Sindesi Properties Pty Ltd v Campbelltown City Council

APPLICANT Mr D. Wilson, barrister Instructed by Mr S. Konstan of Konstan Lawyers LEGAL REPRESENTATIVES:

RESPONDENT Mr A. Seton, solicitor of Marsdens Law Group

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10077 of 2007 Sindesi Properties Pty Ltd v Campbelltown City Council This determination was given extemporaneously, and has been edited prior to publication

JUDGMENT 1 This judgment is for an appeal under section 97 of the Environmental Planning and Assessment Act against Campbelltown City Council's refusal of a development application for the property known as 41 Carnarvon Street, Bowbowing. The proposal is for the erection of a multi-unit development containing 5 dwellings. I note that there was a section 82A review on amended plans.

2 Prior to the hearing commencing, the Court granted leave for the applicant to rely on amended plans and there was a schedule of those amendments provided to the Court. The amended plans are in many respects a refinement of the plans the subject of the original appeal. Many of the refinements provide for the development application to comply, in a numerical sense, with the DCP, however there are still a number of non-compliances.

3 The council identified a number of issues in the proceedings in its statement of issues. The core issues in the proceedings can be summarized as: the bulk, scale and massing of the proposed development, in particular having regard to the topography; the perception of three storey appearance in the streetscape and the exceedence of the two storey height control; the waste disposal location on the boundary and the slope and distance for the garbage receptacles for units one and two; non-compliances with the DCP in terms of the proposed Torrens Title subdivision; failure to provide visitor car parking in accordance with the council's DCP; the driveway width, in particular for serving a number of dwellings; overlooking of unit 3 to 4; the useability of private open space and solar access, and the need for a current 'Basix Certificate'. 4 The area can generally be described as one that is a relatively low density residential area. The subdivision took place in approximately 1992 for the Bowbowing area, although there were a number of different stages. An aerial photograph provided by the respondent shows the subdivision pattern within the area. I note that the eastern side of Carnarvon Street is a series of relatively small allotments all with single detached dwelling houses erected on same, whereas the western side is much larger allotments due to the topography of the land.

5 The subject site is 2,315 square metres and the block or the allotment to the south, the vacant allotment is 3,083 square metres, the allotment to the north is 2,256 square metres. The allotment all but one to the south known as Lot 733 that has been further subdivided and there are three dwelling houses contained on the one allotment that had an original area of 3,752 square metres with the street frontage allotment being 900 square metres, the middle block 1,123 and the rear block 727 square metres.

6 Next to the subject lot to the north is a two storey dwelling house that is set back approximately 14 metres from the boundary with the street and this contains a two storey dwelling as does the block developed further to the north again. As I said, the area can generally be described as one of low density residential with the noticeable similarity of allotments on the western side and smaller single dwelling houses on the eastern side of the street.

7 The statement of issues in exhibit 8 also identifies the relevant particulars in terms of the instruments where the controls are contained.

8 The proposal is described as five residential dwellings. That is dwellings one, two and three being single detached dwellings, dwellings four and five which have the street frontage are attached dwellings. It is proposed that the subdivision into a Torrens Title subdivision take place following the erection of what is regarded as a multi unit development. It is recognised that subdivisions require 500 square metres minimum size allotments.

9 The size of the allotments for dwelling houses one and two is 601 and 606 square metres respectively. This includes the area of the rights of carriageways from Carnarvon Street but excluding these, they are some 500 square metres each. Lot three in the middle is, excluding the carriageway, some 308 square metres and the two lots with street frontage to Carnarvon are 359 and 351 square metres each.

10 The subject site is zoned under the Campbelltown Urban Area Local Environmental Plan 2002 and the aims of this plan include: to promote the objectives of the Act and in particular to maintain and enhance the amenity of the urban area of the City of Campbelltown.

11 The objectives of the plan include: to protect areas from inappropriate development, to encourage a variety of forms of higher density housing in locations which are accessible to public transport, employment, retail, commercial and service facilities.

