Mamfredas v Canterbury-Bankstown Council

Land and Environment Court (NSW)|2021-03-30

Judgment

COMMISSIONER: This appeal lodged by the Applicant under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) concerns the Development Application (DA) DA-220/2018. The Application seeks consent for a multi-dwelling development at 60 Lucerne Street, Belmore (the site). The appeal is against the actual refusal of the proposed development.

The site

I rely substantially on the six statements of facts and contentions filed by the Respondent (Exhibits1 - 7 in proceedings) and the three reply statements filed by the Applicant (Exhibits A - D) for much of the descriptive material in this and the following sections.
Proceedings 2020/24639 is concerned with the DA referred to as DA-220/2018. It relates to the subject site; 60 Lucerne Street, Belmore legally described as Lot 33 DP 5200.
The site is a corner lot with frontage of 14.51m to Lucerne Street, and a secondary frontage of 45.73m to Benaroon Road, with a surveyed total land area of 676.6m².
The site accommodates a single storey weatherboard dwelling, masonry corner shop brick structure and associated detached brick garage. Access to the site is via a vehicle entry point located along Benaroon Road.

Locality

The site is located within the suburb of Belmore on the corner of Lucerne Street and Benaroon Road.
Adjoining and surrounding development is characterised by predominantly single storey, low and medium density residential dwellings, with instances of two and three storey developments both directly adjacent to and near the site.

Statutory setting

The site is located within R4 High Density Residential Zone identified in the Canterbury Local Environmental Plan 2012.
The objectives of the R4 zone are: • To provide for the housing needs of the community within a high-density residential environment. • To provide a variety of housing types within a high-density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents.
The proposal relies on the:

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004;
State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55);
Canterbury Local Environmental Plan 2012 (CLEP)
Canterbury Development Control Plan 2012 (CDCP); and
Canterbury Development Contributions Plan 2013.

The proposal

Between the lodgement of the appeal and the finality of proceedings, the proposal has been subject to considerable amendments, aimed at addressing contentions raised by the Respondent and in submissions from objectors.
With these amendments, the proposal for the site includes demolition of all existing buildings on the site and 3 x two storey adjoined dwellings with attic, each with 4 bedrooms, 3 x internal street-level garage car spaces and 3 x off-street car spaces, with an additional 1 x off-street visitor car space.

Proceedings

The proceedings were initially subject to mandatory conciliation in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). However, agreement was not reached on all contentions raised and the matter proceeded to hearing.
Proceedings were conducted under the guidance of the Court's COVID-19 Pandemic Arrangements Policy issued 1 July 2020. After a site inspection, the hearing was conducted in a "virtual" courtroom arrangement under the Microsoft Teams platform.
Expert evidence was provided as follows:

Planning - Anja Morgan (for the Applicant) and Joshua Abdallah (for the Respondent);
Traffic - Oleg Sannikov (for the Applicant) and Siva Sritharan (for the Respondent)

Issues

Below the issues raised are considered in light of examination of expert reports presented to the Court during the hearing proceedings.
I note that, although the issues have narrowed considerably following joint conferencing, I will address the full list of contentions as presented in Exhibit 1 as discussion on these matters were raised before me.

