Rahme v Canterbury-Bankstown Council

Land and Environment Court (NSW)|2023-02-14

Judgment

COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 by Samir Rahme (Applicant) against the actual refusal by Canterbury-Bankstown Council (the Respondent) of Development Application DA-313/2022 for demolition of the existing dwelling house, alterations to the existing swimming pool and cabana, and construction of a new two storey dwelling house with basement car park at Lot 201 DP14722, otherwise known as, 23 Gueudecourt Avenue, Earlwood NSW 2206.
The Court arranged a conciliation conference between the parties under s 34AA(2) of the Land and Environment Court Act 1979. This was held on 13 February 2023. The parties failed to reach an agreement during the conciliation process that would be acceptable to the parties. Accordingly, the conciliation was terminated, and the matter proceeded to hearing on the same day.

The Proposal

The Development Application is seeking Development Consent to construct a new dwelling that includes the following work: 1. The provision of a Basement Level with two car spaces, a storage / services room, two storage areas, a turning bay, a lobby, a lift and stairwell. 2. A Ground Floor Level with a music room, guest/study room, formal living area, open plan living, dining and kitchen area with access to side courtyard and rear alfresco, a bathroom and a butler's pantry/laundry. 3. A First Floor Level comprising three bedrooms with ensuites, front and rear balconies and a void area to the rear over the living space. 4. Alterations to an existing cabana at the rear of the site. 5. Demolition of various landscape elements and hard stand areas to facilitate additional soft landscaping.

The Site and Locality

The site, as described in the Statement of Facts and Contentions, is as follows: 1. The land is regular in shape with a total site area of 702 m2; 2. The site has a street frontage of 13.715m and is located on the north-western side of Gueudecourt Avenue; 3. The site has a slope, from the rear (north-western boundary) of the allotment to the front (south-eastern boundary) of the allotment, with a fall of approximately 5.69m; and, 4. The site is currently occupied by a single storey dwelling house with uncovered hardstand parking forward of the dwelling and detached cabana and swimming pool at the rear.
At the commencement of the hearing the parties undertook a site view. This included an inspection of the subject site to understand the proposed bulk and scale of the development and the relationship of the building to adjoining properties.
A view was also undertaken of the streetscape in the immediate the vicinity of the site. This included viewing a variety of different building forms, including properties with basement parking, and a mix of one and two storey dwellings.
The site view also enabled the parties to view the dwelling immediately behind the subject site (12 Flers Avenue, Earlwood) from the roadside in Gueudecourt Avenue). The building appeared as a two storey dwelling of modern appearance with a flat roof.

Public Submissions

The Development Application was notified on 11 May 2022, for a period of 14 days (until 24 May 2022) in accordance with Council's Community Participation Plan. No submissions were received. There were no third parties in attendance at the onsite view.

The Canterbury Local Environmental Plan 2012

The site is located within the R2 Low Density Residential zone pursuant to Canterbury Local Environmental Plan 2012 (CLEP 2012). The proposed development, being a new dwelling house and ancillary development, is permissible with Development Consent in the zone.
The CLEP 2012 has Development Standards applicable to the Development Application. The proposal is compliant with the cl 4.3 Development Standard for Height of Buildings which is 8.5m for dwellings on this site. The Proposal, after amendments undertaken prior to the hearing, is also compliant with the maximum Floor Space Ratio (FSR) Development Standard, contained in cl 4.4 of the CLEP 2012, which is 0.5:1.
The relevant Objectives for the Development Standard for FSR in cl 4.4 of CLEP 2012, for this matter, are: (a) to provide effective control over the bulk of future development, (b) to protect the environmental amenity and desired future character of an area, (c) to minimise adverse environmental impacts on adjoining properties and the public domain,

The Canterbury Development Control Plan 2012

In respect to site coverage, the CDCP 2012 states: Objectives under C1.2.2 of the CDCP 2012 states: O1 "To ensure that the scale and mass of development achieves improved levels of residential amenity for new development and for existing dwellings." O2 "To ensure there is adequate unbuilt upon areas to allow for private open space, substantial landscaped areas and deep soil planting capable of supporting large trees". Control C1.2.2 of Chapter C1 of the CDCP 2012 states, in part: "All development must comply with the numerical requirements contained in the table below:"
In respect to building height: Objective O1 under C1.3.2 of Part C1 of CDCP 2012 states: "To ensure that development is of a scale that is visually compatible with adjacent buildings, character of the area, and the objectives of the zone". Clause 1.3.2 - C1 of CDCP 2012 states, in part: "Development for the purposes of dwelling houses must not exceeds the following numerical requirements: (a) A maximum two-storey built form. (b) A maximum external wall height of 7m where the maximum height of buildings standard under the LEP is 8.5m."

