Salanitro-Chafei v Ashfield Council

Respondent: Mr P Jackson, solicitor of Pike Pike & Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10361 of 2005 Roy Salanitro-Chafei v Ashfield Council

JUDGMENT 1 Senior Commissioner: This is an appeal against the refusal by Ashfield Council (the council) of a development application to demolish the existing house and erect a new two-storey house on lot 10 DP 965912 s4, known as 31 Cromwell Street, Croydon Park.

The site 2 The site is on the southwest corner of Cromwell and Arthur Streets. It now contains a timber and iron single-storey house in dilapidated condition. Its area is 479m2. To the south it adjoins 33 Cromwell Street. To the west it adjoins 46 Carshalton Street. 3 While it is not a conservation area, the surrounding area exhibits a high level of consistency of scale and character. The majority of buildings are single-storey and date from before World War II. There are several heritage items and proposed heritage items in the vicinity.

The proposal and its history 4 The applicant proposes to demolish the existing house on the site and to construct a new two-storey house with a floor area of about 325m2. (I note that the development application states on page 3 that the floor area is 290m2, and on page 4 that it is 386m2; however, according to my measurements, neither of these areas is correct.) The area to be covered by building is to be about 275m2 (during the hearing the applicant offered to remove a roof over a carport and a covered area of about 30m2).

Relevant planning controls 5 Local Environmental Plan 1985 (LEP 1985) zones the site Residential 2a, a zone in which the proposed dwelling house is permissible. While LEP 85 establishes a minimum allotment size of 500m2 for new subdivisions, this does not apply to existing allotments. Clause 12 of the LEP permits buildings up to two storeys. 6 Development Control Plan 1 - Dwellings in Residential Zones (DCP 1) establishes several qualitative as well as quantitative criteria for new dwelling houses. The most relevant quantitative criteria in the DCP relate to landscaped area and solar access of neighbouring properties. Clause 8.4.1 requires that 50% of the site be landscaped area at finished ground level. Clause 5.5.2 requires that existing solar access should be maintained to at least 40% of the glazed areas of any neighbouring north-facing living room/dining room windows for a period of at least three hours between 9am and 3pm in mid-winter.

The issues 7 The council submitted a Statement of Issues containing six issues. These were discussed with the result that the real issues emerged as follows: * Does the proposal comply with 50% landscaped area requirement in DCP 1? * Is the proposed dwelling house unacceptably bulky and out of scale with the character of the surrounding dwellings? * Is the proposal's impact on No 33 Cromwell Street acceptable?

The material before the Court 8 Because the applicant opposed the appointment of a Court expert, there was no expert evidence in the case. The council's bundle of documents included the council's planning report and an objection by the owners of 33 Cromwell Street, Mr N and Mrs D Houen, which was prepared by an architect Mr P Moffitt. The objection included shadow diagrams that the applicant disputed. To resolve the issue I suggested that Mr Moffitt and Mr L Adey, a planner advising the applicant who was present at the site visit and in Court, confer to reach agreement on the extent of overshadowing. They did not reach agreement and in the event I determined the overshadowing on the basis of my own expertise. 9 In addition the Court had before it the development application, the statement of environmental effects and the plans of the proposal.

Landscaped area 10 According to the council's planning report the proportion of landscaped area is 40% of the site. The applicant contends it is 50%. The difference is due to the applicant's inclusion of areas within the landscaped area that the council disputes, for example the front veranda. In my opinion, it is inappropriate to include paved and roofed areas as landscaped area, since everyone perceives them as part of the building. The council's calculations are therefore correct. 11 The applicant offered to remove the roof over an area to which the plans refer as "entertaining area". If this were done, the proportion of landscaped area would rise to 43.7%, which is still short of the 50% required by DCP 1. There appears to be no justification to breach the requirement other than the applicant's desire to build a large house on the site.

