Abdul-Rahman v Strathfield Municipal Council

[2016] NSWLEC 1393

Land and Environment Court

New South Wales

Medium Neutral Citation:	Abdul-Rahman v Strathfield Municipal Council [2016] NSWLEC 1393
Hearing dates:	7 and 8 June 2016
Date of orders:	07 September 2016
Decision date:	07 September 2016
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	1. The appeal is dismissed 2. DA0140/2015 for a residential flat building at 251-253 Homebush Road, Strathfield South is refused. 3. The exhibits, except Exhibits A and 1, are returned.
Catchwords:	DEVELOPMENT APPLICATION – residential flat building; infill affordable housing; height; clause 4.6 variation; local character; building separation; setbacks; overshadowing; apartment mix; precedent
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy 65 - Design Quality of Residential Apartment Development Strathfield Local Environmental Plan 2012
Category:	Principal judgment
Parties:	Omar Abdul-Rahman (Applicant) Strathfield Municipal Council (Respondent)
Representation:	Counsel: Mr R O’Gorman-Hughes (Applicant) -   Solicitors: Ms A Spizzo, Landerer & Company (Applicant) Mr A Seton, Marsdens Law Group (Respondent)
File Number(s):	16/152492

Judgment

1. COMMISSIONER: This is an appeal under s 97(1)(b) of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal by Strathfield Council (the Council) of a development application for a residential flat building (RFB) at 251-253 Homebush Road, Strathfield South (the site).

2. A number of issues associated with the proposed development were resolved prior to the hearing. However, the Council remained concern with the proposed side setbacks and the consequential impacts in terms of overshadowing, streetscape character and future development potential of adjoining sites. Concern was also expressed at the precedent of allowing the development in a transition zone undergoing redevelopment and with the potential impacts of remaining height breaches.

Background to the application

3. Development Application No. 2015/140 (the DA) was lodged with the Council in November, 2015. It proposed to demolish existing structures and construct a 3-4 storey RFB comprising 20 apartments above two levels of basement car parking containing 18 car spaces and 8 bicycle spaces.

4. The application was lodged as ‘Infill Affordable Housing’ under State Environmental Planning Policy (Affordable Rental Housing) 2009 (the ARH SEPP).

5. The DA was publicly notified and 3 written objections and a 62 signature petition were lodged. The submissions raised concerns with traffic and parking, character, height, noise generation by mechanical plant, privacy, and overshadowing.

6. On 23 December 2015, the Applicant lodged an appeal against the deemed refusal of DA 2015/140. The Council did not subsequently determine the application but raised a number of contentions of concern.

7. The appeal was the subject of conciliation under s34 of the Land and Environment Court Act 1979. Amended plans were prepared in response to issues raised during the conciliation process.

8. On April 22, 2016 the Applicant was given leave by the Court to amend the application and rely on amended plans and documentation (the Revision A plans). The Revision A plans reduced the total height to 3 storeys, the number of apartments from 20 to 14 and the FSR from 1.61:1 to 1.24:1. The number of parking spaces increased by one and the number of bicycles spaces decreased by two. The area of communal open space and deep soil planting was also increased and improvements made to the solar access and/or cross ventilation of a number of apartments.

9. Leave was also granted for the Applicant to rely on a supplementary planning report, an urban design report, and a clause 4.6 request lodged to justify exceeding the height control. A cost order was made under s97B of the Act as agreed by the parties.

10. The amended development as reflected in the Revision A plans contained three studio and eleven 2 bedroom apartments situated above two levels of basement car parking containing 19 car spaces, including two accessible spaces, and 6 bicycle spaces.

11. The Revision A plans were publicly notified in April 2016 and 4 written objections to the amended proposal were received.

12. Notwithstanding the modifications contained in the Revision A plans, the Council remained concerned with the height, incompatibility with the local character, inadequate building separation to adjacent dwellings and sites, overshadowing, visual and acoustic privacy impacts, amenity for future residents, apartment mix, precedent, public interest considerations, and insufficient information on a number of matters.

13. Prior to the hearing, the planning experts prepared a Joint Expert Report (Exhibit 4). Further amendments to the proposal were prepared in response to their conferral and revised contentions put forward by the Council, culminating in further revisions to the plan (the Revision B plans).

14. In substance, the Revision B plans varied from Revision A plans by: providing an increased setback of the lift from the northern boundary; a reduction in the rooftop communal open space and the height and extent of the associated parapet and central roof area; an increased street setback for the front northern portion of the building; addition of privacy screens to the rear terraces of 3 ground floor apartments and all apartments on the western elevation; and modifications to a number of apartments on all levels to improve solar access and/or ventilation.

15. At the commencement of the hearing, the Court viewed the site and development in the vicinity and heard from two of the objectors to the development, being the adjoining neighbour to the south at 255 Homebush Road, and a resident of Holmwood Avenue to the east of Homebush Road.

