Kbar v Parramatta City Council

Kbar v Parramatta City Council - [2015] NSWLEC 1000 - NSWLEC 2015 case summary — Zoe

[5]

The issues

Council raises the following contentions as reasons why the development should be refused.

Incompatibility with the character of the local area;
Inadequate building separation;
Unacceptable amenity for future residents;
Adverse impact on privacy of adjoining properties;
Matters relating to traffic and parking design;
Insufficient information regarding bicycle storage;
Insufficient information in regards to materials and finishes as well as design details for balconies;
Inadequate provision for stormwater drainage; and
The proposed development is not in the public interest.

The council accepts that the contentions concerning traffic and parking, bicycle storage, materials and finishes, design details and stormwater drainage are all capable of being dealt with by conditions of consent and are no longer pressed.
The issues remaining are effectively, compatibility with the character of the area, building separation, and amenity.
The hearing commenced on site. A number of local residents from surrounding streets spoke against the proposal. Their main concerns are summarised as:

Overlooking and privacy;
Parking problems - double parking, parking on side streets - arising from people using the proposed commercial - retail premises/ visiting units;
Traffic safety concerns including safety of school children walking to the nearby school;
Visual impact of the proposal including potential drying of clothes on balconies;
The proposed metal roof is out of character with the generally tiled roofs in the vicinity;
Potential drainage problems; and
The potential for a change of use of the commercial units to residential.

The site and its surroundings were inspected. Observations were made in regards to the style of the nearby residential development, proximity of local streets, and the spatial relationship of the proposed building to existing structures on adjoining and nearby properties.
Expert town planning evidence was given by Mr Nigel White for the applicant and Mr Gerard Turrisi for the council. The planners prepared a joint report and gave oral evidence.

[7]

Character of the local area

Council's contention is that the proposed development should be refused because in terms of its bulk, scale and design, it is incompatible with the existing character of the local area.
Mr Turrisi is of the opinion that the proposal is of a bulk, scale and design that is incompatible with the generally single storey residential character of the area. In his opinion the three storey form at Excelsior Street and the four storey form at the rear of the site will be quite visible from the public domain. He maintains that the visual intrusiveness from the public domain is exacerbated by the upper level length of the building of 37m, the zero setbacks at the front of the site, and inadequate setback and provision of landscaping along the northern boundary.
In Mr Turrisi's opinion, the detailing and design of the building is not of a high architectural quality and is therefore in conflict with the relevant principle in the RFDC. In his view, applying numerical standards alone does not determine whether a development is appropriate for the area.
In Mr White's opinion, the B1 zone seeks and permits different forms of development to those permitted in the R2 zone and it would be unrealistic to expect buildings to have the same appearance, form or scale. In his view the Planning Principle on the assessment of height and bulk published in Veloshin v Randwick Council [2007] NSWLEC 428 is relevant as he considers the impacts are consistent with the impacts that may be reasonable expected under the controls for the B1 zone and the proposal is consistent with the bulk and character intended by the relevant controls. Mr White considers that the proposed building has been strictly designed to meet the planning controls for the business centre and is therefore consistent with the desired character.
Mr White maintains that the proposal complies with the numerical standards for the zone and the site with a nil setback to the street being typical for shops in the zone. He considers that the rear portion of the proposed development adopts a transition in building height along the northern boundary that is consistent with the relevant controls in cl. 3.1.2 in PDCP relating to height transitions at zone interfaces.
Mr White opines that the residential area is not a conservation area and that is likely to undergo change and renewal as older single storey dwellings are replaced by larger two storey dwellings typified by the relatively new dwelling at 263 Excelsior Street. The height limit in the residential zone is 9m, in Mr White's opinion the maximum height differential is only 3m and therefore the proposal is reasonable in that regard.
In regards to character, bulk and scale, Mr Carney for the applicant submits that the proposal is an infill site with units over shops, is permitted with consent, is numerically compliant with the controls and is set back at the second and third floors. There are few trees in the area and while most of the dwellings in the residential area are quite modest, PLEP permits much larger dwellings and therefore the proposal is not out of character.
In support of his contention that a higher density development can co-exist in a lower density area, Mr Carney cites the Planning Principle on compatibility published in Project Venture Developments v Pittwater Council [2005] NSWLEC 191. He maintains that the physical impacts on the on surrounding development are acceptable and that buildings do not have to be the same height to be compatible, especially where the planning controls envisage a change of character.
Mr Seton contends that the main issue is the transition between land use zones along the northern boundary. In support of his contention that the proposed building does not respond appropriately to the adjoining residential zone Mr Seton cites Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117 at [25] which states: As a matter of principle, at a zone interface as exists here, any development proposal in one zone needs to recognise and take into account the form of the existing development and/or development likely to occur in an adjoining different zone. In this case residents living in the 2(b) zone must accept that a higher density and larger scale residential development can happen in the adjoining 2(c) or 2(d) zones and whilst impacts must be within reason they can nevertheless occur. Such impacts may well be greater than might be the case if adjacent development were in and complied with the requirements of the same zone. Conversely any development of this site must take into account its relationship to the 2(b) zoned lands to the east, south-east, south and south-west and the likely future character of those lands must be taken into account. Also in considering the likely future character of development on the other side of this interface it may be that the development of sites such as this may not be able to achieve the full potential otherwise indicated by applicable development standards and the like.
Mr Seton agrees with Mr White about the applicability of the Planning Principle on the assessment of bulk and scale published in Veloshin but for different reasons. When answering the question posed - Does the proposal look appropriate in its context, the answer would have to be no. He cites exhibit B - Schedule of Finishes, as evidence of the bulk and massing of the proposal. The nil set back at Excelsior Street and the length of the building to 8m from the rear boundary, as well as the non-compliant side setback all fail to provide an appropriate transition from the surrounding residential zone that is not appropriate in the circumstances. In saying that, Mr Seton concedes that some development is possible on the site but of a more sympathetic form.

