Aitchison (Mortdale) v Hurstville City Council

[2003] NSWLEC 393

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Land and Environment Court

of New South Wales

CITATION:	Aitchison (Mortdale) v Hurstville City Council [2003] NSWLEC 393
PARTIES:	APPLICANT Aitchison (Mortdale) RESPONDENT Hurstville City Council
FILE NUMBER(S):	10741 of 2003
CORAM:	Murrell C
KEY ISSUES:	Development Application :- Residential flat building - Streetscape - Landscaping /side setbacks - Density - Carparking - Amenity
LEGISLATION CITED:	Environmental Planning and Assessment Act Hurstville Local Environmental Plan 1994
CASES CITED:
DATES OF HEARING:	06/11/03 - 07/11/03
DATE OF JUDGMENT:	11/18/2003
LEGAL REPRESENTATIVES:	APPLICANT Mr M Ball, agent RESPONDENT Mr P Rigg, solicitor SOLICITORS Deacons

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10741 of 2003

Murrell C

18th November 2003

Aitchison (Mortdale)

applicant

v

Hurstville City Council

respondent

Judgment

1 This is an oral judgment for an appeal under s 97 of the Environmental Planning and Assessment Act against Hurstville City Council’s refusal of the development application for the property known as No. 33 Martin Place Mortdale.

2 The proposal is for six residential units over three levels with basement parking below a podium. The subject site is some 12 m wide and it could be described as a sandwich lot with residential flat buildings developed either side to a height of three storeys and four storeys.

3 The adjoining property at Nos. 35-39 is a four storey residential flat building with an RL for the ridge of some 47 m. The other adjoining property is No. 29 Martin Place which is three storeys with an RL of 47.85. The proposed development is for a building of three storeys above parking with an RL of 45.

4 The area can be described as being developed generally in the period between the sixties and the seventies and of older style residential flat buildings with a number of newer developments regarded as infill development.

5 The council refused the development application by delegation on 2 July 2003. The relevant planning controls include State Environmental Planning Policy No. 65 - the urban design SEPP. The relevant controls within the urban design SEPP as cited by the council as being issues in these proceedings relate to a number of principles concerning context, scale, built form, density, landscape amenity and aesthetics. I will not state verbatim here what those controls or principles relate to but in my assessment I will refer to these principles.

6 The development application is one that does not require a verification from a qualified designer being one that was submitted twelve months after the date of the commencement of SEPP 65 in terms of cl 29. Clause 30 relates to the determination of development applications and refers to advice from the relevant design review panel in the consideration of development applications. The design review panel provided advice to the council and its advice was communicated to the council in terms of a meeting it held on 5 June 2003.

7 Generally the urban design review Panel stated that “this is a small six unit development proposal presented with excellent preliminary drawings and having a pleasant architectural character although the density is considered to be unacceptable”.

8 In terms of context, the Panel stated that “the site is constrained containing an isolated timber residence in a street which is almost all buildings of three and four storey walk up flats. As such it is presently somewhat out of place and the development of the site for residential units would be desirable”.

9 In relation to scale the Panel noted it was satisfactory in terms of built form, “in itself the form is appropriate although it does give rise to unsatisfactory amenity impacts”.

10 In terms of density the panel states that “the proposed density is well in excess of that permitted by the council’s code and in view of the adverse amenity impacts and density is considered to be unacceptable”.

11 In reference to landscape the Panel states “that in view of the very small size set backs deep planting is limited, opportunities for visual separation from neighbouring units is restricted”.

12 In terms of amenity the Panel was of the view that “the three levels of units facing the street would be good and receive good cross-ventilation. The three units to the rear would not receive a reasonable amount of sunlight in winter months and the development would also impact on adjoining developments”. The panel expressed concern to the planning of the rear units in relation to the location of the entrance and the consequential layout.

13 With respect to aesthetics, the Panel states that for the overall form and landscape in the street it is considered that the proposed design would nevertheless be reasonable and acceptable and it made a comment about existing pitched roofs in the area of undistinguished architectural character.

14 The Panel recommended that “in view of the unacceptable amenity impacts it is considered and the proposed density exceeding the code that it be refused”.

15 Other relevant controls are those contained in the Hurstville Local Environmental Plan1994. As this is a verbal judgment, I will not go through it in detail but it does provide in cl 8 that the development is to be consistent with the objectives of the zone. And cl 9 refers to council’s policies and provides that the development consent must not be granted unless consideration has been given to any design principles or policies adopted by the council from time to time.

16 With respect to the objectives of the zone, the site is zoned Residential 2 and the objectives of the zone are:

(b) to allow a variety of housing types within existing residential areas;
(d) to encourage greater visual amenity by requiring landscaping and permitting greater variety of building materials and flexibility of design;
(e) to enable redevelopment for medium density housing forms including residential flat buildings, such development does not interfere with the amenity of surrounding residential areas.

