Semrani & anor v Canterbury City Council

Land and Environment Court (NSW)|2015-04-01

Solicitors: Applicant: Gadens Respondent: Marsdens Law Group File Number(s): 10005 of 2015

Judgment

COMMISSIONER: The applicants appeal Canterbury City Council's refusal of a development application (DA) for alterations and additions and conversion of a warehouse into a multi-dwelling housing development at 147 Moorefields Road, Roselands (the site).
The appeal is made under s 97(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act). At the time the Class 1 Application was lodged with the Court, the council had not determined the DA. The DA was refused under delegated authority on 19 January 2015.

The site and locality

The site is on the northern, more elevated, side of Moorefields Road. It is a rectangular lot with a frontage of 13.87m, depth of 43.55m and an area of 603.6m2. The lot slopes from east to west.
On the site is a steel-framed warehouse with masonry walls and an asbestos roof. The building is setback approximately 13m from the street frontage, about 1.6m from side boundaries and with a rear setback between about 1.2-1.6m. Within the front setback is an elevated concrete parking platform. Vehicular access to the car park is on the eastern side of the site.
To the rear of the site is a large lot (141-143 Moorefields Road) until recently used for warehousing/ industrial purposes. The portion of this lot adjoining the site is an extensive concrete parking/ truck turning area. Access to the lot at the rear is via a battle-axe driveway at 143 Moorefields Road. In 2009, consent was granted to a 22 unit multi-dwelling residential development on that site under existing use rights. Plans of that development, included in the joint planning report, show a block of units facing the rear of the site with a setback of approximately six metres from the common boundary. Substantial works have yet to commence.
The adjoining property to the east is 145 Moorefields Road; this property is in the same ownership as 141-143 Moorefields Road. There is a single storey brick dwelling on that property. A large shed at the rear of that property, shown on plans and aerial photographs, has been demolished. At the time of the hearing part of this allotment was contained within construction fencing.
To the west of the site are four free standing residential dwellings and to the west of those is a medium density development comprising 37 single and two storey villas/ townhouses with attached single garages. Nineteen of these dwellings are accessed from Moorefields Road.
The southern side of Moorefields Road, opposite the site comprises mostly single storey brick and tile dwellings of a range of ages and styles with detached garages.
McCallums Hill Primary School is located approximately 100m to the west.

The proposal

The proposal is described as additions and alterations to the existing warehouse building. The plans are titled 'Roselands Warehouse Conversion'. The applicants propose to remove the roof, walls and most of the floor but retain the steel frame of the building.
The front setback is to be excavated to provide a driveway on the western side of the lot leading down to a part-basement car park for 6 vehicles. The basement level will include garbage storage and a rainwater tank. The podium level above the basement is proposed as an area of common open space with planting in planter boxes.
The street elevation comprises a masonry wall of between 3.0-3.8m in height, a garage door at the street frontage and a pedestrian entrance to the west of the garage door.
The proposed residential development consists of 3 x 2 bedroom units and 1 x 1 bedroom unit; each unit includes a two-storey element with the bedrooms located on the upper level and kitchen and living areas at ground level. Each unit has an area of private open space on the eastern side. The one bedroom unit is located at the rear of the site.
The roof form is a combination of pitched and sloping forms with 'pop-up' elements for each unit.
The front setback is retained. The side setbacks are indented to varying degrees with some elements of the building at the existing setbacks. The eastern indentations which create areas of deep soil planting and private open space extend up to 4m or so. On the western side, the existing setback is essentially retained with indents to create entry points to each unit. Unit 4 has a strip of landscaping along its western façade. The rear setback is reduced to zero with the northern façade of the single storey element of unit 4, and its associated wall around its primary area of private open space, built to the boundary.

The issues

Council raises the following contentions. 1. Excessive floor space ratio (FSR); 2. Inadequate site width; 3. Isolation of adjoining lots - in particular 145 Moorefields Road; 4. Excessive building depth; 5. Inadequate rear and side setbacks; 6. Excessive bulk and scale - overdevelopment of the site; 7. Inconsistent with streetscape character; 8. Unacceptable levels of on-site detention; 9. Non-compliance with parking standards - driveway gradient and sight lines; and 10. Undesirable precedent and not in the public interest.

The assessment framework

The site is zoned Zone R3 Medium Density Residential under Canterbury Local Environmental Plan 2013 (CLEP). Multi dwelling housing is permitted with consent.
Clause 2.3(2) requires the consent authority to have regard to the zone objectives when determining a development application.
The relevant objectives of the R3 zone are:

To provide for the housing needs of the community within a medium density residential environment.
To provide a variety of housing types within a medium density residential environment.