Car parking

It is with reasonable objection that the matter of traffic impact is raised, questioning adequate provision of a fully functioning parking and manoeuvring space to the proposed development as well as appropriate sight distance triangles to pedestrians. Specifically, Council has added that the proposal is in contradiction of Council's Vehicular Crossing Policy, which allows only one vehicular crossing per property to improve streetscape and reduce the number of vehicle-pedestrian conflict points.
The experts agree that the proposal comprises three separate properties (although in a semi-detached arrangement) of which each is entitled to a vehicular crossing. Additionally, one of the crossings simply replaces the existing crossing (for Unit 3 and visitor car space) and the second crossing is a double crossing (for Units1 and 2).
Amended plan DA02.01(i) in Exhibit C indicates the distance between the two vehicular crossings is 17.9 metres and it has been presented to the Court that this complies with Council's Vehicular Crossing Policy of a minimum 6 metre gap thus realising it as acceptable.
On the contention of sight distance triangles, I am satisfied that these have now been included in the proposed development as well as relocation of bins which will assist vehicles reversing from on-site parking onto a public road, being Benaroon Road, clear of obstructions. This is referenced in amended plan DA02.01(i) in Exhibit C and is in accordance with AS2890.1.
In addition, I agree with Mr To's summation included in the Applicant's outline of submissions dated 30 March 2021 that, a driver in a reversing position would have the same view of the sight distance triangle as a forward positioned car. I also find the Respondent's argument of diminished visibility should a car be parked in an adjacent position on the hardstand to be unsupported.
Disagreement continued in relation to the stacking of vehicles for all three units as it is currently in the plans and whether this is a safe and appropriate design for the development. It was argued by the Applicant that a reversing movement from parking spaces is very typical for neighbouring domestic properties on Benaroon Road (examples provided in Exhibit 3 - Joint Expert Report).
Traffic count and crash statistics were also presented to the Court as being low volume and with good flow according to traffic engineering guidelines, even during peak times. The accident history alone related to vehicles reversing for the last 5 years is zero which supports this style of vehicle movement in and out of the property.
Added concern is the depth of the hardstand being less than 6 metres and the expectation that certain vehicles, classified as a B99, would protrude onto the footpath and would therefore be unacceptable.
The exact length of the hardstand area is 5.449 metres as per amended plan DA02.01(i) in Exhibit C. I tend to agree with the Applicant's explanation that this hardstand length accommodates the 99th percentile design vehicle, which is 5.2 metres. The survey of common family cars, SUVs and vans provided in Exhibit D further assists me in my deliberation of this matter.
It is raised that pedestrian safety is a critical concern. However, the proposed development does not attempt to promote a design that is atypical of parking arrangements in the area and thus the concern is one that could not be considered anything other than hypothetical.
Further, there is no apparent evidence concerning pedestrian traffic along Benaroon Road, let alone data to substantiate that it is particularly high.
I am persuaded by the Applicant's outline of submissions dated 30 March 2021 prepared by Mr To that, notwithstanding AS2890.1 clause 3.3 which refers to "reversing movements to public roads shall be prohibited wherever possible", it is not an absolute requirement and thus has flexibility in its application for a low scale residential development, which is defined as "3 or less domestic units" according to the proposal before me.
Whilst the CDCP specifically controls vehicular cross-overs, in clause B1.5.3, it imposes a prohibition on reversing into public roads only where a basement is proposed (control C4). Reversing from at-grade spaces is, therefore, contemplated in the purview of the standard (AS2890.1).
Given the common occurrence of reversing from domestic driveways in the vicinity, any such control in a DCP would be given little or no weight (Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 492; (2004) 136 LGERA 254).
Overall, continued concern by the Respondent on this issue appears to be based on an opinion of possible risk, rather than demonstrable evidence presented regarding its likelihood of occurrence. This is not of great assistance to the Court.
I accept Mr Sannikov's evidence and am particularly persuaded that:

drivers will have the opportunity to observe any pedestrians approaching prior to entering their vehicles and reversing would be done with the expectation of reasonable caution;
reversing would be low speed from a stationary position before reversing is undertaken;
pedestrians will be able to see and/or hear any vehicle about to reverse or one that has already commenced reversing;
the proposal provides safe conditions for manoeuvring of vehicles in and out of traffic and is in keeping with existing practices along Benaroon Road.

Lot frontage

Concerns were raised that the proposed development fails to meet the lot size and frontage objectives pursuant to clause C3.2.1;O1 and O3 and C2, of the Canterbury Bankstown Development Control Plan 2012 which is set out in the C2.2.1-minimum lot size and frontage as follows:

Objective 1: To ensure that land to be developed is of an adequate size and shape to accommodate development whilst providing adequate amenity for occupants of the site and surrounds.
Objective 3: To ensure sites have sufficient dimensions to accommodate adequate landscaped open spaces.
Control C2: The minimum primary street frontage width for multi dwelling housing and attached dwellings is: (a) 27m for development along major roads; or (b) 20m for development any local road.

