Nahas Construction Pty Ltd v Ashfield Municipal Council

Ashfield Local Environmental Plan 1985 LEGISLATION CITED: Development Control Plan No. 1 - Dwellings in Residential Zones State Environmental Planning Policy No. 65

DATES OF HEARING: 11, 12 and 20/04/2005 EX TEMPORE JUDGMENT DATE : 04/13/2005

APPLICANT Mr J Bingham, solicitor SOLICITORS Deacons LEGAL REPRESENTATIVES: RESPONDENT Mr A Simpson, solicitor SOLICITORS Pike Pike & Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11440 of 2004 Nahas Construction Pty Ltd v Ashfied Municipal Council

1 This appeal relates to development application No. 257/2004 which is for the demolition of an existing commercial building and the construction of a residential flat building comprising basement car park and 28 residential apartments in three buildings (referred to as buildings 1, 2 and 3), and strata subdivision at 122-125 Bland Street, Ashfield. 2 The site is located on the south-eastern side of Bland Street approximately 30 m south of the intersection of Bland Street and Parramatta Road. It has an area of some 2614 sq m. 3 A burnt-out warehouse and furniture show room is located immediately to the north-east of the site facing Parramatta Road and Bland Street. Existing development to the south-west of the site comprises single-storey attached dwellings along Bland Street. There are also a series of one and two-storey attached dwellings and some duplexes to the south and south-west of the site facing Curt Street. Development to the north-west on the opposite side of Bland Street comprises three and four-storey walk-up flats. Adjoining the site to the south-east is an existing two-storey brick townhouse development which forms part of a five-storey residential flat building development at 98 Chandos Street, which development is known as Ashfield Gardens. 4 The site is zoned Business Special 3(b) under Ashfield Local Environmental Plan 1985 ("the LEP"). In this zone the proposal is prohibited but for cl 38A of the LEP which by reference to a map included in Amendment No. 61 to the LEP ("Amendment 61") makes multiple dwellings permissible. 5 Relevantly applicable is Development Control Plan No 1, Dwellings in Residential Zones ("DCP 1"). DCP 1 relevantly to this appeal contains general provisions dealing with landscape area, maximum floor space, communal and private open space, solar access and setbacks. DCP 1 also contains a number of special provisions in Appendix 2 for the major multi-unit sites identified by the Amendment 61 map, which relevantly to this site, applies a maximum gross floor area of 2400 sq m. 6 There was some argument as to whether the general provisions in DCP 1 are applicable to the multi-unit sites referred to in Appendix 2. Under the heading Desired Outcomes, Appendix 2 states that:

"In accordance with cl 4.2 the relevant standards of residential DCP No. 1 apply to the site with the addition of the following requirements." 7 Whilst cl 4.2 of DCP 1 only refers to the multi-unit sites in Amendment No. 61, I do not accept that this should be interpreted so as to exclude the other standards in DCP 1 insofar as they are relevant to the application. 8 The application was advertised and thirteen submissions were received, objecting to the proposal for reasons involving: * Excessive overshadowing and noise, and overlooking of neighbouring properties. * A worsening of traffic congestion in Bland Street. * Excessive floor space and overdevelopment of the site. * Excessive removal of trees from the site. * Unsatisfactory arrangements for the removal of garbage. * Disregard of council's planning controls, particularly those in DCP 1.

9 The council considered an officer's report that deals with these concerns, and concluded that an amended version of the development application could be supported subject to a number of changes including the deletion of two of the proposed dwellings. The council essentially accepted this recommendation but instead required the deletion of three dwellings. The applicant declined to take up this offer, and because the application has not been otherwise determined by council, it is deemed to have been refused. 10 Expert town planning and urban design evidence was provided by Mr R Dickson, the Court-appointed expert. On behalf of the applicant, additional town planning evidence was provided by Mr L Fletcher, and additional urban design evidence by Mr M Harrison. Whilst on site a number of resident objectors explained in detail their concerns to the Court which are referred to above. 11 Mr Dickson noted that in principle the proposal meets the objectives of various controls within DCP 1 and State Environmental Planning Policy No. 65 ("SEPP 65"). He also noted that there are a number of non-compliances, each of which is not critical. However it was his opinion that there are major concerns comprising the non-compliance with the gross floor area and the communal open space and deep soil planting standards in DCP 1, and the building separation requirements in the Residential Flat Design Code published by Planning New South Wales in 2002. In his opinion these matters could be resolved by the deletion of dwelling Nos. 16 and 18 in building 2, consistent with the recommendation of the council planning officer. The deletion of these two dwellings would result in the total floor area of the development continuing to exceed the 2400 sq m maximum floor space but this would be to an acceptable degree. It would also facilitate satisfactory reconfiguration of the communal open space. Also, the reconfiguration of building 2 would result in a compliance with the building separation requirements in that the offending overlooking windows could be relocated to a different part of the building. 12 Having considered all of the evidence it has become clear to me that fundamentally this development warrants approval essentially in accordance with the decision of the council. Nevertheless the issues of concern that require the resolution of the Court are:

