Matthew Lam v Inner West Council

Land and Environment Court (NSW)|2017-06-14|Before: Mr J

Judgment

COMMISSIONER: This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal of a development application by Inner West Council (the Council). The development comprises the subdivision of a site into two lots and the development of two semi-detached dwellings (the application) at 119 Addison Road, Marrickville (the site).
The key issue associated with the application is the impact the proposed development would have on neighbours and the character of the area. The Council also queried how the floor space ratio (FSR) should be calculated to determine FSR compliance.

Floor space ratio (FSR)

The current area of the site is 605m² with the proposed site area of each of the two proposed lots in the order of 302m². Under the provisions of cl 4.4 of the LEP, the maximum FSR permissible is dependent on the site area. For site areas of 302m², the FSR is 0.7:1 whereas for a site area over 400m², the FSR is 0.5:1.
Under cl 4.5 (3) of the LEP, site area is defined as follows: (3) Site area In determining the site area of proposed development for the purpose of applying a floor space ratio, the site area is taken to be: (a) if the proposed development is to be carried out on only one lot, the area of that lot, or (b) if the proposed development is to be carried out on 2 or more lots, the area of any lot on which the development is proposed to be carried out that has at least one common boundary with another lot on which the development is being carried out.
In essence, the Council contended that the development was occurring on an existing site comprising one lot which had an area over 400m² and therefore the FSR of the proposed dwellings could not exceed 0.5:1. The combined FSR of the dwellings as amended was 0.66:1. Therefore, the Council contended that a written request under cl 4.6 of the LEP was required to be submitted and assessed before consent could be granted.
The applicant contended that the application was for subdivision to create two new lots with a dwelling to then be erected on each new lot and that it was therefore appropriate to assess the FSR of each proposed dwelling on each of the proposed lots. In this case the applicable FSR was 0.7:1 which would be complied with. The applicant argued this was a reasonable application of the control given the proposed two dwellings would not be permissible and therefore could not be erected on the current site unless it was first subdivided.
However, should the Court agree with the Council's interpretation that the maximum FSR is 0.5:1, the applicant also submitted a cl 4.6 variation request to vary the FSR control.