Whilst the experts agree that the primary street frontage is Lucerne Street, there remains contention around objective O1 being met in view of C2 (b) and the minimum requirement of a 20-metre frontage to a multi-dwelling site. Whilst the frontage to Lucerne Street measures 14.51 metres. I am persuaded that, in consideration of a variance to the DCP objective, it would be appropriate in this case, noting the Site is bound by two roads.
The experts agreed that the proposal is acceptable on merit and that objective O3 is met. This is outlined in Exhibit 2.
The shortfall is relatively minor. Therefore, I am persuaded that the nature of the site being on a corner deems the proposal worthy of approval. On the basis of s 4.15(3A)(b) of the EPA Act, a liberal interpretation and application of the CDCP ought to be applied here and I am of the view that the proposal as it is presented to me is acceptable on merit.

Wall height

The objection to the proposed development is that the external wall height exceeds the maximum allowable as prescribed under clause C3.3.2 of the CDCP.
The experts agree that, as noted in Exhibit 2, the variance outlined in the proposal is minor, meets the objectives of the zone and therefore is acceptable on merit. Overall, the proposal would be compatible with adjacent buildings; would not detract from the character of the area; nor have a significant impact on neighbouring properties.

Building depth

Concerns regarding the impact on neighbouring properties as a result of a possible overdevelopment of the site were raised, citing clause C3.3.4 C1 of the CDCP having a maximum standard of 25 metres, whereas the proposed development advances a building length of 34 metres.
However, C3.3.4 C2 allows for building depth to be extended to 35 metres in an R4 Zone if appropriate landscaping and deep soil areas are included.
Therefore, I am satisfied that, as outlined by the experts in Exhibit 2, and provided in Exhibit B - Landscape Plan 17-3407 L02 (Revision D), the inclusion of 3 x 75 litre canopy trees to the front setback and additional landscaping meets this control. It would achieve a sufficient amount of privacy, improve residential amenity and minimise the bulk and scale of building depth to ensure visual compatibility within the streetscape. As such, I am persuaded that the objectives of the clause could be met on merit.

Setbacks

The desired future character of the locality is questioned, particularly relating to the side setbacks from the eastern and western boundary of the proposed development (under clause C3.3.3 C4(b) of the Canterbury Development Control Plan 2012 ) and deep soil widths (under clause C3.3.3 C6 also of the Canterbury Development Control Plan 2012 ). I set out these specific minimum standards as follows: "Setbacks in the R4 Zone • C4: Multi dwelling housing development must comply with a minimum setback of 4m from the side boundaries. • C6: A minimum 2m width of deep soil alongside boundaries and minimum of 5m wide along front/rear boundaries must be provided in the setback areas."
I rely on amended plan DA02.01(i) in Exhibit C which indicates varying setback depths for the proposed:

Unit 1: between 3.35 and 4 metres along the eastern elevation and 2.172 metres along the western elevation;
Unit 2: between 3.35 and 4 metres along the eastern elevation and an estimated 2.4 metres along the western elevation;
Unit 3: between 3.73 and 4 metres along the eastern elevation and an estimated 2.7 metres along the western elevation

Whilst this is not numerically consistent with control C4(b), the issue maintained by the Respondent is that acceptance of the lesser setback would be undesirable to the future character of the surrounding neighbourhood.
I concur with Mr To's summation in the Applicant's outline of submissions dated 30 March 2021, that there is no expressed desired future character statement applicable to the site nor its surrounds which would be needed to support refusal on this basis.
The deep soil requirement of clause 3.3.3 C6 would be met. Amended plan DA02.01 (i) in Exhibit C show variations of between 2.172 - 4 metre setback areas along the eastern and western boundary lengths and between 3.3 - 6 metre setback areas along the north and south boundary lengths.
Further, the overall provision of deep soil seems generous for a development in a high-density zone. One comparison would be with State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65) development, which would be compliant with 7% deep soil. Over 45% is provided here and, as the Respondent notes, there is no numerical control for deep soil landscaping.
It is reasonable to depart from a control in circumstances where that control can be flexibly considered and where a proposed development demonstrates improvement to the streetscape, character and amenity of its surrounds compared to what presently exists. This is particularly relevant also where any change to the design would, in all likelihood, contravene compliance with other internal layout controls. This flexibility is mandated by s 4.15(3A)(b) of the EPA Act and therefore by applying the section, I am satisfied with the proposal on merit.

