Abdul-Rahman v Canterbury Council

[2014] NSWLEC 1092

Land and Environment Court

New South Wales

Medium Neutral Citation:	Abdul-Rahman v Canterbury Council [2014] NSWLEC 1092
Hearing dates:	12 May 2014
Decision date:	20 May 2014
Jurisdiction:	Class 1
Before:	Brown C
Decision:	Directions for amended plans and conditions
Catchwords:	DEVELOPMENT APPLICATION: demolition of an existing dwelling and associated outbuilding and the construction of a two storey multi dwelling housing development - inadequate front and rear setbacks - inadequate private open space - inadequate deep soil area - building design - inadequate off street parking
Legislation Cited:	Canterbury Local Environmental Plan 2012 Environmental Planning and Assessment Act 1979
Category:	Principal judgment
Parties:	Mahmoud Abdul-Rahman (Applicant) Canterbury Council (Respondent)
Representation:	Mr P Clay SC (Applicant) Mr A Seton, solicitor (Respondent) Conomos Legal (Applicant) Marsdens Law Group (Respondent)
File Number(s):	10979 of 2013
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application No. DA-268/2013 for the demolition of an existing dwelling and associated outbuilding and the construction of a two storey multi dwelling housing development containing three units with 3 off street car parking spaces at 1 Stoddart Street, Roselands (the site).

1. The council contends that the application should be refused because:

(1)   the proposed development has excessive bulk and scale and is out of character due to:

• inadequate front and rear setbacks,
• inadequate private open space,
• inadequate deep soil area, and
• building design.

(2)   the proposed development has inadequate off street parking.

The site

1. The site is Lot 1 DP 125459. It is located on the western side of Stoddart Street, which is a cul de sac, and is adjacent to Canterbury Road. The site has a 22.73 m splayed frontage to Stoddart Street and site area of 547 sq m.

1. A single storey dwelling of brick construction and a metal outbuilding are located on the site with vehicular access from Stoddart Street. Development in the immediate vicinity of the site is predominately residential and includes single dwellings and dual occupancies. A townhouse development at 5-7 Stoddart Street comprises 6 x 2 bedroom units and 3 off street car parking spaces.

Relevant planning controls

1. The site is within Zone R3 - Medium Residential under Canterbury Local Environmental Plan 2012 (LEP 2012). The proposed development is permissible with consent in this zone as "Multi dwelling housing". Clause 2.3(2) states:

(2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.

1. The zone objectives 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 enable other land uses that provide facilities or services to meet the day to day needs of residents.

1. The council raised no issue in relation to cl 2.3(2).

1. The development complies with the 0.5:1 floor space ratio (FSR) and the 12 m building height development standards in LEP 2012.

1. Canterbury Development Control Plan 2012 (DCP 2012) applies. Specific requirements are provided for front and rear setbacks, private open space, deep soil area and car parking.

Setbacks

1. Clause 2.1.7xxv of DCP 2012 provides for a minimum setback of 6m from the front boundary. The proposal provides a 5.5m setback to the face of the building and a setback of 4.2m to the edge of the first floor balcony to Stoddart Street. Clause 2.1.7xxxi provides for a minimum 1m width of deep soil along side boundaries. The proposal provides for a 400mm deep soil area along the southern boundary.

1. Clause 2.1.7xxvi provides for a minimum rear setback of 5m and the proposal provides for a 1m setback although it was accepted by the council that this setback is acceptable given that this boundary is adjacent to an RMS owned vacant parcel of land.

1. Clause 2.1.6 provides the following setback objectives:

O1. Establish the desired spatial proportions of the street and define the street edge.

O2. Limit the scale and bulk of new building, appropriate to the location and use, by retaining landscaped open space around.

O3. Contribute to the green landscape by retaining adequate space for new trees and conserving any existing trees that are visually prominent.

04. Provide sufficient separation between buildings and adjacent land to limit the visual, environmental and likely impacts of new development.

