Urbanesque Planning Pty Ltd v Canterbury City Council

CASES CITED: Salanitro-Chafei v Ashfield Council [2005] NSWLEC 366

APPLICANT Mr S. Kinger, solicitor

LEGAL REPRESENTATIVES: RESPONDENT Mr A. Seton, solicitor of Marsdens Law Group

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11267of 2008 Urbanesque Planning Pty Ltd v Canterbury City Council

JUDGMENT Background 1 This appeal was lodged against council's refusal of a section 96 application to modify a condition of the development consent for an attached dual occupancy at 178 Burwood Road, Croydon Park.

2 The development consent was granted on 18 September 2002 and included the following condition, which is appealed: 1.16 The design of the building being modified as follows : * … * Reduce the floor space so it does not achieve maximum 0.5:1, in accordance with the requirements of Council's Dual Occupancy Code (DCP 14). * ... 3 Following this consent, a construction certificate was granted on the basis of the approved plan, but not in compliance with condition 1.16. At the time of assessment of the original development application the FSR was calculated at 0.53:1.

4 The development has since been constructed on this basis . including 2 car spaces and a occupation certificate issued. However the applicant subsequently applied for a subdivision certificate, which was granted subject to the compliance with the conditions of development consent. At this time it was discovered that condition 1.16 was not complied with.

5 The applicant has sought to address this by way of the s96 application to delete this condition. The council has refused this on the following basis, which form the issues in this appeal: o The modification would result in excessive FSR, representing an overdevelopment of the site, in terms of bulk, scale and streetscape impact. o Insufficient car parking spaces. The site 6 This site is situated on the corner of Burwood Road and President Street, Croydon Park and it is described as Lot B in DP 381646. The site area is 460.6 sq m it has a frontage of 10.515m to Burwood Road ( + splay) and 25.93m to President Ave.

7 The subject site is located opposite Balmoral Reserve Croydon Park. The locality comprises residential and public open space zoned properties that vary in size and shape. The adjoining property located to the north is occupied by a single storey house and the adjoining property to the east fronting President Street is occupied by a dual occupancy. Planning controls 8 The following controls are relevant: o Canterbury LEP No 138 (LEP 138); under which the site is zoned Residential 2(a) and the development is permissible with consent. o Development Control Plan 14 - Dual Occupancy Development (as applicable at the time of consent). This DCP established the objectives and design requirements for dual occupancy developments. The design elements relevantly include details on site requirements, floor space ratio (FSR), setbacks, open space and car parking on the basis of I car space for dwellings below 125 sq m and generally 2 car spaces above that. o Development Control Plan 20 -Car Parking (as applied at the time of assessing the original development application). The evidence 9 Detailed evidence in the form of a joint planning report was presented by Ms K Mirow; planner/development assessment officer at council and Mr E Sarich, consulting town planner.

10 The planners assessed the modification application relative to the DCP provisions. They also recalculated the existing FSR of the building, with Ms Mirow determining the FSR at 0.57:1 (i.e. an exceedence of 31.8 sq m) and Mr Sarich determining a marginally lower FSR of 0.56:1.

11 Clause 5.4 of DCP 14 contains the following controls: o Objectives; a. To ensure that dual occupancy developments maintain an appropriate residential character and visual bulk. b. To allow appropriate sized dwellings for residents. o Design Requirement; a. The maximum total floor space ratio of dwellings in a dual occupancy development is 0.5:1. Note: On irregular shaped sites, the maximum floor space ratio may not be achievable.