[8]

Findings - Character

It is common ground that the proposal complies with the 12m height control for the B1 zone and is below the maximum FSR of 1.5.1.
Land Zoning Map - Sheet LZN_012 in PLEP shows the site as two of the four lots comprising a small island of B1 zone in a sea of R2 zoned land. I agree with Mr White that there is no expectation that development on differently zoned land should have the same appearance, form or scale, however, in applying the principle in Seaside, the context of this particular proposal warrants a greater effort to achieve a more sympathetic transition from the dominant single storey residential character of the surrounding land, and the site may not be able to fully achieve the development standards and controls permitted in the B1 zone.
To a large extent, the council's contentions go to various elements of PDCP that consider the form and massing of the development (cl. 3.2.1), building facades and articulation (cl. 3.2.2), and the impact of these on the streetscape (cl.3.2.5) and the transitional relationship with the adjoining residential zone. In essence these contentions are encapsulated in cl. 3.2.1 Building Form and Massing in PDCP. The relevant objectives (O) and Design Principles (P) are: O.1 To ensure buildings are compatible in form relative to the spatial characteristics of the local area. O.2 To ensure building mass and form reinforces, compliments and enhances the visual character of the street. O.3 To ensure the distribution of building height and mass preserves and enhances neighbourhood amenity, site characteristics and environmental constraints. O.4 To ensure that where changes in building scale, mass and/ or height is proposed, it occurs in a manner that is sensitive to amenity issues of surrounding or nearby development. P.2 The proportion and massing of the building is to relate favourably to the form, proportions and massing of existing and proposed building patterns in the street. P.3 Building height and mass should not result in unreasonable loss of amenity to adjacent properties, open space or the public domain. P.4 The form and massing of buildings is to provide a transition between adjoining land use zones and building type
Clause 3.2.5 Streetscape - control C.12 applies to shop top housing and mixed use buildings that adjoin laneways. It states: C.12 Where development adjoins a laneway or through block connection, ground level uses should be designed to provide a direct interface to that space.
In Revelop Projects Pty Limited v Parramatta City Council [2014] NSWLEC 1167 at [30]-[31] the Senior Commissioner confirmed that the planning principle in Project Venture remains valid and relevant. While the physical impacts such as overshadowing and overlooking are not so significant as to warrant refusal or could not be overcome by the imposition of appropriate conditions, I find that the proposal's appearance is not in harmony with the buildings around it or with the character of the street.
In considering the Planning Principle in Veloshin, although the proposal complies with the height and bulk controls for the B1 zone, given the relatively small pocket of B1 in a predominantly R2 area, for the following reasons I agree with Mr Seton that the proposal does not look appropriate in its context.
Exhibit A includes the plans the applicant relies on and two photomontages. There is nothing to indicate that the photomontages have been prepared in accordance with the Land and Environment Court Policy that commenced on 1 October 2013. While the view of the Excelsior Street frontage illustrates a three storey building that does not appear out of character with the other buildings in the B1 zone, it does not show the relationship to the existing dwellings to the north or to the public laneway on its northern side. The photomontage is a view from the northeast as it would appear if it adjoined a reserve…which it does not. Similarly, it does not show the relationship of the proposed development to the adjoining residential dwellings. However, it and Exhibit B illustrate a building which is very long and which will be very prominent in the streetscape and from the public domain of the laneways, particularly the laneway to the north.
I find that the form, mass and distribution of the mass of the building, particularly at the rear, do not provide an acceptable transition between the adjoining land uses and do not enhance the visual character of the street (cl. 3.2.1 PDCP). Neither does the design provide a direct interface with the laneway (control C.12, cl. 3.2.5).
Although the development complies with the rear setback provisions of 15% of the length of the site [development proposes approximately 7.8m from rear fence line to building setback], the amount and configuration of open space relative to the mass of the building does little to facilitate the integration of the development into the residential surroundings. In this regard I find Mr Turrisi's opinion more persuasive.