Clause 4.3(2) sets a development standard for height of buildings of 8.5m. The height of the proposed development is 7m.
Clause 4.4 Floor space ratio (FSR) is relevant. The FSR for the site is 0.5:1 - as shown on the Floor Space Ratio Map referred to in cl. 4.4(2). The proposed FSR is 0.64:1.
As the proposal does not comply with the FSR development standard, cl. 4.6 is relevant. This clause establishes a mechanism for providing an appropriate degree of flexibility in applying certain development standards. Consideration must be given to a written request from an applicant demonstrating that compliance with a development standard is unreasonable or unnecessary in the circumstances and there are sufficient environmental planning grounds to justify contravention of the standard.
Clause 6.4 CLEP considers stormwater management. The objective is to minimise the impacts of urban stormwater.
Canterbury Development Control Plan 2012 (CDCP) apples. Clause 1.3 considers compliance with and variation of controls. In essence it states that: compliance with the numerical controls does not guarantee consent; the controls may need to be varied in order to satisfy the objectives and performance standards of the DCP; minor variations may be acceptable where it can be demonstrated that there will be minor impacts and the proposed development is consistent with the aims and objectives of CLEP and CDCP; and in considering a variation, the council will consider the need to maintain the consistent implementation of CDCP and CLEP.
The specific controls and objectives are considered against each of the issues in contention.

Evidence, submissions, findings

The matter commenced with an inspection of the site. Expert evidence was provided for the applicants by Mr Anthony Betros (Planning), Mr Craig McLaren (Parking and Traffic) and Mr Stephen Falkner (Stormwater) and for the council by council officers Ms Jade Shepherd (Planning) and Mr Paul Richardson (Traffic and Stormwater). The relevant experts prepared joint reports. There were no objectors.

Planning - FSR, bulk, scale, setbacks, building depth, landscaping

The principal issues in this matter go to the bulk and scale of the proposed development and whether the numerical non-compliances with various controls in CLEP and CDCP are acceptable in the circumstances.

Planning controls

Clause 4.4 Floor space ratio (FSR) in CLEP is relevant. The FSR for the site is 0.5:1 - as shown on the Floor Space ration Map referred to in cl. 4.4(2). The objectives in cl. 4.4(1) 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, (d) To optimise development density within easy walk of the railway stations and commercial centres.
The proposed FSR is 0.64:1.
Clause 2.1.2 CDCP considers the site requirements for forms of residential development. Objective O2 states: O2 Sites have sufficient dimensions for adequate garden areas around dwellings and adequate vehicle access and parking.
The control in cl. 2.1.2 for minimum site width for multi dwelling housing on major roads (such as Moorefields Road) is 27m (20m on other roads). The site has a width of 13.87m at the Moorefields Road frontage.
Clause 2.1.4vii CDCP- Maximum heights - provides a control of a maximum one storey where the building is located more than 20m (in addition to the required front setback) or a distance of 65% of the total length of the allotment as measured from the front boundary (whichever is greater); otherwise maximum two storey. There are no objectives for this clause.
CDCP cl. 2.1.5 considers depth/ footprint. The objectives are: O1 Promote improved levels of residential amenity for new developments as well as existing and preserve sunlight, privacy and general amenity for existing dwellings. O2 Ensure that new buildings have a scale and mass which would be visually compatible with the residential zone's desired character.
The specified maximum building depth in the R3 zone for multi dwelling housing in cl. 2.1.5 is 20m. The proposed building depth is 30.23m.
Non-compliance with the setback controls in CDCP cl. 2.1.7 is a key issue. The objectives are: O1 Establish the desired spatial proportions of the street and define the street edge. O2 Limit the scale and bulk of new building, appropriate to the location and use, by retaining landscaped open space around. O3 Contribute to the green landscape by retaining adequate space for new trees and conserving any existing trees that are visually prominent. O4 Provide sufficient separation between buildings and adjacent land to limit the visual, environmental and likely impacts of new development. O5 Minimise stormwater runoff by retaining deep soil that allows rainwater infiltration.
The relevant setback controls in cl. 2.1.7 for multi dwelling housing are: a minimum 9m setback from the front boundary for sites fronting a major road (otherwise 6m for multi dwelling housing); a minimum of 3m from the rear boundary where the building is single storey, 5m if an attic is proposed; a minimum of 2.5m on side boundaries; a minimum of 3m or 5m (depending on setback requirements) width of deep soil along the front and rear boundaries; provide a minimum of 1m width of deep soil along both side boundaries.
Clause 2.1.8 provides for a range of specified encroachments that may enable an exemption to the setback controls however none apply to this proposal.

