Valen Properties Pty Ltd ATF Valen Properties Trust v Hurstville City Council

Valen Properties Pty Ltd ATF Valen Properties Trust v Hurstville City Council - [2015] NSWLEC 1045 - NSWLEC 2015 case summary — Zoe

[6]

Planning framework

Under Hurstville Local Environmental Plan 2012 (HLEP), residential flat buildings are permitted with consent in Zone R3 - Medium Density Residential. The relevant objectives are:

To provide for the housing needs of the community within a medium density residential environment.
To ensure that a high level of residential amenity is achieved and maintained.

Clause 4.3(1) Height of buildings - relevant objectives are: (a) to ensure that buildings are compatible with the height, bulk and scale of the existing and desired future character of the locality, (b) to minimise visual impact, disruption of views, loss of privacy and loss of solar access to existing development and to public areas and the public domain, including parks, streets and lanes, (d) to nominate heights that will provide a transition in built form and land use intensity.
The Height of Buildings Map gives a maximum permissible height of 12m for the R3 zone. The B2 zone to the east across Price Lane has a height limit of 18m; the B2 zone on the south-east corner of Morotai Avenue is 28m.
Clause 4.4(2) - Floor space ratio (FSR) - FSR Map sets an FSR of 1.0:1 for Zone R3. The B2 zone to the east has an FSR of 2.0:1, and to the south-east of 3.0:1.
Clause 4.6 HLEP 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.
The essential aim of State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP 65) is to improve the design quality of residential flat development in New South Wales.
Amongst other Quality Design Principles in Part 2, SEPP 65, the council presses Principle 2: Scale. This states: Good design provides an appropriate scale in terms of the bulk and height that suits the scale of the street and the surrounding buildings. Establishing an appropriate scale requires a considered response to the scale of existing development. In precincts undergoing a transition, proposed bulk and height needs to achieve the scale identified for the desired future character of the area.
Clause 30(2) SEPP 65 requires a consent authority, when determining a development application for a residential flat building, to take into consideration a range of matters including the design quality principles and the Residential Flat Design Code (RFDC).
The development application relies on State Environmental Planning Policy (Affordable Rental Housing) (SEPP - ARH). The aims of the Policy include: (a) to provide a consistent planning regime for the provision of affordable rental housing, (b) to facilitate the effective delivery of new affordable rental housing by providing incentives by way of expanded zoning permissibility, floor space ratio bonuses and non-discretionary development standards, (d) to employ a balanced approach between obligations for retaining and mitigating the loss of affordable rental housing, and incentives for the development of new affordable rental housing.
Clause 8 - Relationship with other environmental planning instruments - If there is an inconsistency between this Policy and other environmental planning instrument, whether made before or after the commencement of this Policy, this Policy prevails to the extent of the inconsistency.
Clause 14 lists the standards that cannot be used to refuse consent. Those relevant to this matter are: (1) Site and solar access requirements (c) landscaped area (ii) in any other case - at least 30 per cent of the site area is to be landscaped. (d) deep soil zones If, in relation to that part of the site area …that is not built on, paved or otherwise sealed: (i) there is soil of sufficient depth to support the growth of trees and shrubs on an area of not less than 15 per cent of the site area (the deep soil zone), (e) solar access If living rooms and private open spaces for a minimum of 70 per cent of the dwellings of the development receive a minimum of 3 hours direct sunlight between 9.00 am and 3 pm in mid-winter. (2) General (a) parking (ii) in any other case - at least 0.5 parking spaces are provided for each dwelling containing 1 bedroom, at least 1 parking space is provided for each dwelling containing 2 bedrooms..
Clause 13(2)(a)(ii) permits an additional FSR of 0.5:1 if the existing FSR is 2.5:1 or less and if the percentage of gross floor area to be used for affordable housing is 50% or higher.
Clause 16 enables the continued application of SEPP 65.
Clause 16A - Character of local area states: A consent authority must not consent to development in which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area.
Development Control Plan No. 1 - Hurstville LGA Wide (the DCP) applies; in particular, section 4.3 Multiple Dwellings and Residential Flat Buildings. The following clauses are pressed by one or both of the parties. 4.3.2.1 Site Planning - Objective Site planning aims to maximise the attributes of a site while establishing a good relationship between buildings on a site and with neighbouring property and buildings. 4.3.2.2 Streetscape Local Character, Height and Scale The style of new buildings should reflect the buildings around them. This would include the size and spacing of neighbouring buildings and the way in which they relate to the street. The style of landscaping and use of sympathetic materials, colours and proportions of features such as roof forms and windows is also important. Building height must be compatible with existing buildings on neighbouring properties, including at the public street frontage. 4.3.2.3 Building Form and Style ii) Roofs Roofs should be constructed with a pitch of between 22° and 35°. A roof form provided [sic] a varied shape with hips, gables or other forms is encouraged. Where appropriate, the use of dormer windows, verandahs, balconies or other architectural elements may be used. Dormer windows should have an internal width of no greater than 2m. The roof form should also mark the entrance to a building by the use of a porch, portico or similar element. Where attics are proposed, the maximum roof pitch may be increased to 45°. v) Storeys In the R3 zone Medium Density Residential Zone, the maximum number of habitable storeys is 3. 4.3.2.5 Building Setbacks - Objective Setbacks…The objective of these setbacks is to provide adequate space for landscaping, visual and acoustic privacy, sunlight penetration, safety requirements and for the establishment of an attractive streetscape. [in summary] Residential Flat Buildings - 6m front setback; 6 m rear setback; on corner sites, setbacks from the secondary street frontage - 6m for Residential Flat Buildings; side boundary setbacks are determined by the building envelope controls; balconies for Residential Flat Buildings are not permitted to project into side setback areas but may project up to 1.0m into the front and rear setback areas. 4.3.2.6 Car Parking and Access Residential Flat Buildings: one space per 1 or 2 bedroom unit…; visitor parking: one space per 4 dwellings or part thereof. 4.3.2.8 Solar Design and Energy Efficiency The design of buildings should minimise the overshadowing of neighbouring private open space or windows to habitable rooms. Rooms used during the daytime should be capable of receiving adequate sunlight. Unless site conditions dictate otherwise (e.g. slope or east/west orientation of sites), buildings should be designed to allow at least 3 hours of sunshine upon the open space areas of adjacent dwellings between 9.00 am and 3.00 pm on 22 June. 4.3.2.10 Landscape All Residential Flat Buildings must provide a minimum 20% of the total site area as landscaped open space.