The Issues

The parties agree that, of the five contentions listed in the SOFAC's, only three remain. Broadly, the remaining issues are centred on the suitability of the proposal in terms of bulk, wall height and site coverage.
The Respondent presses the importance of dealing with the suite of planning controls that cover floor space ratio, building height and site coverage as a collective. The Respondent relies on the performance of the building form against objectives, irrespective of numerical compliance or non-compliance, primarily based on the wording of C.3.1 of the CDCP 2012 (see [12] above).
The Applicant deals with each issue separately in order to discuss the merits of each particular aspect of the planning controls but brings these together in discussions on character and the overall performance of the development, particularly in respect to amenity. The Applicant says the proposal passes these tests and should be approved.
The Respondent has agreed that the contentions relating to landscaping and public interest are no longer pressed. This is based largely on the amendments made to the application and further clarity around details of the development.

Is the proposed building envelope acceptable?

The CDCP 2012 links various controls together to inform what is an acceptable "building envelope". These primarily include planning controls for site coverage, floor space ratio, height and setbacks. The individual controls have their own numerical requirements to reflect the objectives of each of the components of the building envelope.

Floor Space Ratio (FSR)

The proposal is subject to an FSR control in the CDCP 2012. In respect to Floor Space Ratio, C1.3.1 states: "Floor space ratio (FSR) is a measure that assists in controlling the mass, bulk and scale of a development. FSR functions in conjunction with building height, site coverage and setback controls to define the three-dimensional space within which a development may occur. This is referred to as the building envelope… The maximum permissible FSR for any development is prescribed in the LEP."
The parties agree that there is now no breach of the FSR requirement under the CLEP 2012. The CDCP 2012 makes little reference to FSR. The reference is limited to the words in C1.3.1 (see [19] above). The CDCP 2012 notes that the prescribed FSR is already set in the CLEP 2012 at 0.5:1. There are no objectives relating to FSR in the CDCP 2012. There is only a statement as to the role of FSR in forming a building envelope when used in conjunction with controls for height, site coverage and setbacks.
Although the proposal is compliant with the Development Standard for FSR in the CLEP 2012, the Respondent says it does not meet the objectives. In particular, Ms Samuel raises two areas of concern with bulk, the void area at the arear and the wall height on the streetscape (north eastern corner).
Ms Samuel also says there is a lack of articulation in the building form, particularly at the rear over the void, which increases the perception of effective bulk of the overall development when viewed from the neighbouring property and from the streetscape. Ms Samuels says the void forms part of the dwelling that extends beyond the rear alignment of the neighbouring dwelling and that the visual impact of this component of the building is unacceptable, even though it is not measured as gross floor area and therefore is not part of the FSR calculation.
Mr Wood says that the building form, in this location, is acceptable and points to compliance with the planning controls as a measure of suitability. He notes that this portion of the building complies with the setbacks (side and rear), wall height and FSR. In addition, Mr Wood draws attention to a portion of the north eastern elevation which contains a recessed section (cut-out) of approximately 4.1m x 4.3m to demonstrate the building has an articulated form.
Mr Wood says that the articulated elevation offsets any impression of scale by providing visual interest in the elevation when viewed from the adjoining property. Mr Woods has considered the "suite" of planning controls that seek to limit massing and he considered the outcome satisfactory given the compliance of this portion of building with the collective controls. Mr Wood says, the "location of the void and additional building volume is an area where full compliance with the setbacks and building height are achieved- including the wall height standard of 7m" (par 14 of Ex 2).
The applicant has demonstrated, for the reasons outlined above, that the proposal does meet the objectives for Floor Space. It is for these reasons that I agree that the proposal is acceptable in respect to the contention of Floor Space Ratio and Bulk.
The Respondent notes the compliance with numerical controls but also seeks to utilise the words in Veloshin v Randwick Council [2007] NSWLEC 428 ('Veloshin') at [28], to suggest that compliance is not the end of the assessment. The Applicant has adequately assessed the matters raised by Roseth SC in Veloshin in terms of bulk, scale and character in the evidence before the Court and I accept that there is enough evidence before to the Court to be consistent with the assessment approach in Veloshin.
In contrast, the Respondent has not provided to the Court any demonstratable amenity impacts arising from the bulk of the building (in terms of FSR) to suggest that the bulk has not been effectively controlled. The Respondent simply says that the void element of the building has a visual presence. Beyond being visible, there have been no submissions (including from the adjoining owner), nor any specific evidence provided by the Respondent, demonstrating how the bulk has not been effectively controlled, as required by the objectives, and that impacts arise from the proposal.
That process does not change the outcome that the proposal has an acceptable bulk. In contrast, for the reasons described above, I agree with the Applicant that the impacts are consistent with impacts that may be reasonably expected under the controls.

Landscaping - Is the landscaping solution acceptable?

The experts reached agreement that the landscaping provision was acceptable, and accordingly, the Respondent no longer presses this issue. The proposal includes improving various landscape outcomes compared with the current dwelling scenario. This includes, amongst other outcomes, reducing paving at the rear of the dwelling and providing deep soil along the north eastern boundary. I agree, that as a result of the agreed amendments and the additional landscape outcomes, the landscaping solutions are acceptable.

Site Coverage - How does the 6% variation fail, or meet, the objectives?