17 The other controls in terms of cl 9 of the LEP includes: the carparking DCP No. 2, the proposed development provides for seven car parking spaces, one for each unit and a visitor parking space and the code requires two visitor parking spaces, therefore the subject proposal is deficient in that regard; the interim residential development code for Hurstville City Council, the name is not really reflective of the fact the document is a DCP, although for the purposes of cl 9 any code must be taken into consideration and therefore irrespective of its name it is a relevant document that must be considered.

18 The reading of this document in terms of the introduction refers to it as the development control plan and it also refers to the development control map. The subject site is in the area known as development area D and generally the area is already characterised by flat development often three to four storeys high and the desired form of development is one of two to three storey buildings with use of attic space to provide additional accommodation.

19 The subject site is zoned to permit consideration of development applications for residential flat buildings. The DCP or code has definitions and for landscaped area it means “an area proposed to be landscaped does not include that part of the site above ground level or any building or any side setback for driveways and parking”. It also refers to landscaping objectives which are: to create a pleasant and safe living environment that is environmentally responsible; to blend new development into the streetscape and neighbourhood; to assist in water management and maximise absorptive landscaped areas for onsite infiltration.

20 The DCP also has a number of planning controls with respect to the landscaping requirement. Landscaped open space may include up to 20% of impervious surfaces such as paved or tiled patios, courtyards and pathways but not private elevated balconies or terraces or driveways.

21 At least 40% of the landscaped open space must be capable of growing substantial trees. This is not to be created by backfilling or mounding et cetera. The landscaping in front of buildings shall provide a suitable visual screen or softening function for the development and the same requirement is for between buildings.

22 The other relevant controls within the code/DCP relate to the building envelope controls. The purpose of the building envelope is: to provide adequate set backs to all boundaries; provide for appropriate privacy between dwellings; and to control the overall height of development. There is a building envelope for the subject site and that was shown in an exhibit to the Court.

23 In terms of area D, this is the only area where three storey development is permitted, the controls require minimum window separation distances, side boundary set backs are a minimum of 4 m so that good quality landscaping is encouraged.

24 On small sites, that is twenty-four metre frontages, the third storey is to be set back from side boundaries to a minimum of 7 m and where larger sites are proposed buildings would not need to be stepped to the third level.

25 The development area D states that this is an area which is closely related to retail centres and railway stations with high amenity in terms of access and services. The objectives of the D area are: to encourage higher density housing forms in localities in close proximity to public transport; to provide opportunity for compatible infill development in older residential flat building areas; to encourage high quality developments having regard to amenity and acknowledging the long term building form of areas to ensure properties are not isolated by development adjoining.

26 In terms of character, the expected built form in the D area will be three storeys of habitable area. In terms of landscaped area there is the objective to create a pleasant and safe living environment that is environmentally responsible and all developments in area D must provide a minimum of 45% of the total area as landscaped open space.

27 In terms of the subject development application, there was a disagreement as to what could be regarded as landscaped open space area. I do not believe that the planter boxes provide or should be included in the landscaped open space area. It was generally agreed that 28% of the site is landscaped area and 60% of that is in terms of deep soil planting at the front and the rear of the building.

28 I will state that I have had regard to all the controls and these are relevant for the Court’s assessment. The permissibility only allows for a neutral consideration of the development and the aims and objectives and purpose of the relevant controls must be carefully taken into consideration.

29 For the applicant evidence was given to the Court by Mr W Long, a planning consultant, and for the respondent council Mr A Rowan gave evidence to the Court.

30 A joint statement was provided and it was agreed that the front set back should be common open space and a condition to that effect was proposed.

31 A Statement of Issues was provided. The concerns of the council in terms of the quality and effectiveness of the proposed open space and the maintenance thereof was a concern and remained a concern to council’s consultant planner.

32 There was an issue with respect to the driveway gradients, however, following an amended plan the council’s engineer was satisfied that the driveway complies with the Australian Standard and was satisfied with the drawing that was provided to the Court.

33 With respect to issue ten, it was agreed that with deletion of a window near the driveway this could be resolved.

34 In terms of issue eleven, overshadowing of the drying areas, it was agreed that this was not determinative of the application.

35 The issue of the BCA compliance was satisfied or agreed to in terms of an appropriate condition and council was satisfied to that effect.

36 In terms of the points of disagreement there was no agreement with respect to the issue for SEPP 65 and the respondent council also considered that the zone objectives in terms of A, D and E were not satisfied by the proposed development.