1. Whether the proposal comprises an excess of floor space relative to the maximum floor space requirement in DCP 1.
2. Whether the provision of landscaped areas, particularly the deep soil planting areas, are sufficient and satisfactory, taking into account the particular requirements of DCP 1.
3. Whether the provision of communal open space is sufficient and satisfactory, taking into account the particular requirements of DCP 1.
4. Absent the deletion of two dwellings and the reconfiguration of building 2, whether there is sufficient separation between these buildings. 13 I do not agree with the suggestion that the exceedance of the maximum floor space provision in DCP 1 contributes in an unsatisfactory way to the appearance of building bulk when proposed building 1 is viewed from Bland Street. Instead I agree with Mr Harrison and Mr Fletcher that what is proposed provides an appropriate transition from the commercial development on the corner of Parramatta Road, down to the adjoining single-storey residentially zoned detached dwellings in Bland Street. It is to be remembered that the site is commercially zoned and that the form of development here proposed is essentially in the form anticipated by DCP 1. 14 Concerns were expressed that the proposal does not meet the DCP 1 requirement that there be a 7 m setback at second-storey level along the western side of the site to maintain existing solar access levels. Having considered the shadow diagrams, and taking into account what the council officer said about this matter in his report, I find the setbacks that are in the order of 3 m and the proposed building heights, together with the landscaping arrangements, will provide a satisfactory relationship between this development and the adjoining residences. 15 As for the separation between buildings 2 and 3, I note that there are two kitchen windows and one balcony on both levels in building 2 that are significantly less than the 12 m requirement in the Residential Flat Design Code away from the balconies in building 3. Whilst it would be desirable to avoid the potential overlooking, this matter is not by itself critical to the application. 16 It was suggested that this overlooking could have been resolved by the provision of obscure glazing and the deletion of the balcony. However I would not have accepted the provision of obscure glazing in kitchen windows, this being a poor design solution. 17 DCP 1 contains landscaped area and soft landscaped area requirements and it was agreed between the experts that the proposal meets these requirements. DCP 1 also contains a minimum requirement that at least 85% of the site landscaping area, which translates into 29.75% of the total site area, is to be provided so as to facilitate deep planting. DCP 1 requires that areas capable of deep planting are to be water permeable and have no structure below within 3 m of the natural ground surface. 18 Mr Dickson calculated the deep planting areas at 24% and Mr Fletcher and Mr Harrison calculated it at 27%, both being below the DCP 1 requirement. The difference between the calculations comes about mainly because of Mr Dickson's exclusion of pedestrian pathways. 19 Whilst in principle, pathways through landscaped areas are not inappropriate, I note that in the definition in cl 8.2 site landscaping excludes pathways and non-porous paving, and deep planting requires surfaces to be water permeable. It is therefore necessary not to allow an excess of pathways in deep soil planting areas. Even though plants, particularly trees, can utilise areas underneath paths for their roots, pathways are nevertheless usually impervious. In these circumstances I find that the amount of deep planting area is likely to be closer to that calculated by Mr Dickson and that the proposal fails to comply with the DCP 1 requirement. By itself, however, this non-compliance is not critical to the application. 20 Section 8.0 of DCP 1 deals with open space and landscaping, setting minimum standards. It is noted that open space and landscaping, whilst being separate concepts, in many situations can count towards both requirements. Clearly a flexible approach is appropriate. More particularly, in relation to communal open space, s 8.0 provides that: "Communal open space should not be limited to narrow, peripheral areas. There should be a large area set aside, generously proportioned, to provide an open outlook for units within the development and to provide space for active and passive recreation, including a children's play area. These areas may also provide an open outlook for neighbouring development, like the traditional back yard. Failure to comply with this development will be considered a sufficient ground for refusal on its own." 21 The relevant specific objective for communal open space is found in s 8.1.2 as follows: "To maintain a large usable area of communal open space where units have no private ground level open space which is available for active and passive use and which provides an open outlook for residents and neighbours much like a traditional back yard." 22 Section 8.3.3 provides that where a unit has no private outdoor area at ground level, as is the case here, an area of communal open space must be set aside. Section 89.3.4 provides that: "Communal open space shall be provided exclusive of any drying or service areas. It shall include a single open area with minimum dimensions of 10 m x 12 m. Where there are more than six units the communal areas shall be increased by 5 sq m per unit. The communal area should be adapted for active and passive recreation and may include children's play areas, barbecue areas and the like. As many above-ground units as possible within the development should enjoy an outlook over this space. This is a mandatory requirement and non-compliances will not be permitted." 23 Mr Dickson was critical of the communal open space provision in this proposal, having calculated the requirement to be 150 sq m by comparison with the agreed 230 sq m requirement derived from cl 8.3.4. The three areas that he included in his calculation are situated between buildings 1 and 2.