Streetscape Presentation

The Council contended that the design of the proposed development gave inadequate consideration to the built form and architectural character of the locality and did not achieve an acceptable infill design outcome.
In particular, the Council referenced the relevant provisions of the Council's Development Control Plan 2011 (the DCP). Part 2.1 of the DCP contains general urban design objectives and controls for development whilst part 2.1.3 contains specific infill design guidelines including that infill buildings should generally respond to the predominant scale of their setting.
Part 4.1 provides objectives and controls for low density residential development.
The following objectives of Part 4.1 of the DCP were cited: O2 To maintain and encourage compatible architectural styles within residential areas. O4 To ensure the impact of urban housing on the amenity of surrounding properties and the streetscape is a prime and initial consideration in the preparation and assessment of development proposals. O7 To encourage innovative design that positively responds to the character and context of the locality.
In terms of good streetscape design outcomes, at part 4.1.5 the following objectives were considered relevant: 08 To ensure development in streetscapes with a visual cohesiveness and an identifiable uniformity in bulk, scale and height complements that uniformity. O9 To encourage contemporary design for new dwellings and infill development that complements or embellishes the character of an area 10 To ensure development is of a scale and form that enhances the character and quality of streetscapes.
The following DCP controls to achieve these objectives were also referenced: C2 Facade design must enhance the existing built character by interpreting and translating any positive characteristics found in the surrounding locality into design solutions, with particular reference to: 1. The massing, which includes overall bulk and arrangement, modulation and articulation of building parts; 2. Roof shape, pitch and overhangs; 3. Verandah, balconies and porches; and 4. Window shape, textures, patterns, colours and decorative detailing. C3 The facade of new development must be divided into bays or units of dimensions appropriate to the scale of the building proposed and that of adjoining development. C33 Dormers must be positioned to minimise interruption of skyline views of chimneys and other original roof features when viewed from the street. C37 Victorian dormer windows at the front must be: 1. Vertically proportioned (between a height to width ratio of 1.6:1 and 2:1); 2. The same pitch and roof material as the main roof; 3. Subordinate in size and position to the main roof, and be positioned at 300mm below the ridge, measured vertically; 4. Not more than 1500mm from bottom of sill to top of window head; 5. Formed with painted timber pilasters, approximately 25% of the width of the window with a base and a lintel over; 6. Detailed in a style consistent with the style of the roof; 7. Formed of windows that are double hung, with painted timber frame; 8. Formed of side walls (cheeks) that are weather boards; and 9. Formed of a triangular or curved pediment but without side eaves or gutters. C51 New dormers on contemporary buildings must be consistent with the existing roof forms in the street.
The Council considered the locality to be predominantly characterised by modest semi-detached and attached single storey dwellings of the Federation period. Most detached cottages have asymmetrical front elevations whilst semi-detached cottages have symmetrical front elevations with hip rooves.
In contrast, the proposed development was considered by the Council to be a mock replication of a single storey Victorian terrace with a symmetrical front elevation, poorly considered gables, a low pitched hip roof to the rear and inappropriately proportioned Victorian dormers. Therefore the proposed built form did not interpret and translate positive characteristics of the Federation style found in the locality and was considered to be incompatible with its context detracting from the quality of the streetscape and being contrary to a number of the objectives of the DCP.
There were also a number of other features of architectural character and detailing criticised by the Council as not being representative of those found in the locality. In summary, the proposed architectural resolution was considered to be not contemporary, lacking in flair and design and unsympathetic to the Federation style typical in the locality.
Design expert advice was given by Ms Renata Ferreira for the Council and Mr Peter Lonergan for the applicant.
Ms Ferreira was critical that the development did not enhance or embellish the streetscape or reflect the character of the area as was required by the DCP when one considered the built form in the locality including roof forms, materials, setbacks and articulation. While she did not find the design itself offensive, that was not the outcome the DCP required.
Ms Ferreira accepted that any second storey could be construed as out of character with development in the area, despite being permissible. However, her concern with the proposal was the façade and the visual impact of the second storey elements which would be visible from Addison and Agar Streets.
Mr Lonergan considered the design to be a relatively neat infill. It was single storey to the street with a steep pitched roof and Victorian style dormers. It complied with the FSR and height controls and it was a satisfactory design response given the context. He referenced the contrasting commercial development adjoining the intersection and the changing residential character to the east. He did not consider the development to be uncomplimentary and he queried how one embellished the character of an older area in a new development.
Mr Lonergan agreed that the development was not high quality but argued this was not a sensitive heritage location and it only had to be satisfactory. Further, the design would provide a good level of amenity to occupants and neighbours. He also considered the DCP provisions to be overly prescriptive and confusing.
Both experts in their Joint Expert Report (Exhibit 4) agreed that superficial adjustments to the design would not address the substantive architectural and urban design issues of the proposal. However, if carefully redesigned, the site could achieve a high quality infill development that was sympathetic to its surroundings and enhanced the character and streetscape. In evidence, Mr Lonergan confirmed that this contention implicitly meant that he considered that what was proposed was neither high quality nor sympathetic to its surroundings nor did it enhance the character of the streetscape

