Revelop Projects Pty Limited v Parramatta City Council

Land and Environment Court (NSW)|2012-05-31

Mr I Woodward (Respondent) Storey & Gough Lawyers File Number(s): 10177 of 2012

Background 1This appeal was lodged against council's refusal of a development application for four (4) x two-storey townhouses located at 247 Kissing Point Road, Dundas. The contentions identified for the appeal are summarised as follows:

Weight to be given to Parramatta Local Environmental Plan 2011 provisions
Impact on the amenity of the area
Streetscape impacts relative to consistency with the desired future character of the area
Adequacy of deep soil planting area
Design elements
Disabled access
Public interest

The proposal 4The proposal seeks approval for demolition, consolidation, tree removal and construction of multi unit housing development comprising four (4) two storey townhouses, onsite car parking. Details of the proposal are outlined below:

Four (4) x two storey townhouses grouped in pairs facing Spurway Street
Vehicle access for townhouses 1, 3 and 3 from Spurway Street while townhouse 4 will have vehicle access from Kissing Point Road to a basement garage
Private courtyards are located adjacent to the western boundary and provision of a common open area located between buildings 2 and 3
The roof design of townhouses 1 and 3 is low pitched form with gables fronting Spurway Street. Roof design of townhouses 3 and 4 is of a hipped style.

Planning controls 5The following planning controls are relevant: (1)Parramatta Local Environmental Plan 2001; under which the site was zoned 2(b) and the proposal would be permissible. However, this LEP has been repealed by Parramatta Local Environmental Plan 2011 (LEP 2011). Nevertheless, this current application is saved by virtue of cl 1.8A of LEP 2011. The relevant clauses of LEP 2001 are:

Clause 3 - Aims and Objectives of Plan
Clause 16 - Permissible within zone
Clause 39 - Height limits in residential zones
Clause 40 - Floor space ratios for development (2)Parramatta Local Environmental Plan 2011:The site is zoned R2 Low Density under LEP 2011, which was gazetted on 7 October 2011. The proposed development is considered a 'multi unit dwelling house' under this LEP and is a prohibited use. The savings provision of cl 1.8A of the LEP enables the application to be considered under the provisions of LEP 2001. (3)Parramatta Development Control Plan 2005 (DCP 2005): The development is subject to the requirements of DCP 2005. The relevant parts of DCP 2005 are:
Part 1 - Introduction
Part 3.1 - Preliminary Building Envelope
Part 4.1 - Site Planning
Part 4.2 - Building Elements
Part 4.3 - Environmental Amenity
Part 4.5 - Movement and Circulation (4)SEPP Building Sustainability Index: BASIX 2004

The evidence 6Detailed planning evidence in the form of a joint planning report was tendered by:

Mr N Kennan; council's consulting planner
Ms K Gordon; applicant's consulting planner 7The planners initially agreed that:
LEP 2011 should be considered as both certain and imminent because of its gazettal and that this planning instrument has down zoned the subject site to the R2 Low Density Residential zone from Residential 2(b) under the LEP 2001. This applies to all 2(b) zoned land in the area surrounding the subject site,
The proposed development constitutes multi dwelling housing pursuant to LEP 2011 which is defined as: multi dwelling housing means 3 or more dwellings (whether attached or detached) on one lot of land, each with access at ground level, but does not include a residential flat building.
Multi dwelling housing is prohibited in the R2 Low Density Residential zone, but that by virtue of clause 1.8A of LEP 2011, the proposed development remains permissible pursuant to the provisions of LEP 2001, which permits multi unit housing in the 2(b) zone.
The fundamental question for decision of the Court is whether the proposed development would achieve the planning objectives of the new planning regime (LEP 2011) and, in particular, the relevant objectives of the R2 Low Density Residential zone.
Only the first of the objectives of the R2 Low Density Residential zone under LEP 2011 is relevant, that being: To provide for the housing needs of the community within a low density residential environment.
That only the first of three objectives of the 2(b) Residential zone under LEP 2001 are relevant, being: (a)To enhance the amenity and characteristics of the established residential area, and (b)To encourage redevelopment of low housing density forms, including dual occupancies and multi unit housing, where such redevelopment does not compromise the amenity of the surrounding residential areas or the natural and cultural heritage of the area, and (c)To ensure that the building form, including that of alterations and additions, is in character with the surrounding built environment, and