O5. Minimise stormwater run-off by retaining deep soil that allows rainwater infiltration.

1. The Note after cl 2.1.7xxvi states:

Note: Variations to minimum setback controls may be considered on merit where it can be clearly demonstrated that the objectives of this DCP are met and architectural interest is created.

Evidence

1. Mr Colm Harte, the council's town planner and Mr Anthony Betros, the applicants town planner provided a joint statement although neither were required for cross examination.

1. Mr Harte states that the proposed front setback of 5.5 m at ground floor and 4.2 m at first floor represents a considerable variation from the front setback control of 6 m. The proposed setbacks result in a poor design outcome and presentation to Stoddart Street despite the recent amendments to the façade offered by the applicant.

1. Mr Betros disagrees with the conclusions of Mr Harte. He states that Stoddart Street setback is acceptable as its setback is consistent with the neighbouring buildings and contains a greater proportion of deep soil planting. The site is also located in a discreet position and the extent of the building that is visible along Stoddart Street is limited and is also suitably articulated along its length.

Findings

1. With the benefit of an inspection of the site and adjoining area and an understanding of the plans, I agree with Mr Betros on the street frontage setback. I am satisfied that the 0.5 m variation to the face of the building is not significant. This setback is consistent with the adjoining building and given the relatively small facade is not a matter that would warrant the refusal of the application. While the first floor balcony extends further into the setback, the plans appear to indicate an open or clear balustrade to the balcony. With this form of construction the balcony does not add unreasonably to the presentation to the street, in terms of bulk. The balcony, in fact, adds relief and architectural interest to this elevation. A condition can be placed on the consent requiring this type of construction.

1. In considering the objectives in cl 2.1.6, I am satisfied that they are met by the proposed variation to the setback. The variation to the setback (including the balcony) does not have any meaningful effect on the spatial proportions in the street (Objective O1), does not unreasonably limit the opportunity for landscaping (Objectives O2 and O3), provides a reasonable separation between buildings (Objective O4) and does hinder rainwater infiltration in any meaningful way (Objective O5).

Landscaping

Evidence

1. The proposed 400mm landscaping strip to be located along the southern side boundary is unacceptable to Mr Harte as it is in conflict with setback objective O3 in that this landscaping does not retain adequate space for new trees.

1. Mr Betros states that the planting along the southern boundary has been confirmed to be 400mm in width, which is sufficient for climbers along the southern boundary fence and groundcovers as shown on the landscape plan. Furthermore, it is not considered necessary; however, a condition could be imposed requiring grasscrete for the driveway area. There is limited visibility of the driveway given the discreet location in the streetscape and it is not out of character with the streetscape and other driveway presentations.

Findings

1. As I understand, the setback of the building to the southern boundary is acceptable however the proposed development is in breach of cl 2.1.7xxxi that provides for a minimum 1m width of deep soil along side boundaries. The proposal provides for a consistent 400mm landscaped setback. Presumably this setback has been determined by the turning circles needed to access the three garages under the building. No details were provided for the turning circles and even without a knowledge of the turning circles, additional landscaping could be provided at the entrance to the site from Stoddart Street without affecting access to the garages.

1. As part of the additional plans required, the turning circles required to access to the garage should be marked on the plans to determine whether additional landscaping can be provided along the southern boundary. In the event that no new landscaping can be provided, I am prepared to accept that the 400 mm landscaped setback is adequate in this case, even though it is not optimal.

Building design

1. Clause 2.2.3 Façade design and articulation has the following objectives:

Objectives

O1. Effective modulation and variation of building design to reduce the appearance of scale and mass, provide interest, diversity or emphasis, and provide a comfortable feel for humans:

O2. All elements of the façade and roof are integrated into the architectural form and detail of the building, and present an appealing streetscape appearance.