[8]

Height

The planners agree that the height of the roof ridge at the front of the development exceeds the 12m height control in HLEP by 810mm, rather than the 450mm in Mr Harding's 'Amended Planning Position Paper' dated 15 December 2014 [Exhibit E]. The planners also agree that they did not specifically address the cl. 4.6 variation in their joint report.
Mr Harding states that while the front of the building exceeds the height control, the non-compliance diminishes towards the rear of the site and about 80% of the building complies. In his opinion, there are no adverse impacts arising from the area of non-compliance. Mr Rowan maintains that a compliant height limit could be achieved with a different roof form.
Mr Rigg for the council contends that consent should not be granted to the proposed development as the cl. 4.6 variation has not established that non-compliance with the height development standard is in the public interest or is consistent with the objectives of the height control.
Mr Rigg maintains that the applicant relies on the provision of affordable rental housing under the SEPP in order to advance the public interest and therefore warrant a departure from the development standard. While he accepts that there are differences in the construction of an objection under State Environmental Planning Policy No 1 - Development Standards (SEPP 1) and a cl. 4.6 variation under the standard instrument format of an LEP, the findings of Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827 are relevant. In particular at [60] His Honour states (citations omitted): 60 Although the power under SEPP 1 is wide, it needs to be exercised on the grounds in SEPP 1 relating to the development standard and the circumstances of the case. It does not allow a consent authority to dispense with compliance with a development standard merely in order to bring about conformity with some other planning control. SEPP 1 does not permit the consent authority to rank in order of importance planning controls applicable to the land and the proposed development, and give precedence to other controls over the development standard.
In regards to the objectives of the height of buildings development standard in cl. 4.3(1) HLEP, Mr Rigg asserts that the proposal will disrupt Mr Paul's views and will lead to a loss of solar access to the existing development to the east and to Price Lane; matters, he says which are not assessed in the cl. 4.6 variation request. In this way, Mr Rigg contends the proposal does not achieve objective (b) - to minimise visual impact, disruption of views, loss of privacy and loss of solar access to existing development and to public areas and public domain, including parks, streets and lanes. He also submits that the argument with respect to objective (d) that an exceedence of the height control is appropriate because it provides a transition between the R3 zone and the B2 zone to the east is not well made as the LEP itself establishes the heights of the respective zones in order to achieve the appropriate transition in built form and land use intensity.
Mr Eastman for the applicant also contends that the words and concepts in SEPP 1 and cl. 4.6 are sufficiently similar for the steps in Wehbe to be applied when considering a request to vary a development standard under cl. 4.6. He cites [42]-[43] and [75] [citations omitted]: 42 An objection under SEPP 1 may be well founded and be consistent with the aims set out in clause 3 of the Policy in a variety of ways. The most commonly invoked way is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard… 43 The rationale is that development standards are not ends in themselves but means of achieving ends. The ends are environmental or planning objectives. Compliance with a development standard is fixed as the usual means by which the relevant environmental or planning objective is able to be achieved. However, if the proposed development proffers and alternative means of achieving the objective, strict compliance with the standard would be unnecessary (or is achieved anyway) and unreasonable (no purpose would be served). 75 …, it is not sufficient merely to point to an absence of environmental harm.
Mr Eastman also cites Samadi v Council of the City of Sydney [2014] NSWLEC 1199 at [27] where Brown C outlines the four preconditions cl. 4.6 imposes on the Court in exercising its power to grant consent to a development. In this regard he presses the table of height development and zone objectives in the [further] amended cl 4.6 variation request prepared by Mr Harding [Exhibit N]. He notes that Mr Rowan raised no concerns with the cl. 4.6 variation request. Mr Eastman submits that the table demonstrates how the proposal is consistent with these objectives. He cites former Chief Justice Pearlman's approach in Schaffer Corporation v Hawkesbury City Council (1992) 77 LGERA 21 at [21], as adopted by Brown C in Samadi, where Her Honour 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 in ancillary to those objectives, nor even that it is compatible.
In summary, the applicant's position is that the proposal:

by not being antipathetic to the objectives of the height of buildings control and the zone, is consistent with them;
creates no impacts on external amenity, preserves the amenity of current and future development which thus demonstrates that compliance with the standard is 'unnecessary'; and
achieves a better planning outcome because of the provision of affordable rental housing - therefore demonstrating that there are sufficient environmental planning grounds to justify contravention of the standard - a factor adopted by the Court in Abdul-Rahman v Strathfield Council [2014] NSWLEC 1237 at [52].

[9]

Findings - Height

Mr Rigg contends that before the matter can be determined on its merits, the starting point must be consideration of the cl. 4.6 request to vary the height of buildings development standard in cl. 4.3 HLEP. Unless subclauses 4.6(3) and 4.6(4) are satisfied, consent must not be granted for the proposed development. He contends that cl. 4.6(4)(a)(ii) has not been demonstrated and the development should be refused.
Subclauses 4.6(3) and 4.6(4) state: (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. (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 proposal exceeds the building height development standard in cl. 4.3 HLEP by 810mm at the southern end of the roof. In accordance with cl. 4.6(3) Mr Harding for the applicant has prepared a written request [Exhibit N] that seeks to justify the contravention of the development standard.
In order to critically assess the written request for a clause 4.6 variation to the height standard, the request must objectively demonstrate how the proposal meets the specific objectives for the height control in cl. 4.3 HLEP.
Objective (a) is "to ensure that buildings are compatible with the height, bulk and scale of the existing and desired future character of the locality". With the benefit of the site inspection, and notwithstanding the additional FSR enabled by SEPP ARH, it would seem to me that the development is compatible with the specified elements of the existing character of the area. The site is surrounded on three sides by three-storey residential flat buildings, to the east is an eclectic mix of built forms at the rear of the commercial zone and which range in height from two to three storeys. The zoning under HLEP 2012 anticipates the desired future character of the locality to be a mix of uses stepping down in height in linear bands from the commercial zone along Belmore Road to R3 and then to R2 further to the west. In essence I agree with the 'character' assessment on page 19 of the Statement of Environmental Effects [Exhibit B] and cross-referenced in Exhibit N.
Objective (b) is "to minimise visual impact, disruption of views, loss of privacy and loss of solar access to existing development and to public areas and public domain, including parks, streets and lanes". While Mr Rigg presses Mr Paul's loss of district views, no evidence was adduced that the views of the greenery at the rear of the site would be available if a fully compliant building were to be constructed. The area of non-compliance is limited to the southern portion of the roof ridge. I am satisfied that the elevation of the building in this section does not result in any additional loss of privacy. In regards to solar access, Mr Rigg submits that the impact on the lane was not addressed. Given the relatively small area of non-compliance that diminishes as the building extends to the north, there is no evidence that the loss of some afternoon sun on the southern portion of the lane is anything but a minor impact of no significant consequence. I agree with Mr Harding's assessment in Table 2 of Exhibit N that the height non-compliance will have no adverse impact on the streetscape, and is unlikely to be discernible from the public domain, especially when viewed against the backdrop of the residential flat building to the north which because of the topography, sits well above the site.
Objective (c) does not apply as there are no heritage items in the locality. Objective (d) is "to nominate heights that will provide a transition in built form and land use intensity". I agree with Mr Rigg that the Height Maps in the LEP establish the heights deemed to be suitable for the zone and the location. However, in the particular circumstances of this matter, I agree with the applicant that the proximity of the site to a portion of the B2 zone with an 18m height limit and the reasonable distance from the R2 zone to the west, and the elevated position of the residential flat building to the north, are such that the relatively minor exceedence of the height control is not antipathetic to this objective.
Consequently, I am satisfied that: the development is consistent with the objectives of the height of buildings standard; compliance with the standard is unnecessary in the circumstances; and the written request has adequately addressed this requirement.
Clause 4.6(3)(b) requires the applicant to demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard. The written variation relies on the assessment that the variation will not create any unreasonable environmental impacts. In my view, this subclause is wide enough to include other environmental planning grounds such as the provision of affordable rental housing. This is consistent with the approach in Abdul-Rahman and in Legacy Property Pty Ltd v Waverley Council [2014] NSWLEC 1150 at [24]. A finding that a proposal satisfies a number of other planning instruments does not necessarily elevate those instruments above the instrument in which the development standard sits.
Overall, I am satisfied that the applicant's written request has adequately addressed the matters required to be demonstrated by subclause 4.6(3) and subclause 4.6(4)(a)(i) is similarly satisfied.
The relevant objectives of Zone R3 Medium Density Residential 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.
To ensure that a high level of residential amenity is achieved and maintained.