Weight to be given to prohibition under LEP 2011 8In response to this issue, Mr Kennan refers to the following cases, which provide some guidance in the subject matter. Firstly, in Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289, the Court of Appeal stated: 6 Notwithstanding "certainty and imminence", a consent authority may, of course, grant consent to a development which does not comply with the draft instrument. Different kinds of planning controls will be entitled to different levels of consideration and of weight in this respect. 7 Where a draft instrument seeks to preserve the character of a particular neighbourhood, that purpose will be entitled to considerable weight in deciding whether or not to reject a development under the pre-existing instrument, which would in a substantial way undermine that objective... 9Reference was made to the findings in Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279 and also the matter of Bris v Parramatta City Council [2012] NSWLEC 1047, where Brown ASC said: 14 In considering the approach in Blackmore Design and Terrace Tower, I am satisfied that development consent should be granted for a number of reasons. First, there was no disagreement that the proposed development is permissible by way of the savings clause in LEP 2011. Second, there was no disagreement that the proposed development satisfies all the relevant requirements in DCP 2005 and that there are no merit concerns with the proposed development. Third, and having regard to the relevant objective, I do not accept that the proposed development substantially undermines the objective of the R2 zone of providing housing within a low density residential environment. Low density residential environment is not defined in LEP 2011 however any consideration of the proposed development against the objective cannot reasonably be undertaken without a consideration of the existing built form in the area. I agree with Mr Hemmings that given that the proposed development enjoys the benefits of the savings provisions, the test of whether the proposed development undermines the relevant objective of the R2 Low Density Residential zone, in a substantial way, is essentially a test of whether the proposed development sits comfortably in its local environment or setting, particularly given the wide range of building forms within the R2 Low Density Residential zone 10Having regard to these findings, Mr Kennan considers that LEP 2011 seeks to preserve the existing low-density character of the area and therefore LEP 2011 should be given considerable weight resulting in the refusal of the application. 11For his assessment of the proposal within the neighbourhood context, Mr Kennan says: The character of the surrounding area is residential which, in LEP 2001, comprised both the 2(a) and 2(b) Residential zoned. The subject site was part of a small strip of 2(b) zoned land with all but three of the lots contained in that 2(b) zone having frontage to Kissing Point Road. The 2(a) zoned land was located to the south of the 2(b) zoned land. Accordingly, the main distinguishing feature between the 2(a) and the 2(b) zone was that multi unit housing and terrace housing were permissible in the 2(b) zoned, whereas both land uses were prohibited in the 2(a) zone. There are no multi unit housing or terrace housing developments in the area previously zoned 2(b) fronting the southern side of Kissing Point Road. All development on those lots, except for development at 249 Kissing Point Road described below, is single dwelling development on large allotments. 12Consequently, he says that the character of the remaining surrounding residential area, i.e. the previously zoned 2(a) land, is also low-density residential comprising predominantly detached, single storey dwelling houses on large blocks of land. Insofar as there is a "Seniors Living" development at the southern end of Spurway Street, this was approved pursuant to the then State Environmental Planning Policy No 5 - Housing for Older People or People with a Disability. 13In considering the different outcomes under the two LEPs, Mr Kennan says that LEP 2011 in seeking to preserve the existing low-density residential character of the surrounding area, which is predominantly detached dwelling houses on large parcels of land, permits dual occupancies and dwelling houses in the R2 zone. The exclusion of multi dwelling housing from this suggests that such a land use is incompatible with the desired character of the area. Multi dwelling housing is a form of medium density housing which is permissible in the R3 Medium Density and R3 High Density Residential zones of LEP 2011. 14Furthermore, he comments that the relevant controls contained in LEP 2011, which apply to the R2 Low Density Residential zone, assist in the understanding of what LEP 2011 has in mind with regard to character of the low-density residential area, which it seeks to preserve. In particular, the following controls are relevant: Floor Space Ratio The maximum floor space ratio for the subject site is 0.5:1. Dual Occupancy The minimum lot size for a dual occupancy development is 600 m2. Comment: As such, the subject site, with area of 1,100 m2, is capable of development for one dual occupancy development, which at a floor space ratio of 0.5:1 would be substantially less in terms of bulk and scale than that which is proposed. Subdivision The minimum lot size for subdivision is 550 m2. Comment: As such, although the subject site could be subdivided into two lots, each lot would be capable of development for a single dwelling house.