Bulk and scale of development

The key issue in the appeal was the bulk and scale of the proposed development in particular having regard to the fact that seven single residential properties adjoin the eastern boundary of the site fronting Agar Street. Given the relatively small size of most of these properties, any development of the site would be in close proximity to the rear of the dwellings and their rear yards. Particular concern was expressed by the Council with the impact on the dwellings and rear yards of 4, 6, 8, 10 and 12 Agar Street. The Council did agree that, with the amendments undertaken to the plans, the impacts on 2 Agar Street and 121 Addison Road were acceptable.
The Council was critical that the applicant had not had any regard to the number and proximity of neighbours immediately adjoining to the east with effectively the same bulk and form proposed for each dwelling and with the eastern elevation of the dwelling on Lot B the same as was proposed for the western elevation of the dwelling on Lot A. However, the Lot A dwelling was adjoined by a single lot with a similar orientation, ie. where one side wall would run along another side wall not along seven rear boundaries.
The DCP prescribes side setbacks of 900mm for new single storey dwellings, 1.5m for two storeys and 2.5m for three storeys on lots wider than 8m. Side setbacks for lots less than 8m in width are to be determined on merit having regard to visual impact, solar access to adjoining dwellings and street context.
The following setback control is found at Part 4.1 of the DCP: C12 Notwithstanding any compliance with front, side and rear setback controls, the applicant must demonstrate that proposed building setbacks: 1. Maintain the established street character; 2. Allow neighbours adequate access to sunlight and a share of views; 3. Preserve established tree and vegetation corridors; 4. Provide adequate separation between buildings to protect adjoining buildings from overlooking and loss of amenity; and 5. Reduce the visual bulk of new building work.
Control C8 of Part 4.1 states as follows in terms of bulk and scale: C8 Notwithstanding compliance with the numerical standards, applicants must demonstrate that the bulk and relative mass of development is acceptable for the street and adjoining dwellings in terms of: 1. Overshadowing and privacy; 2. Streetscape (bulk and scale); 3. Building setbacks; 4. Parking and landscape requirements; 5. Visual impact and impact on existing views (Council encourages view sharing between surrounding residences); 6. Any significant trees on site; and 7. Lot size, shape and topography.
Expert advice on planning issues was provided by Mr Garry Chapman for the Council and Mr Ben Black for the applicant. Mr Chapman was of the opinion that the bulk and scale of the dwelling on Lot B was excessive to its eastern elevation with a maximum height of 8.9m to the ridge and up to 6.85m to the eave, and with a two storey wall length of 16m adjoining the backyards, and impacting the rear outlook, of the seven Agar Street properties. This wall was setback as little as 886mm from the common boundaries.
Mr Black argued that side setbacks for lots less than 8m would typically be less than the DCP prescribed side setback for larger lots as it would be illogical for side setbacks to increase as lot sizes decrease. Mr Black therefore considered the eastern side boundary setbacks of between 886mm and 1.15m to the proposed ground floor (increasing up to 1.7m for the indented rear portion of the wall) to be adequate. The upper floor setbacks ranged from 1.57m to 1.9m for the rear portion of the building and 886mm for the portion of the building closest to Addison Road. Mr Black considered these setbacks to be generous given the proposed lot width of only some 6m.
However, Mr Chapman was of the view that the height and length of the eastern wall and its limited setback and articulation resulted in unreasonable visual bulk and scale impacts, additional overshadowing and a built form outcome that was incompatible with the scale of surrounding properties and which would adversely impact on the adjoining properties in Agar Street. Residents of these properties would have an outlook to a largely blank high long wall in close proximity to their rear yard and the rear of their dwellings.
Conversely, Mr Black's position was that the eastern side boundary ran on a slight angle meaning that the building setback increased as it moved along the eastern boundary in a northerly direction providing greater setback for a number of adjacent properties. Furthermore, there was some articulation in the side walls of both dwellings with an 'indent' at the rear portion agreed to be in the order of 700mm. This indent was in the vicinity of 6 Agar Street.