Table 3 in Exhibit N outlines how the proposed development meets the relevant objectives of the R3 zone. I am satisfied to the necessary extent that the proposal is consistent with these objectives, and I agree with Mr Harding's comments in the written request. Specifically, the proposed development is a residential flat building that includes affordable rental housing and which is generally consistent with the design principles and controls in SEPP 65, SEPP ARH, HLEP 2012 and HDCP 2013. To that end, the proposal meets the relevant zone objectives.
On balance I am satisfied that the proposed development will be in the public interest as it is consistent with the objectives of the height standard and the objectives of the R3 zone and cl. 4.6(4)(a)(ii) is met.
Section 39(6) of the Land and Environment Court Act 1979 enables the Court to exercise the power conferred by cl. 4.6 without the concurrence of the Director-General; therefore subclause 4.6(4)(b) is addressed.
As a consequence, the remaining issues can be addressed on their merits.

[10]

Compatibility

The planners agree that the Planning Principle published in Project Venture v Pittwater Council [2005] NSWLEC 191 is an appropriate vehicle for assessing cl. 16A of SEPP ARH, that is, whether the design of the development is compatible with the character of the area. While the planners agree on many elements of the proposal, they disagree on whether the proposal is compatible with the surrounding development.
Mr Rowan maintains that the pitch of the roof is too extreme and the attic storey is atypical of nearby residential flat buildings and combined with the non-compliant height, when viewed from the public domain will have an acceptable visual impact. Mr Rowan also opines that the front setback, including the landscaping and fence treatment, is non-compliant and incompatible with the front setbacks established to the west of the site. In particular Mr Rowan identifies the projection of each corner of the development facing Morotai Avenue, the limited common open space along Morotai Avenue and the masonry elements of the front fence and the edge of the private terraces fronting Morotai Avenue.
Apart from the front setback, Mr Rowan is of the opinion that the form of the building as it faces Price Lane is inconsistent with the residential flat building to the north in that the proposed development has a non-compliant setback. In his view, there should be greater relief and modulation, particularly to the entrance/ centre of the building.
Mr Harding is of the view that the character of the proposal is compatible with the character of the area given its location between existing residential flat buildings and the commercial zone to the east. In his opinion the roof form is not atypical and is encouraged by the DCP. With respect to the building to the north, Mr Harding states that the setback to Price Lane is mostly driveway with little landscaping and the circumstances of that site are somewhat different, however he notes the use of a hedge along the front façade of that building as being similar to what is proposed for the site.
Mr Rigg contends that given its corner location and proximity to the commercial precinct and the railway that this is an important site in this part of Riverwood and therefore compatibility is a significant consideration. Mr Rigg presses Mr Rowan's opinions that the setbacks off both Morotai Avenue and Price Lane are inconsistent with the pattern established by nearby developments and thus incompatible. He also maintains the arguments made in regards to the height controls.
Mr Eastman submits that when assessed in the light of the Planning Principle in Project Venture, the proposal is compatible with the character of the area. He contends that the relevant questions to be answered are:

What is/ are the existing and desired future characters?
Are there any physical impacts?
Are there any visual impacts?
Is the proposal, while not the same, therefore capable of existing in harmony?