16. The adjoining neighbour’s concerns were primarily the loss of sunlight and privacy to living and recreational areas and the breaches of LEP height controls and DCP setback controls resulting in a development that was too high and too close. He was also concerned with the streetscape impacts and the increased traffic from this and other redeveloped sites in the street.

17. The Holmwood Avenue resident raised concerns generally with the form of redevelopment that was occurring in Strathfield South, including for affordable housing, and the potential impacts for long standing residents and the environment. He questioned the overshadowing, traffic and parking impacts for his property and his street and the need for the height proposed.

18. At the hearing, leave was sought and granted for the applicant to rely on further changes to the plans (the Revision C plans). The Revision C plans varied from the Revision B plans in that the basement car park was moved further from the south western boundaries and additional deep soil planting and landscaping provided. Additional site levels were also provided.

19. The Council did not object to the granting of Leave but on the basis of the Applicant paying further s97B costs given the requirement to consider not only the Revision C proposal but the Revision B proposal and the extent of the changes between the Revision A and Revision C plans. The Applicant opposed paying costs arguing the changes were insignificant. I granted Leave for the Applicant to rely on the Revision C plans and advised I would deal with the cost issue in this judgment.

20. As a result of the Revision C plans, the Council no longer argued excessive height but did argue that the remaining height non-compliances still needed to be justified by a revised clause 4.6 variation request which demonstrated adequate overshadowing and visual impacts.

21. Visual and acoustic privacy impacts, the front setback and the amenity for future residents were no longer pressed as they were addressed by modifications to the plans or agreed conditions. The required outstanding information had also been or was subsequently provided.

22. However, the Council remained concerned with the proposed side setbacks, particularly to the northern boundary, including with inadequate building separation to adjacent dwellings and sites, overshadowing, and the incompatibility of the resultant development with the local character of the area. The precedent and public interest considerations arising from approval to such a development were also of concern. Finally, the Council considered the apartment mix was still inappropriate but did not see this as a determinative issue in the appeal.

The site and surrounds

23. The site is legally described as Lots 38 and 39 in Deposited Plan 2043. It is located on the western side of Homebush Road some 100m south of the signalised intersection of Homebush and Liverpool Roads. The site has a frontage of 24.38m to Homebush Road, a depth of 36.98m and an area of 901.7m².

24. The site has a cross fall from the front north eastern corner to the rear south western corner and currently contains a single storey dwelling.

25. The immediate locality is predominantly characterised by mostly single storey dwellings although some have second storey additions. Shops with off street parking are located at the intersection of Homebush and Liverpool Roads.

Statutory Controls

26. The site is zoned B4 Mixed Use under the Strathfield Local Environmental Plan 2012 (the LEP) and the proposed use is permissible, with consent, in that zone.

27. The site is on the zone boundary interface with the R2 Low Density Residential zone located directly to the south and west. Adjoining sites to the north, south and west all contain single residential dwellings notwithstanding that the properties to the north, as well as those to the east, are in the B4 Mixed Use zone.

28. The development is also subject to the requirements of the Strathfield Consolidated Development Control Plan 2005 (the DCP) as well as the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (ARH SEPP) and State Environmental Planning Policy 65 - Design Quality of Residential Apartment Development (SEPP 65).

Key issues in contention

29. Mr O’Gorman-Hughes, Counsel for the Applicant, appropriately summarised the three remaining issues in the appeal as being:

1. The proposed height;

2. The adequacy of the proposed setbacks to the northern and southern (side) boundaries; and

3. The acceptability of the overshadowing impacts of the development particularly on the residential dwelling to the south.

30. The Applicant argued in submissions that the application was a significant under-development of the site relevant to what is permissible. The permissible FSR, including ARH SEPP bonuses, is 1.62:1 but only 1.2:1 is proposed. It was the Applicant’s position that the site specific controls adopted for the site envisaged the form of development proposed.

Height

31. The maximum permitted height for the site under the LEP is 11m. Notwithstanding that the Revision C plans reduced the overall height from the original application, breaches are still proposed. The Applicant tabled a plan (Exhibit O) showing the proposed breaches with the highest element at 13.9m being the lift over run, a breach of 2.9m, the fire stairs breaching by 2.4m, the roof between the lift and the fire stairs by 2.17m and the balustrade for the communal roof terrace at various locations by between 0.48 and 0.72m. A small southern portion of the roof is also in breach but this was not quantified. Mr Kell, planner for the Applicant, estimated it to be not more than 0.1m.

32. Mr Seton objected to the filing of Exhibit O as the Council had not previously been provided with the plan. He questioned the height breaches shown and the accuracy of the levels believing the height breaches could be as much as 3.37m to the top of the lift overrun rather than the 2.9m calculated by Mr Kell.

33. The Applicant had submitted a written variation request (Exhibit B) as required by clause 4.6 of the LEP. In cross-examination, Mr Kell agreed that the request included a number of inaccuracies. Handwritten amendments were made by Mr Kell in oral evidence although the justification provided for the height breaches was not changed.