15Accordingly, Mr Kennan says that the LEP 2011 controls envisage that development be limited to a single dwelling or dual occupancy. In these circumstances then, the proposed development:

Is clearly four dwellings on a single parcel of land, which is not consistent with the predominant character that exists in the area or the character of the area sought by the controls of the LEP 2011;
Does not meet either the planning approach or the relevant objective of the R2 Low Density Resident zone;
The proposed development is inconsistent with those planning controls and would not sit comfortably in its local environment or setting;
The proposed development would be antipathetic to the objective for the R2 Low Density Residential zone, would detract from the achievement of that objective, and undermine the planning intent of the controls of LEP 2011. 16Insofar as Ms Gordon agrees that significant weight should be given to LEP 2011, nevertheless she says that the saving provision in cl 1.8A is applicable and determinative weight should be given to the proposal's satisfaction of the relevant R2 zone objectives. 17The relevant objective of the R2 zone is "to provide for the housing needs of the community within a low density residential environment" and Ms Gordon says that nowhere in this objective does it require that development preserve the existing character of the area. Such objectives usually are applied to areas with heritage significance and this locality has no such significance. Clearly, the proposal, which provides for four (4) dwellings, would satisfy the first component of the objective, in that it provides for the housing needs of the community. 18Next, Ms Gordon says: The second component of the objective is for the housing needs to be provided for "within a low density residential environment". Thus, for the proposal not to be inconsistent with the objective, I am of the opinion that the form of development does not need to be classified as "low density" housing, but rather to sit comfortably within "a low density residential environment", or in other words, not being inconsistent with the existing and desired future character of the environment. 19By reference to the planning principle in Project Ventures, which deals with compatibility in the urban environment, then from a planning perspective, compatible means "capable of existing together in harmony". The planning principle has determined that "compatibility is thus different from sameness" and that "buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve." 20Ms Gordon's assessment of the surrounding area found that:
The area surrounding the subject site is one that was established some time ago as a suburb comprised of reasonably generous sized allotment, upon which relatively small, single storey dwellings were constructed. Since the establishment of the area, like all areas, it has been changing in character due to changes in the planning controls applicable to the area and changes in the desires of its population.
The character of the area is one that is changing from its original form to a form that includes larger scale dwellings and dual occupancies, with a few developments that contain several dwellings on the one allotment. This occurs in the neighbouring streets including Spurway Street, Bray Street, Wassell Street and Dorahy Street (east side), as well as the southern side of Kissing Point Road between Silverwater Road and Dorahy Street. Therefore, a review of a wider area than the immediate streetscape is necessary to understand the existing and desired future character of the R2 zone in this area. 21From her investigation of the area, Ms Gordon says that the proposed development comprising two (2) two-storey buildings with a 3 m separation is compatible with a range of dwellings in the area because:
- The subject site is large enough to be subdivided into two allotments of 550m2 each, which would be capable of providing for two large two-storey dwellings each having a FSR of 0.5:1 under the LEP 2011 controls. Such a subdivision would be likely to occur providing one allotment fronting Spurway Street and the other on the corner of the two streets and the two dwellings would likely be separated by a 3 m space, comprised of the 1.5 m side setback on each property. As such two buildings on this allotment of land of similar bulk and scale could occur under LEP 2011.
- The proposed buildings have been designed to have the appearance of a dual occupancy and large dwelling. This has been achieved by units 1 and 2 being designed to be typical of the dual occupancy development in the locality, with recessive single garages and space to tandem parking in front and having two clearly visible entrances. Units 3 and 4 have been designed to look like a two storey dwelling as viewed from either Spurway Street or Kissing Point Road, with the entrances and garaging for each unit fronting different streets and with a single roof form, rather than the twin roof forms of Units 1 and 2. Appropriate separation has been provided with the 3 m setback between the buildings, which is complementary to the 1.5 m setback required to the side boundaries for two storey dwellings in the area and as such reflects the likely future pattern of building to space in the locality. The provision of separate entrance paths and a dividing fence to the Spurway Street frontage add to the streetscape presentation where the development has the appearance of a dual occupancy and dwelling on two lots which have widths that would satisfy the minimum frontage requirement for subdivision.
- The proposal is an acceptable design response, having regard to the compatible height, separation distances, bulk and scale with other attached dual occupancy and two storey dwelling developments in the locality, which remain permissible uses and are likely to increase in the future. To have attached all four dwellings would have been incompatible with the existing and future character of the area.
- The design of the proposal is such, that a 'layperson' would walk past and not view it as out of character with the other developments in the area. A 'layperson' would not see the development as being visually 'jarring' in the context of the mix of developments in the area.