Impact on streetscape 12 Mr and Mrs Houen's objection (prepared by Mr Moffitt) describes the streetscape and locality. It states that both have high visual quality and a consistency of scale and character and supports this statement with photographs. My visit to the area confirmed this assessment. It is a quiet, low-density area in which the houses are surrounded by space. 13 The proposal is a two-storey building set 1.3m back from Arthur Street for a length of 20m. (During the hearing the applicant offered to reduce the length of the building by 1m.) The setback from Cromwell Street is 5m. (During the hearing the applicant offered to set the building a further 500mm from the street.) 14 In Project Venture Developments v Pittwater Council [2005] NSWLEC 191 I established a planning principle on compatibility between a building and its surroundings, stating that, in order to test whether a proposal is compatible with its context, two questions should be asked: * Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites. * Is the proposal's appearance in harmony with the buildings around it and the character of the street? 15 The physical impact on 33 Cromwell Street is an issue in the case and is dealt with below. The issue whether or not the proposal is in visual harmony with its surroundings is one on which the decision is necessarily subjective. Analysing the existing context and then testing the proposal against it can, however, reduce the degree of subjectivity. 16 The judgment in Project Developments includes suggestions how the above can be done. For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment. In some areas, planning instruments or urban design studies have already described the urban character. In others (the majority of cases), the character needs to be defined as part of a proposal's assessment. The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping . In special areas, such as conservation areas, architectural style and materials are also contributors to character. Buildings do not have to be the same height to be compatible. Where there are significant differences in height, it is easier to achieve compatibility when the change is gradual rather than abrupt. The extent to which height differences are acceptable depends also on the consistency of height in the existing streetscape. Front setbacks and the way they are treated are an important element of urban character. Where there is a uniform building line, even small differences can destroy the unity. Setbacks from side boundaries determine the rhythm of building and void. While it may not be possible to reproduce the rhythm exactly, new development should strive to reflect it in some way. Landscaping is also an important contributor to urban character. In some areas landscape dominates buildings, in others buildings dominate the landscape. Where canopy trees define the character, new developments must provide opportunities for planting canopy trees. 17 Applying the above method to the surroundings of this site, it is clear that the predominant building height is single-storey. The building setbacks are reasonably consistent, although not in an obviously straight line. The landscaping does not dominate buildings; rather, there is a balance between buildings and vegetation. There is a consistency of architectural style (tiled hipped roofs, brick walls, verandas, windows with hoods over them) throughout.

18 The proposed building is quite alien to the residential character described above. The fact that it is two-storey does not by itself make it an alien element; however the building is two-storey along its entire Cromwell Street facade, most of its Arthur Street façade and most of its length along the common boundary with No 33. In addition the two-storey portion is set back only 1.3m from Arthur Street. In colloquial language it may be described as "in-your-face two-storey". If a building in this locality is to be two-storey, then its design should reflect that it is in single-storey environment. The two-storey elements should be in the less prominent positions on the site. 19 The building's setback from Cromwell Street is not consistent with that of its southern neighbour; however, the applicant offered to move the building a further 500mm from the street. This would achieve consistency. The setback of 1.3m from Arthur Street is inadequate, even on the basis that this a secondary frontage. As regards landscaping, a building of this bulk would need large trees to balance its impact. There was no landscape plan to indicate how this could be done.

20 In my opinion, to fit into its surroundings, the bulk of the proposed building would need to be reduced. This brings me to a discussion of density.

The density of the proposal 21 Among the concerns expressed by the objectors to the proposal was that it was "a McMansion in a precinct of modest single-storey houses". The comment is a colourful way of saying that the proposed house is too big for its site. Neither LEP 81 nor DCP 1 contains a maximum Floor Space Ratio (FSR) for dwelling houses. For this reason the council did not raise the issue of FSR. However, in articulating as the major issue that "the proposed dwelling house is unacceptably bulky and out of scale with the character of the surrounding dwellings" the council is raising the issue under another name. The objection made on behalf of No 33 Cromwell Street referred directly to the FSR of the proposal being much higher that that of the surrounding development. 22 While there was no data on the prevailing density in the locality, my estimate (gained from visual assessment) is that it is between 0.3:1 and 0.4:1. The FSR of the proposed building is about 0.7:1. (This is also based on my measurements, as the applicant provided two conflicting figures on floor space in the development application, one of which appears to have understated the floor space and the other appears to have overstated it.) Thus the proposal contains about twice as much building relative to its site as most other buildings in the area.

