Karne Street Pty Ltd v Canterbury Bankstown Council

Minimum lot size development standard is contravened

1. The site area is agreed to be 558.4m2, a fact supported by the site survey accompanying the Class 1 application (Exhibit A, Tab 3).
2. It is also relevant to record that the site is located in the R3 Medium Density Residential zone, according to the Canterbury Local Environmental Plan 2012 (CLEP) in which dual occupancy development is permitted with consent, where consistent with the objectives of the zone: • 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.
3. Clause 4.1A(3) of the CLEP acts to preclude the grant of consent to development for the purpose of a dual occupancy unless the area of the lot is at least 600m2.
4. The two lots resulting from the subdivision, as stated at [2], are also less than 300m2 in area, which is a breach of the minimum lot size for the subdivision of land for dual occupancies, at cl 4.1B(3) of the CLEP.
5. The Respondent cites properties in the immediate vicinity that are of a similar size, and submits the control envisages amalgamation of sites in order to achieve the medium density residential development anticipated in the R3 zone.
6. The Applicant relies upon a written request, prepared in accordance with cl 4.6 of the CLEP by Metro Planning dated May 2022 (Exhibit D), seeking to justify the contravention of the minimum lot size standard at cl 4.1A, and a written request of the same author and date in respect of a breach of the minimum subdivision lot size, of 300m2, required by cl 4.1B of the CLEP (Exhibit E).
7. Both of the written requests assert that compliance with the standard is unreasonable or unnecessary because the objectives of the standard are achieved, notwithstanding the non-compliance.
8. The objective of cl 4.1A is in the following terms: The objective of this clause is to achieve planned residential density in certain residential zones.
9. The objective of cl 4.1B is in the following terms: The objective of this clause is to ensure that appropriate minimum lots sizes are provided for the subdivision of land for dual occupancies.
10. The reasons advanced in the two written requests at Exhibit D and E are virtually identical, and the achieving of the objectives are said to be evidenced by: 1. Firstly, the shortfall of 41.6m2 in the lot size required by cl 4.1A of the CLEP does not impact the size of the development or the number of residential uses within the R3 zone, which is consistent with the intent of the provision as held by the Commissioner in Clearcut Homes Pty Ltd v City of Ryde Council [2020] NSWLEC 1249. 2. Secondly, the shortfall in the lot sizes resulting from the subdivision, from that required by cl 4.1B of the CLEP, is minor, and likewise has no impact on the size of the development or the number of residential uses. 3. Thirdly, the site can accommodate the proposed dual occupancy development meeting the controls for building height at cl 4.3 of the CLEP, and achieving the building envelope controls, wall height, setback, landscape area, private open space, access and car parking controls found in the Canterbury Development Control Plan 2012 (CDCP). 4. Fourthly, no adverse amenity impacts arise from the proposal on adjoining properties in terms of overshadowing, visual or acoustic privacy, visual bulk and scale. 5. Fifthly, the provision of an additional dwelling on the site, from the single dwelling currently on the site, is consistent with a local planning statement seeking the provision of additional housing.
11. Next the written requests set out virtually identical environmental grounds considered to be sufficient to justify the contravention of the standards at cll 4.1A and 4.1B of the CLEP. 1. The site and, following subdivision, the proposed lots, have sufficient area and lot frontage to accommodate the proposed dual occupancy, which is of a form and scale of development that conforms to the built form development controls ensuring the development is consistent with the desired future character for development in the medium-density residential zone. 2. The proposal shows that a dual occupancy development can be accommodated on the site having regard to the building envelope including controls, height, setbacks, private open space, landscape and car parking controls within the CLEP and CDCP. 3. The site and, following subdivision, the proposed lots, provides sufficient area around the built form that contributes to the landscape setting. 4. The proposal increases residential density on the site, consistent with the desired future character of the area, and with a local planning statement seeking the provision of additional housing. 5. No adverse amenity impacts arise from the proposal on adjoining properties.
12. The Respondent submits that the proposed development is unable to demonstrate conformity with the controls found in the CDCP because, firstly, private open space is not located in the rear and secondly, because building setbacks are not achieved.

