Lamalfa Investments Pty Limited v City of Canada Bay

The site and its locality

1. The site is on the western side of Gale Street and comprises two existing Torrens Title allotments, Lots 29 and 30 in DP 2302, otherwise known as 32 Gale Street, Concord. The lots are orientated in a generally east-west direction between Gale Street to the east and Watkin Street to the west (or rear) of the site. Each lot has an approximate area of 280.4m2 with a combined area of 560.8m2; the combined frontage is 12.10m.
2. Across the front of the site (on Gale Street) is a two storey weatherboard dwelling. This dwelling is built across both lots. The front setback is mostly paved with a narrow garden bed along part of the front fence. The site is almost devoid of landscaping.
3. Across the rear of the site is a building which operates as a child care centre; consent for which was granted in 1988 (see below). This building also traverses both lots. A timber fence has been erected within about 100mm of the deck at the rear of the dwelling; this separates the shade-cloth covered outdoor play area between the childcare centre and the dwelling.
4. Immediately to the north of the site, at 34 Gale Street, is a relatively recent brick and tile detached two storey dwelling. Adjoining the site to the south is a single storey weatherboard cottage.
5. Development on the western side of Gale Street to the north of no. 34 comprises older style, free standing single-storey dwellings of brick, weatherboard or stone. At the southern end of the western side is a row of older style shops. Moving north from the shops there are several single storey dwellings and then several lots on which town houses have been constructed. At 26 Gale Street is a former two storey butcher's shop built to the street front.
6. A cadastral image attached to the planners' joint report shows a number of dwellings in Gale Street are built across two lots.
7. Apart from St Patrick's Catholic Church and Presbytery, the eastern side of Gale Street comprises a mixture of single and two-storey attached and detached dwellings of a range of styles and ages.
8. Watkin Street is characterised by garages associated with dwellings fronting Gale Street to the east and Kingston Avenue to the west.

Relevant background

1. The following background information is provided in council's bundle of documents (exhibit 3).
2. In September 1988, the then owners of the property (M & V Liubinskas) applied to Concord Council (as it then was) for approval to demolish an existing double garage at the rear of the site (Watkin Street) and replace it with a building to be used as a Day Care Centre for children. The Town Clerks' Report of 18/10/88 notes that the proposed use "is considered desirable in the area generally and is permissible in the zone". The report also states that "A yard area of approximately 9 metres x 12 metres would be available for children's play, between the two (2) buildings." The report highlights a concern that because of the narrowness of the site, no alternative vehicular access is possible and the proposal removes the existing parking spaces for the dwelling. The report suggests that one possible solution is to provide several car spaces with direct access onto Watkin Street and construct part of the proposed centre over the spaces. The report goes on to say that council would be willing to consider an amended proposal if, amongst other things, parking for at least three vehicles was provided.
3. In November 1988, council granted development consent for the Day Care Centre, subject to a number of conditions and generally in accordance with the plans submitted to council. The original consent permitted up to 20 children and two staff. Condition 12 relates to off-street parking; the condition requires three parking spaces accessed off Watkin Street - to be used only by employees and residents and not for storage etc.
4. In April 1992, M & V Liubinskas applied to council to modify the consent under the then s 102 of the EPA Act to increase the number of children to 25 and the number of staff to three. A letter dated 24 April 1992 states that FACS (NSW Department of Family and Community Services) guidelines required an outdoor area of 6.96m2 per child and an indoor area of 3.25m2 per child. An attached plan shows what the letter describes as an extended new outdoor area. The outdoor area shown in a yellowish colour on the attached plan includes almost the entire southern side passages adjoining the two buildings and a small portion of the side passage at the north-western end of the dwelling. The plan also indicates the demolition of part of the existing deck at the rear of the dwelling and 'outdoor storage under deck with timber door'. Self-closing gates are shown at each of the western ends of the dwelling between the dwelling and the adjoining boundary fence.
5. Council granted consent to the Modification Application in July 1992. A letter to Mrs Liubinskas from the Department of Community Services dated 22 April 1992 confirms that the Department was happy to grant the variation in the number of children for which the centre was licenced. This was on the basis that an officer had re-measured the plan and was satisfied that there was sufficient space, both indoors and outdoors, for 25 children.
6. The site has been sold several times since then; it is understood that the current operator of the child care centre does not reside in the dwelling.