37 The spatial separation and the adequacy of side set backs, the height of the building and the density were issues that the council were most concerned about. The applicant was of the opinion that the proposal is appropriate infill development whereas the council is of the opinion that the proposal is excessive in terms of height and density and that the site is too narrow in its width to be developed for the proposed development.

38 I will say at this point in my oral judgment that having considered all the evidence to the Court on balance I consider that the proposed development is satisfactory for the following reasons.

39 The subject site is one that is a sandwich lot created by the development of residential flat buildings either side. Despite numeric non-compliances in my overall assessment the proposed development in the circumstances is satisfactory. I have considered the aims and objectives and purpose of the various standards and on balance the proposed development is worthy of approval.

40 I note that council’s density control is for one unit per 105 m2 as opposed to the subject development which is one unit for 72 m of site area. It was agreed during the proceedings that the same development could satisfy this requirement by allowing for example one unit per floor. Council’s position was that the development however should be reduced by one floor. On merit I am satisfied that the proposal is an appropriate density having regard to the controls and its context.

41 In terms of the SEPP 65 principles which are important and relevant to the Court’s consideration and overlap with many of the issues, the proposed development is of good design and responds and contributes in its context in terms of the quality and identity of the area.

42 In terms of the scale, the bulk and height, I am satisfied that the proposed development will not be out of character and will ‘fit in’ with the streetscape. I am also satisfied the boundary set back and the proposed landscaping will complement the proposed development.

43 With respect to the appropriate built form in terms of defining the public domain I am satisfied that the proposed development does contribute in a positive sense to the streetscape and will not be out of character with the development in the area.

44 Regarding the issue of density, I have considered this in terms of the controls, the site and the context and in terms of a requirement of SEPP 65 which is looking at the sustainable infrastructure and public transport. While the density may be greater in terms of the units per site area I am satisfied that the density will not be out of character or scale with the area. While the subject site is constrained by being narrower than other sites and there is an inability for it to be amalgamated nonetheless the density is satisfactory having regard to consideration of all the controls and the merits of the application.

45 With respect to the landscape provisions, that is providing a building in a landscaped setting in my assessment the proposed development in its context can satisfy this aim, although the current landscape plan submitted with the development application is deficient in this regard. However, the landscape plan in itself would not warrant refusal of the development application and a condition is proposed for a landscape plan to be prepared and submitted to council to complement the subject building.

46 The landscaping is important in terms of a contribution not only to the public domain but in terms of the occupants of the subject development and adjoining developments. In this regard additional landscaping is required for the rear yard and an amendment is required with respect to the front area as a common open space area which will provide for the greater opportunity to landscape as opposed to being used for the occupants of unit No. 1.

47 With respect to amenity, I am satisfied on the basis of the additional information that has been provided to the Court in terms of the solar access that amenity is reasonable for the six units. The hours of solar access for unit No. 1 is six hours, for unit No. 2 two and a half hours, unit No. 3 six hours, unit No. 4, three and a half hours, unit No. 5 six hours and unit No. 6 five and a half hours that is on 22 June between 9 and 3 pm. In the Court’s assessment each unit will receive varying degrees of solar access and it is not an issue that would warrant refusal of the application and each unit will have satisfactory amenity including solar access. Also with respect to ventilation the units have been designed to provide for natural ventilation within each unit.

48 On amenity I do note that the design review panel considered that the proposed development was unsatisfactory in this regard which is one reason why the Court pursued it in terms of requiring further additional information with respect to solar access and I am satisfied that the overall amenity of the proposed units is one that would not warrant refusal of the application. With respect to the aesthetics, the urban design panel stated that the flat roof appearance in a street where existing units have conventional pitched tiled roofs, and are of undistinguished architectural character, given the overall form and landscape in the street it is considered that the proposed design would nevertheless be reasonable and acceptable.

49 And in terms of the Court’s site inspection undertaken in the presence of the parties, I am satisfied that the aesthetics and the urban design contribution that the proposed building would make to the streetscape is positive. And that whilst it does not have the element of a pitched roof nonetheless for a three storey building from the street level this is not a matter that would warrant refusal of the application. The building is generally of good design in the Court’s assessment.

50 It is important that I look at the design principles to evaluate the overall merit of the proposal and I am satisfied that it is of good design and is one that will make a positive contribution to the streetscape in terms of it being an infill development.

51 In this regard as I stated whilst it does not numerically comply with the council’s controls nonetheless in terms of the objectives and purposes of the interim residential development code or the development control plan as I would prefer to call it, the proposed development is generally satisfactory.

52 In terms of the specific zone objectives identified by the council, I am also satisfied that the proposed development is not antipathetic with the objectives of the zone which are required to be taken into consideration in terms of cl 8 of the LEP and that the development is generally consistent with the objectives of the zone identified above.

