Maxnox Pty Limited v Hurstville City Council

Maxnox Pty Limited v Hurstville City Council - [2006] NSWLEC 146 - NSWLEC 2006 case summary — Zoe

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JUDGMENT HIS HONOUR: A. INTRODUCTION 1 This is an appeal against the refusal of Development Application 20050092 by Hurstville City Council ("the Council") for the demolition of all existing improvements and the construction of a residential flat building at 1 Martin Place, Mortdale ("the site"). B. THE SITE AND SURROUNDING AREA 2 The site is rectangular in shape with a frontage of 15.24 metres to Martin Place and side boundaries of 35.815 metres, giving a total site area of 545.6 square metres. There is a slight fall from the rear of the site to the front of approximately 1.7 metres. The existing improvements consist of a single dwelling house and detached garage. 3 The site is located in an area characterised by residential flat buildings and the Mortdale commercial centre. C. THE PROPOSAL 4 The proposal provides for a partly three storey and partly four storey residential flat building comprising 6 x 2 bedroom units, with basement car parking consisting of six resident parking spaces and two visitors spaces. Two units are proposed on each level, with a central stairway providing pedestrian access to all six units. D. RELEVANT PLANNING CONTROLS 5 The site is zoned 2 (Residential) under the provisions of Hurstville Local Environmental Plan 1994 (LEP 1994). The proposed development is permissible with consent within this zone. Clause 8(3) of the LEP 1994 provides that consent may only be granted if the development is consistent with the objectives of the zone, and only after consideration has been given to the extent to which the development is consistent with those objectives. Clause 9 provides that consent may only be granted where consideration has been given to "any planning and design principles or policies adopted by the council". 6 Hurstville City Council Interim Residential Development Code (the Code) also applies. The Code identifies four development areas, to which different requirements apply. The site falls within the development area "D"; the type of development proposed being "Medium Density/Three Storeys" (Pt 1). 7 The relevant requirements in Part 3 of the Code are:

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9 State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65) applies to the proposal by way of cl 4(1)(a) as the proposal constitutes "the erection of a new residential flat building". Part 2 of SEPP 65 sets out design quality principles for residential flat development. These design quality principles seek to provide a guide to achieving good design and a means of evaluating the merit of proposed solutions. 10 The application was reviewed by the Design Review Panel pursuant to Part 3 of SEPP 65. 11 The Council identified further planning instruments relevant to the site in its Statement of Basic Facts, however none relate to the issues raised by the Council. 12 One objection was received from a local resident when the development application was originally advertised, however no resident objections were received upon advertisement of the amended development application and the plans which form the subject of this appeal. E. THE ISSUES 13 The Council filed a Statement of Issues, which outlined nine issues generally relating to the applicant's non compliance with requirements of the Code. There was general agreement between the respective town planner witnesses for the parties, Mr Crane and Mr Broyd that strict compliance with the Code's requirements was not necessary because of the difficulty in complying with the minimum frontage requirement of 24 metres. The site has a frontage of only 15.24 metres and owing to the right of way servicing a car park to commercial buildings to its north east and residential flat buildings to its south west, any amalgamation with an adjoining site is unrealistic. 14 The difference in opinion between Mr Crane and Mr Broyd centred on the significance of the departures from the Code requirements. Whilst there was general agreement regarding the extent of the departure from the Code requirements, Mr Crane contended that those departures could be justified based on the inability to amalgamate with the adjoining site. Mr Broyd came to the opposite conclusion. 15 The specific areas of the Code in dispute relate to density, landscaping, setbacks, number of storeys and the consequent impact of these features on the character of the area and streetscape. F. STATUS OF THE CODE 16 There is an issue as to whether the Code is a development control plan or only a policy and, if the latter, as to the weight to be given to it. The applicant submitted that the code was not a development control plan and that it was lower than a development control plan in the hierarchy of matters which should be accorded weight. The respondent submitted that it was development control plan; or alternatively, that it should be given as much weight as a development control plan.