Mr Black also noted that the development easily complied with the 9.5m maximum height limit permissible in the LEP and also the FSR maximum (post subdivision). He argued that the development also incorporated design features to reduce the apparent bulk and scale when viewed from the properties to the east. This included articulation in the proportions of the building, a mix of finishes, and a low pitch roof to the rear. In addition an existing Lemon Scented Gum in the rear yard of 12 Agar Street would provide further visual relief to the built form and no privacy concerns had been raised.
Finally, Mr Black contended that, as the development complied with the core planning controls, it must be acceptable albeit he accepted the site was in a sensitive location given the size and number of properties on its eastern boundary. He also accepted resident concerns that the proposed wall length and height of the eastern elevation would create a sense of enclosure to those neighbouring properties fronting Agar Street. However, he considered that it was a function of an inner city location with small lots that such impacts occurred.
Conversely, Mr Chapman argued that, notwithstanding the compliance with the overall maximum height limit, the applicant had not had regard to the objectives of the FSR which required minimisation of adverse environmental impacts on adjoining properties from development, or the DCP controls which encourage upper levels to be contained within the roof form to decrease impacts for infill development in predominantly single storey streetscapes. With such a design feature there would be less overshadowing and reduced bulk and scale. He also argued that a 700mm setback of the eastern wall to the rear portion of the dwelling on Lot B would make no material difference in terms of the impact on the visual outlook from adjoining properties in Agar Street.
Mr Black considered that the visual impact must be what should be expected of a building on the site. His evidence was that the subdivision pattern in the area was tight and orientation of the site, being at right angles to the properties fronting Agar Street, is such that the residents of the Agar Street properties should reasonably expect impacts given the planning controls. These controls permit a two storey or potentially even a three storey building (if a dwelling house) on the site. Furthermore, given the property values in the area and the large size of the site, it would be unreasonable for adjoining property owners to expect a single storey building to remain in perpetuity.
Mr Black accepted the interface with development to the east was sensitive but noted that the proposal had been designed to have a single storey with attic appearance when viewed from Addison Road and a two storey height internally. Such a design was not inappropriate in an area with a mix of building heights.
Mr Chapman argued that the immediate locality was predominantly single storey dwelling houses and the size of the proposed dwellings were therefore incompatible infill whereas the DCP encourages infill development to maintain the scale and character of housing in the locality and contain upper floors within roof forms. He noted the substantial four bedroom plus retreat nature of each of the proposed dwellings on lots of only 300m² and considered the dwellings and outbuildings to be excessive in size and scale.
In response, Mr Black noted that the site is not within a heritage conservation area and the single storey nature of buildings surrounding the site was not due to any impediment in the planning controls. He therefore argued that it is likely that over time the locality will see a greater amount of two storey development.
Finally, the experts agreed that the solar access to neighbours complied with the minimum requirements of the DCP which is to retain two hours of solar access between 9am and 3pm in midwinter. Mr Black argued the proposal must therefore be acceptable in terms of overshadowing of neighbouring properties.
However, Mr Chapman argued that the scale of the upper level, the setbacks, and the two storey building resulted in additional shadow cast into the rear yard of adjoining Agar Street properties. An increased side setback and a reduction in floor area, including containing the upper level in a roof form and deleting the retreat over the garage, would mitigate additional overshadowing cast into six adjoining properties, being 2 to 12 Agar Street.