The proposal

1. The applicant seeks to re-subdivide the site into two Torrens Title allotments across the width of the site, in a generally north-south direction and in the position of the timber fence which has been constructed at the rear of the dwelling. The proposed Gale Street allotment containing the dwelling will have an area of 227.2m2 and the proposed Watkin Street allotment containing the child care centre has an area of 333.8m2.
2. Apart from the subdivision, the applicant proposes to substantially demolish the existing two storey weatherboard dwelling and construct a new two storey brick and weatherboard dwelling with vehicular access off Gale Street to a garage incorporated into the dwelling on its northern side.
3. The proposed dwelling includes what is described as decked alfresco area in the north western portion of the ground floor at the rear of the garage and accessed off the dining/family room through French doors. The ground floor plan appears to show a small portion of the deck extending beyond the building line; the landscape plan shows four Viburnums planted between the edge of dwelling (deck not shown) and the boundary fence. The landscape plan shows the front setback to include lawn, two rows of shrubs and two Port Wine Magnolias - one on either side of the proposed driveway. The location of the driveway would necessitate the removal of a street tree.
4. The proposed dwelling is to extend to within 100mm or so of the proposed new rear boundary line. The ground floor component of the western elevation i.e. the elevation facing the child care centre, is a windowless brick wall; the weatherboard-clad first floor includes two small highlight windows to a bathroom.
5. The application does not propose any changes to the operation of the child care centre.

The issues

1. Council contends that the development application should be refused on the following grounds (issues highlighted):

• Adverse impact on the predominant subdivision pattern thus setting an undesirable precedent.
• Excessive floor space ratio (FSR) resulting in an overdevelopment of the site.
• Inadequate landscaped area, private open space and rear setback.
• Overshadowing impacts on the adjoining dwelling to the south;
• Inadequate solar access to the proposed new dwelling;
• The proposed driveway and garage facing Gale Street is uncharacteristic of the streetscape; and
• Inadequate provision of a suitable stormwater drainage system.

1. In summary, the applicant contends that the proposal is permitted in the zone and while there are a number of non-compliances with council's development controls, the proposal provides a better and more practical outcome than the current situation. In essence, the re-subdivision formalises the existing separate uses of the land and facilitates the objects of the EPA Act, in particular, the promotion and co-ordination of the orderly and economic use and development of land. In addition, the proposed dwelling is smaller than the existing dwelling, provides more landscaping and frees up a parking space for the use of the child care centre.

The assessment framework

1. The site is zoned R3 - Medium Density Residential in Canada Bay Local Environmental Plan 2013 (CBLEP), as is the majority of the western side of Gale Street between Watkin Street and Tennyson Road to the north. Apart from a small area at the south western end of the street which is zoned B1, the eastern side of Gale Street and the majority of the surrounding area is zoned R2 - Low Density Residential.
2. The objectives of the R3 zone are:

• 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.

1. Both child care centres and residential accommodation are permitted in the zone with consent.
2. The applicable development standards in CBLEP and the development controls in Canada Bay Development Control Plan (CBDCP) are included in the discussion of each issue. Clause 4.6 - Exceptions to development standards in CBLEP applies.