[9]

Building separation

Council's contends the building separation is inadequate and non-compliant with the provisions for building separation in the RFDC and relevant clauses in PDCP.
The objectives of the Building Separation- Primary Development Control in the RFDC are:

To ensure that new development is scaled to support the desired area character with appropriate massing and spaces between buildings.
To provide visual and acoustic privacy for existing and new residents.
To control the overshadowing of adjacent properties and private or shared open space.
To allow the provision of open space with appropriate size and proportion for recreational activities for building occupants.
To provide deep soil zones for stormwater management and tree planting, where contextual and site conditions allow.

The relevant design control recommendations are:

For buildings over three storeys, it is recommended that building separation increase in proportion to building height to ensure appropriate urban form, adequate amenity and privacy for building occupants. Suggested dimensions within a development, for internal courtyards and between adjoining sites are:
Up to 4 storeys/ 12 metres
12 metres between habitable rooms/balconies
9 metres between habitable balconies and non-habitable rooms
6 metres between non-habitable rooms.
Coordinate building separation controls with side and rear setback controls. For example in a suburban area where a strong rhythm has been established between buildings, smaller building separations may be appropriate.

The council presses Figure 01.64 which illustrates suburban areas with small infill sites. The caption reads: "minimum building separations may not be possible. Apartment layout and building orientation need to respond to the site constraints (See Side and Rear Setbacks).
The Control Checklist for building separation includes:

Building separation controls may be varied in response to site and context constraints.
Developments that propose less than the recommended distances apart must demonstrate that daylight access, urban form and visual and acoustic privacy has been satisfactorily achieved.

The plans show a separation of about 10m from the bedroom windows of unit 8 and about 9 metres from the closest corner of the balcony of unit 4 to the extent of the habitable rooms on the adjoining single storey cottage to the north at 269 Excelsior Street.
The following clauses of PDCP are pressed by council: 3.1.2 Height Transition Where there is a common boundary between areas where a different height limit is specified, the top storey on the land with the higher height limit is to be stepped back to fit within a plane projected at a 45 degree angle from the floor below the topmost floor as shown in Figure 3.2. 3.1.3 Preliminary Building Envelope Tables Residential flat buildings Side setback - minimum 4.5 metres Rear setback - 15% of length of site Deep soil zone - minimum 30% (50% of which at rear) Landscaping - minimum 40% (including deep soil zone) Business Zones - Shop top housing Side setback - Dependent upon amenity impacts on adjoining development* Rear setback - 15% of site length for residential component and/ where boundary adjoins a residential development or residential zone and otherwise on merit* Deep soil zone/ landscaping - rear setback area to be a deep soil landscaped area for all business zones if site adjoins residential development or a residential zone, or otherwise on merit * Where development proposes a residential use (if permitted in the zone) or adjoins a residential use and is more than 2 stores in height, building separation is to be provided as per the Residential Flat Design Code published by NSW Department of Planning.
The development complies with the rear setback controls.
Building separation is also considered in PDCP cl. 3.3.3 Visual and Acoustic Privacy. For residential flat buildings control C.8 requires a minimum separation between habitable rooms/ balconies of 12m - consistent with the RFDC.
Mr Turrisi determines the setbacks along the northern boundary (public laneway) to be: at ground level - nil for the first 17.5m, then 2m for the remaining length; above this from 3-3.5m; and the uppermost level varies from 3-7.6m. While the public pathway is 3.6m wide and could be taken into account in terms of separation, Mr Turrisi is of the opinion that as it is under council's ownership, the owners of surrounding properties have no control over its use. The setback of any future dwelling on the property at 269 Excelsior Street (to the north of the lane) need only be 900mm and if this happened, it wouldn't be until the uppermost floor that the separation to the rear increases to 11.1m.
In Mr Turrisi's opinion, if it were not for the public path, the building would have a greater setback off the northern boundary, which would be landscaped. In his view, the landscaping would address the spatial character of the area and its transition and help in meeting the objectives of the separation requirements. He maintains that the separation objectives in RFDC are to ensure that the scale of newer developments reflects the desired future character with appropriate massing and spacing between buildings and also to provide open space of an appropriate size and proportion for recreational activities. Mr Turrisi considers that the applicant is relying on the public laneway to provide the separation and that this lack of separation results in poor amenity for the future residents of the proposed development.

