Abdul-Rahman v Bankstown City Council

[2013] NSWLEC 1190

Land and Environment Court

New South Wales

Medium Neutral Citation:	Abdul-Rahman v Bankstown City Council [2013] NSWLEC 1190
Hearing dates:	9 October 2013
Decision date:	11 October 2013
Jurisdiction:	Class 1
Before:	Tuor C
Decision:	See paragraphs 43 and 44
Catchwords:	DEVELOPMENT CONSENT - non compliance with floor space ratio control, impact of bulk and scale, consistency with suburban character of the area, adequacy of private open space.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Bankstown Local Environmental Plan 2001
Cases Cited:	Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298. North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468. Tipalea Watson Pty Ltd v Ku-ring-gai Council (2003) 129 LGERA 351. Vacik Pty Ltd v Penrith City Council (Land and Environment Court, Stein J, 24 February 1992);
Category:	Principal judgment
Parties:	Abdul-Rahman (Applicants) Bankstown City Council (Respondent)
Representation:	Mr G McKee of Mckees Legal Solutions (Applicant) Mr A Seton of Marsdens Law Group (Respondent)
File Number(s):	10574 of 2013

Judgment

1. This is an appeal against the refusal by Bankstown City Council (council) of an application under s 96(2) of the Environmental Planning and Assessment Act 1979 (EPA Act) to modify Development Consent (DA-1139/2011) for the "demolition of existing structures and construction of an attached dual occupancy with Torrens Title subdivision" (Development Consent) at 227 Wangee Road, Greenacre (site).

1. The contentions raised by council are whether:

(i)   the development is substantially the same development as that approved in the Development Consent;

(ii)   the increase in floor space ratio (FSR) is excessive;

(iii)   the bulk and scale of the development results in unaccptable visual bulk;

(iv)   the proposal is inconsitent with the existing and likely future character of the area;

(v)   the private open space is adequate.

1. The contentions in relation to the landscaping in the front setback area (Contention 6), the internal width of the garage (Contention 7), on site detention (Contention 8) and the public interest (Contention 9) were resolved through amendments to the plans, the agreement of experts and conditions or were not pressed by council.

The site and locality

1. The site is located on the northern side of Wangee Road. It is rectangular in shape with a width of 14.935m and a depth of about 40.2m with a total site area of 601.5sqm. The site slopes to the rear with a fall of about 3m. It is developed with a recently constructed dual occupancy development.

1. The site is adjoined by a recent dual occupancy development to the west (229 Wangee Road), which is currently undergoing modification works to remove parts of the rear first floor, which was not constructed in accordance with its development approval (DA-259/2012/1). Adjoining the site to the east is a recent two storey detached dwelling (225 Wangee Road). The rear the site adjoins a single storey detached dwelling (141 Wilbur Street).

1. The site is located in a low density residential area with predominantly detached dwellings ranging from modest single storey dwellings to larger, more recent two storey dwelling and dual occupancy developments.

Background and proposal

1. The Development Consent was approved on 5 April 2012 subject to conditions. The s 96 application seeks approval for amendments to the Development Consent which include:

• extensions to the front, side and rear of the originally approved building increasing the floor area by 110.68m2;
• internal reconfigurations to both the ground and first floor levels;
• the construction of a 22.5° pitched tile roof in place of a 5° flat metal roof;
• replacement of approved glass balustrades with solid masonry balustrading;
• relocation of windows;
• inclusion of 1.7m high screens along the sides of the rear deck areas and an internal screen between the two decks;
• construction of new rear pergolas over the decks;
• reconfiguration to the internal staircases to achieve compliance with the Building Code of Australia;
• construction of a new masonry front fence; and
• deletion of condition 2(b) of the consent requiring the installation of additional privacy (lattice) screening above the rear fence line.

1. The modifications sought to the Development Consent have been constructed with the exception of the rear pergolas over the decks and the 1.7 metre high privacy screens.

1. Council refused the s 96 application on 26 July 2013. The reasons for refusal reflect those raised as contentions in the proceedings.