Controls and evidence

1. The hearing commenced on site with an inspection of the site from the deck at the rear of the ground floor of the dwelling and a view of the surrounding development in Gale and Watkin Streets.
2. The court was assisted by the parties' planners, Mr John Hancock for the applicant and Mr Anthony Wynen for the council. The planners participated in a joint conference, prepared a joint report and gave oral evidence.
3. The council contends that: The proposal results in two allotments that do not satisfy the minimum allotment size and frontage requirements of the CBLEP and CBDCP and will not reflect and reinforce the predominant subdivision pattern of the area. The inadequate lot size will result in an overdevelopment of the proposed allotment facing Gale Street and set an undesirable precedent.
4. In addition, the particular (d) of the contention notes that the applicant's written request under cl. 4.6 CBLEP is not well founded and not supported. Particulars (e) and (f) raise potential consequences of any subdivision for the operation of the child care centre.
5. Clause 4.1 CBLEP provides the development standard for minimum subdivision lot size. The objectives of the clause are: 1. to ensure that subdivision reflects and reinforces the predominant subdivision pattern of the area, 2. to minimise any likely impact of subdivision and development on the amenity of neighbouring properties, 3. to ensure that lot sizes and dimensions are able to accommodate development; 4. to maintain visual amenity and character of the area, 5. to retain residential amenity through the provision of suitable landscaped area and vehicular access.
6. Clause 4.1(3) states that the size of any lot resulting from a subdivision of land to which the clause applies is not to be less than the minimum size shown on the Lot Size Map, which in this case is 450m2.
7. Part 5.3.1 in CBDCP applies to subdivision and allotment size. Relevantly it states in part: New development on any newly developed allotment has the potential to impact on the streetscape and amenity of the locality. Consequently, it is essential that the other design elements contained in this DCP are considered at the subdivision of land stage. This will ensure that future development of the site maintains and enhances the character and amenity of the locality.
8. The objectives are similar to and consistent with those of the LEP. The minimum frontage for normal allotments is 14.0m.
9. The planners agree that the two existing lots are below the minimum lot size requirement and street frontage control. They also agree that the predominant pattern established in the 1880s remains east-west and that the proposed re-subdivision will not of itself have an undesirable or perceptible impact on the streetscape.
10. However Mr Wynen maintains that re-subdivision will have a negative impact on the functioning and amenity of the resulting two lots. In his view the 1998 consent was based on the site as a whole and implied the effective sharing of the central area of open space. He considers that separating the lots will remove about 26m2 of land identified in the 1992 modification plans as being available outdoor space for the child care centre. Mr Wynen is of the opinion that while the lot size is already small, the proposed Gale Street site becomes even smaller and is too small to adequately accommodate the proposed replacement dwelling. This, he says, results in a dwelling with insufficient rear setback, landscaping and private open space. He maintains that there are 11 other properties in the vicinity that have narrow east-west allotments and which contain a dwelling over two allotments and approval of the proposal would set an undesirable precedent.
11. Under cross-examination, Mr Wynen stated that should what was proposed in the 1992 modification come before him now he would be unlikely to approve it. In response to a proposition that separating the lots and removing the need to access the dwelling from the rear car park and relocate the parking to the Gale Street frontage would be a safer and therefore better option for the child care centre, Mr Wynen maintained that it is the responsibility of the operator of the child care centre to monitor any access to or through the centre and that the proposed vehicular access off Gale Street is uncharacteristic of the area as there are only three of eighteen other lots to the north of the site, being the area he considers to be representative of the character of the site, that have on-site access from Gale Street. He remains of the opinion that the bi-product of the proposed re-subdivision is a site that is too small to accommodate the proposed dwelling as evidenced by the many areas of non-compliance with council's controls. In his view maintaining the existing subdivision pattern should not be considered in isolation as it assists with achieving consistency with lot size, built form and other controls.
12. Mr Hancock considers that the effect of the subdivision will be to place the existing assets on separate and discrete parcels of land which will permit the current independent operations to function separately. In his view, this results in development which is consistent with the objectives of the R3 zone. Mr Hancock maintains that the proposed dwelling is of a scale that relates equally well to the streetscape; any numerical exceedence of FSR will not be perceptible and the landscape space is sufficient to meet the DCP requirements. He also opines that the proposal has no adverse impacts on adjoining properties and given there are no similar or comparable sites in the vicinity, by way of a dwelling and child care centre on the same site, the subdivision is unlikely to set a precedent.
13. For these reasons, Mr Hancock considers the proposal achieves a better planning outcome than the current arrangement. Apart from freeing up another car space for the child care centre, it removes the need for any resident of the dwelling having to access the dwelling through the grounds of the child care centre. In regards to the child care centre, he also considers that while there may be a numerical decrease in the area of outdoor space, which in his view is not useable because of the gates or desirable because of difficulties with supervision, the gross area of the centre is capable of supporting more than the current number of children (although he did agree with Mr Wynen's calculations based on council's current controls, the number of children that would be permitted would be between 10-15). Mr Hancock maintains that the child care centre is operating as licenced and he does not consider that this development application requires council to revisit the consent for the child care centre. In his view, departmental approval balances staff numbers and floor areas - both indoor and outdoor.