Evidence

Ms Shepherd is of the opinion that the proposal is fundamentally unacceptable because it does not comply with many numerical controls specified in CLEP and CDCP. In particular, she maintains that a 28% exceedence of the FSR for the site is excessive and does not achieve the relevant objectives. Without articulating the reasons for her opinion, she maintains the council's view that the cl. 4.6 request to vary the FSR standard does not satisfactorily demonstrate that compliance with the development standard is unreasonable or unnecessary in the circumstances or that there are sufficient planning grounds to justify its contravention.
Similarly, in Ms Shepherd's view, the non-compliant side and rear setbacks and excessive building depth increase the perception of bulk and provide inadequate separation from adjoining properties and apart from an adverse visual impact may also have adverse acoustic privacy impacts. She maintains that the limited setbacks have resulted in inadequate landscaping, specifically no deep soil planting along the side boundaries. In regards to the potential for deep soil planting on the adjoining site to the rear, Ms Shepherd considers each site has a responsibility to provide its own landscaping and there should be no reliance on other sites.
With respect to the front setback, Ms Shepherd considers that the proposed front retaining wall of up to 4m will significantly alter the spatial proportions of the street. In addition, she opines that the garage presentation at the street frontage will have an adverse visual impact on the streetscape. Ms Shepherd states that these elements, as well as the bulk and scale of the proposal, result in a development that is inconsistent with the desired future character of the area. Under cross-examination, Ms Shepherd acknowledged that she was unfamiliar with the Planning Principle on compatibility with surrounding development published in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 but agreed with Mr Eastman that the existing character of the area is varied and includes the existing building, and that the proposal is capable of existing in harmony with the surrounding developments.
In Ms Shepherd's opinion the non-compliant site width constrains the site and the proposed development cannot be accommodated on the site without significant variations to council's development standards and controls. Ms Shepherd considers that so little of the building is being retained that compliance with the controls is not unreasonable and the proposal should be (and was) assessed as a new development.
While Ms Shepherd agreed that there are no specific controls in CDCP for hours of sunlight to adjoining properties, she stood by her comments that the applicants failed to provide details of the rooms of the adjoining properties so that potential solar impacts could be properly assessed.
As a consequence of the range of non-compliances, while Ms Shepherd conceded and agreed with Mr Eastman that medium density residential development on the site would generally be in the public interest, she maintains that the proposal is an overdevelopment of the site and will set an undesirable precedent.
In essence, Mr Betros agrees that the proposal is not a conversion of a warehouse, however, in his opinion it is acceptable because:

The proposed 1 and 2 storey scale is more modest and a visual improvement on the existing warehouse which has blank, unrelieved walls and minimal landscaping;
The architect has skilfully designed the building to provide a modulated and articulated building form which ensures that the bulk and scale will not be visually intrusive for adjoining properties;
The bulk and scale are provided in a sympathetic manner due the substantial setback from the street. The substantial front setback enables extensive landscaping and the proposed development will sit comfortably in the street;
The proposed FSR of 0.64:1 is a moderate FSR for a medium density zoning, is less than the existing FSR, and that the development standard in CLEP of 0.5:1 is conservative and usually applied to low density residential zones;
Although the site to the north has existing use rights, the calculated FSR for that development is about 0.75:1;
There are no unreasonable amenity impacts on adjoining properties in regards to overshadowing, privacy or view loss. Only slivers of sunlight will be lost to the adjoining property at 149 and at least 3 hours of sunlight to the rear of that dwelling, at the winter solstice, will be retained;
There are no primary openings on the northern façade and the six metre setback of the closest units on the site to the north from its southern boundary will provide an opportunity for deep soil planting on that site and therefore ameliorate any adverse visual impact arising from the northern façade of the proposal;
Given these considerations, the proposal satisfies the objectives of the FSR development standard;
The proposal achieves the site width objectives and side setback objectives by providing a greater landscaped area in the front setback than anticipated by the DCP, and providing extensive areas of private open space on the north-eastern side of the property. The western side setback is wider than the current setback and if necessary, it would be possible to add landscaping to the western side;
The depth and siting of the proposed building are a consequence of the conversion of the existing building; the variation in depth and footprint is acceptable because the articulated design provides excellent internal amenity and maintains reasonable external amenity to surrounding properties;
The design and height of the front retaining wall to Moorefields Road can be improved by creating a landscaped terraced effect;
Given the small number of warehouse buildings in residential zones in the Canterbury local government area, adaptation of the existing building is unlikely to create a precedent;
Given the development to the north, the proposed development on the site will be compatible with it; and
Overall, the proposal is an attractive and innovative design and a significant improvement to the existing non-conforming use and built form.

When Mr Betros prepared the applicants' Statement of Environmental Effects and accompanying cl. 4.6 request to vary the FSR development standard, the site to the north was still operating for industrial purposes. To reflect the intent to develop that site in accordance with the development consent for it, Mr Betros prepared an amended cl. 4.6 variation request (Exhibit C).
In regards to how the proposal achieves the objectives of the FSR development standard Mr Betros provides a rationale based on the dot points listed above. In addition, he considers the stepping down in height and scale at the rear will effectively control the bulk of the development when viewed from the development to the north. He maintains that the proposal is a significant improvement from the existing warehouse and the proposed residential building is designed to sit comfortably alongside both the existing single storey dwellings and the future two storey development at the rear in accordance with the intent of the R3 Medium Density Residential Zone.
With respect to the zone objectives, Mr Betros states that the provision of an additional four units of a mix of one and two bedrooms within proximity to local centres and public transport meets the housing needs of the community and provides a variety of housing types within an R3 zone.
Mr Betros states that a better planning outcome is achieved because the proposal: reduces the FSR from 0.7:1 to 0.64:1, replaces a warehouse with residential development, introduces generous areas of private and communal open space, creates no unreasonable impact on the various aspects of the amenity of adjoining properties, is well below the height limit of 8.5m, and results in a positive contribution to the streetscape. In regards to the public interest, he states that given the vast improvement on what currently exists and the other matters already canvassed that the proposal is in the public interest.
With respect to the non-compliant site width of both the site and a hypothetical development on 145, Mr Betros cites a Court decision in Joukhador v Canterbury City Council [2015] NSWLEC 1027 in which a dual occupancy was approved on a site with a width of less than 15m. While he agreed with Mr Seton that the circumstances were different, he maintained the process of assessment in that matter is relevant to this proposal.
Under cross-examination Mr Betros reaffirmed his opinion that while there was no landscaping along the northern boundary, the large garden set within the front setback - while atypically elevated, resulted in a superior outcome. He maintained that the proposal is an innovative response to the existing building and the site.