Residential zone 2(b) objectives 22The overall intent of these objectives is to encourage redevelopment of housing forms, which do not compromise the amenity of the surrounding residential areas. Furthermore, such development should enhance the amenity. 23Mr Kennan does not consider that the proposal satisfies these objectives because it is significantly different to the predominant character of the area. The proposed development is also inconsistent with many of the development controls, which relate to multi unit housing contained in DCP 2005. As such, it would not enhance the amenity of the surrounding residential area and would be out of character with the surrounding built environment and is contrary to the objectives of the zone. 24Against this, Ms Gordon considers the proposal will not have an unacceptable impact in relation to shadowing, visual bulk, streetscape presentation, impact on views and loss of privacy and therefore as amended, it is consistent with the relevant objectives of the 2(b) Residential zone.

Streetscape 25This contention relates to the requirements of part 4.2.1 of DCP 2005, particularly the following, which relevantly provide: O.1 To ensure new development responds to, reinforces and sensitively relates to the spatial characteristics of the existing urban environment. O.2 To increase the legibility of streetscapes and urban spaces so that the inter-relationship between development, landscape and open space is visually coherent and harmonious. 26Also relevant, Design Standards P.1, P.2, P.3, P.6 and P.9 of Part 4.2.1 of the Parramatta DCP provides: P.1 Development is to respond and sensitively relate to the broader urban context including topography, block patterns and subdivision, street alignments, landscape, views and vistas and the patterns of development within the area. P.2 Building design and landscaping are to be in harmony with the form, mass and proportions of the streetscape. P.3 New buildings are to recognize and enhance the patterns and elements of facades within the street. Designs are to provide visual cohesion, continuity and distinction, and in particular, have regard to the horizontal and vertical proportions of building elements which create the visual scene... P.6 Buildings on corner sites are to be articulated to address each street frontage and are to define prominent corners. P.9 Garages and parking structures are not to dominate the building façade and front setback. 27Ms Gordon says that the proposal satisfactorily responds to these design standards. With regard to P6, she says that the amended design successfully achieves this with unit 3 addressing Spurway Street and unit 4 addressing Kissing Point Road. The building containing units 3 and 4 is clearly well articulated to both streets and addresses both street frontages 28Against this, Mr Kennan does not consider the proposal achieves the desired outcomes envisaged by the controls. This is in part due to the 1,100 sq m area of the site, which would only allow one dwelling on the site or a dual occupancy development. Otherwise the control requires a minimum area of 600 sq m to allow a dual occupancy and accordingly the subject site is too small to achieve the proposal and dwellings. 29Furthermore, Mr Kennan says that when viewed from Spurway Street, the proposed development would present as a development which is dominated by car parking in that there is:

A garage and tandem car parking space in the front setback of unit 1,
A garage and tandem car parking space in the front setback of unit 2,
A visitor car parking space/car wash bay in the total setback between units 2 and 3, and
A garage in the front facade of unit 3 30In Mr Kennan's opinion:
the dominance of car parking is uncharacteristic of the streetscape in the area and presents a predominance of hardstand area, which is contrary to the established streetscape and contrary to principles P2 and P9. A single dual occupancy development, which is permissible in the R2 zone, could be designed such that vehicular access and car parking was more representative to the existing development in the area.
notwithstanding the amendments which have been made to the northern facade of unit 4, the resultant design does not address each street frontage and is contrary to principle P6 which states that buildings on corner sites are to be articulated to address each street frontage and to define prominent corners.

Amenity 31Insofar as a number of concerns were raised about amenity impacts, the planners agreed that conditions could be drafted to cover these. However, Mr Kennan expressed particular concerns about the laundries on the upper level and the amenity of the communal open space. 32According to Mr Kennan, the communal open space is unsatisfactory because:

The location of the visitor car parking space/car wash bay which is now located in an area which was previously communal open space, is now proposed to locate garbage bin areas in the area previously set aside for communal open space. This is an inappropriate design approach and one which ignores the objective of providing communal open space, that being: To provide low maintenance communal open space areas for residents that facilitate opportunities for recreational and social activities, passive amenity, landscaping and deep soil planing. 33With regard to principle P2, the proposed communal open space in Mr Kennan's opinion:
Is not located in a highly visible area of the site and is not directly accessible to the maximum number of dwellings,
Is not located such that it would provide an area, which is integral to the design of site and is conducive to play areas and passive amenity. Indeed, the 3 m wide strip of land would be seen as an accessway to the rear of units 2 and 3 rather than an area of communal open space. This area would also be in almost total shadow in mid June and, hence, would not provide an area where residents of the development would congregate for play of passive amenity,
A landscape plan has not been provided to demonstrate that the communal open space area is suitable for the provision of deep soil planting. 34In response to these concerns, Ms Gordon says that design principle P3 allows for communal open space to service a range of functions for various style developments. 35Consequently, Ms Gordon supports the proposed development because it is a small multi unit development (the second smallest possible as multi unit development must, by definition, contain at least three dwellings). The design also provides for generous and well located areas of private open space, varying in size from approximately 47 m2 - 84 m2, each of which could comfortably provide for a BBQ area and provide for suitable areas for the occupants to entertain and for their children to play. As such, in this circumstance, the most appropriate use for communal open space is to provide an appropriate setting for the development and to allow for the provision of significant landscape elements, such as large and medium size trees, with the private open space areas being capable of providing for active and passive uses and for smaller trees/vegetation, with trees for privacy between buildings not being necessary. 36In this context, the provision of a contrived area of communal open space, which would necessarily be small given the small size of the development, between the two buildings would serve no purpose, and would in fact potentially introduce increased impacts upon the residents of the development and the residents at 245 Kissing Point Road, by potentially introducing noise generating uses in proximity to that property and to units 2 and 3.