Submissions

1. Mr Katsinas for the applicant submits that this is a unique site containing two distinct uses unlike any other sites in the vicinity; as such, he contends that variation of the controls is reasonable and justifiable and that re-subdivision will not set an undesirable precedent. In support of the achievement of the subdivision objectives, he presses the planners' agreement that the proposed re-subdivision will not be perceptible from the street and thus the visual amenity and character of the area is maintained. Mr Katsinas cites the north-south strata subdivision of several lots to the south of the site as evidence that the established east-west subdivision pattern has already been compromised. He maintains that the proposed Gale Street lot already accommodates a dwelling and is fenced at the rear. He accepts that while the proposed dwelling is non-compliant with several controls, there are no impacts on adjoining properties, the proposal will be an improvement on the current situation and the level of amenity is adequate and achieves an appropriate balance between built form and landscaped area and is therefore also consistent with a higher density anticipated in the R3 medium density zone.
2. Fundamentally, Mr Katsinas submits that the proposal should be supported as it achieves the objects in s 5 of the EPA Act; in particular, it promotes the orderly and economic use and development of the land. He argues that the proposal is consistent with the desired future character of the area being higher density and varied in form. Mr Katsinas contends that the proposal is an improvement on what is there now in terms of the size and impact of the dwelling and the operation of the two uses of the site, which he says is currently irrational and not orderly and economic use of the land.
3. Mr Jackson for the council contends that as development consent runs with the land, the proposal must achieve a better outcome in an overall planning sense; not for an individual and not taking one control by itself but considering the whole suite of applicable controls. He submits that if it is the applicant's argument that the current operation is not orderly and economic use of the land it is because the site is not operating as originally intended by the 1988 consent. While that consent does not preclude separate tenancies, it does require operation across the whole site in a precise way and which does not occur at the moment.
4. In regards to the development standard for minimum subdivision lot size in cl. 4.1 CBLEP, Mr Jackson acknowledges that the lots are small and therefore some flexibility is reasonable, however this is contingent on the proposal being otherwise compliant, which he submits it is not. He argues that there is no doubt that the proposal does not achieve objective (a) in cl. 4.1(1) in that is does not reflect or reinforce the predominant subdivision pattern of the area, as conceded by Mr Hancock. With respect to the other objectives Mr Jackson contends that: the amenity of the lot to the rear will be compromised as a consequence of the almost zero rear setback, the other non-compliances illustrate that the proposed Gale Street cannot accommodate a compliant development, and parking at the front is out of character and contrary to CBDCP. On this basis Mr Jackson submits that the Court cannot be satisfied that cl. 4.6(4)(a)(ii) is met and the proposal must fail; even if the Court accepts the applicant's cl. 4.6 written request, the proposal remains unacceptable on its merits.
5. Apart from what Mr Jackson argues are the deficiencies of the application in regards to the proposed Gale Street allotment, Mr Jackson stresses the council's position that a consequence of the proposed re-subdivision may be non-compliance with the 1988 consent for the operation of the child care centre, and about which the applicant has not provided any information.