53 In particular the council identified objective A “to preserve and enhance the character of the established residential areas”. I am satisfied that the proposed development will preserve and enhance the character of the area in particular being generally of a consistent scale, bulk and height to that of surrounding development.

54 In terms of objective D, that is “to encourage greater visual amenity by requiring landscaping and permitting a greater variety of building materials and flexibility of design” I am satisfied that the proposed development whilst it has limited side boundary set backs nonetheless the deep planting areas to the rear and the front of the site can provide for a building within a landscaped setting.

55 With respect to objective E, that is “to enable redevelopment for medium density including residential flat buildings where it does not interfere with the amenity of surrounding areas”, I am also satisfied that despite the non-compliances with council’s DCP/code that the proposed building will not have adverse amenity impacts on the surrounding residential development.

56 The subject site is constrained but also unique and a matter that the Court is mindful of in its assessment. The side boundary set backs of the two adjoining flat buildings are generous being the area of some landscaping and providing driveways for an access to parking for both adjoining residential flat buildings. This in itself does create an opportunity for visual separation despite the restrictive width of the subject site being only 12 m.

57 I am also satisfied that the podium at the height that is proposed is one that will ‘fit in’ with the streetscape and would not warrant refusal of the application. The Court was mindful of the need to ensure that the gradient could be achieved in terms of the Australian Standard for the basement car parking and I am satisfied that this can now be achieved therefore there would not be a need to further raise the level of the podium which if raised could be out of character in the streetscape.

58 With respect to the landscaped area, this is an issue that received a great deal of discussion during the proceedings. As I stated I do not count the planter boxes as areas within the landscaped area and in terms of providing canopy vegetation the subject site does provide the necessary space in the front and rear set backs.

59 For the side boundaries, the area for landscaping is minimal, however, this would not warrant refusal of the application because of the overall merits of the application and the front and rear landscaping and the visual relationship with adjoining buildings. I am mindful of the fact that a building with a site width of 12.1 m providing basement parking would require the extent or the width in terms of not providing for large areas of deep planting on the side boundary set backs.

60 The overall landscaping intent of the DCP/code is satisfied by the proposed development despite the fact that the minimum amount of area is not complied with. I am of the opinion that landscaping can be achieved to create a pleasant and safe living environment that is environmentally responsive.

61 In my overall merits assessment, I also agree with Mr Long that in the absence of any impact on the amenity of adjoining properties, the height, form and siting of the proposed development is appropriate. I also agree that having regard to the circumstances of this case it cannot be regarded as a precedent to vary council’s controls. As an infill development of a site isolated by previous adjoining developments where there is no opportunity for amalgamation I am satisfied that the proposed development is a satisfactory response in the circumstances of this case.

62 In terms of the issues singularly and in combination I am satisfied that the proposed development is one that does not warrant refusal of the application.

63 With respect to the issue of parking, the proposed development is deficient by one visitor carparking space but there was evidence to the Court of the availability of street parking and one visitor space is provided onsite. As such this would not warrant refusal of the application.

64 In terms of my overall assessment the proposed development will not present as an overdevelopment and I am satisfied that it will fit with the development surrounding and generally satisfy the requirements of the objectives outlined in council’s controls.

65 It is important that when variations to DCPs are proposed in a development that the assessment has genuine, proper and realistic consideration to the provisions. And also regard to what the impacts that flow from such non-compliances. I am satisfied that the adverse amenity impacts on adjoining development or the public domain are not significant and are not ones that would warrant refusal of the application. And I am of the opinion that in terms of SEPP 65 the proposed residential flat building is of good design.

66 With respect to the conditions, the conditions were as generally agreed to between the parties. And as I indicated earlier, there is an additional condition, No. 17A which states that an amended landscape plan is to be submitted to the council for approval prior to the issue of the construction certificate. The amended plan is to show the deletion of the front stairs to unit one and the front set back as common open space with suitable canopy trees and other plantings to complement the building and provide a landscaped setting, and a street tree brush box is to be provided. The rear open space area to unit two shall provide a minimum of two canopy trees and other suitable plantings to improve the amenity of the rear units at all levels and provide a suitable vegetative element when viewed to and from the units at the rear. A drip watering system is to be provided and condition 17 requires the development to be implemented in accordance with such a plan.

67 Therefore on the basis of my assessment above the orders of the Court are:

1. The appeal in respect of the property known as No. 33 Martin Place, Mortdale, is upheld.
2. The development application submitted to Hurstville City Council, and as amended, is determined by the granting of development consent subject to the conditions contained in Annexure A.
3. The exhibits except for exhibits 13, A, B and L are returned.

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