Evidence

1. Leave was granted for the applicant to rely on amended plans. The amended plans provided additional detailing to the Stoddart Street façade. Mr Betros provided further detailing to this façade as part of his evidence and a further architectural plan (Exhibit D). Mr Betros was satisfied that this façade was acceptable given the length of the facade facing Stoddart Street is not extensive at 9.8m, the facade contains sufficient articulation along the ground and first floor and landscaping in the front setback would also soften the appearance to Stoddart Street.

1. In his opinion, the bulk and scale of the proposal could not be considered to be excessive given it provides for generous setbacks to the respective street frontages and to the southern side neighbour. In particular, the southern side setback is far beyond the typical side setback found between dwellings along the street, being 6.5 m. The FSR and height are also below that permitted, thereby confirming that the proposal is not excessive in regard to its bulk and scale.

1. Mr Harte states that the further changes suggested by Mr Betros still represent a poor design outcome when viewed from the street. The proposed amendments does not provide sufficient design interest or articulation. While the site is located at the end of Stoddart Street, it is visible from the public domain, and is situated adjacent to a pedestrian thoroughfare, which provides access between Stoddart Street and Canterbury Road. Any attempt to introduce suitable and substantial articulation could only be provided through increased encroachments into the front setback area or impact upon the internal residential amenity of unit 3 of the proposed development.

Findings

1. On the question of design, I also agree with Mr Betros. The most recent amendments to the eastern elevation as outlined in the joint town planning report are a significant improvement on the original plans. The provision of additional windows and the treatment of these windows with variations on vertical and horizontal edges of the windows creates interest through shadowing and relief on the elevation.

1. While the western elevation was not raised to the same level of concern by the council as the eastern elevation, I am satisfied that the western elevation also requires some additional architectural attention. Even though this elevation does not have the same low scale domestic character as the Stoddart Street elevation, it is an elevation that will be viewed by many more people travelling along King Georges Road. There is no valid planning reason why this elevation should not receive the same attention as the Stoddart Street elevation. The applicant provided a further plan showing the additional treatment to the eastern elevation. This plan also provided a revised western elevation although this did not form part of Exhibit D. In my view, the western elevation requires amendment to reflect something similar to that shown in Exhibit D where additional windows and the treatment of these windows with variations on vertical and horizontal edges of the windows creates architectural interest.

1. With changes identified above, I am satisfied that Objectives O1 and O2 in cl 2.2.3 are met.

Car parking

Evidence

1. Mr Harte states that unit 1 contains a rumpus room on the first floor that is capable of being used as a second bedroom and therefore the development is considered to be a 3 x 2 bedroom development rather a 2 x 2 bedroom and 1 x 1 bedroom development. On this basis, 5 off street parking spaces are required comprising of 1space per dwelling, 1 visitor space and 1 common parking space. The application proposes 1 garage for each unit, resulting in a deficiency of 2 off street parking spaces.

1. The submitted traffic study by TRAFFIX, showing the current on street parking availability, is noted however the future development of the area is required to be considered. Stoddart Street and the surrounding locality is an area undergoing rapid redevelopment, which is typified by higher densities and associated increases in the demand for off street parking. Accordingly, a variation to the off street parking provision is not acceptable because as redevelopment occurs, on street parking will become increasingly limited. In this regard, it is imperative that all development provides sufficient off street to satisfy the demand generated. The variation should also not be supported as DCP 2012 specifically highlights that properties located within a cul de- sac require a higher rate of visitor parking provision.

1. The reliance by Mr Betros on cl 6.8.3 (v) 'Variation of parking requirements' is not justified as this clause states that "Council will only consider variations to the parking rates in the CDCP 2012, if they are justified through a parking assessment, the proposal will provide a better planning outcome, and meet the relevant objective of the CDCP 2012." In this case, Mr Harte is not satisfied that the proposal will provide a better planning outcome.

1. Mr Betros states the traffic report prepared by TRAFFIX provides comprehensive justification for the proposed amount of parking on site and the availability of on street parking. Any visitor would be likely to utilise on-street parking which is readily available. Me Betros states that he has visited the site on at least 5 occasions, at various times of the morning and afternoon, and his observations are consistent with TRAFFIX, in that there is abundant on-street parking along both sides of Stoddart Street.