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32 In my view, the facts and circumstances in Aitchison are distinguishable from those of the case before me. The consideration of the issues raised in Aitchison are set out in the following paragraphs of the judgment: 56 The subject site is constrained but also unique and a matter that the Court is mindful of in its assessment. The side boundary set backs of the two adjoining flat buildings are generous being the area of some landscaping and providing driveways for an access to parking for both adjoining residential flat buildings. This in itself does create an opportunity for visual separation despite the restrictive width of the subject site being only 12 m. 57 I am also satisfied that the podium at the height that is proposed is one that will 'fit in' with the streetscape and would not warrant refusal of the application. The Court was mindful of the need to ensure that the gradient could be achieved in terms of the Australian Standard for the basement car parking and I am satisfied that this can now be achieved therefore there would not be a need to further raise the level of the podium which if raised could be out of character in the streetscape. 58 With respect to the landscaped area, this is an issue that received a great deal of discussion during the proceedings. As I stated I do not count the planter boxes as areas within the landscaped area and in terms of providing canopy vegetation the subject site does provide the necessary space in the front and rear set backs. 59 For the side boundaries, the area for landscaping is minimal, however, this would not warrant refusal of the application because of the overall merits of the application and the front and rear landscaping and the visual relationship with adjoining buildings. I am mindful of the fact that a building with a site width of 12.1 m providing basement parking would require the extent or the width in terms of not providing for large areas of deep planting on the side boundary set backs. 33 It can be seen from the judgment in Aitchison that the relationship between the site and adjoining residential flat buildings was a matter given some weight in the Court's consideration. This relationship was considered acceptable in that case because of the sufficient physical separation and the provision of landscaping. A similar relationship does not exist between the subject application and its surrounding development. The number of storeys of the Aitchison development also complied with the requirements of the Code, whereas the proposed development exceeds the storey requirement, despite its compliance with the overall height requirement. 34 The density of the development in Aitchison, despite exceeding requirements in the Code, was considered acceptable because of the development's design, its relationship to adjoining development and its presentation in the streetscape. For reasons set out later in this judgment, I have concluded that the design of the subject site is unacceptable. H. THE CODE REQUIREMENTS Density 35 A density of 105 square metres of site area per dwelling unit is prescribed for the relevant development area "D". With a site area of 545.6 square metres, five units can be accommodated on the site under the Code. The proposal provides for six units, which constitutes a density of one unit per 91 square metres of site area.

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Development Area D objectives to encourage higher density housing forms in localities in close proximity to public transport and community services; to provide opportunity for compatible infill development in older residential flat building areas; to encourage high quality developments in new higher density areas which take regard to the amenity of the existing housing in the locality and acknowledges the long-term building form change for these areas; to ensure properties are not isolated by development adjoining. 47 Without diminishing the substance of the individual objectives, the objectives could be said to collectively seek to provide a development that contributes positively to the streetscape and character of the area through its relationship with adjoining development, building design and landscape treatment. 48 In my opinion, the proposed development does not achieve this collective objective for a number of reasons. 49 The landscaping proposed along the side boundaries is inadequate and inconsistent with the objective to blend new development into the streetscape and neighbourhood. The landscaping along the south west boundary is to be provided in planter boxes. The limited width of the side boundaries and the use of planter boxes above the basement car park will limit the capacity to provide landscaping that will achieve an acceptable height and density when compared to the landscaping provided in the general area. 50 The setback along this south western boundary also provides for inadequate separation between the proposed development and the neighbouring building. The development application provides for a separation of 5.7 metres between the proposed building's windows and those of the existing residential flat building and a separation of 5 metres between the balconies of the two buildings. As the setback requirements in the Code cannot be achieved owing to the lot width, great care and a sensitive design are required to deal with visual and aural privacy issues. I am not convinced that the proposal adequately addresses these issues, notwithstanding the lack of objections received to the development application from residents of the adjoining building. 51 No landscaping is to be provided along the north eastern boundary because of the need to provide pedestrian access to the building. This boundary effectively adjoins the commercial zone of the Mortlake shopping centre. While this interface does not present the same issues as would have arisen had the north eastern boundary adjoined a similarly zoned residential site, the facade of the building along this boundary is clearly visible from Martin Place and parts of the Mortlake shopping centre. This boundary proposal will not offer an appropriate transitory zone between the residential development of Martin Place and the commercial activities of the Mortlake shopping centre, but will contribute to a rather sharp contrast between the two zones. Some landscaping along this boundary would provide consistency with the residential development in Martin Place and a softer edge between the two zones. 52 While not raised as a specific issue by the council, I find that the treatment of the north eastern elevation is inconsistent with the objective relating to solar design and energy efficiency, in that the proposal does not constitute an energy efficient housing design. Despite its optimal orientation and association with the living rooms of the proposed units, the elevation provides no opening windows to allow for cross ventilation and direct solar access. Instead, glass blocks are used to satisfy the Building Code of Australia requirements for fire protection because the setback to the boundary is less than 3 metres. 53 The number of storeys is also inconsistent with the general pattern of surrounding residential development constructed under the Code. The Court was taken on a view of a number of developments in Martin Place and Macquarie Place, one street to the south east of Martin Place. The Court was not provided with evidence of one building constructed under the Code which exceeded three storeys. Consequently, the proposal is inconsistent with the streetscape objective, in that the proposal does not create attractive streetscapes which reinforce the functions of a street, enhance the amenity of buildings, and complement the surrounding built form [and] landscaping. 54 Overall, the development provides an excessive amount of floor space for the site area. The consequences of this are clearly seen in the subject proposal's inadequate setbacks, lack of suitable landscaping, four-storey construction and other shortcomings in design. 55 For the reasons mentioned in the preceding paragraphs the proposal is in conflict with Principle 1: Context, Principle 2: Scale, Principle 3: Built form, Principle 4: Density, Principle 6: Landscape and Principle 7: Amenity of SEPP 65. K. CONCLUSION 56 The applicant submitted that if the Court considered it an appropriate to allow the appeal, subject to requiring amendments to the development application, then the Court should deliver an interim judgment with directions whereby the amendments could be effected and, consequently, the appeal upheld.

At a glance

Court

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Before

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Judgment (45 paragraphs)

Parties

Cases Cited (4)

Cited By (5)