Planning controls

1. Section 96 of the EPA Act relevantly provides:

(2) Other modifications

A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:

(a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and

(b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 5) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and

(c) it has notified the application in accordance with:

(i) the regulations, if the regulations so require, or

(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.

Subsections (1) and (1A) do not apply to such a modification.

(3)In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 79C (1) as are of relevance to the development the subject of the application.

(4)The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified.

...

1. The parties disagree on whether the development proposed in the s 96 application is substantially the same as the development approved in the Development Consent and therefore whether it meets the jurisdictional test imposed by s 94(2)(a). This issue is discussed below.

1. The site is zoned 2(a) - Residential A under Bankstown Local Environmental Plan 2001 (BLEP). Dual occupancy development is permissible with consent. Clause 11(3) provides:

The consent authority may grant consent to development only if it has had regard to:

(a) the general objectives of this plan, and

(b) the objectives of the zone in which it is proposed to be carried out, and

(c) the other provisions of this plan.

1. The objectives of the 2(a) zone in cl 44 are:

(a) to complement the single dwelling suburban character of the residential areas of Bankstown City, and

(b) to enable dual occupancy, rowhouse and villa development that is otherwise consistent with the objectives of the zone, and

(c) to ensure that sites are of sufficient size to provide for buildings, vehicular and pedestrian access, landscaping and retention of natural topographical features, and

(d) to ensure that development is of a height and scale which complements existing buildings and streetscapes (noting that 2 storey dwellings may occur throughout residential areas), and

(e) to allow for some non-residential use that would not adversely affect the living environment or amenity of the area, and

(f) to encourage energy efficiency and resource conservation measures in the design, construction and occupation of residential buildings, and other buildings permitted in this zone, and

(g) to ensure adequate public and private open space is available to residents, and

(h) to require satisfactory drainage, and

(i) to require landscaping of development sites.

1. Clause 30 of BLEP permits a maximum floor space ratio (FSR) of 0.5:1. The Development Consent approved an overall FSR for the development of 0.5:1 (Lot A-0.478:1 and Lot B-0.52:1). The FSR for the modification is 0.684:1 which results in an additional 110.68sqm of gross floor area (GFA).

1. Clause 45(1)(a) of BLEP provides:

Consent may be granted for a building on land within Zone 2 (a) or 2 (b) only if it would be compatible with the character and amenity of existing and likely future buildings on adjoining land in terms of:

(a) its scale, bulk, design, height, siting and landscaping, and

1. Bankstown Development Control Plan 2005 (BDCP) applies to the development. Section 5 of Part D2 provides controls for dual occupancy development which include height, setbacks, private open space, visual privacy and car parking. The objectives of s 5 relevantly include:

(a) to ensure lot sizes provide adequate space for dwellings, landscaping, open space and access;

(b) to ensure the building form, building design and landscaping of dual occupancies are compatible with the prevailing suburban character of the residential areas, particularly the single dwelling suburban character of the low density residential areas;

(c) to ensure the building form and building design of dual occupancies provide appropriate amenity to residents in terms of private open space, access to sunlight and privacy;

(d) to ensure the building form and building design of dual occupancies do not adversely impact on the amenity of neighbouring properties in terms of visual bulk, access to sunlight and privacy;

The evidence

1. The hearing commenced on site as a conciliation conference under s34AA of the Land and Environment Court Act (LEC Act). The parties did not reach agreement and the conciliation conference was terminated and the hearing commenced forthwith in Court. The parties agreed that the view and the discussions at the conciliation conference could be evidence in the proceedings.

1. The Court heard expert planning evidence from Mr A Betros, for the applicant, and Mr J Owen, for the council.

Substantially the same development

1. Mr Seton, for the council and Mr McKee for the applicant referred to the relevant decisions of the Court and generally agreed on the approach to determining what is "substantially the same" for the purpose of s 96(2)(a) of the EPA Act.