Findings

1. As the proposed development is contrary to two development standards in CBLEP, the first step is to consider the written requests for a variation pursuant to cl. 4.6(3) and (4) CBLEP.
2. The objectives of cl. 4.6 are to provide an appropriate degree of flexibility in applying certain development standards to a particular development, and to achieve better outcomes for and from development by allowing flexibility in particular circumstance (cl. 4.6(1)). Relevantly [emphasis added]: (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained.
3. Therefore, cl. 4.6 provides a vehicle for allowing an appropriate level of flexibility in the application of development standards but it places a significant onus on the applicant to justify, in writing, why a deviation from a standard is justified.
4. The applicant's cl. 4.6 written variation requests are in the applicant's Statement of Environmental Effects dated November 2014 and prepared by Matthew Wales of Wales & Associates Pty. Ltd (Exhibit 3, Tab 2). The written cl. 4.6 variations were not discussed by the parties' planners in their joint report or to any great extent in oral evidence. Neither planner has had any previous involvement in the preparation or assessment of the application.
5. It is common ground that the two lots that currently comprise the site are less than the minimum lot size specified in CBLEP; Mr Jackson acknowledges that some flexibility is therefore reasonable. However, in order to determine whether the proposal sought by the applicant is capable of approval, the relevant matters in cl. 4.6 must be addressed.
6. In seeking to demonstrate how the proposal meets the objectives of the development standard, the written request notes the historical and predominant pattern of subdivision being long, slender east/west orientated narrow allotments. Mr Wales states: "However, over the last 20 years, surrounding development has seen these allotments combined to accommodate larger residential dwellings and residential flat buildings". He cites the site and adjoining properties to the north and south as examples of dwellings which straddle two lots. "This defacto form of lot consolidation has created an eclectic subdivision pattern consisting of the traditional long, slender allotments and the more recent consolidated street frontages. The subdivision proposal simply seeks to formalise the existing consolidated streetscape pattern without creating any additional allotments." The request states that there will be no detrimental impacts on neighbourhood amenity or any changes to the amenity and character of the area as there will still be a dwelling on Gale Street and the childcare centre at the rear. It also states that the proposed alterations and additions to the dwelling retain essentially the same footprint as the current dwelling and there will be no significant impact on the setback from the childcare centre.
7. Mr Wales then considers whether the variation will hinder the attainment of the objects in s 5(a)(i) and (ii) of the EPA Act. In regards to whether compliance with the development standard is unreasonable or unnecessary in the circumstances, Mr Wales reiterates his argument that strict compliance is unnecessary because it "simply seeks to formalise the existing eclectic allotment pattern which has tended to informal consolidated frontages. It will ensure a higher standard of residential development compared to that which would otherwise be provided should strict adherence to the standard be applied. The proposal is an efficient use of the land which delivers social, economic and environmental benefits to the local community".
8. In my view, Mr Wales does not appear to have turned his mind to the specific requirements of cl. 4.6. His written request essentially follows the process suggested by Lloyd J in Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46 at [26] when considering an objection made pursuant to State Environmental Planning Policy No 1 - Development Standards (SEPP 1). Nor has Mr Wales expanded on any of the ways identified by Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827 at [42] -[50] of establishing that compliance is unreasonable or unnecessary in the circumstances. As noted in Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 1009 at [62] , while Wehbe relates to cl. 6 of SEPP 1, the approach is applicable to cl.4.6(3)(a).
9. I find that the written request has not has not adequately addressed the matters required to be considered in cl. 4.6(3). Mr Wales' unsubstantiated claim that over the last 20 years there has been some 'defacto form of consolidation' is not supported by any evidence. Appendices 2 and 3 in the joint planning report (Exhibit 2) show lots on both sides of Gale Street where development has occurred over two or more lots over many decades; this was confirmed during the site inspection and the observation that many of the dwellings are of early architectural styles. The subdivision pattern remains clearly east/west. Simply stating that the proposal formalises an existing situation does not, in my view, demonstrate why compliance with the development standard is either unreasonable or unnecessary in the particular circumstances of this case. Similarly, stating that the proposal 'ensures a higher standard of residential development compared to that which would otherwise be provides', without providing any specific details as to why this statement should be accepted does not constitute sufficient planning grounds to justify contravention of the subdivision standard. This last statement is difficult to accept given the non-compliance with many development controls in CBDCP, in particular the almost nil rear setback, the limited landscape area, and the poor amenity provided by the proposed alfresco area of private open space. Therefore, I find that s 4.6(4)(a)(i) is not satisfied.
10. On the evidence before me, nor am I satisfied that cl. 4.6(4)(ii) is met. In this regard I accept Mr Jackson's submissions noted in paragraph [45] of this judgment. Section 39(6) of the Land and Environment Court Act 1979 enables the Court to exercise the power conferred by cl. 4.6 without the concurrence or approval of, any person or body - in this case the Secretary; therefore subclause 4.6(4)(b) is addressed.
11. I do not accept Mr Katsinas' submissions that because the site is zoned R3 Medium Density Residential it somehow permits the nature of the proposed development. Mr Katsinas relies on several examples of apparent north/south subdivision arrangements of medium density developments at the southern end of Gale Street; however, inspection of council's files indicates these are strata subdivisions of larger lots and not Torrens Title and overall, the sites retain the east/west subdivision pattern. I also note that the site is not included within a 'character area' which requires specific consideration of the desired future character in accordance with Part 5.1.1 CBDCP.
12. As a consequence, consent cannot be granted. However, I propose to consider the other matters raised in the contentions.

Controls and evidence

1. Council contends that the proposed dwelling exceeds the maximum FSR for the site which is 0.65:1 and results in excessive bulk given the size of the proposed lot and the written cl. 4.6 variation request is not well founded and should not be supported.
2. Clause 4.4(1) CBLEP provides the objectives for the Floor Space Ratio development standard. These are: 1. To ensure that buildings are compatible with the bulk and scale of the desired future character of the locality, 2. To provide a suitable balance between landscaping and built form, 3. To minimise the effects of bulk and scale of buildings.
3. Floor space ratio is also considered in Part 5.3.3 CBDCP. The objectives are those found in cl. 4.4(1) CBLEP.
4. The planners agree that the amended plans have reduced the FSR of the proposed dwelling from 0.72:1 to 0.67:1.
5. Mr Wynen agrees that while the contravention of the control is small and the proposed dwelling is smaller than the existing building, there is no reason why compliance is unnecessary or unreasonable. In his opinion, the proposal represents an overdevelopment of a small site with the consequence of non-compliance with other controls. While he stated that he was not involved in any assessment of the proposal prior to the joint conference, having regard to the objectives of the FSR development standard, Mr Wynen considers that it does not achieve them. When asked what he considered the desired future character of the area to be, Mr Wynen stated that it probably related to the medium density zone however as this is a single dwelling and not multi-unit development, the standard was still relevant.
6. In the joint report Mr Hancock's stated position is that FSR of the proposed dwelling is excessive and will result in an overdevelopment of the site. In his view a better design may reduce the FSR to a level of compliance or justifiable variation.