12 The 2B zone under which the subject site is zoned, includes objectives which are: to make general provision for land to be used for housing; to permit the development of a range of housing types, to encourage a variety of forms of housing that are higher in density than traditional dwelling houses including accommodation for older people and people with disabilities, in locations which are accessible to public transport, employment, retail, commercial and service facilities. 13 Clause 9 of the LEP states "except as otherwise provided by the plan, consent must not be granted for development within the zone unless the consent authority is of the opinion that the carrying out of the development would be consistent with one or more of the objectives of the zone".

14 A further objective of the zone is "to encourage a high quality standard of development with aesthetically pleasing, functional and relates sympathetically to nearby and adjoining developments".

15 Other relevant provisions of the LEP are with respect to subdivision and this requires development consent.

16 The Campbelltown City Council adopted the Sustainable City Development Control Plan. I note this plan states: that council may consider variations to the requirements of the plan in exceptional circumstances and compliance with any numerical provisions of the plan does not guarantee the granting of development consent. Each application will be considered on its merits having regard to the matters for consideration under s 79C of the Environmental Planning and Assessment Act.

17 The aims of the plan include: to facilitate innovative development of high quality design and construction,

to ensure that new development maintains or enhances the character and quality of the natural and built environment, to ensure that new development takes place on land that is capable of supporting development; and to provide for a variety of housing choices within the city.

18 The definition for multi dwelling houses means "development involving the erection of two or more dwellings on a site, each with separate principal access from the ground level, but does not include garden flats, narrow lot housing or residential apartment buildings".

19 The plan also includes guidelines on cut and fill to minimise cut and fill for residential development and a cut and fill management plan is to be submitted with the development application.. For the purposes of creating a building platform, the maximum level of cut and fill shall not exceed 500 millimetres below natural ground and a maximum level of fill shall not exceed 500 millimetres. It is noted that the subject plans have a cut and fill plan and I note that in some places cut and fill is approximately two metres in places.

20 The waste management objectives are: "to ensure that waste systems are easy to use and where necessary collection vehicles are able to access buildings and remove waste, ensure healthy and safe practices for storage, handling and collection of waste and recycling materials".

21 The design requirements for ongoing waste management is that provision shall be made for all waste and recycling storage to be located behind the primary building alignment out of public view and the path of wheeling bins between waste storage and the collection vehicle shall be free of steps or kerbs and have a maximum gradient of one in eight and the maximum travel distance between any communal storage area point and the collection point for all bins shall be twenty-five metres.

22 The DCP also provides for guidelines concerning building form and character. The objectives are: to ensure that the massing and scale of new development is complementary to the existing residential buildings in the neighbourhood; to maintain a low, medium density spatial character within existing neighbourhoods; to ensure that buildings are designed to enhance the existing and future desired built form and character of the neighbourhood by encouraging innovative and quality design that fits harmoniously with surroundings and; to ensure that parking are appropriately sited, designed…

23 The streetscape design requirements include: building design shall complement the scale of development, characters and qualities of the adjoining streetscape; the built form shall relate to the natural land form and setting, particularly when viewed from a public place.. on site parking shall be designed and sited to avoid garage doors and external parking spaces having visual prominence when viewed from the street or a public place and the design requirements for garages facing a public street shall be no wider that fifty per cent of the width of the dwelling. and 24 The building height requirement is that "a residential development shall not exceed two storeys in height above natural ground level at any point".

25 The objectives for car parking and access include: to ensure efficient and safe vehicle and pedestrian movement within, into and out of development, to ensure that the location and design of driveways, parking service areas and access areas are practical, easily maintained, convenient, safe and suitably landscaped, to provide safe, convenient access for vehicles, pedestrians and minimise conflict.

26 There are a number of design requirements for car parking and the maximum gradient of any driveway is one in four. Long, straight driveways as viewed from the street shall be avoided and the minimum width of driveways at the street's kerb shall be six metres for two or more dwellings. There is also a note that technical specifications relating to gradients and driveways is in volume two and this document was also tendered.

27 The design requirements for solar access is that "at least fifty per cent of the private open space shall receive four hours of direct solar access at the winter solstice".

28 The multi dwelling housing section contains site and density requirements and I note the proposed development satisfies the minimum number of dwellings in terms of two dwellings for the first 700 square metres and one dwelling for each 300 square metres thereafter.