34. Clause 4.6 provides flexibility to vary the height standard where the breaches achieve a better outcome for and from development. However, the clause requires in part as follows:

(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:

i.    that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

ii.   that there are sufficient environmental planning grounds to justify contravening the development standard.

35. Furthermore, consent can not be granted for a contravention unless the consent authority, in this case the Court, is satisfied that “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”.

36. The objectives for the height of buildings under clause 4.3 of the LEP are:

a)    to ensure that development is of a height that is generally compatible with or which improves the appearance of the existing area,

b)    to encourage a consolidation pattern that leads to the optimum sustainable capacity height for the area,

c)    to achieve a diversity of small and large development.

37. The only relevant objectives of the B4 Mixed Use zone in terms of the height concessions sought are found at LEP clause 2.3, namely:

●    to provide a mixture of compatible land uses; and

●    to integrate suitable business, office, residential, retail and other development in accessible locations…

38. The clause 4.6 justification for the breaches sought by the Applicant was that they met the objectives for the zone and for the height standard in that:

1. The development is compatible with the desired future character of the area which is transitional development reducing in scale stepping down in height and scale from north to south and setback from the street;

2. The development will appear as 3 storeys when viewed from Homebush Road, as contemplated by the height control. The portions of the building which breach the height control will not be visible to pedestrians in this section of Homebush Road;

3. The breach in height is caused by the lift overrun, fire stairs and the southern portion of the roof only;

4. The building mass and height breaches are concentrated adjoining the northern boundary away from residential dwellings and therefore do not result in any additional impacts on neighbouring properties with the location of the breaches setback 3m from the northern boundary and at least 10m from all other boundaries. It will not cause additional overshadowing of living areas or open space areas of the dwelling to the south or of properties in Barton Street relative to a development compliant with the DCP and there are no privacy impacts;

5. The development meets the zone objective of consolidating lots and providing sustainable development in that a high proportion of proposed apartments achieve required solar access and cross ventilation;

6. The breaches are in part caused by the provision of rooftop communal open space which will provide amenity for future residents;

7. Compliance with the height is “unreasonable or unnecessary” due to the topography of the site and the context, being in an area undergoing transition to higher densities and taller buildings. Furthermore, a DA had been lodged for a taller RFB on the adjoining site to the north at 247-249 Homebush Road;

8. The breaches did not preclude the adjoining site from achieving 2 hours of solar access in equinox in future redevelopment; and

9. The proposal has less than the permissible FSR under both the ARH SEPP and the LEP, demonstrating that it isn’t overdevelopment.

39. Whilst the Council accepted that the height exceedences were not likely to be seen from in front of the building, the plans showed that they could be seen from elsewhere in the public domain (such as the northern section of Homebush Road) and from low density residential properties to the west fronting Barton Street. If the breaches were more centralised they would be less likely to be visible from Homebush Road and Barton Street properties but they would then potentially further overshadow the dwelling to the south.

40. The Council also remained concerned that the overshadowing impacts on the properties to the south did not accurately reflect the overshadowing from a ‘complying’ development as the diagrams provided were not, in the Council’s view, compliant with the setbacks required by the DCP. It was argued that the height breaches could well contribute to the overshadowing of the dwelling to the south. It was disputed that the height proposed achieved a better planning outcome overall or was in the public interest. The Council were therefore not satisfied with the clause 4.6 request filed even as qualified and amended by Mr Kell during his oral evidence.

41. Whilst I accept that the height breaches are concentrated in the northern portion of the site and setback from all boundaries, they will have some visual impact to the street and on views from the rear of low density dwellings to the west in Barton Street.

42. I agree that the controls allow a building of up to 13m on the northern boundary and that the appeal development will present as a 3 storey development at the street frontage which may reflect the desired future character for the area in that location. However, I am not be satisfied that the breach of the height is warranted when viewed from other locations or that it would not exacerbate overshadowing of adjoining properties to the south.

43. In my view, the breaches do not achieve a better outcome for the neighbours to the south or west even if they may for future occupants of the proposed development by facilitating communal rooftop open space.

44. The Applicant argued that strict compliance with the height control would not result in adverse planning outcome or additional impacts. However, these are not the test. The only environmental planning benefit derived from the non-compliances is the ability to provide a communal rooftop area for occupants of the proposed development. I do not agree that such an amenity could not be provided within a complying development.

45. The Applicant also argued that the variation to the height control better achieves the planning outcomes than a complying development but this was not demonstrated in evidence. The Council disputed the assumptions made by the Applicant for a complying development and I also do not agree with the Applicant’s basis for demonstrating compliance in terms of the setbacks adopted.

46. Furthermore, Mr Kell conceded that the clause 4.6 variation request he had prepared (Exhibit B) did not accurately reflect the height exceedences sought albeit Mr O’Gorman-Hughes considered these to be ‘minor miscalculations’.

47. Overall, I am not satisfied that the clause 4.6 request demonstrates that compliance with the height control is unreasonable or unnecessary in the circumstances or that there are sufficient environmental planning grounds to warrant contravention of the height standard as proposed. I am also concerned with the inconclusive findings in terms of the overshadowing of the property to the south, which I will deal with shortly. Whilst the communal open space may provide better amenity for the residents of the proposed development, this results in large part in the non-compliances which cause offsite impacts that are avoidable.