Submissions

1. In regards to the minor exceedence of the FSR development standard, Mr Katsinas stresses the fact that when compared to the existing dwelling, the replacement dwelling is smaller and of a similar bulk and scale to the recently constructed dwelling to the north, provides a better balance between built form and landscaping, and minimises the effects by creating only a minor increase in overshadowing of some parts of the properties to the south. In this way, he contends that the objectives of the control are achieved.
2. Mr Jackson contends that the proposal does not achieve a better planning outcome as the effect of the non-compliance with the FSR control is the non-compliant rear setback and the other areas of non-compliance. He considers that should the Court be satisfied by the applicant's cl. 4.6 written request for a variation of the FSR development standard, given the absence of a rear setback, Mr Jackson submits that the application fails to deliver a suitable balance between landscaping and the built form and, when viewed from the rear, it does not minimise the effects of bulk and scale and for those reasons should fail on its merits.

Findings

1. While strictly unnecessary because of my finding in [58], I note that the cl. 4.6 written request for a variation from the FSR development control follows the same format as the request to vary the minimum subdivision lot size. Mr Wales' written request is based on the whole site and not on the proposed Gale Street allotment. He combines the FSR of the child care centre and the proposed dwelling to achieve a combined FSR of 0.51:1. In this way Mr Wales seeks to establish that the variation from the 0.5:1 FSR development standard [that applies to the whole site area] is very minor. In my view this is an unusual approach to take when the object of the proposal is to separate the two buildings onto two separate Torrens Title allotments and the proposal includes the substantial alteration of the existing dwelling. On this basis I cannot accept the applicant's written request in regards to varying the FSR development standard however if I am wrong in this I have considered the merits of the issue on the basis of the evidence provided by the parties' planners for the purpose of the hearing.
2. I note that the planners agree that the amended plans show the FSR of the proposed dwelling to be 0.67:1. It is clear from the joint report that both planners agree in their own way that the FSR is excessive and represents an overdevelopment. Having heard the evidence and viewed the site, while the proposed dwelling may appear of a similar size to other dwellings in Gale Street, the effect of the proposal would not in my view achieve objective (b) in cl. 4.4(1) of providing a suitable balance between landscaping and built form principally because on the non-compliant rear setback.
3. Therefore, on the merits, the proposed FSR is unacceptable.

Landscaped area, private open space, solar access and rear setback

Controls and evidence

1. Council contends that the proposed development does not comply with the relevant controls in CBDCP.
2. Part 5 CBDCP provides the controls for houses and attached dual occupancies.
3. Part 5.2.3 Solar access. Control C1 requires new buildings and additions to be sited and designed to maximise direct sunlight to north-facing living areas and all private open space areas.
4. Part 5.3.4 applies to Building setbacks. In regards to rear setbacks it states: Rear setbacks provide space for planting, including trees which will achieve a reasonable height and canopy, and provide for adequate open space for the amenity of residents. Rear setback also promotes privacy between residents of adjoining properties, particularly where development is greater than single storey.
5. Control C5 for rear setbacks requires new development to have a minimum rear setback of 6.0 metres.
6. Private open space is considered in Part 5.3.6. Relevantly, Well designed and high quality private open space can provide benefits to all residents by meeting recreational requirements, softening the built form, providing adequate landscaping for privacy and improving local habitat for plants and animals.
7. The objectives are to ensure private open space provides each dwelling with a space for outdoor activities and functions as an extension of the living area and enhances the built environment by providing open space for landscaping.
8. Private open space is defined in both the LEP and DCP as: Private open space - means an area external to a building (including an area of land, terrace, balcony or deck) that is used for private outdoors purposes ancillary to the use of the building.
9. The controls require an area of 40m2 with a minimum dimension of 5m x 5m. Private open space should be located behind the front building line. At least one portion of the private open space with a minimum area of 40m2 should be adjacent to and visible from the main living and/or dining rooms and be accessible from those areas.
10. Part 5.3.7 provides the Landscaping objectives and controls. Together with building setback requirements building footprints ensure that new and altered development is sited in a manner which promotes substantial landscaping, usable private open space, provides a landscape buffer between building forms and maximises retention and absorption of surface drainage water.
11. The applicable control requires 35% of the site area is to be landscape area. Landscaped area is defined in the LEP and DCP as "part of a residential site used for growing plants, grasses and trees but does not include any building, structure or hard paved area".
12. Mr Wynen calculates the proposed landscape area is 16%; in his opinion this is an unacceptable shortfall. He notes that there is minimal landscaping provided behind the front building line and none in the rear setback; in addition, no canopy or specimen trees have been provided which would provide privacy, shade or enhance the quality and amenity of the built form. While the current development is almost devoid of vegetation, in Mr Wynen's view this is not an argument for providing some vegetation.
13. In regards to the private open space, Mr Wynen is of the opinion that there is an unacceptable shortfall even if the alfresco area is included, which he considers should not be included. In his view the alfresco area is almost entirely enclosed, barely projects beyond the first floor, is only 1.4 m from the boundary fence, is not well located in terms of solar access as it does not receive direct sunlight, does not soften the built form and does not provide sufficient landscaping.
14. While Mr Hancock considers that refining the design of the building (for example flipping the location of the garage and improving the articulation of the western elevation) could achieve better levels of compliance with the controls, in his view there is sufficient space in the front setback to accommodate planting that will complement the streetscape. He maintains that the proposed landscaping, together with the proposed private open space, meets the relevant objectives. Mr Hancock calculates the area of private open space to be about 42.5m2 which in his opinion is a minor shortfall. He also notes that the alfresco area and the front garden are integrated with the living areas by way of French doors opening onto both areas. He also states that the alfresco area is capable of being opened up to the garage so as to accommodate more intensive use for recreational purposes such as large family gatherings.