Submissions

In regards to the primary contention that the proposal exceeds the FSR controls for the site, Mr Eastman contends that the critical issues for the Court to determine, in assessing the applicants' written cl. 4.6 variation request, are whether compliance with the development standard is unnecessary and there are sufficient grounds to justify contravention, and then whether or not it is consistent with the objectives of the control and the zone.
Mr Eastman contends that a starting point is consideration of the impacts of the proposal. He presses Mr Betros' evidence that there is no unreasonable overshadowing, no view loss, no overlooking, no loss of privacy or any other usual amenity impacts arising from the development. While accepting Preston CJ's proposition in Wehbe v Pittwater Council [2007] NSWLEC 827 at [75] that the acceptability of the merits of itself is not enough, he maintains that it can be argued that compliance with the standard is 'unnecessary' in terms of the protection of the amenity of surrounding existing or future development.
In support of Mr Betros' opinion, Mr Eastman argues that the proposal results in a significantly better outcome than that which is currently on the site and numerical compliance wouldn't necessarily achieve the solar access and extent of private open space as the proposed development. Mr Eastman cites Nott C in Lunar Moon Pty Ltd v Leichhardt Council [2005] NSWLEC 566 at [12] which states: 12. However, an important circumstance of the case when considering the non-compliance with the FSR and the non-compliance with other controls, is that the subject site is not vacant, and that the existing buildings are being used and could continue to be used for their approved purposes or for such other purposes that the council might grant consent for. The FSR of the existing buildings has to be taken into account. Likewise, when considering the other issues raised by the council, the form, scale, appearance and other aspects of the existing buildings need to be taken into account.
In applying this to the site, Mr Eastman asserts that the current warehouse has an FSR of 0.7:1 and the proposed FSR is 0.64:1, therefore a reduction in FSR and improved outcomes in regards to superior landscaping and a significantly improved visual outcome should be taken into account.
In regards to consistency with the zone objectives, Mr Eastman submits that the relevant test should be that determined by former Chief Judge Pearlman in Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 at [27], (as adopted by Brown C in Samadi v Council of the City of Sydney [2014] NSWLEC 1199 at his [28]), which states: The guiding principle, then, is that a development will be generally consistent with the objectives, if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that it is compatible.
In all of the related matters raised by council - FSR, site width, building depth and footprint, setbacks, overdevelopment and character, Mr Eastman presses the detailed reasoning provided by Mr Betros in the written cl. 4.6 variation request he prepared for the applicants as well as Mr Betros' contribution to the joint planning report and his oral evidence that the proposal is consistent with, and certainly not antipathetic to, the objectives of either the zone of the development standard and the other relevant controls in CDCP. He presses the considered detail of Mr Betros' evidence over that of Ms Shepherd, who he contends contributed to the joint report by effectively placing the word "not" before each of the relevant controls, contrary he says to the role of an expert witness as espoused by Heydon JA in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [87], in particular, did the expert's evidence go beyond that which is said.
Mr Seton contends that the real test in clause 4.6 is not whether the proposal results in a better planning outcome than the existing development but whether it results in a better outcome than a compliant development. He maintains that the circumstances of this matter are quite different to those in Lunar Moon thus rendering it of little relevance to the case at hand. In this matter, Mr Seton argues that there is no inherent reason for retaining the existing building, and to all intents and purposes, what is proposed is a new building for a new use.
With respect to the cl. 4.6 variation request, Mr Seton submits that it focuses on comparisons with the existing building and not on the matters required by cl. 4.6. He also maintains that the real meaning of 'consistent with' is more than simply being 'not antipathetic to'. Mr Seton contends that the written variation request has not adequately demonstrated all that must be addressed in cl. 4.6 and as such, the Court has no jurisdiction to approve the proposed development.
In regards to the specifics and merits of the proposal, Mr Seton asserts the additional FSR or bulk of about 80m2 is roughly the size of the unit at the rear and this extra bulk in that location is responsible for increasing the overshadowing of 149. He contends that the additional unit results in nil rear set back and a non-compliant length of the building which is out of character with other nearby development; and the non-compliant site width leads to non-compliant western side setback. Mr Seton submits that the elevated front setback, high front wall and location and built form of the parking area are uncharacteristic of the streetscape. Mr Seton contends that the proposal also fails on the merits.