48. I agree with the Council that it might be a better planning outcome if the height breaches were as a result of moving bulk away from the southern property to reduce overshadowing. Whilst the Applicant has done this in part, as I will outline, this has not removed the overshadowing concern.

39. Finally, I am concerned at the potential inaccuracies in the quantum of the height breaches which the clause 4.6 variation request seeks approval for as these were not persuasively resolved in evidence. This is a fundamental requirement before any variation request could be granted.

40. Given I find the clause 4.6 variation request is not supportable, I can not consent to the application. However, for the reasons which follow, I would not have granted consent even had the height non-compliances been justified.

Side setbacks and building separation

51. The Council was concerned with the side setbacks and the resultant separation and impacts between existing and future buildings to the north, south and west.

52. Specifically, the Council considered that the side setbacks were inadequate, would not provide sufficient building separation to the development site to the north and the dwelling to the south, and failed to comply with the DCP or Apartment Design Guide (ADG) controls for side setbacks. The degree of separation to the property to the north, which is likely to be redeveloped commensurate with its B4 Mixed Use zoning, will impact the development potential of that site and, to the south and west, will impact the amenity of the adjacent dwellings which are in the low density residential zone and therefore unlikely to be redeveloped.

53. Part C of the DCP contains controls for Multi-Unit Housing. The relevant controls are found in Part C at section 2.2 subclauses 1) and 4), namely:

1.    Buildings shall be sited within a building envelope determined by a plane projected at an angle of 45 degrees over a site from a height of 3.5m above natural ground level along the side and rear boundaries of the land, subject to the matters listed below (refer to Figures 3, 4 and 5).

4.    Side and rear setbacks are intended to maintain a reasonably consistent relationship between buildings, allotment boundaries and adjacent development, limit potential for overlooking of neighbouring properties and allow adequate daylight, sunlight and ventilation to living areas and private open spaces of new and neighbouring dwellings.

Within the building envelope, developments are required to comply with the following side and rear setback controls:

1. A minimum side setback of 4 metres each side shall be provided in all development. Minor encroachments to this minimum setback shall be considered on their merits for elements such as eaves, pergolas, electricity or gas meters, steps, ramps or the like.

2. Side and rear setbacks for buildings containing 2 or more storeys shall be determined by the building envelope, and the ability of the development to comply with Solar Access and Privacy requirements as set out in sections 2.3 and 2.6 of this Plan.

54. The proposed development provides a side setback of between nil and 4m to the northern boundary and a southern setback of primarily 4m but with some breaches of this for proposed bedrooms in the centre of the development.

55. The Council argued that these setbacks did not comply with the minimum 4m setback required by the DCP or the 6m building separation requirement under the ADG which requires an additional 3m setback (ie 9m overall) where a development greater than 2 storeys adjoins a lower density zone, as in this instance.

56. Ms Gordon, planner for the Council, estimated that a compliant northern setback at the rear of the development would be in the order of 6.4m, which is also required for the southern and western (rear) boundaries. She also argued that a 9m setback is required to the south and the west of the site and the proposal therefore breaches the controls to all boundaries except the front. Ultimately the 9m separation sought by the Council to the west (rear) was not pressed but it was to the south.

57. In the Council’s view, one of the adverse consequential impacts of not complying with the southern setback was the overshadowing of adjoining properties to the south. Ms Gordon determined that the development would not comply with the requirement to provide 3 hours of solar access in mid winter to the living areas of the dwelling to the south. The issue of overshadowing is dealt with in more detail later.

58. Ms Gordon also had concerns that a partial nil northern setback could adversely impact on properties to the west (ie at the rear) in Barton Street which are also dwellings in the low density zone. In her view the resultant solid full length wall had adverse impacts for these properties.

59. The Applicant argued that the relevant controls envisage a nil setback to the north and the proposal complied with the required 4m DCP setback to the south except for minor incursions with 2 bedrooms in this setback but which had windows facing away from the side boundary so no privacy issues arose.

60. Specifically, Mr Kell argued that a nil setback of part of the building to the site's northern boundary is acceptable as it comprises a blank wall for that section so as not to restrict the redevelopment potential of the adjoining site and is consistent with the desired future character for the Mixed Use zone evident from recent development in the area. He noted that the proposed FSR was only 90% of the permissible FSR under the LEP and only 70% of the permissible bonus FSR under the ARH SEPP. Therefore, the reduction in the northern setback was not proposed to accommodate excess floorspace but rather to place floorspace away from the dwelling to the south in recognition of potential impacts of the development on that dwelling.

61. The Applicant also argued that the setbacks met the intent of the DCP controls in that a high level of internal amenity within the development is achieved and privacy impacts to future development to the north are mitigated through extension of the wall across balconies which side on to this boundary. Further that, notwithstanding the setback non-compliances, sufficient deep soil and landscaped treatment is provided.