Private open space is not located at the rear

1. Section C2.2.3 of the CDCP sets out the objectives and controls for private open space in the following relevant terms: C2.2.3 Private Open Space Objectives O1 To ensure that all residents have access to private and functional open space areas. O2 To ensure private open space is tailored to the dwellings, and opportunities for active and passive recreation are provided for within the development. O3 To ensure private open space is designed to take advantage of environmental circumstances including solar access, views and prevailing breezes. O4 To promote the enjoyment of outdoor living. O5 To ensure private open space is located so that there is passive surveillance from main living areas of dwellings within a development. O6 To ensure new development is appropriately landscaped to provide a pleasant outlook and contribute to the amenity of a property. Controls … C2 Dual occupancy and semi-detached dwellings with a frontage of 7.5m or greater must provide a minimum of 50m2 of private open space. C3 Dual occupancy and semi-detached dwellings must provide one area of private open space with a minimum dimension in any direction of 4m. C4 Dual occupancy and semi-detached dwellings must provide one area at least 2.5m x 2.5m suitable for outdoor dining facilities. C5 The design of private open space must satisfy the following criteria: (a) Be located at ground level to the rear of an allotment behind the dual occupancy. (b) Be located adjacent to the main living areas, such as a living room. (c) Have a maximum gradient of 1:50. (d) The principal area of open space for each dwelling may comprise a combination of privacy screens, sun-shading devices and landscaped areas. (e) Be designed to prevent direct overlooking from a public place or from neighbouring buildings. (f) Be designed to accommodate both recreation and service activities. (g) Include a suitably screened area for clothes drying facilities. (h) Be oriented to provide maximum exposure to midwinter sunlight whilst optimising privacy. …
2. Mr Betros, planning expert for the Respondent, accepts that the private open space achieves the 50m2 required by Control C2, but as a structural column to the alfresco area is located within the private open space, a minimum dimension of 4m cannot be taken 'in any direction', and so fails to conform to Control C3.
3. Furthermore, the private open space is not located to the rear of an allotment behind the dual occupancy as required by Control C5(a), but is instead located within the front setback, visible from Karne Street North.
4. Additionally, the private open space is enclosed by a fence shown on drawing 11 (Exhibit B) to be 1.8m high, which is an uncharacteristic element in Karne Street North.
5. Mr Betros considers the applicable control for fencing in front setbacks to be found at Section C2.4.3 dealing with fencing, which seeks a height of 1.2m to fences in the front setback on corner sites, as is the case here.
6. The controls at Section C2.4.3 are: Controls C1 Provide boundary definition by construction of an open fence or low hedge to the front street boundary. C2 Front fences within the front boundary setback are to be no higher than 1.2m. C3 Side fences may be 1.8m high to the predominant building line. Forward of the building line, side fences must taper down to the height of the front fence at a height no greater than 1.2m. C4 On corner sites where the façade of a building presents to two street frontages, fences are to be no higher than 1.2m. C5 Screen walls around private open spaces shall not be taller than 1.2m, although screens with 50% transparency may be up to 1.8m in height.
7. In Mr Betros' view, the intent of Control C5 of Section 2.4.3, and Control C5(a) of Section C2.2.3, when read together, is for private open space, that may be screened by a fence up to 1.8m in height, to be located at the rear of a site, while front fences that contribute to streetscape character, are to be 1.2m in height.
8. The arrangement of built form on the site does not allow a private open space of 50m2 to be located at the rear of Unit 1, on the proposed Lot 1, which is further evidence that the site is unsuited, by its area, to subdivision.
9. The Applicant submits that Control C5 of Section C2.4.3 permits an 1800mm high fence, so long as it is 50% transparent, which Dwg 11 shows to be the case, above a 600mm high brick base wall.
10. Furthermore, the 1800mm fence is consistent with the existing character of Karne Street North, evident in 1800mm brick walls to the multi dwelling developments directly opposite the site. Likewise, Halifax Street also includes fences to the street of 1800mm high.
11. After considering the evidence of the experts, I prefer and accept the evidence of Mr Betros on three counts: 1. Firstly, I accept that when the controls at Section C2.4.3 are read together, as they should be, Control C5 cannot be understood to somehow set aside the provisions at Control C2, or C4. 2. Secondly, while the Applicant submits the front and side setbacks are distinct, I share Mr Betros' view that this issue is dealt with by Control 4, Section C2.4.3, requiring fences to be no higher than 1.2m on corner sites where the façade of a building presents to two street frontages, as is the case here. 3. Thirdly, regardless of the presentation of the multi dwelling development on the western side of Karne Street North, to which Section C3 of the CDCP applies, the desired future character of dual occupancy development in the area is for front fencing of 1.2m, with private open space located elsewhere.