29 The setback guidelines include that multi unit housing development shall have minimum setbacks of "five point five metres from the primary street frontage and five metres from the rear boundary and ten metres from the rear boundary for all levels above ground level and notwithstanding the five point five metres, any garage shall be set back a minimum of six metres from any street boundary". It is noted that the garage is set back a minimum of five point five for one of the dwellings that faces the street.

30 The general requirements for multi unit dwellings with respect to car parking is that: each unit shall be provided with a minimum of one single garage and one additional visitor car parking space shall be provided for every two units or part thereof and no visitor car parking shall be located forward of the primary or secondary alignment and no visitor parking space shall be in a stacked configuration.

31 There are design requirements for deep soil planting and landscaping. The plans following amendments satisfy the requirements for impervious areas and landscaping.

32 The council has adopted guidelines for multi unit dwelling waste management for six dwellings or more and this requires a number of design requirements to be satisfied, including located no closer than 10 metres from an opening within a dwelling on the site or from the property boundary.

33 The subdivision requirements are contained within 3.11 and the objectives are: to ensure that land once subdivided contributes positively to the desired character of the locality and provides for the safe and attractive integration of existing and new development; to ensure that subdivision responds to the physical characteristics of the land, its landscape setting, orientation.. and the subdivision shall have appropriate regard to orientation, slope and aspect.

34 The DCP for Torrens Title subdivision of conventional allotments has a minimum of 500 square metres. As such the multi unit development proposed must be constructed prior to subdivision. I also note for the subdivision of multi dwelling housing incorporating more than two dwellings there are a number of design requirements including: a minimum area of 300 square metres, a minimum depth of 25 metres for each allotment

dwellings within the development have direct frontage to a public street, no common property is created, each allotment has a minimum width of five metres measured when side boundaries are extended to the kerb line. 35 There was a great deal of discussion about the compliance with the last design requirement in a technical sense and in terms of the spirit of the requirement.

36 The Court also had the benefit of hearing expert evidence and concurrent evidence. On behalf of the applicant, Ms Susan Francis, consultant town planner and for the respondent council, the development assessment officer Mr Rad Blagojevic gave evidence to the Court.

37 Mr Oleg Sannikow also provided expert evidence for the applicant on the traffic engineering aspects of the development. In terms of his evidence, he advised the Court that if the crossover from along the footpath is lowered in accordance with council's design requirements of volume two, then there would be consequences for the driveway. He considers that the design requirements could be achieved, however this would have implications for the gradients along the driveway and the location or possible relationship with the dwelling houses. He also advised the Court that for vehicles standing/parking on gradients, that the gradients of the driveways for the dwellings at the rear would be excessive and not appropriate to park vehicles. In particular this is relevant for assessing the visitor parking in the development.

38 I note that there are some eight garages provided and the guideline calls for five. Mr Blagojevic for the council said that in his opinion visitors do not park in a garage and this would be a most unusual occurrence and similarly Ms Francis said that this was not something that was the norm for visitor parking.

39 I note for dwellings four and five with street frontage, that the amended plans before the Court reduce the double garage to a single garage for each dwelling with a storage space and door to access the storage space located on the street elevation. Ms Francis agreed that in a location such as this, which is not close to public transport, nor close or convenient to shops and other facilities, that one may expect more than one vehicle per dwelling house, especially having regard to the fact that these are all four bedroom dwelling houses with the exception of one at the street frontage with three bedrooms.

40 In terms of streetscape, Miss Francis is of the opinion the three storey appearance of the development is a function of the topography of the land and a function of the DCP controls and that the proposal is not an unreasonable outcome. She agreed that the development would jut out in terms of the streetscape and that the garages are proud of the dwellings. 41 I note that the site is some 72 metres deep and there is a fall of some 16 metres from the street to the rear boundary. The site has a street boundary of 33 metres and a rear boundary of 31 metres. This represents approximately an average of a twenty per cent slope over the entire block.

42 A joint expert was provided to the Court, which sets out non-compliance and compliance in terms of council's controls and guidelines. In the joint statement Ms Francis states that the amended plans result in no non-compliance with the two storey height limit. Mr Blagojevic is of the opinion that the dwellings will be perceived as three storeys, not just the dwelling houses four and five that face the street. In my assessment I agree that the proposed dwellings will be perceived as more than two storeys although I acknowledge that the buildings have been stepped to be technically no greater than two storeys at any one point.