Impact on trees

Particular concern here is the proposed removal of a street tree along Lucerne Street which was assessed as being in good condition and whether sufficient consideration has been given to ensuring a continued pleasant streetscape.
The experts have confirmed that amended landscape plans have been provided during joint conferencing. This is referenced in Exhibit B - Landscape Plan 17-3407 L02 (Revision D), noting changed landscape treatment and retention of the subject street tree. Thus, I am satisfied that this contention is resolved.
With respect to the agreed conditions or consent (Annexure A), I note that the parties now agree on the landscaping conditions (5g and 6) which include the following; 1. All scheduled plant stock shall be pre-ordered, prior to issue of Construction Certificate or 3 months prior to the commence of landscape works, whichever occurs sooner, for the supply to the site on time for installation. Written confirmation of the order shall be provided to Council the certifier prior to issue of any Construction Certificate. The order confirmation shall include name, address and contact details of supplier; and expected supply date, and 2. The landscape plan must include a provision for the replacement of all existing boundary fencing along both the eastern and southern boundaries replacement fencing must be 1.8 metres high unless otherwise shown on the approved plans or as stipulated within this Determination Notice. The materials and colours of the fence must be selected in consultation with the adjoining property owners unless the design of the fence and the type of material is specified to allow for overland flow. Fencing forward of the building line must not be greater than 1 metre. All costs related to fencing must be borne by the person having the benefit of this Determination Notice.
I regard these amendments to the conditions to be fair and reasonable and appropriate.

Engineering

Concerns are raised that the proposed development would fail to include appropriate individual rainwater tanks with a capacity of 1200 litres with drainage to at least 50 square metres of roof area catchment as per the BASIX Certificate included at Exhibit C - prepared by Greenworld Architectural Drafting dated 25 March 2021.
The experts have confirmed that the installation of 1200 litre rainwater tanks would be sufficient and it is confirmed on amended plans provided during joint conferencing and referenced in Exhibit B - Proposed Storm Water Management Plan 17-137 D3 (E). Thus, I am satisfied that this contention is resolved.

Public interest

It is the Respondent's position that the cumulative effect of the issues raised with regard to the proposal would constitute an undesirable precedent and would not be in the public interest as required under the provisions of s 4.15(1)(e) of the EPA Act.
I note that, prior to these proceedings, five of the eight contentions were mostly addressed and resolved.
In addition, on the contentions of car parking and setbacks, as it has been presented to the Court, I am persuaded that the proposed development could have a net benefit on the area by diversifying housing options and revitalising a site in need of improvement.
Therefore, I am of the view that the proposed development would be consistent with the intended objectives of development in the area and therefore would support the public interest.

Conclusion

On balance, I am persuaded by the evidence presented by Mr Sannikov which embodies sound reasoning for a proposal that is well-designed and would improve the streetscape and contribute to an improved urban character in the vicinity.
Taking into consideration the amended architectural and landscape plans I am persuaded on merit that the overall proposal would achieve a net benefit to the local area. This is reinforced by the views expressed by the experts.
Whilst the Respondent argues that a previous iteration of the design (Exhibit 1) demonstrates the possibility of forward exiting for vehicles from the site, this is a hypothetical rather than being based on evidence. There is also no conclusive evidence to suggest a reversing movement from a hardstand on Benaroon Road would be unsafe.
The up-zoning of the area to R4 naturally triggers a proposal of the nature contemplated by this type of development, to the extent that to my mind, it would not warrant refusal.
Section 4.15(3A)(b) of the EPA Act facilitates a circumstance in which I am at liberty to apply flexibility to the setback controls of the CDCP.
I find that the proposal would be compatible with the local area in visual and physical terms given the site's contextual setting. Indeed, it would be an improvement upon the existing, underdeveloped property.
The Court orders that: 1. The appeal is upheld. 2. Development Application DA-220/2018 for the demolition of the existing single storey weatherboard dwelling, brick structure, and associated brick garage and the construction of 3 attached terrace houses, with an associated loft is approved in accordance with the conditions of consent filed with the Court on 28 April 2021 (Annexure A) and architectural plans by Archi Spectrum dated 18 February 2021 (Issue I). 3. The exhibits are retained (exhibits 1-7 inclusive and A-D inclusive). ............................ P Rappoport Acting Commissioner of the Court Annexure A (224475, pdf) Plans (2379618, pdf)

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 April 2021

(2004) 136 LGERA 254

At a glance

Court

Decision date

Source

Judgment (17 paragraphs)

Parties

Cases Cited (2)