco area will impact on the eastern outlook from the adjoining property, and decrease the sky view from that outlook. However, considering the modifications in the context of the approved development and the existing streetscape, the increase in bulk and decrease in setback of the development as constructed and as proposed to be modified would not detract from the conclusion reached in the assessment of the original development application. While there is a non-compliance with the numerical controls in the DCP, when regard is had to the objectives of those controls the departure could not be considered to result in unacceptable impacts.
17. The Council submits that it is in the public interest that the statutory controls should be complied with to ensure the regulatory provisions are upheld. That is clearly a relevant consideration, however as noted above the Council has other avenues available to it. The present application relates only to the planning assessment of the development as constructed; the parties foreshadow an application for a building certificate, depending on the outcome of this appeal.

Conclusion

1. For the reasons above, I am satisfied that the application to modify Development Consent No 910.1/2012 should be approved.
2. The orders of the Court are: 1. The appeal is upheld; 2. Modification Application No 910.2/2012 to modify Development Consent No 910.1/2012 for the construction of a two storey dwelling at 4 Dunstan Street Fairfield West is determined by approving the modifications as set out in Annexure A; 3. As a consequence of order (2), Development Consent No 901.1/2012 is now subject to the consolidated, modified conditions of development consent set out in Annexure B; and 4. The exhibits, other than Exhibits 3, 7, 8, A and B, are returned. Linda Pearson Commissioner of the Court 11009 of 2015 Pearson (C)_Annexure A (58.7 KB, pdf) 11009 of 2015 Pearson (C)_Annexure B (194 KB, pdf)

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