43 In my assessment the reduced setback does not ameliorate the impact of the perception of three storey dwellings cascading down the site. I acknowledge that when one is standing directly in front of the proposed development, that one will not see the dwellings behind, because of the size and the minimal setbacks of the dwellings four and five to the street. Dwellings four and five, in my assessment of the elevations, will read as a three storey dwellings although I recognise that they technically comply in terms of the sections provided to the Court, not being greater than two storeys at any one point. Nonetheless the proposed built form will be read as a bulk that is inconsistent in the streetscape and a massing that is inappropriate and out of character with the streetscape. As one moves along the street and especially when one approaches the site from the south, one will clearly perceive the overwhelming built form of the dwellings on the streetscape and to the area in general.

44 Whilst the dwellings may comply in a numeric sense, and the amendments have massaged the development such that they generally comply with the guidelines in the development control plan, however, that is not the end of the test. The test for the Court in my assessment, and as articulated in council's development control plan, is the final outcome in terms of the merits of the application in the context of the suitability of the site for the development.

45 This is looked at in terms of s 79C, also of the Environmental Planning and Assessment Act and 79C(1)(c), that is the site is not suitable for the proposed development. One must have regard to the physical constraints of land and a proper site analysis would indicate that the proposal is an overdevelopment of the subject site with the topography that can be seen in this location.

46 It is noted that in terms of the adjoining sites at No.s 43 to 47, that in the assessment of that development application, the officer's report states "consideration has been given to the subdivision of the lots in 1992 and the reasoning for the creation of the larger lots at that time. That is on the western side of Carnarvon. Whilst many lots created were in the order of 600 to 800 square metres, it was not possible to create smaller lots on the subject land due to the topography of the land, the proposed road design and the existing subdivided land to the west of the site, Kosciusko Place. It is considered that the current application does not justify the further subdivision of the land". This is in respect of the adjoining land. 47 Similarly in my assessment of the subject development application a proper site analysis would inform the design process such that numeric non-compliance is not the be all and end all and the ultimate built form outcome must be looked in an assessment of this development application. I must have regard to council's development control in terms of giving "real, proper and genuine consideration" to its provisions. I must have a holistic reading of the development control plan and have regard to the objectives in terms of the assessment, not just the numeric compliance or non-compliance.

48 The issue of overdevelopment of the site with five dwellings in my assessment while there are a number of matters that in isolation would not warrant refusal, however, collectively these are symptomatic of an overdevelopment of the site. This includes the garbage, having the nine garbage bins on the boundary is inconsistent with council's controls and represents an unreasonable constraint for future development of the adjoining land as it would impact unreasonably on the neighbours. It is also noted in terms of the distance that one needs to travel for the garbage bin receptacles, that is for dwelling one this is some thirty metres removed and for dwelling two some forty metres. I accept that people may keep smaller receptacles close to their dwellings but this is not the only deficiency in the design. The turning area and the gradient of the driveway that provides the only practical visitor parking are also matters that indicate the proposed development is an overdevelopment of the subject site given the constraints of the topography.

49 The dominance of the garage doors and the storage areas with doors fronting the street is poor design and unacceptable. I not there was a re-jigging in the amended plans to delete the double garages to dwellings four and five, to provide a single garage and storage area with an access door to the street frontage with a minimal setback. This is an unacceptable design solution. Clearly the fundamental concern still remains in terms of the design and the prominence of the garage built elements that will protrude in the streetscape being proud of the dwellings themselves. In terms of the prominence of dwellings four and five in the streetscape compared to the adjoining properties, the setbacks are minimal and this is exacerbated by the height of the dwellings.

50 I note from Exhibit C the bulk of dwellings four and five are forward of No. 43 and the relative levels of the eave lines of the proposed dwellings are slightly above the eaves for No. 43. No. 43 is considerably set back some 14 metres from the street with a steep driveway. The dominance of the built form of dwellings 4 and 5 will be overwhelming in the streetscape. As I stated, standing directly in front of the subject site, even on the opposite side of the curve, one will not see the dwellings behind because of the height of dwellings four and five. However, when viewed from the side of the dual access way for dwellings one, two and three the bulk of these dwellings will also be visible in the streetscape. For comparison, I note that the eave for dwelling three is at an RL of about 52 and the height of dwellings one and two have an RL of about 60. 51 The applicant's planner indicated that the proposal before the Court and as shown in the plans was a function of the development control plan. That is a rather oversimplified way of assessing a development application. One must have regard to the overall built form in terms of the context of the area and the streetscape and the proposal is not justified by mere compliance and a holistic assessment of the application must be carried out. The design process should be informed by a proper site analysis and not designed purely in terms of numeric compliance.