62. However, the Applicant did offer that, if the Court required, the design could be amended to incorporate a 4m setback to the northern boundary. A sketch illustrating this was provided showing how this could be achieved with a reduction in the size of a number of apartments.

63. The Applicant also provided the plans for the adjoining redevelopment at 247-249 Homebush Road (Exhibit K) but accepted that this development had yet to be determined by the Council. The redevelopment plans show a nil setback to the northern front boundary of that property, a 4m setback at the front southern boundary and a nil setback at the rear southern boundary to join with the nil setback on the rear northern boundary proposed by the appeal application. Breaches of the 13m height control for that site are shown along with reduced side setbacks relative to the DCP requirements. It was noted that the owner of this adjoining property had not objected to the application and was designing having regard to the revised proposal for the appeal site.

64. Ms Gordon expressed concern at the length of the proposed wall of development over the combined sites, which exceeded 68m, when viewed from properties in Barton Street at the rear.

65. The Council contended that no justification has been provided for the variation to the controls related to separation/setback other than the development itself had adequate solar access and cross ventilation and that it was not limiting the development potential of the adjoining Mixed Use development site to the north. In contrast, the impacts upon the adjoining low density dwellings in Barton Street had not been considered and were unacceptable arguing that the residents of Barton Street could have expected development to their rear stepping from 3 storeys on the appeal site up to 4 on the adjoining site to the north, in a form compliant with rear and side setbacks and where these setbacks would allow for planting between buildings.

66. The Council was also concerned that the breach of the side setback and building envelope controls would create a precedent for similar breaches to also occur on the adjoining site to the north. This had the potential for adverse solar access and visual bulk impacts upon adjoining properties and would unacceptably alter the character of the area as viewed from the street and those properties to the rear. As such, the Council considered any nil setback to the northern boundary inappropriate and unjustified.

67. The Applicant argued that the suite of controls, which varied from those applying to adjoining sites, was in recognition that the site was in a transition zone between higher and lower densities. As the proposed development generally met those key controls of height and FSR it was appropriate for the site and reflected what would be anticipated for the site.

68. Mr O’Gorman-Hughes stated that the DCP was adopted in 2006 but was superseded by the LEP in 2013 and by the ARH SEPP. It had not been updated so that the form of development envisaged by the controls in the LEP and ADG could be achieved. He took the Court to DCP provisions at clause 3.0 Residential Development in the Business Zone which state:

Buildings may be erected to the side and/or rear boundaries provided –

i.   no windows are located in walls on the boundary;

ii.   if windows are provided, the Council is satisfied that this will not prejudice the reasonable redevelopment of any adjoining land; and

iii.   residential development is not adversely affected by either location or scale of walls erected to the boundary.

69. Mr O’Gorman-Hughes also noted that ‘shop top housing’, permitted in the Mixed Use zone, could be developed with a nil side setback under the ADG.

70. The Council accepted that the development could have a nil setback to the north under the provisions of the DCP if there were no adverse impacts. However, DCP clause 3 referenced above requires that residential development is not adversely affected by either location or scale of walls erected to the boundary. Ms Gordon believed that, in this instance, a setback is required to provide landscaping between the buildings and improve opportunities for solar access. In her view, a site specific design response is required but she did not consider it her responsibility to suggest the redesign.

71. Prior to outlining my findings on this issue, it is first necessary to consider the overshadowing and local character impacts associated with the development, as these are, at least in part, a consequence of the side setbacks sought.

Overshadowing

72. The experts disagreed that the southern setback provides for an appropriate shadow impact upon the adjoining properties to the south being 255 Homebush Road in particular, as well as 257 Homebush Road. There was also some solar access impacts to the rear of properties at the rear fronting Barton Street.

73. The relevant solar access requirements of the DCP are expressed as follows in clause 2.4.2 Solar Access:

1.    To the extent that existing developments and site orientation allow, site layout and design shall ensure:

(i)    reasonable solar access to the site;

(ii)    the protection of solar access to neighbouring properties; …

74. In addition, the DCP at Part C clause 2.4.2(2) contains guidelines which indicate the preferred levels of solar access for new developments and require that any departures from the guidelines be justified in terms of the resulting acceptability of solar access. The guidelines require that ‘solar access to the windows of habitable rooms and to the majority of private open space of adjoining properties must be substantially maintained or achieved for a minimum period of 3 hours between 9.00am and 3.00pm at the winter solstice (June 22)’.

75. The Council was of the view that the development should fully comply with solar expectations for adjoining sites particularly to the south and west given these areas would remain low density residential areas. Solar access to the proposed development itself was not an issue pressed by the Council.

76. The Council contended that the height, configuration and setbacks of the proposed development would contribute to excessive overshadowing of the dwelling at 255 Homebush Road. It was argued that the failure to provide the 9m visual separation required for sites adjoining a lower density zone and the breaches of the 11m height control had the potential to result in additional overshadowing of No. 255 extending for a longer period throughout the year and result in shadowing of all north facing windows between 9am and 3pm at midwinter.