Planning principle: relationship of density and residential character 23 The Ashfield planning controls are not unusual in that they do not contain a maximum FSR for dwelling houses; very few planning instruments control the density of detached housing. The question arises: is there an upper level of density above which it is hard to achieve compatibility with the character of typical single-dwelling areas? 24 As early as 1972 a publication of the then State Planning Authority of NSW described the FSR of low-density residential areas as under 0.35:1; the FSR of low medium density areas as between 0.35:1 to 0.55:1; and the FSR of medium density areas as between 0.55:1 and 0.9:1 (Technical Bulletin 3 - Planning Control of Residential Development November 1972). 25 A later publication by the Authority's successor, the Department of Environment and Planning (Technical Bulletin 15 - Residential Development Standards, July 1982) suggested that "…a control over building bulk in the form of a floor space ratio of the order of 0.5:1 should be included in planning instruments where a suburban open character is sought." (p 16). 26 The standard of 0.5:1 FSR has found expression in numerous planning instruments and policies whose aim is to integrate increased density housing into low-density residential areas without destroying the existing open character. The Seniors Living State Environmental Planning Policy adopts a FSR of 0.5:1 as a "deemed to comply" standard. State Environmental Planning Policy 53 - Metropolitan Residential Development adopts it as the maximum permissible density in relation to dual occupancy. Many local planning instruments and policies guiding dual occupancy development in suburban areas also contain a maximum FSR control of 0.5:1. 27 The above suggests that there is a general acceptance by the planning profession that an open suburban character is most easily maintained when the FSR of buildings does not exceed 0.5:1. The question raised above may therefore be answered thus: The upper level of density that is compatible with the character of typical single-dwelling areas is around 0.5:1. Higher densities tend to produce urban rather than suburban character. This is not to say that a building with a higher FSR than 0.5:1 is necessarily inappropriate in a suburban area; only that once 0.5:1 is exceeded, it requires high levels of design skill to make a building fit into its surroundings. 28 The proposed building has a FSR significantly in excess of 0.5:1. It does not exhibit any special design skills. This is one of the explanations why it appears so incongruous in its surroundings.

Extent of overshadowing on 33 Cromwell Street 29 The relevant solar access requirements of DCP 1 are contained in cl 5.5.2(iii), ie Existing solar access should be maintained to at least 40% of the glazed areas of any neighbouring north-facing living room/dining room windows, for a period of at least three (3) hours between 9am and 3pm in mid winter. If existing access is already less than this standard, it should not be further reduced by more than 20% at any one time. 30 The house at No 33 contains a living area with a north-facing window that now receives sunlight at least for five hours between 9am and 3pm in mid-winter. The proposal would deprive the window of any sunlight in this period. The proposal thus dos not meet the solar access requirements of DCP 1. 31 In fairness to the applicant I note that the north-facing window is about 1m from the common boundary and that therefore it is vulnerable to being overshadowed. It may therefore be difficult to fully meet DCP 1. It should, however by possible to meet it to a greater extent than the proposal does, ie to design a building that does not take all the sunlight away from the window. The proposal gives no suggestion that its designer took the overshadowing impact on the south-adjoining property into account. In my opinion, the overshadowing impact on No 33 is unacceptable. Other impacts on 33 Cromwell Street 32 The proposal contains first floor windows facing towards No 33 with a potential of overlooking. I do not think that this is a serious issue, since the closest window in Bedroom 4 could be moved to the western wall, where it would also receive more sunlight. 33 The proposed building would also present a large bulk to No 33. It seems to me that if the building were redesigned to decrease the overshadowing impact, it would also lead to a lessening of the visual bulk.

Conclusion 34 The proposal has two fatal flaws. First, its bulk and scale would have an unacceptable impact on the streetscape and the character of the locality. Second, it deprives the north-facing window of the living room of the adjoining building to the south of all sunlight at mid-winter. The appeal is therefore dismissed. Orders

1. The appeal is dismissed.

2. Development application to demolish the existing house and erect a new two-storey house on lot 10 DP 965912 section 4, known as 31 Cromwell Street, Croydon Park is determined by refusal.

      Dr John Roseth
      Senior Commissioner

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.