24 Mr Harrison and Mr Fletcher calculated the communal open space areas to be about 712 sq m, having included areas in addition to those agreed by Mr Dickson between buildings 2 and 3, in front of building 1 and along much of the western boundary of the site. 25 In terms of the 10 m x 12 m requirement, it seems to me that the main communal open space area provided between buildings 1 and 2 almost meets this requirement, being deficient in part by being somewhat narrower than 10 m. However, I am concerned that this area is divided by at least one major access pathway, being that providing pedestrian access from the front of the site through to buildings 2 and 3, reducing its usability. As for the areas that are relied upon by Mr Harrison and Mr Fletcher to meet the 230 sq m requirement, I would exclude the main pathways comprising the entrance to the site, the thoroughfare between buildings 1 and 2 and the entrances to building 3. I would also discount the landscaped area in the front setback area although this does contribute in terms of outlook from the front dwellings. Similarly, I would discount, but not entirely disregard, the areas along the western boundary of the site because these are to be landscaped and will provide some outlook for neighbouring properties. 26 Despite these criticisms, the amount of communal open space provided is likely to be sufficient. However, its quality is, despite the landscaping arrangement, unsatisfactory. 27 Whilst DCP 1 does not set any requirement for solar access, the Residential Flat Design Code in dealing with communal open space recommends that to facilitate the use of communal open space, overshadowing should be minimised. An examination of the shadow diagrams reveals that the principal area of communal open space between buildings 1 and 3 will be overshadowed between 9 am and 3 pm at the winter solstice. By interpolation, I expect that this area will be substantially overshadowed for a period of three or four months during winter. The other communal open space areas relied upon by the applicant will be similarly affected. In my view this is unsatisfactory and should have been considered and rectified at the design stage. I heard no reason to suggest that a different design was not possible where that design might provide a more appropriate response to the reasonable requirement that communal open space, or at least a significant part of it, have good solar access in winter. 28 As already indicated, the particular provisions in Appendix 2 for the site include a maximum gross floor area density standard of 2400 sq m. The proposal exceeds this standard by the equivalent of almost three dwellings. I accept that this standard is a legitimate standard being part of a properly prepared development control plan that was the subject of appropriate and effective public consultation. 29 In order that I might consider whether strict compliance with this standard is necessary in the circumstances, I sought to discover how the figure of 2400 sq m was arrived at. This turned out to be a somewhat fruitless enquiry. The materials referred to me in Exhibit 2, which detailed the history of the preparation of the amendment to DCP 1 that introduced Appendix 2 does, however, provide some assistance. These materials reveal that appendix 2 was developed at least in part from an application of SEPP 65 and the Residential Flat Design Code. A report to the council from a senior town planner, dated 11 August 2003, contains an attachment which is headed "SEPP 65 Analysis", which report deals with matters such as scale and built form, and under the heading "Density" states: "Based on site layout analysis and the Residential Design Flat Code procedures, the site can support a maximum of twenty-four dwellings. This can include a high percentage of townhouses at the rear of the site." 30 The reference to "twenty-four dwellings" has subsequently been translated to "2400 sq m." There is no evidence to show that this floor space standard bears any relationship to a residential development strategy for Ashfield. 31 Conversely, it seems that the standard is somehow based on a preferred built form envelope for the site. It also seems that this theoretical envelope has been developed so as to be responsive to the nature of surrounding development and other matters such as solar access, setbacks, communal open space and landscape opportunities. 32 It is also evident that residents' concerns played a significant part in restricting development on this site. It would have been helpful to understand more precisely how the standard was arrived at so as to better understand its purpose, and thus consider in an informed manner the consequences of non-compliance. Despite this, it seems to me that the acceptability or otherwise of the non-compliance in this instance should involve the question of whether or not the proposal is of good design, including whether it meets the various requirements of DCP 1. 33 It is evident that in many respects the proposal is a good design and is responsive to the requirements of DCP 1. However, taken together, the non-compliance with the deep planting landscape area, the unsatisfactory communal open space and the inadequate building separation are factors which have led me to conclude that the 2400 sq m standard should not be set aside. 34 Mr Fletcher, in his analysis of this standard, explained that the proposal in its present form represents a floor space ratio of about 1:1, and that such an FSR would be appropriate for this site. I agree with this approach, but this must be subject to meeting the various other requirements of DCP 1. Consequently, in the absence of an alternate design solution to rectify these deficiencies I have decided to grant the consent subject to the conditions sought to be imposed by the council involving the deletion of dwellings Nos. 16 and 18 in building 2, and the reconfiguration of the basement car park to facilitate improved communal open space and deep soil planting areas. I would also impose the condition involving the reconfiguration of building 2 to rectify the separation problem. 35 Finally, a condition is yet to be drafted in relation to garbage collection but I accept that such a condition can be produced, and once this is done, subject to any comment that the applicant may wish to make, I would impose it. __________________ T A Bly Commissioner of the Court rjs

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