Building setbacks are not achieved

1. The Applicant acknowledges the proposal does not strictly comply with the provisions of Section C2.3.3 of the CDCP, requiring a front setback of 5.5m, and a rear setback of 6m.
2. However, the Applicant asserts that no adverse amenity impacts arise as a result of the non-conformance.
3. The Respondent contends that the proximity of bulk and form to the southeastern corner of the subject site, being to the north of No 103 Karne Street North, imposes an unacceptable level of overshadowing to the private open space at the rear of the adjoining site.
4. For completeness, the Respondent also contends that insufficient information is provided by the Applicant to demonstrate that the primary living areas and private open space on the subject site receive the sunlight required by Section C2.5.1 of the CDCP.
5. The controls relevant to the subject site are: Solar Access to Proposed Development C1 Where site orientation permits at least primary living areas of dwellings must receive a minimum of 3 hours of sunlight between 8.00am and 4.00pm on 21 June. C2 Principle areas of private open space must receive a minimum of 3 hours of sunlight between 8.00am and 4.00pm on 21 June to at least 50% of the open space surface area.
6. The controls relevant to solar access for No 103 Karne Street North is found at Section C2.5.1 of the CDCP, that relevantly provides: Solar Access to Neighbouring Development C4 Proposed development must retain a minimum of 3 hours of sunlight between 8.00am and 4.00pm on 21 June for existing primary living areas and to 50% of the principal private open space. C5 If a neighbouring dwelling currently receives less than 3 hours of sunlight, then the proposed development must not reduce the existing level of solar access to that property.
7. The architectural plans at Exhibit B include shadow diagrams. The experts were asked to consider these plans while providing oral evidence, which they did at length.
8. While Mr Betros accepts it is possible or likely that compliance is achieved, or is close to being achieved, to the rear of No 103 Karne Street North, certain deficiencies and inconsistencies in the shadow diagrams prevents certainty. In particular, the impact of overshadowing in the period between 10am-1pm on June 21 is unclear.
9. To this end, Mr Betros identified existing structures in the rear yards of No 1 Halifax Street, and No 103 Karne Street North evident in Figure 1 of the Amended Statement of Facts and Contentions, omitted from the shadow diagrams, and the impact of existing fencing seemingly not depicted in the diagrams.
10. While the shadow diagrams clearly depict certain impacts through a variety of different patterns and colours on the drawings, there is no definitive calculation provided to assist the Court in considering the actual impact of the proposed development on the rear yard of No 103 Karne Street North. To be clear, the Applicant is not assisted in its argument by the quality of the architectural plans on which it relies. Various hatched areas are not aided by reference to a legend, nor to a calculation matrix that sets out, for example, the particular extent, expressed in either m2 area, or as a percentage, of existing solar access, or the impact of the existing dwelling at No 103 Karne Street North, its boundary fencing and existing ancillary structures. Accordingly, the Court is unable to arrive at a position of certainty about the impact of the proposal on the neighbour at No 103.

Conclusion

1. While the Applicant submits that consideration of the CDCP is not an aspect required by cl 4.6 of the CLEP, the written requests invoke compliance with the CDCP as environmental planning grounds justifying the non-compliance with the provisions of cll 4.1A and 4.1B. Those environmental planning grounds fail when interrogated against the controls said by the written requests to be complied with, and so are not sufficient to justify the contravention of the standard.
2. With respect to the environmental planning grounds summarised at [25], I reject the assertion that the proposal demonstrates sufficient area to accommodate dual occupancy development, consistent with the desired future character of the area. The proposal, because of its deficit in lot size, and because of the size and arrangement of the built form on the site, presents private open space that should be located to the rear, in the front setback of the site instead.
3. This then leads to enclosing of the private open space with a fence that is 1800mm high, which is not consistent with the desired future character of dual occupancy development in the area when the controls for private open space and fencing area read.
4. While not determinative, I also note the fence depicted on drawing 11 does not, in my assessment, appear to achieve 50% transparency. Once again, absent detail, or calculation to evidence the degree of transparency achieved, the fence type appears to comprise a commonly seen horizontal slat, separated by a gap. The two, in combination, appear to provide an opening in the order of 30% or so.
5. However, the northern fence elevation on Drawing 11 also appears to show further solid slatted fencing above the 600mm brick base wall to a height of 900mm.
6. The Applicant submits that the provision of landscaping would soften the effect of the fence on the streetscape. No landscape plan is provided, and the Applicant seeks a direction or condition to be imposed for the same, if the Court is minded to grant consent.
7. While the Applicant amended the plans to provide a 500mm setback from the boundary to accommodate landscaping, the purpose is said to be to soften and not to deal with privacy, that would be further compromised in the event the fence was, in fact, 50% transparent.
8. With respect to the assertion that the proposal complies with the controls in the CLEP and CDCP, it does not. While the written requests state that the proposal demonstrates dual occupancy development can be accommodated on the property with regard to the building setbacks, it cannot. The proposal breaches the setbacks at the front and rear, and the architectural drawings at Exhibit B simply fail to provide the required certainty to support the assertion that no adverse amenity impacts arise from the breach.
9. Finally, with respect to the assertion that the provision of additional housing is itself an environmental planning ground, I accept the submission of the Respondent that merely pointing to the benefits from additional housing delivered by the development is not sufficient to constitute environmental planning grounds: Four2Five Pty Limited v Ashfield Council [2015] NSWCA 248, at [15].
10. As I do not accept that sufficient environmental planning grounds have been advanced to justify the contravening of the minimum lot size, or the minimum subdivision lot size standard, the Court does not have power to grant consent and so the appeal must be dismissed.

Orders

1. The Court orders that: 1. The appeal is dismissed. 2. Development application No. DA-69/2022 for development comprising the demolition of existing structures and construction of the two-storey dual occupancy with new fences and Torrens title subdivision at 105 Karne Street North is refused. 3. All exhibits are returned, except for Exhibits A and B. ………………….. T Horton Commissioner of the Court

Amendments 07 November 2022 - Amended to correct the spelling of legal representative's surname. 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. Decision last updated: 07 November 2022