Findings

The starting point of my consideration must be consideration of the written cl. 4.6 request to vary the FSR development standard in cl. 4.4 CLEP.
The objectives of cl. 4.6 in subclause 4.6(1) are: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.
Unless subclauses 4.6(3) and 4.6(4) are satisfied, consent must not be granted for the proposed development. Subclauses 4.6(3) and 4.6(4) states: (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Director-General has been obtained.
It is agreed that the applicable FSR development standard for the site is 0.5:1 and the proposed FSR is 0.64:1 - an exceedence of approximately 82m2 or about 28%.
In response to cl. 4.6(3)(a), that is whether compliance with the FSR development standard is unreasonable or unnecessary in the circumstances, the written request states (Exhibit C, p2): It is considered that the application of the 0.5:1 FSR in an R3 Medium Density Residential Zone contradicts the outcomes sought by the zone, as this same FSR is applied to land with the R2 Low Density Residential Zone, therefore there is minimal differences [sic] in the controls and thus, density of development between the R2 Low Density and R3 Medium Density Residential zones. Therefore, this submission has been prepared in support of the contention that strict compliance with the maximum FSR limit of 0.5:1 is unreasonable and unnecessary in this instance and that the variation to the development standard should be upheld.
This is the extent of the response. It would appear that Mr Betros has used a variation of the fifth of the five ways discussed by Preston CJ in Wehbe of establishing that compliance is unreasonable or unnecessary. Although Wehbe relates to objections made under State Environmental Planning Policy No 1 - Development Standards (SEPP 1), which does not apply to CLEP, it is generally accepted that the principles in Wehbe have some application to cl. 4.6 in LEPs made in accordance with the Standard Instrument (Hunter Young Pty Ltd v Council of the City of Sydney [2014] NSWLEC 1234 at [59])..
His Honour in Wehbe [48] - [50] (citations omitted) states: 48. A fifth way is to establish that "the zoning of particular land" was unreasonable or inappropriate" so that "a development standard appropriate for that zoning was also unreasonable or unnecessary as it applied to that land" and that "compliance with the standard in that case would also be unreasonable or unnecessary. 49. However, care needs to be taken not to expand this fifth way of establishing that compliance is unreasonable or unnecessary beyond its limits. It is focussed on "particular land" and the circumstances of the case. Compliance with the development standard is unreasonable or unnecessary not because the standard is inappropriate to the zoning, but rather the zoning of the particular land is found to be unreasonable or inappropriate. If the particular land should not have been included in the particular zone, the standard would not have applied, and the proposed development would not have had to comply with that standard. To require compliance with the standard in these circumstances would be unreasonable or unnecessary. 50. However, so expressed, this way is limited. It does not permit of a general enquiry into the appropriateness of the development standard for the zoning. An objection would not be well-founded by an opinion that the development standard is inappropriate in respect of a particular zoning (the consent authority must assume the standard has a purpose [citations omitted].
At [51] His Honour goes on to state that SEPP 1 cannot be used as an alternative to the environmental plan making powers under Part 3 of the EPA Act. And so it must be assumed that cl. 4.6 of the Standard Instrument, and specifically cl. 4.6 CLEP does not provide a way of over-riding the processes in Part 3. The scope of the clause is limited and clearly set out in the objectives (see [61] of this judgment. There is no suggestion that the zoning of the land is inappropriate or unreasonable. Canterbury City Council has determined that the maximum FSR for R3 Medium Density Residential zones is 0.5:1, and while it may be low compared to other local government areas, that is irrelevant. When considered with the suite of objectives and controls in SCDP that consider site requirements for various forms of residential development in the R3 (and other) zone(s), the conclusion drawn is that the intent is to achieve a relatively low density of development, create adequate room for landscaping around the development and ensure an appropriate level of building separation. To that end, I am not satisfied that the applicants' written response has adequately addressed the matter required to be demonstrated in subclause 4.6(3)(a).
In regards to cl. 4.6(3)(b) and whether there are sufficient environmental planning grounds to justify contravening the development standard, the written request states (2.5 p 7 Exhibit C): The additional FSR is not responsible for any unreasonable view loss, over shadowing, privacy or amenity impacts, given that the proposed development is well below the 8.5m height line and has been designed specifically to maintain amenity to surrounding properties. The height at the rear has been stepped down to maintain sunlight to the western neighbour whilst privacy is also maintained through avoidance of the windows at the 1st floor on the western side and restriction of primary openings to the eastern side where the site is below the level of the eastern neighbours. It is also reiterated that the positive streetscape and landscape outcomes associated with the provision of the additional FSR and the proposed conversion of the existing warehouse into more compatible residential use, ensures that there are sufficient environmental planning grounds to support the additional FSR in this instance.
