In relation to the subject site this clause alters the FSR nominated on the LEP maps of 0.3:1 to an FSR of 0.4:1.
It was Councils evidence that Councils intent in the drafting of this clause was to allow for the fact that some lots in the local government area had less land area, and therefore an increase in FSR was provided to these sites to allow them be developed with a dwelling that was consistent with the expectations of the community.
- As part of the oral evidence the planning experts agreed the following interpretation of objective (a):
1. Firstly it seeks to ensure that the built form is compatible with the size of the land;
2. Secondly it seeks to ensure that the built form takes into account the environmental constraints of the land; and
3. Finally seeks to ensure that the built form is compatible with, and relates to, the context.
Given the above, it is clear that the test of consistency with the objectives (a) of the FSR standard is of a different nature to that of consistency with the zone objectives. Consistency with the objective (a) requires consideration of the compatibility of the development with land size, environmental constraints and context.
- In summary the FSR request outlines the following to demonstrate the proposal is consistent with objective (a):
* The sunroom extension is considered minor in relation to the dwelling and the site utilisation.
* The deck area at the rear of the dwelling to be enclosed is within the extremities of the existing footprint.
* The resulting alterations and additions are considered to be compatible in bulk and scale with the site development.
* The proposal is considered compatible with the character of the locality, when the principles in the appropriate case law are applied.
* The visual catchment which incorporates the subject site is characterised by low density sign and two storey houses with a variety of forms, heights and site densities.
* The zoning of the precinct indicates a continuation of a low density residential environment
* The floor space ratio of a development is not readily translated into visual bulk and scale and the design of the proposed alterations are not perceived as incompatible because:
They are obscured from public view or appropriately screened by vegetation;
They are located some 14m from the front boundary of the property
* The dwelling is otherwise compliant with side setbacks, height, landscaped area and other DCP controls with the exception of the rear setback. The rear setback of the extension will be a logical prolongation of the existing approved setback and is acceptable on its merits.
* The residential amenity that will result from the development represents a better planning outcome because it allows for the better utilisation of the land and buildings.
- Preston CJ observed in his judgement in Randwick City Council v Micaul Holdings Pty Ltd at [39] that clause 4.6(4) does not require the consent authority to be satisfied directly that compliance with each development standard is unreasonable or unnecessary in the circumstances of the case, but only indirectly by being satisfied that the applicant's written request has adequately addressed those matters. In this matter the FSR request, in contemplating the developments consistency with the objectives of the standard erroneously articulates the objectives of the development standard. It appears, as submitted by Mr. Arch, that this is a typographic error. As the objectives of the control are central to the variation request, I have given this weight in considering whether the request is well founded and adequately addresses the matters required by cl 4.6.
- The issue of compatibility of a proposal within an existing context has been considered by the Court on many occasions. Roseth SC in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 provided guidance in the assessment of whether a development would be compatible. It was his conclusion that for a development to be compatible, it must to be capable of existing together in harmony, and that the test different to sameness. He stated at [22] it is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, the harmony is harder to achieve. He suggests there are two tests, one is whether a proposal's physical impacts on the surrounding area are acceptable and the second is if it is in harmony with the buildings around it and the character of the street. He states:
25 The physical impacts, such as noise, overlooking, overshadowing and constraining development potential, can be assessed with relative objectivity. In contrast, to decide whether or not a new building appears to be in harmony with its surroundings is a more subjective task. Analysing the existing context and then testing the proposal against it can, however, reduce the degree of subjectivity.
26 For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment. In some areas, planning instruments or urban design studies have already described the urban character. In others (the majority of cases), the character needs to be defined as part of a proposal's assessment. The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping. In special areas, such as conservation areas, architectural style and materials are also contributors to character.
27 Buildings do not have to be the same height to be compatible. Where there are significant differences in height, it is easier to achieve compatibility when the change is gradual rather than abrupt. The extent to which height differences are acceptable depends also on the consistency of height in the existing streetscape.
28 Front setbacks and the way they are treated are an important element of urban character. Where there is a uniform building line, even small differences can destroy the unity. Setbacks from side boundaries determine the rhythm of building and void. While it may not be possible to reproduce the rhythm exactly, new development should strive to reflect it in some way.
29 Landscaping is also an important contributor to urban character. In some areas landscape dominates buildings, in others buildings dominate the landscape. Where canopy trees define the character, new developments must provide opportunities for planting canopy trees.
30 Conservation areas are usually selected because they exhibit consistency of scale, style or material. In conservation areas, a higher level of similarity between the proposed and the existing is expected than elsewhere. The similarity may extend to architectural style expressed through roof form, fenestration and materials
I have utilised the above framework to resolve whether the proposal meets the interpretation of objective (a) given at [27].
- It was agreed between the experts that the relevant character is (Exhibit 2):
One and two storey dwellings of varying sizes
Generally, lots surrounding the site (from aerial photography) appear to have more landscape area that built upon area, and dwellings have a garden stetting with generous front and rear setbacks depending on whether they are single dwellings or dual occupancies. The size of allotments and extent of site coverage is also zone dependant. For example the allotments in the nearby E4 some are larger and have a higher proportion of landscape to built upon area
There are no other lots in the order of 412.6m². 67 Minmosa which directly adjoins the site has an area of 580.2m².
The lots surrounding the site generally exceed the 930m² minimum lot size that applies to R2 zoned land in the vicinity. The minimum lot size in the E4 zone is 1500m².