Submissions

1. Mr Katsinas relies on the definition of private open space in the LEP and DCP as capable of applying to the alfresco area. He submits that Mr Wynen could not point to any authority which says that the proposed alfresco area is not private open space. While he accepts that it may not receive direct solar access, he contends that the height of the nearby fence is such that it will receive ambient light and be sufficiently ventilated. Mr Katsinas submits that as the site is zoned R3 and therefore anticipates higher density development, there is a reasonable expectation of less direct sunlight. He also notes that the use of shade cloth over the play area is supportive of his contention that shade is more important than direct sunlight.
2. Mr Katsinas also argues that while the DCP does not encourage the use of the front setback as private open space, it does not prohibit its use as such. He maintains that both the alfresco area and the front garden are extensions of living areas and can be included in the calculations.
3. Although he accepts that the rear setback is almost zero, Mr Katsinas contends that the rear of the dwelling is none-the-less sufficiently set back from the rear of the child care centre. He submits that as the objective is to ensure adequate separation between buildings, this is achieved.
4. Mr Jackson maintains that the appeal also fails on its merits. He presses that even if the alfresco area were to be included as private open space, it receives no solar access and will therefore provide poor amenity to future occupants. He relies on Mr Wynen's evidence and the extent of non-compliance with the relevant controls and objectives in CBDCP.

Findings

1. I find that the proposal fails on all aspects of this contention. The applicant relies on the 'alfresco' area as the principal area of private open space. Mr Katsinas presses the definition in the LEP and DCP because it will be used for 'private outdoors purposes ancillary to the use of the building'. The definition refers to an area 'external' to a building; only a small portion of the decked area extends beyond the northern façade of the dwelling. I agree with Mr Wynen that this is an area that should not be included as private open space because it is essentially a room with a decked floor and without an external wall. Apart from the small projection into the side setback, it is almost entirely enclosed by the first floor above; it is barely 'outdoor'. Similarly, it does not achieve the objective O2 of Part 5.3.6 CBDCP as it does not enhance the built environment by providing open space for landscaping. The outlook from the alfresco area is principally onto a very narrow strip of shrubs between the deck and the side fence and beyond to the brick wall of the dwelling to the north. The applicant relies on the front setback for providing the majority of the landscaping and additional private open space however this is also contrary to control C2 which states that a development should locate the private open space behind the front building line.
2. It is also agreed that the alfresco area will receive no direct sunlight which does not comply with control C1 in Part 5.2.3 that 'new buildings and additions are to be sited to maximise direct sunlight to north facing living areas and all private open space areas'. I also note that the living areas are on the southern side of the ground floor and the family/dining/kitchen area will receive no direct sunlight. The front living room will receive morning sun.
3. Similarly the proposal falls well short of the control for landscape area (on Mr Wynen's calculation - 16% rather than the required 35%), principally, it would seem, because there is no rear setback. The rear setback control in Part 5.3.4 is 6m; as quoted in [73] one of the reasons for the control is to provide space for planting and for an area of private open space.
4. Therefore I agree with Mr Jackson's submissions that the proposed alterations will provide poor amenity to future occupants and that consent cannot be granted.