The proposed development is predicated on the retention of the steel framework of the existing warehouse. A central plank in the applicants' argument and considered elsewhere in the written request, is that the replacement of the warehouse with well-designed multi-dwelling residential units with a lower, albeit non-complaint, FSR is a much better planning outcome that warrants the variation sought. I agree with Mr Seton that this is the wrong starting point, and the approach taken in Lunar Moon has little if any applicability in the circumstances of this matter. The Lunar Moon development was a redevelopment of a factory site that was still being used for that purpose and could have continued its use; and it was in a conservation area and significantly more the building was being retained. In this matter the context and controls are quite different, the site is not in a conservation area and therefore there are no particular planning reasons why the frame is to be retained. The Statement of Environmental Effects (Exhibit B, p7) states that the factory building has been vacant for many years. Under CLEP, warehouses and factories are not permitted forms of development in the R3 zone.
Whilst acknowledging Ms Shepherd's concerns that the solar access plans do not show the nature of the rooms on the adjoining properties, and notwithstanding the non-compliances with setbacks, I am satisfied that the impacts on solar access to those properties is minor. Similarly, the proposal is unlikely to create unreasonable problems with privacy or overlooking. In regards to the visual impact of the northern façade on the northern boundary and the absence of any landscaping along that façade, the applicants rely on the proposed 6m setback associated with the approved development to the north and the potential for deep soil planting on that site. I agree with Ms Shepherd that, in mitigating impacts on visual amenity, it is unreasonable to rely on what may or may not happen on other land and it is ultimately the responsibility of an applicant to mitigate any such impacts.
Therefore, while I agree with Mr Betros that the design is clever and innovative, on balance I am not persuaded that the reasons he puts forward demonstrate that there are sufficient environmental planning grounds to justify contravening the FSR development standard. Given this conclusion and my findings in [67], subclause 4.6(4)(a)(i) is not met and consent cannot be granted.
However, for completeness, in respect to subclause 4.6(4)(ii) and whether the proposed development is in the public interest because it is consistent with the objectives of the FSR development standard and the R3 zone, the written request addresses each objective.
The key FSR objective is "to provide effective control over the bulk of future development" (cl. 4.4(1)(a)). It would seem to me that the relatively low FSR of 0.5:1 for the R3 zone, when considered in concert with other controls in CDCP such as site width for multi-unit housing, signals a deliberate intent to maintain a relatively low density of development with the commensurate effect of retaining open space and building separation.
The response to the FSR objectives presses the articulated design which steps down from the rear as well as the substantial volume of communal open space within the front setback, the one and two storey design, the opportunity for deep soil planting on the property to the rear, the creation of areas of private open space on the eastern side, the absence of impacts on the amenity of adjoining properties, the improvement in the character of the area resulting from the change of use and appearance of the existing warehouse, and the proximity to local commercial centres and public transport.
Notwithstanding the non-compliance with not only the FSR development standard and other controls within CDCP, I agree that the replacement of the existing warehouse with some form of residential development is in the public interest. The proposal is consistent with the zone objectives in that it provides for the housing needs of the community and provides a range of housing types.
While meeting some of the objectives of the FSR development standard, significantly in my view, it is not consistent (in the broader sense of the word - see Dem Gillespies v Warringah Council [2002] NSWLEC 224 at [70]) with the primary objective for the development standard in cl. 4.4(1)(a) of providing effective control over the bulk of future development. I consider the combination of the excessive FSR and the zero rear setback is not offset by the extended front setback and the articulated design and the development as proposed is contrary to that objective.
On balance and on the merits, despite Mr Betros' detailed evidence, I have not been persuaded that any benefits arising from this redevelopment could not be achieved by a more compliant development. The exceedence of the FSR is significant and principally a consequence of retaining the footprint of the current building and the limited width of the site. As indicated by Mr Seton in his submissions, the excess FSR and the non-compliant rear setback is essentially contributed by the unit at the rear. Even if the steel frame were to be retained, it would seem possible that the architect could reconfigure the design to decrease the FSR to a more acceptable level and create a landscaped rear setback more in keeping with the residential character of the area and the relatively low density intent of the FSR development standard.
In regards to the merits of the other planning issues, with the benefit of the site inspection and the evidence, I am satisfied that when viewed from Moorefields Road the existing building is part of the character of the streetscape. With the changes proposed to the front wall and the setting back of the garage door, while creating something different, in my view it is capable of existing in harmony with other development.
Turning briefly to the evidence, I agree with Mr Eastman that Ms Shepherd' contribution to the joint report should have gone much further by articulating the reasons for her stated opinion. However, that said, more detail was forthcoming in oral evidence which was of some assistance to the Court.
To the extent that it may be of assistance to any future proposal for the site I will address the remaining contentions.