77. Mr Kell argued that the deletion of the parapet at the southern boundary and reduction in communal open space at the southern portion of the building proposed in the Revision C plan improved the solar access to 255 Homebush Road's private open space. He stated that only a minor portion of the lift overrun has an impact on solar access at 10am, with more than 50% of the rear setback having access to sunlight. From 12.00am to 3pm this continues to improve. In his view, the overshadowing impacts are reasonable in midwinter, particularly because of the amount of sunlight available to the principal private open space.

78. The Applicant also argued that the development complied with solar access requirements for the majority of open space of 255 Homebush Road between the hours of 11am and 3pm at the winter solstice and that any additional overshadowing was not caused by the height non-compliances. Furthermore, the additional overshadowing of windows to habitable rooms of this dwelling was insignificant relative to a complying development on the site.

79. Ms Gordon agreed that the reduction in height by the removal of the southern parapet would reduce overshadowing to some degree, but she still considered that the overshadowing to No. 255 was unacceptable and should at least meet minimum 3 hours at the equinox and retain some sunlight in the main living room window in the winter solstice.

80. Shadow diagrams prepared for the joint conference (attached to Exhibit 4 and based on the Revision B plans) show the shadow impact upon the adjoining properties to the south relative to the Applicant’s determination of a ‘compliant development’ on an hourly basis in midwinter, the equinox and midsummer.

81. Ms Gordon argued however, that these diagrams show:

1. A ‘compliant development’ at 11m in height but setback only 4m from the side and 6m from the rear. She disagreed that this was a compliant building envelope arguing that the DCP control for building envelopes for buildings over 2 storeys would result in a setback of the top floor by approximately 6.4m, an additional 2.4m from that shown. She also noted that the adjoining dwelling has 3 ground floor windows in the northern facade which are to open plan living spaces;

2. The development results in significant overshadowing at midwinter upon 255 Homebush Road, with solar access to the living room dropping from 6 hours between 9am and 3pm in midwinter to no solar access post development. Solar access to the rear yard also drops from 6 hours (to at least 50% of the yard) in midwinter to 4 hours in midwinter post development;

3. Shadows cast across the roof of the single storey component of the living room of No. 255 between 9am and 3pm in midwinter would prevent the installation of skylights to improve solar access post development of the appeal site. The living room windows currently receive 6 hours solar access between 9am and 3pm in midwinter which will be reduced to solar access only after approximately 2.15pm post development.

82. The extent of shadow impact and the length of time that the shadow impact will occur throughout the year was therefore considered unacceptable by the Council particularly as the impact is exacerbated by the lack of compliance with the building envelope controls from the southern boundary. A building compliant with the southern boundary envelope controls would result in shadowing of the living room of 255 Homebush Road for a lesser period of time throughout the year. It would also provide the opportunity to install skylights over the living spaces. For this reason, Ms Gordon did not consider that the minimum 4m DCP control was adequate.

83. Overshadowing also occurred to around 50% of the yard of the property further to the south at 257 Homebush Road by between 10am and 10.30am on the winter solstice (mid winter).

84. Under the ADG, Objective 3B-2 Design Guidance is provided to ensure overshadowing of neighbouring properties is minimised during mid winter including the following:

1. If the proposal will significantly reduce the solar access of neighbours, building separation should be increased beyond minimums contained in section 3F Visual Privacy; and

2. Overshadowing should be minimised to the south or downhill by increased upper level setbacks.

85. As previously indicated, in Ms Gordon’s assessment, the development would need to be further setback at the upper level to comply with ADG and DCP solar access requirements.

86. Mr Kell agreed that the DCP minimum setback to the southern boundary was 4m but argued that this was generally met and the additional setback under the ADG was for guidance only. Further, that the rear yard of No. 255 would still get at least 3 hours of solar access in mid winter. To not affect solar access to No. 255 would require a setback of 12m at the upper level and 7-8m for the next level down, which was not reasonable given the controls for the site arguing that even a 2 storey development would cause some overshadowing. Ms Gordon disagreed that this would be the case and considered that a further setback of the top level could achieve at least compliance at the equinox if not in mid winter and this should be the minimum achieved even if DCP or ADG setback compliance wasn’t met.

87. From the view of No. 225 undertaken at the commencement of the hearing, it was apparent that the eastern most window at the front northern elevation provides significant sunlight to the dwelling. The Council argued achieving an increased side setback adjacent to the dwelling, and this window in particular, was critical to maintaining some degree of amenity for the residents of No. 255 even if only 1 hour of morning solar access could be maintained in mid winter. An increased setback at this location was therefore considered more critical than the rear southern setback. It would also enable some landscaping to be provided to improve visual impact and screening for the neighbours.

88. The Applicant noted the DCP provision on solar access compliance ‘to the extent that existing developments and site orientation allow’ noting that the adjoining dwelling to the south was setback less than 1m from the common boundary and would therefore be in shadow under a complying development. The appeal site is also constrained by being adjoined on two sides by lower density development.