[10]

Findings - Building separation

In many ways, the issue of building separation goes to the visual impact of the proposal.
It is reasonable in the circumstances that there is a zero set-back at street level as this is consistent with the established setbacks of the existing retail premises. It is not unreasonable for a portion of the northern façade of the proposed development to have a zero setback from the laneway however, this should be limited to the minimum length required to provide access to the commercial/ office premises at the rear. The southern boundary is not in contention.
I agree with council's position that SEPP 65 applies to the proposal and therefore the consent authority must take the design principles of the RFDC into account. I don't accept Mr White's view that the separation distances on the RFDC only apply to similar building types; however, if I am wrong in this, PDCP cl. 3.3.3 control C.10 adopts 12m as the minimum separation distance between habitable rooms/ balconies.
While RFDC enables the recommended separation distances to be varied, and similarly, while s 79C(3A)(b) enables flexible application of specific provisions of a DCP and allow reasonable alternative solutions, there are no alternative solutions on offer other than an acceptance of conditions requiring privacy screens on balconies with an outlook to the north.
I agree with Mr Seton that the pattern or rhythm of separation distances between residential dwellings in the residential zone should be given little weight in the circumstances. However, I also agree with Mr Carney that future development on the residential lot to the north can likewise be given less weight; in my view the principle in Seaside has some application here. The critical distance is the separation between the habitable room on the southern façade of the dwelling to the north and the north-facing balcony and windows of habitable rooms of unit 4. This falls 2-3m short of the specified distance in the RFDC and PDCP.
Essentially for the same reasons in relation to character, I agree with Mr Turrisi that the bulk, scale and massing are such that a more compliant separation for the extent of the northern façade of the residential component of the building would address the visual impact, provide more of a transition to the residential zone, and enable a more viable area for landscaping. I note that the setback from the fence line to the northern façade of office unit 1 and the roofline below residential unit 4 is only 2m. Clause 3.1.3 prescribes a side setback of 4.5m for residential flat buildings however there is no specified side setback for business zones, except that the 12m separation between habitable rooms/balconies is called up.
I am not satisfied that the proposal in its current form achieves the full range of objectives for building separation in the RFDC (see [47] of this judgment). While privacy screens will help, an increase in separation of at least another metre will provide better visual and acoustic privacy for existing and new residents. Likewise, an increase in the side setback of at least another metre will help achieve the objectives 'to ensure that new development is scaled to support the desired area character (which is principally residential) with appropriate massing and spacing of buildings' and ' to allow the provision of open space with appropriate size and proportion for recreational activities for building occupants'. The latter objective is important given that the residential component of the proposal includes 18 bedrooms and therefore will house a minimum of 18 people.

[11]

Amenity

Council's contention in this regard is that the proposal fails to satisfy the design principle for amenity in cl. 15 SEPP No 65 in that it does not provide an acceptable level of amenity for future residents due to inadequate solar access, inadequate deep soil zones and landscaping, inappropriate internal design and, for neighbours, likely unacceptable impacts on privacy.
The following controls in cl. 3.3.2 Private and Communal Open Space - Residential Flat Buildings and residential component of Mixed Use Development are pressed: C.7 A minimum of 10m2 of private open space per dwelling is to be provided with a minimum dimension of 2.5m. C.8 A minimum of 10m2 of communal open space per dwelling is to be provided. C.9 Communal open space may be provided on the roof top where it will not adversely impact on visual and acoustic amenity, and safety and security elements.
Similarly, council presses Control C.11, cl. 3.3.5 - Solar Access and Cross Ventilation which requires a maximum depth of 18m for residential flat buildings. No similar control exists for mixed use development or shop top housing.
Mr Turrisi states that deep soil and landscaped area are matters for merit consideration with in the B1 zone. He notes that residential flat buildings, dwellings and multi-unit housing, require 30% of the site as deep soil and 40% landscaped area. In addition, he states that council requires 40% of the site in higher density zones of R3 and R4 to have 40% of the site as landscaping.
Mr Turrisi calculates that the proposal provides about 273m2 or 23% of the site as landscaping with an additional 84m2 or 7% of landscaping under the building. Of the 23%, 185m2 of it is deep soil with the remaining area being on structure. He also notes the proposed drainage easement [sewer easement] at the rear of the site which he opines could restrict extensive landscaping.
In Mr Turrisi's opinion, the 23% landscaped area does not take into account the low density interface or provide adequate landscaping around it to manage its interface or the spatial characteristics of the site. In regards to the 7% of open space under the building, he questions whether this landscaping could be maintained at a standard that would be consistent with the objectives identified in the RFDC for open space. He also notes that the current access from the residential units to the open space has poor connectivity and the design does not provide for disabled access.
Mr White considers that the communal open space at the rear is regular and conducive for passive recreation. It complies with the controls and rear setback provisions and will supplement private open space. In his view, the on-structure soil depth of more than 1m is reasonable for the planting of trees and shrubs and the northern planting strip is 2m wide which he considers appropriate in the context of the zone. He maintains that the landscaping under the building is an added benefit as it provides a variety of spaces and planting types which will enhance enjoyment of the space.
In regards to the corridor access to the rear open space, Mr White recommends a condition of consent be imposed requiring the corridor to be designed to comply with the relevant Australian Standard and include a chair lift for disabled access.
Mr Carney maintains that there is no specific landscape control that applies to this zone. He contends that the undercover landscaping is open space capable of use as a shaded play area or for other recreational purposes and that overall, the amount of open space is appropriate for shop-top housing.
In essence, Mr Carney submits that on merit, the proposal should be approved.
Mr Seton contends that Mr Turrisi's opinion should be preferred.