Planning - lot isolation

Council's contention #3 states: The development application should be refused because the proposed development may result in the isolation of adjoining allotments such that they will be incapable of being reasonably developed. In that regard, the proposed development is inconsistent with the objectives of, and does not comply with the controls for avoiding isolating undeveloped sites in clause 2.1.1(i) of Canterbury DCP 2012.
At the time the Statement of Facts and Contentions were prepared (27 January 2015) the applicants had not provided documentary evidence of any negotiation process or supplementary schematic plans relating to the potentially isolated allotment at 145 Moorefields Road. Similarly, no evidence was forthcoming about any attempts to amalgamate the site with the adjoining property to the west, 149 Moorefields Road.
The objectives of cl. 2.2.1 CDCP - Avoid isolating development sites - are: O1. Land adjoining a development site is not left sterilised or isolated so that it is incapable of being reasonably developed under the applicable controls. O2. To encourage the development of existing isolated sites in a manner that responds to the sites, context and constraints and maintains high levels of amenity for future occupants and neighbours.
The controls for the clause require that a neighbouring property that may be isolated will be able to accommodate reasonable development in a way that complies with the current planning controls. To that end there evidence of negotiation with the owners of potentially isolated lots, evidence of reasonable offers, two valuations, and where amalgamation cannot be negotiated, a schematic design indicating a building envelope and room arrangement compliant with current controls.
At the joint conference, the applicants submitted a number of documents including a letter of offer to purchase 145 Moorefields Road, a letter in response rejecting the offer, and a valuation of the property.
Ms Shepherd maintained her position that the applicants have not fully complied with the requirements as only one valuation was obtained and the offer did not include reasonable expenses such as relocation. In addition she considers that the schematic diagrams do not include room arrangements and would be otherwise inconsistent with a number of current controls. Ms Shepherd also states that there is no documentary evidence of any attempt to amalgamate with 149 Moorefields Road.
Mr Betros stated that the owner of 145 Moorefields Road is the owner of the large development site accessed from 14-143 Moorefields Road, the dwelling at 145 was no longer used as a residence but appears to be the site office for the adjoining development, the offer made to the owner included an amount for legal fees, and given the same ownership of 141-145 Moorefields Road, 145 could be consolidated into the development site at the rear. However, notwithstanding the fact that the owner does not wish to sell the lot, 145 has an area in excess of 600m2 and could accommodate other forms of residential use including dual occupancy, although he conceded that this may require a variation to the controls. In this regard he cites Joukhador to support his opinion. In oral evidence, Mr Betros advised that the owners of the subject site and the owner of 141-145 have been in contact for several years.
In regards to 149 Moorefields Road, Mr Betros considers there is the possibility for that property to be consolidated with other similar residential properties to the west. Under cross-examination, Mr Betros agreed with Mr Seton that by imposing a minimum site width of 15m for dual occupancy and 27m for multi dwelling housing of 27m, CDCP anticipates consolidation of lots.
Mr Seton contends that the documentation in regards to the efforts to negotiate with the owner of 145 were not forthcoming until the joint conferencing between the parties' planners and therefore the applicants' approach is inconsistent with the intent of the objectives and controls in CDCP cl. 2.1.1. Similarly, he maintains that the schematic plans do not achieve the requisite setbacks and illustrate small units below the expected FSR; in this regard there can be no satisfaction that a reasonable development on that site could be achieved.
Mr Eastman presses Mr Betros' opinion and the letter from the owner of 145 which states that the owner will not sell. Mr Eastman submits that the Court can infer that 145 is capable of being redeveloped in conjunction with 141 or as a dual occupancy as indicated by Mr Betros or indeed as a permissible single dwelling; all of which indicates that 145 will not be 'sterilised' as put by council.

Findings - lot isolation

In regards to this contention I find in favour of the applicants. Although I agree with Mr Seton's submissions, as did Mr Betros, that the site width controls appear to anticipate site consolidation, I am not persuaded that any development on the site will isolate or sterilise 145 Moorefields Road. The letter from the owner's solicitor is an emphatic refusal of the offer to purchase. It is not unreasonable to assume that 145 will be somehow incorporated into the development of 141-143 Moorefields Road or could be developed in some other way. Having read the judgment in Joukhador the circumstances in that matter were quite different to those in this matter and in my view it has little relevance except to reinforce the concept that variations to planning controls must be considered on their merits in the context of the site and locality.
Given the circumstances, I disagree with Ms Shepherd that further valuations should be sought or that any valuation should include other out of pocket expenses.
There was an oblique reference to 149 Moorefields Road. I agree with Mr Betros that 149 is capable of being consolidated with other lots to the west and any development at 147 will not isolate 149.

Stormwater

Mr Richardson contends that the applicants' consultant did not use a method for calculating the required degree of on-site storage of stormwater consistent with the requirements of cl. 6.4.10 of CDP. While not disclosing his calculations, Mr Richardson maintains that the resulting figure falls far short of the volume required. Mr Falkner considers that the proposed 3,500 litres of storage is sufficient, especially as the proposal reduces the impervious area of the site by about 18.6% but he suggests that a condition be imposed requiring plans for the stormwater system, designed in accordance with CDCP, be submitted to council for approval prior to the issuing of a Construction Certificate.
The parties agreed that draft conditions 35-38 that relate to the stormwater system be imposed as deferred commencement conditions.
In order to avoid the risk of backflow flooding into the basement area, the experts agreed that the basement floor level be raised to RL42.82m AHD. During the site inspection, the applicants' architect agreed that this was possible and unlikely to lead to any unintended consequences.

Findings

While it is technically unnecessary given my findings in [71], I am satisfied that the agreed conditions resolve this contention.