Conclusions 37Having carefully considered the evidence, the submissions and undertaken a view, I do not consider this application merits consent. This primarily because I rely on Mr Kennan's assessment that the character of the proposed development does not satisfactorily demonstrate adequate compatibility with the existing low-density character of this neighbourhood. 38In reaching this conclusion, I note that the permissibility of the proposal is due to the savings provisions because LEP 2011 now prohibits it. Insofar as the LEP 2001 objectives refer to redevelopment that does not compromise the amenity of the surrounding low-density residential areas, there is no definition of 'low density'. 39For my assessment of this issue, I accept Ms Gordon's opinion that the form of the development does not have to be classified as "low-density" for it to be able to sit comfortably within a low-density environment. Nevertheless, the proposed 'multi unit' development is of a medium density form in my assessment. 40Therefore, I have considered character of the neighbourhood environment around the subject lot. Insofar as multi unit development was permitted within the Res 2(b) zone, the extent of relevance of this zone is restricted to a relatively narrow one block deep strip along Kissing Point Road. Otherwise, the rest of the comparative neighbourhood to the south of Kissing Point Road is all Res 2 (a) zoning. 41There is no multi unit development within the subject Res 2(b) zoning or four (4) dwelling units on one lot. Instead the existing character is consistent with the predominant character of the larger surrounding low density Res 2(a) zoning. This character predominantly includes a mix of single and twostorey dwellings on separate lots, together with an emerging number of attached two-storey dual occupancies. 42The R2 zone envisages the continuation of this form of development on the basis that new lots can be created with a minimum lot size of 550 sq m to permit single dwellings. Application of this control would yield a maximum of two (2) lots with the potential for two (2) x two-storey dwellings. Alternatively, a dual occupancy could be possible on the basis of the minimum lot size of 600 sq m. This could allow a larger two-storey dual occupancy, similar to those already existing in the neighbourhood. 43In my assessment, this development potential indicates the extent or magnitude of 'low-density' development envisaged to achieve to desired future character of the area. Considering then that the R2 zoning envisages a maintenance of this low density environment, I am satisfied that the proposed multi unit housing presents as a medium-density development and as such, it does not sit comfortably within this low-density environment because:

It does not sensitively respond to and relate to the urban context and subdivision pattern due to its "crammed in" presentation to both street frontages, as opined by Mr Kennan. The placement of the four (4) dwellings on this constrained corner lot is not consistent with the pattern and rhythm of the existing side and rear setbacks.
This "crammed" presentation is exacerbated by the dominance of car parking with the close proximity of the multiple driveways, including tandem parking spaces and common wash bay along the Spurway Street elevation. 44The designated communal open space of variable width, wrapping around the entire frontages of the site and including landscaping and part of driveways is not an element that is found in this neighbourhood. I consider its utility will be compromised, compared to the more regular front open space setbacks in the neighbourhood. Furthermore, I think that the amenity for residents would likely be compromised due to the location of this common open space abutting the walls of the various units and that it does not satisfy the Design Principle P2 providing for communal open space to have high visibility and direct access, so as to enable its use as an integral part of the site. In this regard, I have considered the offers to marginally amend the layout of the open space to improve amenity but I still do not consider it would enhance the amenity of the neighbourhood. 45Apart from this, I am satisfied to rely on Mr Kennan's opinion that Kissing Point Road is a relatively major collector road and that the subject corner lot is prominent in this context. It seems to me that the elevation for unit 4 fronting Kissing Point Road presents as a two-storey side wall, which is in direct contrast to all the other adjoining dwellings fronting Kissing Point Road. Also, the proposed basement garage for this unit is foreign element in the streetscape. In the context, I consider the streetscape impact is a negative aspect of the proposal, particularly in light of its high visibility location. 46As noted previously, the R2 controls allow redevelopment of a lower intensity such as a single dual occupancy or a two-lot subdivision as the form of development envisaged by the detailed controls. I consider the proposed multi unit development comprising four (4) units is contrary to this intent and that this particular design represents an overdevelopment of this highly visible site. 47As such, I do not consider it fits comfortably with the existing 'low density residential neighbourhood' and it would be inconsistent with the existing and desired future character of the environment. Instead, the planning controls now allow for this form of medium density development in the R3 zone. Therefore the exclusion of the multi unit housing from the R2 zone is a significant response to the in compatibility of this form of development with the predominant character of the area. 48In the ultimate, I consider the R2 objective envisages maintenance of the aforementioned low density residential environment, which is not achieved in the proposed development. Therefore applying the authority in Terrace Tower, I do not consider the application should be approved because it would undermine this objective.

Court orders 49The Court orders that: (1)The appeal is dismissed. (2)Development consent for demolition, tree removal and the construction of four (4) town houses at 247 Kissing point Road, Dundas is refused. (3)The exhibits may be returned except 1, 4, A and B. R Hussey 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: 23 July 2012

At a glance

Court

Decision date

Source

Judgment (13 paragraphs)

Parties

Cases Cited (2)