Overshadowing

1. The amended plans include shadow diagrams which indicate the extent to which overshadowing of adjoining properties to the south will be increased and reduced as a consequence of replacing the existing dwelling. While not considered to any great degree during the hearing, the diagrams, such as they are, appear to demonstrate an almost neutral impact.
2. Had this been the only contention this issue would not warrant refusal of the proposal.

Vehicular access

1. The council contends that the proposed driveway on the northern side of the site off Gale Street will adversely impact on an existing street tree and is also uncharacteristic of the established pattern of vehicular driveways along the street as almost all properties have their vehicular access off Watkin Street at the rear.
2. Part 5.3.8 CBDCP deals with parking and access. The control C3 requires at least one parking space per dwelling. Control C4 considers that for new and existing dwellings, the location of a garage or carport should be prioritised as: 1. Located at the rear of the site with access from a rear lane; 2. Located at the rear of the site with access from the street frontage; and 3. Located at the side of the dwelling house, behind the front building alignment.
3. The planners agree that a replacement street tree could be conditioned. They disagree as to whether the proposal is uncharacteristic of the streetscape.
4. Mr Wynen considers that the residential properties north of the old butcher shop at 26 Gale Street set the character of the street to which the proposal should relate. In his view the southern end of Gale Street has a different character as a consequence of the more recent medium density development in that section of the street. Of the 18 properties north of number 26 there are only three approved crossings from Gale Street. Given this small proportion he considers that such crossings are not characteristic of the streetscape. In Mr Wynen's opinion, the site is already compliant with an approved parking space at the rear.
5. Mr Hancock is of the opinion that vehicular crossings off Gale Street are not foreign to the streetscape and cannot be described as uncharacteristic. He notes that the DCP requires at least one car parking space be provided for each dwelling and while the DCP has a preference for parking at the rear, given the context of the proposal and the existing assets on the land, it is more practical to incorporate the garage into the dwelling and thus avoid having to access the dwelling from the child care centre.
6. Mr Katsinas argues that council's controls seek to ensure that each dwelling has a parking space and that while the preference is for parking at the rear, there is no prohibition on what is proposed. On his calculation there are eight vehicular crossings on the western side of Gale Street and as such the council's argument that was is proposed is out of character cannot be supported.

Findings

1. I agree with Mr Wynen's appraisal that the part of the street in which the site is located, being north of the old butcher's shop at 26 has a different character to the section of the street to the south of number 26. The Macquarie Dictionary defines 'characteristic' as: "relating to, constituting, or indicating the character or peculiar quality; typical; distinctive; a distinguishing feature or quality'. While there are some driveways off the western side of Gale Street I do not accept the applicant's proposition that this is a typical or distinctive feature of the street. Most properties have vehicular access from the rear.
2. However, given the other reasons for dismissing this appeal, it is unnecessary to determine whether this element of the proposal is appropriate in the circumstances.

Stormwater

1. The council's contention is that the applicant has not provided details of a stormwater drainage system.
2. Part 3.3 CBDCP - Stormwater, detention & sediment control requires the City of Canada Bay "Specification for the Management of Stormwater" document to be used when preparing development applications.
3. The planners agree that while the amended plans show a proposed 1m wide easement along the southern side boundary, no details have been provided as to what works are required. Mr Wynen considers that this also includes whether on site detention is required. Mr Hancock is of the opinion that the given the fall of the land, and the existing infrastructure, any requirements could be achieved and could be conditioned.

Findings

1. The applicant has not provided any details of a stormwater drainage system contrary to the requirements of Part 3.3 CBDCP. However, I note that council has suggested a deferred commencement condition in its without prejudice draft conditions of consent in regards to stormwater and drainage concerns.

Conclusions and orders

1. Having heard from the experts and having considered the necessary matters under section 79C of the EPA Act, and as a consequence of my findings, the Orders of the Court are: 1. The appeal is dismissed. 2. Development Application No. 10.2014.470.1 for alterations and additions to an existing two storey dwelling and boundary adjustment to an existing subdivision boundary on Lots 29 and 30 in DP 2302, otherwise known as 32 Gale Street, Concord is determined by refusal. 3. The exhibits except C 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: 30 October 2015