Traffic and parking

Council's contention is that the proposed basement parking area is inconsistent with objective O5 Part 6.8 CDCP which states: O5 Vehicle facilities are designed and constructed in accordance with relevant standards and are functional and safe.
Clause 6.8.5 CDCP calls up the relevant standards. Specifically, the council maintains that the design of the driveway does not comply with the relevant provisions of Australian Standard 2890.1 2004 - Parking Facilities (the Standard) in that the gradient is too steep and minimum lines of sight for pedestrian safety are not in accordance with Figure 3.3 of the Standard.
Mr Richardson also raised concerns about the internal design of the car park with respect to a 300mm clearance to high objects and a 1m blind isle extension. Mr McLaren provided an alternative arrangement of the parking spaces and a swept path analysis to demonstrate that the effect of the aisle width can be achieved. Mr Richardson indicated that these elements are resolvable.
AS2890.1:2004 cl. 1.3.13 defines a 'domestic property' as "A property comprising three or less domestic units". Clause 1.3.23 defines a 'residential property' as "A property having more than three domestic units". In addition, 'shall' indicates that a statement is mandatory (cl. 1.3.26) and 'should indicates a recommendation (cl. 1.3.27).
Relevantly cl. 3.3.4 Sight distance as access driveway exits - states Access driveways need to be located and constructed so that there is adequate entering sight distance to traffic on the frontage road and sight distance to pedestrians on the frontage road footpath for traffic entering the frontage road, as follows: (b) Sight distance to pedestrians Clear sight lines as shown in Figure 3.3 shall be provided at the property line to ensure adequate visibility between vehicles leaving the car park or domestic driveway and pedestrians on the frontage road footpath.
Figure 3.3 - Minimum sight lines for pedestrian safety - indicates a 'sight triangles' or splays on either side of the driveway of 2.0m wide and 2.5m depth with the notation that 'these areas are to be kept clear of obstructions to visibility'.
Clause 3.3 Gradients of Access Driveways - relevantly states: Maximum gradients on and near access driveways, other than at domestic properties (see Clause 2.6), shall be as follows: (a) Property line/building alignment/pedestrian path - max. 1 in 20 (5%) between edge of frontage road and the property line, building alignment or pedestrian path (except as provided in Item (d)), and for at least the first 6 m into the car park (except as provided below). The grade of the first 6m into the car park may be increased to 1 in 8 (12.5%) provided all three of the following conditions are met: (i) the grade is a downgrade for traffic leaving the property and entering the frontage road. (ii) The user class is Class 1, 1A or 2 only. (iii) The maximum car park size is - (1) for entry onto an arterial road - 25 car spaces, or (2) for entry onto a local road - 100 car spaces.
The proposed driveway has a gradient of 12.5% with the door to the basement car park located at the street frontage with no splay.
Mr Richardson's principal concerns go to the gradient of the driveway and pedestrian safety, with pedestrian safety being more important than driveway gradient.
Mr Richardson maintains that the relevant provisions of the standard are mandatory and the circumstances do not satisfy the three conditions for any dispensation to allow a gradient of 12.5%. In his opinion, the steeper grade places the driver's eye level lower and the bonnet of the vehicle higher thus introducing a level of vision impairment for a driver. In Mr Richardson's view the site has an elevated risk given the proximity of a nearby infants/primary school, an independent-living retirement village and a large medium density housing development -developments he says concentrate more vulnerable age cohorts and lead to more pedestrian activity. The absence of a sight triangle exacerbates the risk.
Mr McLaren considers that clause 3.3(a) applies to high turnover car parking such as shopping centres at locations with moderate to high pedestrian flow and that the proposed car park will have a low volume/ low turnover. In his view a stop sign at the property boundary can be installed and the proposed gradient of 1:8 does not increase the risk to pedestrians. Mr McLaren opines that given the small number of parking spaces and a wider than normal footpath, strict compliance with Figure 3.3 is unnecessary in the circumstances. He maintains that applying a risk analysis approach, the risk is low and that the installation of signage and line marking will be sufficient to ensure that drivers are aware of pedestrians before they exit the site.
Mr Eastman, for the applicant, prepared written submissions. He contends that the proposed grade and lack of splays are acceptable in the context of what he describes as a very low intensity environment. He maintains that the 5% gradient is only triggered by there being four and not three units. Mr Eastman presses Mr McLaren's risk analysis.
Mr Seton for the council submits that the applicants have not demonstrated why the gradient in the Standard cannot be achieved. However, he maintains council's primary objection that the proposal is an overdevelopment of a site of insufficient width to accommodate four units where three may achieve compliance.
Notwithstanding the differences between the parties with respect to the gradient, Mr McLaren provided a draft condition of consent that could address Mr Richardson's principal concern about pedestrian safety. In essence, the condition proposes retaining the 12.5% gradient, reducing the number of on-site parking spaces to five, council's endorsement of a visitor parking space on the street adjoining the site, redesigning the front wall and garage door to achieve a splay consistent with Figure 3.3 in the Standard, use of a transparent material in the western wall adjacent to the foyer, and recessing the door to the foyer - all with the purpose of improving sight lines for pedestrians and drivers.

Findings

Had the proposal been acceptable on the principal planning grounds it would be open for me to require a redesign of the front setback to create the splay specified in Figure 3.3 of the Standard with the garage door to be set back, and for the front wall to be reconfigured as a stepped terrace incorporating landscaping. If four units are proposed, the Standard sets a mandatory requirement for a 5% gradient. I agree with Mr Seton that there has been insufficient exploration of how this may be achieved. However, if the number of units is reduced to three, again notwithstanding the non-compliances with the planning controls, the requirement for a 5% gradient goes away and the proposed 12.5% gradient would suffice. I concur with Mr McLaren's other suggestions for improving pedestrian safety.

Conclusions and orders

As a consequence of concluding that cl. 4.6(4) is not satisfied so as to permit a variation to the Floor Space Ratio development standard in cl. 4.4 of CLEP, there is no power to grant development consent to the proposed development.
The orders of the Court are: 1. The appeal is dismissed. 2. Development Application DA-537/2014 for alterations and additions to the existing warehouse and conversion into multi-dwelling housing development containing 3 x 2 bedroom and 1 x 1 bedroom dwellings with basement car parking for 6 vehicles at 147 Moorefields Road, Roselands is determined by refusal. 3. The exhibits except A, C and 1 are returned.

Judy Fakes 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: 22 April 2015

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Cases Cited (8)