The objectives for site coverage, which are found in C1.2.2 of the CDCP, include: "O1 To ensure that the scale and mass of development achieves improved levels of residential amenity for new development and for existing dwellings. O2 To ensure there is adequate unbuilt upon areas to allow for private open space, substantial landscaped areas and deep soil planting capable of supporting large trees".
The first objective seeks to ensure that the scale and mass of development achieves improved levels of amenity for new development and existing dwellings. There are two components to the second objective for site coverage, these being landscaping and private open space. The parties have agreed that the landscape solution is acceptable. As the remaining component relates solely to the provision of private space, the remaining question is whether the variation to site coverage compromises the provision of private open space.
The proposal includes an area of private open space behind the dwelling of approximately 14m by 6m. In addition, the proposal includes a refurbishment of the existing outdoor pool. The altered Cabana structure provides a further area of private open space given the range of private open space available.
The experts agree that an area of private open space that is covered, for example with a roof structure, is included in the site coverage calculation. As a result, the Applicant noted that removing the roof of the Cabana will achieve numerical compliance with the site coverage requirement but would have a negative impact on the utility of that private open space.
Ms Samuels notes that there are different ways to reduce the site coverage available to the Applicant rather than having a specific issue with a particular element of the new proposal, including the roofed Cabana. Ms Samuels says that the site coverage non-compliance arises from the existing cabana, which is unacceptable but her preferred solution, and to achieve compliance, the building footprint should be reduced at the rear of the dwelling.
Mr Wood has addressed the core issues in the Site Coverage controls, being private open space and landscaping. Mr Wood says the following at par 34 of Ex 2: "The proposal ensures there are suitable areas for private open space on the site noting it is the presence of a roof over part of the POS areas that triggers the breach. But the roof elements improve useability of the POS through weather protection so that spaces can be used year round and there are suitable 'open' areas also."
The Applicant has demonstrated that the proposal meets the objectives of the Site Coverage control despite minor variations to the numerical requirements. It is for these reasons that I agree with the Applicant's argument that the site coverage variation is acceptable.

Height - Is the breach of the wall height control acceptable?

The experts agree on the extent of wall height non-compliance. The variation is depicted in Drawing DA16 and discussed in Ex 2. In summary, the variation is 500mm on the north eastern corner, facing the street. The south western corner, also facing the street, has a lesser variation of 250mm. Mr Wood says the wall height at the rear of the dwelling is 5.9m.
The acceptability of the wall height can be distilled back to the objective, as to whether the scale of the wall is visually compatible with adjacent buildings and the character of the area. Ms Samuels says that the variation to the wall height result in a poor streetscape outcome. Figure 1: Extract from Planning Joint Expert Report
Mr Wood provides a contextual view of the streetscape in Ex 2. He is of the view that the proposed building sits below the height of the two adjoining buildings and therefore the exceedance of the wall height is compatible with the adjoining dwellings. Mr Wood also notes that the proposal, which includes a parapet style finish, is below the overall height requirement of 8.5m.
The compliance with the overall height Development Standard is an important factor in this matter. This is because the focus shifts from an assessment of the overall height of the facade to the height of the portion of wall.
The objective for this control is to ensure that development is visually compatible. The wall height and vertical parapet elements of the proposed dwelling, as discussed by Mr Wood, will sit below the overall height of the adjacent dwellings and are not so different that they are visually incompatible. This is further reinforced by the more modern building seen on the streetscape photo to the south of the site and as provided in the Ex 2 (see below). Figure 2: Streetscape Photo from page 12, Ex 2
It is for the reasons and observations outlined above that I agree with the Applicant that the proposal is visually compatible and that the minor variation to the wall height is acceptable.
The parties discussed the floor to ceiling heights of the dwelling and whether the overall wall height would be more acceptable if the ceiling heights were lowered. Having found that the appearance of the proposed dwelling currently achieves the objectives for compatibility, the requirements of the CDCP 2012 have been met, and no further assessment is required. There is no need for a further reduction in height, simply because it may be possible.

Other Matters

The parties agree that in the event that the Court grants Development Consent to this matter, a condition is required to ensure a mature tree proposed in the rear yard is included as a requirement of Development Consent. The agreed conditions provided to the Court reflect this approach.

The conclusions

Adopting the approach of the Respondent, the question at the core of this matter is whether the resulting bulk, scale and character are acceptable. This approach assesses the proposal against the objectives of the planning controls as much as the numerical requirements. The Applicant has adequately demonstrated, for the reasons outlined in this judgment, that the proposal is acceptable when assessed in this way.
The Court orders that: 1. The appeal is upheld. 2. Development Application DA-313/2022, as amended, for demolition of the existing dwelling house, alterations to the existing swimming pool and cabana and the construction of a new two storey dwelling house with basement car park at Lot 201 DP14722, otherwise known as, 23 Gueudecourt Avenue, Earlwood NSW 2206, is determined by the grant of Development Consent subject to the conditions set out in Annexure "A" to this judgment. 3. The Exhibits, apart from Exhibits B and 2, are returned.

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: 04 April 2023

At a glance

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Decision date

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Judgment (15 paragraphs)

Parties

Cases Cited (1)