1. Section 96(2)(a) requires that I be satisfied that the development to which the consent as modified relates is substantially the same as the development for which consent was originally granted. The finding of satisfaction in s 96(2)(a) is a jurisdictional fact which must be satisfied before an application for modification under s96 can be considered on its merits.

1. Consideration of whether the development is substantially the same requires both qualitative and quantitative comparison: Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298. The test of whether the development is substantially the same requires assessment of whether the modification "does not radically transform the originally approved development": Tipalea Watson Pty Ltd v Ku-ring-gai Council (2003) 129 LGERA 351. The word "substantially" means "essentially or materially having the same essence": Vacik Pty Ltd v Penrith City Council (Land and Environment Court, Stein J, 24 February 1992); North Sydney Councilv Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468.

1. An understanding of "the development" for which consent was granted (as modified by conditions) and a comparison with the development proposed in the s 96 application is necessary in order to undertake the quantitative and qualitative comparison required to satisfy s 96(2)(a).

1. Mr Seton outlined the changes to the Development Consent and submits that they are significant in number and in substance. Mr McKee submits that while there are a number of quantitative changes the Development Consent is not radically transformed and it is essentially and materially the same. It remains an attached dual occupancy with Torrens title subdivision.

1. I accept Mr McKee's submission. In undertaking the qualitative and quantitative comparison required, I find that the development proposed under the s 96 application is substantially (and in essence) the same as that approved in the Development Consent. The external envelope has changed with it being closer to the front, side and rear with a pitched roof rather than a flat roof. However, the development remains an attached two storey dual occupancy development, with living areas on the ground floor and four bedrooms on the first floor. Each dwelling has a single garage and parking fronting the street and private open space at the rear and the allotments remain the same.

Bulk and scale and compatibility with low density suburban area.

1. The key disagreement between Mr Betros and Mr Owen was whether the exceedance of the FSR control results in a bulk and scale of development, which is not compatible with the low density suburban character of the area. They disagree on whether the proposal meets the objectives of the FSR standard in cl 30 of BLEP and s 5 of BDCP.

1. The experts agree that from the streetscape the additional FSR and bulk of the development is generally consistent with adjoining buildings. They also did not raise concerns about the additional FSR and bulk to the sides, as the setbacks comply with the requirements of the BDCP. Their principle concern related to the additional FSR at the rear where the proposal extends about 2.28m beyond what was originally approved at both the ground and first floor level.

1. Mr Owen acknowledged that the setback from the rear boundary of the ground floor of the proposal was generally consistent with the setback of the adjoining properties (about 13m at 225 Wangee Road and 12m at 229 Wangee Road), although he noted that this dimension is to the terrace and the building line of 225 Wangee Road is setback further (about 15m), which is consistent with other properties in the street and what was approved under the Development Consent. He considered that the "reduced" set back of 229 was acceptable because of its increased front setback. The extension of the ground floor reduced the amount of private open space which Mr Owen considered to be undesirable.

1. Mr Owen considered the bulk of the extension of the first floor to be excessive. It extends further than the first floor at 225 and 229 Wangee Road (as modified) and is inconsistent with the character of these and other developments, where the upper floor is setback from the ground floor to reduce bulk.

1. Mr Betros considered the ground floor to be consistent with the rear setback line established by the adjoining properties. The terrace to 225 Wangee Road is enclosed on its sides and roofed and at ground level reads as the rear building line of the dwelling. In his opinion, the proposal provides more than adequate private open space to meet the needs of the occupants. The bulk of the first floor was also consistent with that of the adjoining developments. Although it was setback less than these building, the recessed central balcony, the reduction in the parapet height and the proposed pergola, reduce its bulk. Furthermore there is no minimum rear setback in the BDCP or a requirement that the upper floor be setback from the ground floor. The additional floor space increases the internal amenity for the occupants and does not result in adverse impacts, including visual bulk.

Findings

1. The Development Consent overall complied with the FSR control in cl 30 of BLEP. The amendments propose additional floor area, which significantly exceeds the FSR control. The relevant objective of clause 30 of the FSR standard in BLEP is "to generally regulate the scale and bulk of development consistently with the capacity and character of the area of the development site". In considering whether the proposal meets this objective, the disagreement between the experts focused principally on the rear setback of the two adjoining properties as determining the capacity and character of the area.