Mr Eastman relies on Mr Harding's characterisation of the surrounding development, the applicable height and FSR controls, and the variety of roof forms. He submits there are no physical impacts and that the visual impact of the height exceedence is minor and likely to be indiscernible to the objective observer travelling from the station to the residential area to the west. In essence, he maintains that the building will present as a three storey residential flat building surrounded by other three storey flat buildings. The residential flat building to the south has its entrance off Price Lane and a side setback of less than 6m off the lane. The Morotai Avenue frontage is not significantly different to the flat building to the west.
Mr Eastman concludes that while the proposal will not be the same as the surrounding buildings, neither will it be particularly different and, given the context of existing and future development, it will certainly co-exist in harmony without serious visual impact and therefore meets the test in s 16A SEPP ARH.

[11]

Findings - compatibility

Clause 16A of SEPP ARH prevents a consent authority from granting consent to a development under this SEPP unless it has considered whether the design of the development is compatible with the character of the local area.
The Planning Principle in Project Venture establishes an approach to answering the question of compatibility. The following summarised extracts are relevant to this proposal:

Compatibility is not sameness; buildings can exist in harmony without having the same density, scale or appearance [22];
Where compatibility is desirable, its two major aspects are physical impact and visual impact; are the physical impacts acceptable; is the proposal's appearance in harmony with the buildings around it and the character of the street [24];
Physical impacts - noise, overlooking, overshadowing can be assessed objectively; assessing visual harmony is more subjective but analysing context can reduce the degree of subjectivity [25];
To be visually compatible, new developments should contain or respond to the essential elements that make up the character of the surrounding environment; the most important contributor to urban character is the relationship of the built form to surrounding space - a relationship created by height, setbacks and landscaping [26];
Buildings do not have to be the same height to be compatible; gradual changes achieve compatibility more easily than abrupt changes; also depends upon consistency of height in the existing landscape [27];
Front setbacks and their treatment are an important element of urban character; where setbacks are uniform, small differences can destroy unity; side setbacks determine rhythm of building and void [28];
Landscaping may dominate in some areas, in others buildings dominate the landscape [29];
Architectural style through roof forms, fenestration and materials may be important [30]; and
Most people are not trained planners or urban designers; as people move through the city they respond intuitively [31].

Mr Rowan's concerns go to roof form, non-compliant height, front fence and landscaping treatment, intrusion of the building into the front setback, and the limited side setback and building articulation along Price Lane. Mr Harding's opinion is described in [62] of this judgment.
I am satisfied on the evidence that the physical impacts of the proposal are not so significant or of much difference to exiting development to be out of character with the surrounding area. The question of compatibility comes down to the visual impact.
The surrounding built form comprises residential flat buildings and an eclectic mix of building styles at the rear of the commercial properties to the east of Price Lane. While the attic roof form is not typical of the surrounding residential flat buildings, I agree with Mr Harding that it fully satisfies the design criteria for roofs in HDCP subclause 4.3.2.3(ii) and in that way must be considered by council to be an acceptable element of the desired future character of the area. I also agree with Mr Harding that there are a range of roof forms along Price Lane.
With respect to the front setback, the corners of the proposed development do project into the 6m front setback from Morotai Avenue as does the strong masonry element that frames the front balconies of the adjoining flat building to the west. I am not convinced that this intrusion into the front setback is so out of character as to warrant refusal of the development. Similarly, I am not satisfied that the setback from Price Lane and the entry from that lane is much different to the setback off the lane and side entrance of the flat building to the south of the site. I am not persuaded by Mr Rigg's submissions that the site is a significant gateway to the residential area beyond.
In regards to the front landscaping, I agree with Mr Rowan that there should be more communal open space at the frontage to Morotai Avenue. In my opinion this is not to necessarily create an area of useable open space but to ensure there is sufficient room to create a functional landscape buffer/ screen between the public domain and the private courtyards of units G01 and G02 which will have a greater level of oversight and control than areas of private open space. No landscape evidence was adduced however with the horticultural expertise I bring to the Court I note that the palette of species indicated on the landscape plan comprises mostly very low-growing species that will contribute very little to either privacy or softening the built form. I do not share council's opinion that the entire front setback should be private open space however I consider it should be widened to at least 2.3m. The landscape and architectural plans need to be amended accordingly and changes made to the planting scheme to provide a better level of amenity.
On balance, and subject to the imposition of a condition addressing the landscape issues discussed above, I find that the design of the proposed development is compatible with the character of the local character.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (23 paragraphs)

Parties

Cases Cited (6)

Cited By (5)