1. Furthermore, it cannot be assumed that the rumpus room will be changed to a bedrooms as this not what has been applied for. Also a bus stop is also located out the front of the site along Canterbury Road, which provides convenient access to nearby centres and train stations.

Findings

1. Clause 6.8.3 requires parking to be provided at the rate set out in the table following this clause. For Multi Dwelling Housing, parking is to be provided at the rate of 1 space per single bedroom dwelling, 1.2 spaces per 2 bedroom dwelling (with 0.2 spaces to remain as common property) and 1 visitor space per 3 dwellings where the site is located in a cul-de-sac. Based on the calculations of Mr Betros, for a 2 x 2 bedroom and 1 x 1 bedroom development, 1 space is required and provided as garages for each unit, 0.4 spaces are required as common property but no spaces are required as the 0.4 spaces is rounded down (cl 6.8.2 iii). A visitor space is required but not provided so the application is deficient by 1 space but based on the TRAFFIX study, adequate parking is available on street to accommodate visitor parking.

1. Mr Harte maintains that the development is a 3 x 2 bedroom development as the rumpus room in the 1 bedroom unit can be easily used as a bedroom. The effect of this scenario is to require 0.6 spaces as common property and by rounding up, an additional space is required. Together with the absence of a visitor space, the development is deficient by 2 spaces.

1. On the matter of whether the development is 2 x 2 bedroom and 1 x 1 bedroom (Betros) or 3 x 2 bedroom (Harte), I accept that it should be regarded in the configuration suggested by Mr Betros. This reflects the configuration applied for and while it may be possible to adapt the unit for an additional bedroom, it would be unreasonable to assume this would happen and calculate the carparking based on this assumption. This would leave a deficit of 1 visitor space although this visitor space may still be able to be located on site and achieve compliance with the car parking requirements.

1. There is an area of some 35 sq m just to the north of the entry to the property. It is designated as "Pebbled Area" on the architectural plans and undefined on the landscape plans but includes some landscaping around the periphery and the storage area for the waste bins. It would appear that sufficient room is available in this area for a visitor space, landscaping and bin storage. Water infiltration for this area could be maintained through the use of permeable material such as grasscrete. The car space would be sufficiently screened by the proposed boundary fence and landscaping to have little, if any effect on the streetscape.

Private open space

1. Mr Harte and Mr Betros agree that there is adequate private open space, given that each private open space area is beyond 50 sq m and that Council's latest amendment to the DCP requires only 40 sq m and 5m min dimensions.

Directions

1. As the further amendments identified in the judgment need to be addressed by way of amended plans, time should be allowed for these to be prepared. The amendments are:

(1)   an open or clear balustrade to the balcony on the eastern façade,

(2)   the provision of turning circles to show the entry and exit to the garages to maximise landscaping along the southern boundary.

(3)   additional detailing to the Stoddart Street eastern façade consistent with Exhibit D.

(4)   additional detailing to the King Georges Road western façade similar to the detailing in Exhibit D.

(5)   the area just to the north of the entry to the property is to provide for a visitor space, landscaping and bin storage with the visitor space and bin storage constructed of permeable material such as grasscrete.

1. The further plans will allow these plans to be referenced in the conditions of consent that will also need to be amended. A timetable for production of the amended plans and conditions will be discussed with the parties when these findings are handed down. Liberty to restore the matter on 48 hours notice is provided in the event that there is any dispute.

1. On submission of agreed amended plans and conditions, the following orders will be made in chambers:

(1)   The appeal is upheld.

(2)   Development Application No. DA-268/2013 for the demolition of an existing dwelling and associated outbuilding and the construction of a two storey multi dwelling housing development at 1 Stoddart Street, Roselands is approved subject to the conditions in Annexure A.

(3)   The exhibits are returned with the exception of exhibits A and 1.

_____________

G T Brown

Commissioner of the Court

Decision last updated: 22 May 2014