- No issues are pressed by the Council that are relevant to test 1, namely that the development has unacceptable physical impacts, such as noise, overlooking, overshadowing and constraining development potential.
- Ms Buteux-Wheeler confirmed that the Councils primary concern was the compliance of the development with the objectives of the FSR control, in particular the compatibility of the development proposed with the context. Her evidence was that achieving compatibility was difficult as the lot originated from a planning scheme that was delivered on a state wide basis and that sought to increase dwelling supply. In having this approach SEPP 53 provided for a greater density and build form than was allowed by the local controls. It was her oral evidence that the subject site currently sits in contrast the local area, and the visual catchment of the site and that this contrast will be emphasised by the proposed development.
- Ms Buteux-Wheeler concluded that the current dwelling is not contributing to the landscaped backdrop of the local area, or allowing it to be achieved on the subject site by provision of adequate open space and setbacks. It was her evidence that the proposal, in particular the sun room extension, if supported by the Court would erode further the ability of the site to have contextual fit and contribute to the character of the local area.
- In relation to the study component of the proposed works Ms Buteux-Wheeler concluded that, with the support of a well-founded FSR request the works would not be objected to by Council. These works are, in her view, distinguished from the sunroom as they are not visually prominent, fall within the existing roof of the dwelling and are small enough to take on the character of the existing house. Therefore these works would have a neutral impact on character.
- In her oral evidence Ms Buteux-Wheeler agreed with Mr Arch that there are other developments within the visual catchment of the proposed works that are more visually prominent than the proposed sunroom extension, including on the adjacent property. It was her view that, similar to the current dwelling, these are anomalies and do not form the dominant character.
- In relation to compatibility of the sunroom Ms Buteux-Wheeler was clear that she has no dispute with the visual impact of the structure. The argument from her perspective is that the dwelling relies on the adjoining properties to provide separation and a landscape setting for the dwelling amongst the existing built form. Her evidence was that the setback to 67 Mimosa is particularly sensitive in this regard. The character of the local area is strongly defined by the separation between built form and the provision of space for landscaping. This separation between built forms is key to the character of the area and is negatively impacted by the proposal, as outlined in the following:
(Ms Buteux-Wheeler) is of the opinion that due to the combination of the existing non-compliant FSR on the site and the siting of the existing built form with setbacks that are not consistent with the local controls or the existing surrounding character, the setbacks of the existing dwelling are of particular significance in maintaining a built form to space ratio to ameliorate a 172.244m² (plus garage) four bedroom dwelling on a lot that is less than half (43%) of the size of surrounding lots in the near vicinity. The addition of further floor space reduces the ability of setbacks to ameliorate the impacts of a development that is already in a negative position in relation to compliance and an anomaly in the area. (Exhibit 2)
- In contrast it was the evidence of Mr Sarich that the proposal is a single storey addition, which is the predominant character. The works are minor and consistent with the setbacks established by the existing dwelling. The rear setback is consistent with the side setback of 67 Mimosa Road adding to the contextual fit of the proposal. The development is compliant with Councils controls in relation to open space and site coverage - both of which allow for landscaping which is identified as being an important element.
- Mr Sarich argues that the sunroom does not offend the objectives of the control, but will improve the amenity of the residents. Approximately half of the additional floor space of the proposed sunroom would be contained within the current extent of the dwelling when viewed from the street. The remainder of the sunroom would be obscured from view on Carina Road by the existing fencing and landscape.
- In contrast Ms Buteux-Wheeler argues that the extension of the sunroom and the enclosure of the laundry deck increases the proportion of the common boundary which is adjacent a building with a non-compliant setback. She concludes that the additional floor space will reduce the function of the rear setback in terms of: the relationship of space to built form; availability of opportunities for landscaping; and reducing the available private open space of the dwelling. In assessing the compatibility of the proposal utilising Project Venture Developments v Pittwater Council she concludes:
that an analysis of compatibility is not limited to the built form but also requires an assessment of the space surrounding built form, the size and configuration and relationship of lots, as the objectives of the standard require development to be in compatibility with the size of the land, and its context. This analysis is beyond bulk and scale when viewed from the street. (Exhibit 2)
- In submissions Mr Arch emphasised that it is agreed between the experts that the development proposed has no adverse visual impact, and is not inconsistent with the architectural character of the surrounding development. It is his submission that therefore the extension cannot be objectionable. In utilising Project Venture Developments v Pittwater Council his submission is that the visual catchment is heterogeneous and includes two storey built forms with significant paved areas that are more visually obtrusive than the proposed works. He concludes that the test is that the development is 'capable of existing in harmony' and that this is achieved by the proposal.
- Mr Arch concludes that the development has no impact that is worthy of refusal, and that Councils approach to the strict application of the control is a situation where a variation has no planning consequence should not be followed by the Court as it is contrary to the role of clause 4.6 which is to allow variation where it is appropriate.
- In contrast Mr Hudson submits that the Councils evidence has confirmed that the key characteristic of the area, as defined by the planners at [31], is the space provided around the built form to reduce its scale and allow for landscaping. Council says this is not achieved by the proposal, as outlined by the evidence of Ms Buteux-Wheeler, and that in this case the applicant has not established that the proposal meets the requirement for a built form and density that is compatible with the size of the land to be developed, its environmental constraints and its contextual relationship.