Findings

The key issue in this appeal relates to the bulk and scale of the proposed development relative to its eastern neighbours and, to a lesser extent, the streetscape impacts of the proposed design.
Dealing firstly with the bulk and scale, I note that the development complies with the maximum height permissible under the LEP and with the FSR which would apply once the two lots were created on which the semi-detached dwellings are proposed. However, I also note that these are maximum height and FSR controls and that the LEP contains objectives associated with applying the controls.
The site is currently underdeveloped being a large site relative to surrounding lot sizes with a small single storey cottage on it in an area where two storey development is permitted albeit not prevalent. Therefore any redevelopment of the site would reasonably be expected to have a greater impact on neighbours than the current use of the site. However, that impact needs to be minimised in accordance with the relevant planning objectives and controls.
Based on the evidence, I have formed the view that the development does not comply with a number of objectives and controls in the DCP in particular those associated with the required side setbacks and to minimise impacts on adjoining properties. I also agree with the Council that the Court cannot be insensitive to the genuine concerns of numerous affected neighbours.
The site is constrained by the fact that there are seven residential properties adjoining its eastern boundary fronting Agar Street. All but one of these properties are relatively modest in size and contain single storey cottages with small rear yards which have a common boundary with the site. However, the application has not demonstrated a design response which has adequate regard to that constraint in terms of the bulk, scale and side setback of the proposed southern dwelling (on Lot B).
Both of the dwellings proposed are substantial. However, it is the size, proximity and treatment of the eastern elevation of the southern dwelling which will, in my view, have an unacceptable visual impact on all of the adjoining Agar Street properties but in particular on four of these properties being 4, 6, 8 and 10 Agar Street.
At its closest point to the common boundaries of these properties, the proposed eastern wall of the southern dwelling is less than 900mm from the boundary to a height of almost 9m. The wall extends for a length of some 16m albeit there is an increased setback of some 700mm for the rear portion of the dwelling. I agree with the Council that this increase over two levels will do little to minimise the adverse visual impact of the development when viewed from the small rear yards or rear portions of the dwellings on the affected Agar Street properties. Separated from the proposed dwelling by a garden of only 60m², a further two storey structure is then proposed at the rear of the lot to house a garage and an upper level retreat.
The side setback for a lot proposed to be less than 8m wide is determined on merit having regard to factors such as visual impact and solar access. I cannot conclude, from the evidence and from the inspection of the site from the rear yard of the Agar Street neighbouring properties, that the proposed setback for a two storey building is adequate to minimise visual impact. It would not maintain a reasonable degree of amenity for these neighbouring residents from the rear of their dwellings or when using their small rear yards. The sense of enclosure for these residents in using their private open space, and the outlook from these yards and the rear of their dwellings, would be unreasonable.
In summary, I agree with the Council that it is not appropriate to simply mirror the proposed dwelling on Lot A in the design of the dwelling on Lot B. This takes no account of the impacts on a number of adjacent properties which comprise small lots and single storey dwellings with relatively small rear yards from where residents receive their only private open space amenity.
In my view, the development on proposed Lot B requires a more sensitive design which has regard to the context and orientation of the site relative to adjoining sites and which demonstrates greater consideration of the impacts on adjoining properties. I accept the evidence of the Council in this regard that the application makes no distinction between the treatment, setback or height of the elevations to the two common side boundaries when such a distinction is required having regard to the context of the site.
The development does not meet various objectives under the DCP including at part 2.1.3.2 which states that infill buildings should generally respond to the predominant scale of their setting or at Part 4.1 whereby objective 04 is to ensure that the impact of housing on the amenity of surrounding properties and the streetscape is a prime and initial consideration in the preparation and assessment of development proposals. Nor does it meet controls in Part 4.1 of the DCP which require that proposed setbacks must, inter alia, provide adequate separation between buildings to protect adjoining buildings from loss of amenity and reduce the visual bulk of new building work (C12) and that, irrespective of compliance with numerical standards, the bulk and mass of development must be acceptable for adjoining dwellings in terms of building setbacks and visual impact (C8).
Accordingly, the application is refused.
The proposed bulk and scale would also have additional overshadowing impacts albeit I accept that the minimum two hour solar retention required by the DCP is complied with for all neighbouring properties. The overshadowing is therefore not determinative in this appeal. The fact remains however, that additional overshadowing to the Agar Street neighbours results from the close proximity of the proposed development causing further adverse impacts which could be improved if the setback were increased and the bulk and scale reduced.
Given I find that the development as proposed should be refused as it does not meet the objectives or controls of the DCP in terms of minimising impacts on neighbours, it is not necessary for me to determine which site area for FSR compliance should apply. It would appear logical however, that the FSR post subdivision should apply given the form of development that is proposed responds to and requires the proposed subdivision, and that the subdivision is an integral part of the application.
I note also that the definition of site area states that, if the proposed development is to be carried out on only one lot, the area of that lot applies. However, the proposed development is to be carried out on two lots not one so it would seem that the lot areas post subdivision are the appropriate site areas to apply.
Whether I am correct or not on the applicable site area to apply for FSR compliance purposes, the objectives of the FSR control still need to be met whatever the numeric FSR control is. In that regard, the objectives include requiring a floor space ratio which minimises adverse environmental impacts on adjoining properties. This development does not meet that objective.
It is also not necessary for me to deal in any detail with the streetscape presentation of the proposed development. This presentation may not of itself have resulted in a refusal of this application were amenity impacts adequately addressed for adjoining properties. However, a redesign to address the sensitive interface to the eastern neighbours and reduce the bulk and scale would address some of the streetscape concerns of the Council.
Furthermore, I note that the applicant's own urban design expert considered that a redesign was required to achieve a high quality infill development that was sympathetic to its surroundings and enhanced the character and streetscape. Whilst it may be the case that what is proposed does not need to be of a high quality, it does need to be sympathetic to its surroundings. The evidence did not persuade me that what is proposed achieves that outcome nor does it complement or embellish the character and quality of the streetscape as the DCP objectives specifically encourage.

Orders

The orders of the Court are: 1. The appeal is dismissed. 2. Development Application for a two lot subdivision and two semi-detached dwellings at 119 Addison Road, Marrickville is refused. 3. The exhibits, except Exhibits 1 and A, are returned.

Jenny Smithson 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: 29 June 2017

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