52 In my assessment proposed five dwellings on the subject site is out of character with the area and inconsistent with the streetscape and the application should be refused.

53 The application having failed I do not need to address the issue of Torrens Title, however, but I will comment as agreed a Torrens Title subdivision could only take place after the multi unit development is erected because of the provisions of the plan. The applicant sought a Torrens Title subdivision as opposed to a strata title of the integrated multi unit development because this is driven by the market.

54 However, one must have regard to the legacy of a subdivision. Subdivision patterns far exceed the life of the immediate built form and even where a built form is appropriate, that does not necessarily lead to approval of a Torrens Title subdivision. The title, the subdivision pattern has much great longevity than the development itself and inconsistency with the character of the area must be considered. It would be short sighted to allow a subdivision into small allotments because it can be achieved on paper because the subsequent redevelopment of smaller lots may not be appropriate, in particular where there are significant constraints, such as the topography as in this instance. It would also be a bad precedent for other multi unit developments to be subdivided under Torrens Title as opposed to a strata title development when designed as an integrated development.

55 In summary I agree with the council's assessment in terms of the Section 82A review that "the proposal is an overdevelopment having regard to the natural topography of the land. Consequently the development does not provide an outcome that is aesthetically pleasing and sympathetic to the site and the surrounding streetscape". While this statement was made in the absence of the amended plans, nonetheless, the amendments now before the Court do not address the fundamental deficiencies of the development application. For example, the dominance of the garages or rather the unattractive urban design outcome of the garages and storage areas with doors, as I stated earlier, does not translate into an appropriate streetscape design and this is exacerbated by the minimal setbacks.

56 The proposed development, whilst it may technically comply having regard to the sections however, for the impact on the streetscape and the area generally, the development will be perceived as three storeys, in part because of the under croft portions of the dwellings. I note also this is not consistent with the spirit of the DCP that refers to two storeys in height. It would appear the 'in height' in the requirement infers that development is two storeys in height as opposed to merely a technical non-compliance. The interpretation of the DCP, however, is not determinative in my assessment and the merits under s 79C are the reason why the application fails.

57 However, I also note that a common sense interpretation of secondary legislation should be made. This applies in this case to whether one looks at the provisions for subdivision and frontage to street boundaries or whether one looks at the intentions in terms of garbage disposal or the height requirements within the development control plan.

58 Clearly the character of the area must be assessed for the development application and in this regard the aims and objectives of the plan in my assessment are not satisfied. The proposed development is inconsistent and I would even go as far as saying antipathetic to the provisions of good design. In this regard I refer to the LEP that requires that a variety of forms of higher density housing in locations which are accessible to public transport, employment, retail, commercial and service facilities. While the development represents a variety and a higher density form of housing, it is not accessible to transport and other services. 59 The objectives of the plan include: "to protect areas from inappropriate development" and the objective of the zone includes "to encourage high quality standard of development which is aesthetically pleasing, functional and relates sympathetically to nearby and adjoining development". On the basis of my findings above the proposal does not satisfy these provisions.

60 I note that the requirement of cl 9 states that the development must only be consistent with one or more of the objectives. Clearly it is consistent with at least one of the objectives, that is to permit the development of a range of housing types. However in terms of s 79C(1)(c), the site is not suitable for the proposed development.

61 Accordingly, on the basis of my assessment the formal orders of the Court in this matter are: 1. The appeal in respect of the property known as 41 Carnarvon Street Bowbowing is dismissed;

2. The development application submitted to Campbelltown City Council and as amended for a five dwelling multi unit development with strata subdivision is determined by the refusal of consent;

3. The exhibits are returned with the exception of 3, 8, A, C and F.

      J S Murrell
              Commissioner of the Court
              ljr

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