12 Accordingly, Ms Mirow says that the building exceeds the floor space control by 31.8 sq m, which represents an unacceptable overdevelopment of the site resulting in excessive bulk and adverse streetscape impacts. Whilst she conceded that the Burwood Road presentation, when considered alone was satisfactory, nevertheless she said the overall development was unsatisfactory and that greater articulation could be used to achieve a reduction in floor space, or the size of the dwellings reduced from 3 bedrooms to 2 bedrooms. 13 Ms Mirow expressed the opinion that: " The reduction to the floor space of the dwellings would still result in these dwellings being of adequate size to cater for a small sized household. This is consistent with the size of the living areas that are conducive to a small sized household. Similarly, the provision of one onsite car space lends itself to a small household. Accordingly, the reduction of the floor space of the dwellings, such as the removal of a bedroom would not affect the internal amenity of the dwellings. It is my opinion that it was never the intent to provide dwellings to cater for a large household . 14 Against this, Mr Sarich says that the context and architectural design are key factors when assessing building bulk and sole reliance should not be on the FSR. As the building is broken down to legible components so that the building reads as a single dwelling in Burwood Road and as a dual occupancy in President Avenue, its perception of bulk is acceptable. This is in the context that there are other similar, larger dwellings nearby. He says that the difference in the FSR would be imperceptible to the casual observer and there would be no compelling reason or benefit in seeking compliance.

15 The other issue concerns the provision of onsite car parking spaces because the dwellings only include 2 car spaces. The DCP requires 2 car parking spaces for dwellings with floor areas over 125 of sq m. As Unit 2 (fronting Burwood Road) has an area of 128.2 sq m and Unit 1 an area of 133.8 sq m, then Ms Mirow says that the inability to provide a total of 4 spaces is another indicator of the overdevelopment of the site.

16 However Mr Sarich calculates the area of Unit 2 as 124.4 sq m and says that it complies and only require 1 space. Insofar as Unit 1 has an area of 132.6 sq m, he considers this minor and within the ambit of reasonable discretion to permit only 1 space. Furthermore, in the subject context there is ample on-street parking adjacent to the park in President Street. Conclusion 17 In determining this appeal I have considered the applicant's submission that this unfortunate situation has occurred due to the approval of the construction certificate and issue of the occupation certificate by the private certifier, without due regard to the conditions of consent. However it seems to me that the assessment procedures for a s96 application are clearly set out in section 96 (3) and that mainly requires consideration of the relevant s 79C matters. Accordingly I have considered the merits of the application on the basis that no significant weight be given to any hardship.

18 It is apparent that the relevant control is DCP 14 that was in force at the time of the consent being granted. It allowed dual occupancy development on lots with a minimum area of 460 sq m, subject to compliance with a number of design controls. Reference to the original assessment report shows that in respect of: o Site area; the application is satisfactory but at the limit of compliance. o FSR; the application was assessed at 0.53:1, giving an exceedence of approximately 14 sq m that was deemed excessive but conditioned for reduction. However more accurate assessment of the FSR is an increase to approximately 0.56:1 i.e. an additional 31 sq m(approx). o Setbacks; noting that this is a corner lot, the setbacks are satisfactory except for the porch/balcony of unit 1 fronting President Street. The control requires 6m/7m setbacks and the proposal provides 4m/5.5m. o Private open space (POS); For dwellings of this type unit 1 required 62 sq m and unit 2 required 59.5 sq m. However the unit 2 courtyard encroaches on the building line. It appears this non-compliance was accepted partly on the basis the FSR be reduce to comply with the 0.5:1 control and thereby improve the POS. o Car parking; the original assessment was made on the basis of the underestimated floor areas/FSR resulting in smaller units requiring only 1 space each. However the more accurate calculations indicate exceedence of at least Unit 1 being greater than 125 sq m and requiring 2 spaces.

19 From this assessment and a similar assessment undertaken for s 96 application for the 19 November 2008 council meeting, it appears the development maximised the floor area on the site and depended on discretionary encroachments into the setbacks for the porch and POS. As such I accept Ms Mirow's opinion that it presents as larger dwelling than intended by the controls because of these exceedences.

20 However I accept the applicant's submissions that a degree of discretion may be exercised in applying the DCP controls. In this case Mr Sarich says there are other similar buildings in the vicinity that are comparable in bulk and scale. He refers to the large 2 storey dwelling at 19 Windsor Avenue.