89. The Applicant agreed that reconfiguring the southern elements could be an option if the floorspace could be relocated to the north. The Council advised that some further minor height breaches could be considered if that achieved improved solar access to No. 255 and also provided additional perimeter landscaping. A reduction in the amount of required parking could also be supported if setbacks and landscaping were improved.

Character

90. The parties agreed that the site is in an area undergoing transition from low density housing and 2 storey strip retail on Liverpool Road to higher density mixed use development in the vicinity of the intersection of Homebush and Liverpool Roads, with low density housing to the south.

91. The Council argued that, to date, few developments have occurred within the Mixed Use zone, although a number of DA’s had been lodged. As such, whilst the area is in transition, no character has been set, and in particular, no development has been approved or constructed along Homebush Road to the south of Liverpool Road.

92. The site is relatively unique in that it is at the edge of the Mixed Use zone, and is adjoined on two sides (south and west) by low density housing that will not change significantly in character over time given its zoning.

90. The Council argued that this zoning regime must be considered in conjunction with the FSR and height controls for the area. These controls reduce the scale of development as one travels in a southerly direction along Homebush Road from Liverpool Road with the maximum FSR reducing from 3:1 at the intersection, down to 1.65:1 and then to 1.4:1 for the site. Similarly, the maximum height reduces from 22m at the intersection, down to 13m and then to 11m for the site and 9.5m for the adjacent low density residential area.

91. These LEP controls for overall bulk, scale and density also need to be considered in the context of the applicable controls for RFB’s under the LEP, DCP and the ADG.

92. The LEP requires a 1,000m2 minimum lot size for development of an RFB. Whilst the Council accepted that the application is made under the ARH SEPP and as such the minimum lot size does not apply, it was argued that the lot size control was a factor in determining the maximum FSR possible on this site and also in determining the appropriate setback and building envelope controls under the DCP. The site, at 901.7m² is smaller than the LEP site area minimum and adjoins a low density zone on two sides, therefore the Council queried whether achieving the maximum FSR on the site could result in an appropriate form of development.

93. The Council argued that the application should be refused because the design of the proposed development was not compatible with the character of the local area and the proposed development did not comply with Clause 16A of the ARH SEPP. Clause 16A of the ARH SEPP reads as follows:

A consent authority must not consent to development to 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.

97. The expert planners agreed that the desired future character for the locality is a gradual transition in height from the corner of Homebush Road and Liverpool Road to lower scale development south of Homebush Road. Also that development under the R2 Low Density zone adjoining the site to the south and west is unlikely to change under current LEP controls.

98. As previously indicated, the Council considered that the nil setback in part to the northern boundary would adversely impact the local character as this portion of the RFB, whilst setback from the street, will still be a visible element in the streetscape. The design and location of the basement provides little opportunity to significantly screen the non-compliant element. When viewed from the low density residential area at the rear, the lack of setback would result in a significant additional visual bulk, particularly when viewed from Nos. 10-14 Barton Street. If a nil setback was supported by the Court, the Council sought further articulation of the building given the limited opportunities for landscaping.

99. The Applicant argued that the existing character of the locality comprised commercial development along Liverpool Road and 1-2 storey detached dwellings along Homebush Road but the B4 Mixed Use zone (including the site) was undergoing transition to greater height and density. Further, that nil side setbacks were a desirable built element of the character within the locality. In closing submissions, the Applicant also argued that consideration of the local character doesn’t mean having to be compatible with it.

Findings on side setbacks, overshadowing and character

100. The site is constrained by the having a low density residential zone on two of its boundaries. I agree with the Council that it makes the treatment of the southern and western aspects of the development critical in ensuring an appropriate level of amenity is retained by the adjoining low density dwellings. Whilst I accept the Applicant’s argument that the controls have regard to this transition location by providing a lower height and FSR control for the site, they also assume the side setback and building envelope controls applicable to the site for RFBs would apply as they would to the adjoining site to the north.

101. Considering that the adjoining site to the north can also build to the boundary and at a greater height and FSR, the result could well be a significant impact upon the low density housing area in Barton Street unless all of the relevant controls are complied with including setbacks and height.

102. I agree with the Applicant that the only way to increase side setbacks and building separation is to either reduce or redistribute the floorspace or increase the height. I also note that the FSR is less than is permissible even without the bonuses under the ARH SEPP and that increasing the height would raise other issues associated with overshadowing and visual impact.

103. I have had regard to the Applicant’s comments that the DCP pre-dates the LEP, that the FSR is under what is permissible, and that a complying development would not meet solar access requirements albeit I don’t accept the Applicant’s assessment of what a complying development would be.

104. I am however, not giving the numeric provisions of the DCP primary weight per se but rather having regard to amenity and streetscape impacts, which the ARH SEPP still requires.

105. I accept the arguments may be different were the other Mixed Use sites, including that to the north, already redeveloped or approved for redevelopment in terms of what northern setbacks may be acceptable. I do not however, accept that the treatment of the southern or western elevations or setbacks, height and building separation should not adequately address adverse impacts on properties to the south and to the rear (west). It is also not the case that the envisaged development to the north will necessarily result in accordance with the Exhibit K plans.