1. The wider area is varied in its character, with small single storey dwellings and more recent large two storey dwellings and dual occupancy developments. While there is no control that establishes a minimum rear setback, consistency with the rear setback line established by adjoining and nearby properties is an appropriate principle to apply.

1. The bulk of the extension of the ground floor is acceptable as it is generally consistent with the rear building line of the adjoining properties, given that the terrace of 225 Wangee Road is partially enclosed and reads as the rear of the building. Furthermore, for the reasons discussed below, the private open of the development is adequate.

1. The aerial photo in the Assessment Report prepared by Mr Owen, illustrates a consistency in the first floor rear building line of the adjoining and nearby properties, which the proposal will exceed. I accept that the amendments made to the application to lower the height of the parapet and increase the recess of the balcony will reduce the impact of the additional bulk but not to the extent that it is acceptable, given that it results from a breach in the FSR control.

1. The first floor approved in Development Consent is generally consistent with the rear building line of the first floor of 225 and 229 Road (as modified). The proposed first floor projects beyond this building line and does not reflect the built form of these two properties where the first floor is set back from the ground floor to reduce bulk. The first floor is visible from the rear of properties in Wilbur Street and from vantage points in Wilbur Street itself. I accept Mr Owen's evidence that the additional bulk of the first floor beyond that which was approved in the Development Consent is not consistent with the capacity and the prevailing suburban character of the area.

1. There were no objections to the modification application and the changes will improve the internal amenity for the occupants of the dwellings, however, this does not justify the variation to the FSR standard and increased bulk. There is ample opportunity within the floor area of the approved development to provide a reasonable level of accommodation and amenity.

Private Open Space

1. Section 5.15 of BDCP provides that 80sqm of private open space must be provided for each dual occupancy dwelling. In oral evidence, the experts agree that the amended proposal complies with this requirement if the storage shed is not provided. There is no requirement in BDCP for a storage shed but there is clearly a benefit in providing usable storage. This would reduce the area of private open space to 75sqm at ground level.

1. A deck (6.5mx2.2m) with a pergola is also provided with direct access off the living/dining area. As the deck is more than 300mm above ground and does not have minimum dimensions of 5m, it is not included in the calculation of private open space. Nonetheless, I agree with Mr Betros, that the deck will provide considerable amenity to the residents. It is of sufficient size to provide outdoor seating, faces north and is directly accessible off living areas.

1. The private open space and the deck are more than adequate to meet the needs of the development and would not be a reason to refuse the application.

Conclusion

1. For the above reasons, I find that the amendment to the rear first floor cannot be approved as the additional floor area exceeds the FSR control in cl 30 of BLEP and does not meet the objective of the control or the objectives for dual occupancy development in s 5 of Part D2 of the BDCP. The change results in additional bulk, which is inconsistent with the prevailing suburban character established by the adjoining properties. The other changes sought by the s96 application are acceptable

1. While the s 96 application could be approved without the proposed change to the rear of the first floor, it is unclear how the roof and internal planning would be resolved, particularly the landing off the stairway. It is therefore appropriate that a final set of plans and conditions be provided to ensure consistency and certainty in the development consent. I note that this may reduce the number of bedrooms from four to three, but this is a consequence of the applicant's decisions to amend the arrangement of bedrooms approved under the development consent.

1. The final plans should delete the additional floor area and roof to the rear bedrooms and provide a recessed balcony which does not extend beyond that approved in the Development Consent.

1. Orders will be issued in Chambers upholding the Appeal once the plans and conditions, which reflect this decision are finalised.

Directions

1. The applicant is to file and serve amended plans that reflect this decision by 18 October 2013. The parties are to file agreed conditions by 25 October 2013.

1. Final Orders will be issued in Chambers.

Annelise Tuor

Commissioner of the Court

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Decision last updated: 11 October 2013