21 The details on this dwelling are that it is a single dwelling that was approved in 1983 under different controls. Also it has a larger area of approximately 607 sq m and provides approximately 205 sq m of POS. Taking into account these differences and the fact that it is separated by the intervening park, I do not consider much weight should be given to the compatibility with this different type of building. 22 Instead, it seems to me from the view and reference to the aerial photo (exhibit 2) that an appropriate area to apply the part 5.4 objective (a) is the block bounded by Burwood Road, President Street, Windsor Avenue and Georges River Road.

23 Insofar as the planners had difficulty in agreeing on the character of this block, I am satisfied it contains predominantly single detached dwellings with traditional front and rear yards. Insofar as reference was made to a few other 2 storey dwellings, there was no evidence regarding their non-compliances with the prevailing controls. There is a 2 storey dual occupancy type development adjoining to the east but the evidence is that this is a complying development.

24 Consequently, my assessment is that the dual occupancy is of larger bulk and scale than envisaged by the DCP controls, particularly the exceedence of the FSR. On this basis I accept the opinion of Ms Mirow that it does not demonstrate satisfactory compliance with objective 5.4 (a) to maintain appropriate visual character and bulk.

25 In this regard, I note the discussions that various options were available to achieve compliance and I consider they should be considered so as to satisfy this objective. In this regard the Court is not a design authority. 26 From the evidence, I do not consider there was any compelling evidence that the non-compliances should be allowed so as to provide appropriate sized dwellings. Whilst Mr Sarich said that the 3 bedroom dwellings provide better amenity for the residents, nevertheless I consider the more appropriate consideration is the environmental capacity as identified in the DCP controls of this 460 sq m lot to adequately support 2 x 3 bedroom dwelling and maintain the desired character.

27 The provision of adequate car parking is an associated concern. According to my assessment of the controls at least 1 additional car space is required in respect of the larger 3 bedroom dwelling and the inability to accommodate this on-site is another example of the over development of the site. Presumably a smaller complying development would likely create less demand for car parking.

28 I have also considered Mr Seton's submissions regarding the planning principle stated by the Senior Commissioner in Roy Salanitro-Chafel v Ashfield Council - Appeal No 10361 of 2005, where he said at In Salanitro-Chafei v Ashfield Council [2005] NSWLEC 366 [at paras 23 to 27], Roseth SC considered relationship between density and residential character. he posed the question of whether there is there an upper level of density above which it is hard to achieve compatibility with the character of typical single-dwelling areas? He answered the question by saying that the upper level of density that is compatible with the character of typical single-dwelling areas is around 0.5:1. However, he concluded that a building with a higher FSR than 0.5:1 is not necessarily inappropriate in a suburban area but that once 0.5:1 is exceeded, it requires high levels of design skill to make a building fit into its surroundings.

29 In applying that principle to the subject application, I am satisfied there are similarities and that the existing neighbourhood is characterised as a typical suburban area and therefore compliance with the FSR control of 0.50:1 is not unreasonable in the circumstances.

30 I also give diminished weight to Mr Klinger's submissions regarding the interpretation of the DCP that the introduction allows some flexibility because the design requirement "provide suggestions on how the objectives might be achieved". In this case, I am satisfied from consideration of both the numeric and qualitative outcomes that the underlying objectives are not adequately satisfied.

31 I also note that the DCP provisions have been updated whereby the minimum size lot for dual occupancy is now 600 sq m. This will reduce further dual occupancy development in this block focussing more attention of the subject building as alien to the other development. Therefore I consider compliance with the prevailing FSR of 0.5:1 is not unreasonable.

32 Whilst I consider condition 1.16 lacks specificity, nevertheless it clearly indicated some reduction in the FSR was required and this should have been addressed.

33 In the ultimate I rely on the opinion of Ms Mirow that this development represents an overdevelopment of the site in the context of the prevailing controls, resulting in the appeal being dismissed.

Court orders 1 The appeal is dismissed. 2 The section 96 application is refused. 3 The exhibits may be returned except 1.

      R Hussey
      Commissioner of the Court
      ljr

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