106. I note the Applicant’s offer to redesign the rear northern portion of the building to provide increased setbacks which would improve the impact on properties to the rear. However, there was insufficient information before the Court to determine if this would adequately meet the visual impact issues or warrant the variations to the ADG and DCP setbacks sought or which would otherwise apply, particularly as the outcome of the application for the property to the north is unknown.

107. Critical to any redesign for the site therefore remain those issues of concern to the Council namely: maintaining a reasonable degree of amenity and solar access for properties to the south (particularly the immediately adjacent property); the overall height of the building; and the extent of non-compliances to the setbacks in terms of streetscape character, visual impact at the rear and the ability to provide appropriate building separation and landscaping. Irrespective of DCP compliance the provisions of the ADG still apply.

108. In terms of the DCP, the minimum 4m is not achieved on either side boundaries and this is exacerbated by a lack of upper level setbacks in accordance with a building envelope required by the DCP to assist in dealing with overshadowing, privacy and visual impact unlike other developments in the vicinity that the Court was taken by the Applicant to view.

109. I therefore do not support the configuration of the development as it is proposed in terms of the building separation to the northern boundary. I have already dealt with the unacceptability of the height breaches proposed.

110. I agree with the Council that the neighbours have a reasonable expectation that compliance will be achieved with controls particularly when adverse amenity impacts arise or are exacerbated by varying such controls notwithstanding the development is lodged under the ARH SEPP.

111. The solar access impacts were not conclusive because of the overlay of a disputed ‘complying development’ for comparative purposes. What was evident however, was that there would be extensive overshadowing of 255 Homebush Road and some overshadowing of 257 Homebush Road. Whilst I accept that any development designed to either the Council or the Applicant version of what is compliant would have overshadowing impacts on No. 255, given the location of the dwelling and its windows, and the height permissible on the appeal site, as that dwelling is on a site zoned for low density residential development and therefore unlikely to be redeveloped to any substantive degree, amenity impacts such as solar access are critical considerations.

112. Even accepting the Applicant’s version of the impact relative to a complying development, the development provides additional overshadowing particularly to upper level windows of No. 255. Whilst the Applicant may argue the additional impact is marginal, impact on a single residential dwelling which will likely remain given the zoning, is unacceptable.

113. In any event I am not satisfied that the ‘compliant envelope’ as depicted by the Applicant is accurate and if it is not, the extent of overshadowing of 255 Homebush Road will be significantly worse than depicted. In any event I am not satisfied that any breaches of setback or height are warranted where they have additional adverse solar access impacts on 255 Homebush Road.

114. Finally I agree with the Council that, even if the development doesn’t meet the DCP minimum setbacks, the development should still meet the equinox solar access minimum requirements.

115. For these reasons, I consider the extent of overshadowing impact to the property to the south is unreasonable. Whilst I accept there will inevitably be some loss of solar access to the south in developing the appeal site, I agree with the Council that any control breaches to generally achieve the redevelopment of the appeal site commensurate with its zoning and controls should be only to improve the future amenity for 255 Homebush Road and its solar access in particular.

Costs

116. Finally, I deal with the costs issue being the cost to the Council is assessing the changes from the Revision A to the Revision C plans.

117. The Court previously granted leave to rely on the Revision A plans with agreed costs. The key changes between the Revision A proposal and the refused proposal included: the reduction in the building’s height from 4 to 3 storeys, in the number of apartments from 20 to 14 (although some of the remaining apartments were enlarged), in FSR from 1.6:1 to 1.24:1 (thus reducing the bulk and scale); and an increase in the setback to Homebush Road and in the deep soil planted area and landscaping.

118. Between the Revision A and the Revision C plans, changes undertaken were an increased setback of the first floor of the basement car park in the south western corner to provide additional deep soil landscaping, increased setback of part of the building from the northern front boundary at the upper levels, reduction in rooftop communal open space and in the height of the associated parapet wall, relocation of the lift from the northern boundary, addition of privacy screens to a number of balconies, and some internal layout changes in response to design changes or to improve solar access and/or ventilation.

119. Having heard the argument of the parties as to whether a cost order should be imposed I have determined that it is not appropriate to do so. The key changes to the height and density of the development were in the Revision A plans which the Applicant has already paid for. Changes from Revision A to Revision C were in an attempt to respond to issues raised by the Council and did not entail changes to the number of storeys, apartments or parking numbers nor to the general configuration of the development. I therefore consider that the changes between the Revision A and Revision C plans are minor and a cost order is not made accordingly.

Orders

120. The orders of the Court are:

1. The appeal is dismissed.

2. DA0140/2015 for a residential flat building at 251-253 Homebush Road, Strathfield South is refused.

3. The exhibits, except Exhibits A and 1, are returned.

_________________________

Jenny Smithson

Commissioner of the Court

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Decision last updated: 07 September 2016