[12]

Findings - Amenity

Although there are no specifications in cl. 3.1.3 PDCP for the area of landscaping required for shop-top housing in business zones, the deep soil zone and landscaping elements are to be considered on merit.
Council has raised no concerns over the size of the private open space for each residential unit. My calculations for Unit 4 indicate only about 8m2 instead of the 10m2 specified in cl. 3.3.2 PDCP. The balcony of the 3 bedroom Unit 6 only just complies. Only Units 9 and 10 have generous private terraces.
As nine residential units are proposed, the residential component of the proposal is significant and therefore I consider the amount of open space should be more in line with that required for a residential flat building.
As previously considered, the current northern side setback is only about 2m. Widening this not only provides better visual separation but enables a more viable landscape area and space for private recreation. With the horticultural expertise I bring to the Court, I see no problem with a deep soil zone constructed partially on-structure; the 1m depth is more than adequate provided the area is drained. The greatest concern is that a significant amount of the rear landscaped area, including some of the lawn area, will be under a roof and therefore will receive no natural rainfall and part of it will receive very little if any natural light. While no horticultural evidence was adduced, in my experience managing such a landscape requires considerable expertise and gardens such as these generally fail.
I note that the private terraces associated with Units 9 and 10 have planter boxes around the perimeter. These will assist in softening the appearance of the building and in minimising overlooking into adjoining residential properties. On my measurement these have an internal width of about 500mm. These should be widened to at least 800mm to provide sufficient volume for landscaping. I also note that the landscape plan provides no details of the proposed planting. Any landscaping needs to achieve a height that provides a visual screen.
Overall, I am not satisfied that on merit, the proposal achieves sufficient, viable, quality, open space or an appropriate level of amenity to meet the needs of future residents.

[14]

Conclusion and orders

The key issues in this matter are: whether the proposed development is compatible with the existing character of the local area; whether the separation distances between buildings, especially on the northern façade, are adequate and compliant; and whether the proposed development provides an acceptable level of amenity for future residents and neighbours.
Having considered the relevant matters under s 79C of the Act, heard from the experts, and after considering the submissions, on balance, and for the reasons outlined above, I am not satisfied that the proposal should be approved in its current form. In summary, the main reasons for refusal are the visual impact of the proposal in its context, the distribution of the bulk and mass at the rear, and the amenity of future residents - in particular the lack of viable communal open space. In my view the combination of the overall length of the building, the less than compliant northern side setbacks and the limited and compromised landscaping are the key elements contributing to this decision.
I agree with Mr Seton that some form of development is possible, but a more skilful design is required in order to provide a more sympathetic transition from the surrounding low density residential zone. Any future proposal should consider increasing the northern side setbacks by at least 1m, and reducing the overall length and mass of the building at the rear thus increasing the rear setback and enabling a greater and more viable area of open space.
As a consequence, the Orders of the Court are: 1. The appeal is dismissed. 2. Development Application No. DA/695/2012 for the demolition of existing structures and the construction of a four storey mixed use development at 271-273 Excelsior Street, Guildford is refused. 3. The exhibits except A and 1 are returned.

Judy Fakes 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. Decision last updated: 20 January 2015

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (14 paragraphs)

Parties

Cases Cited (4)