Amflo Pty Limited v Ashfield Municipal Council

[2005] NSWLEC 228

Land and Environment Court

of New South Wales

CITATION:	Amflo Pty Limited v Ashfield Municipal Council [2005] NSWLEC 228
PARTIES:	APPLICANT: Amflo Pty Limited RESPONDENT: Ashfield Municipal Council
FILE NUMBER(S):	11311 of 2004
CORAM:	Pain J
KEY ISSUES:	Appeal :- application for mixed commercial/residential development - height bulk and scale
LEGISLATION CITED:	Ashfield Development Control Plan No 1 Ashfield Local Environmental Plan 1985 Ashfield Local Environmental Plan No 61 State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development
CASES CITED:	Zhang v Canterbury City Council (2001) 115 LGERA 373
DATES OF HEARING:	09/05/2005 10/05/2005
DATE OF JUDGMENT:	05/11/2005
LEGAL REPRESENTATIVES:	APPLICANT: Mr M Sahade (barrister) SOLICITORS: none RESPONDENT: Mr S Griffiths (solicitor) SOLICITORS: Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

11 May 2005

11311 of 2004 Amflo Pty Limited v Ashfield Muncipal Council

JUDGMENT

1 Her Honour: This is an appeal against the refusal by Ashfield Municipal Council (“the Council”) of DA 2003/367 for the demolition of an existing building and the construction of a mixed commercial/residential development at 188 – 196 Parramatta Road, Ashfield (“the site”).

2 An inspection of the site was undertaken on the morning of the first day of the hearing with representatives of both parties. A number of local residents attended and provided their evidence at this time. I would like to thank Commissioner Brown for his assistance in this matter.

The site and surrounding development

3 The site is located on the south-western side of Parramatta Road between Bland Street and Chandos Street, Ashfield. The site has an area of 1,907 square metres and a frontage to Parramatta Road of 52.5 metres. A two-storey brick building is currently located on the site and is used as offices for an architecture and property development practice. The site falls towards the rear boundary by approximately 2.0 metres. There is no existing vegetation on the site and the land is partly paved and partly gravel/dirt.

4 The site is adjoined to the south-east by an existing six level residential flat building which contains a seventh level in its roof form. This site is known as Ashfield Gardens. A fire damaged warehouse is located immediately to the north-west of the site facing Parramatta Road and with access to Bland Street. Immediately to the south of the site, on the corner of Parramatta Road and Chandos Street is a vacant site.

5 The Yasmar Detention Centre is located to the north-east of the site on the opposite side of Parramatta Road within the Haberfield Heritage Conservation Area.

The proposal

6 The proposal seeks to demolish the existing building on the site and construct a mixed residential/commercial development on the property comprising basement carparking, a ground floor retail/commercial area and 43 residential apartments. The apartments will comprise six one-bedroom dwellings, 34 two-bedroom dwellings and three three-bedroom dwellings. The basement carpark will provide space for 82 vehicles with an entry/exit driveway off Parramatta Road. The proposal will have five full residential floors above the ground floor commercial uses and a partial sixth residential floor at the northern end of the proposed building.

Relevant planning controls

7 The site is zoned Special Business 3(b) under the provisions of Ashfield Local Environmental Plan 1985 (“Ashfield LEP”). Under Ashfield Local Environmental Plan No 61 (“LEP 61”), the Ashfield LEP was amended to permit the construction of “multiple dwellings” on the site and several other large sites within the municipality with the Council’s consent. The current proposal is permissible with Council’s consent under LEP 61.

8 The site is not located within a Heritage Conservation Area nor is the existing building a heritage item. However, the site is directly opposite the Haberfield Heritage Conservation Area and Yasmar Detention Centre which is listed as a State Heritage Item under the State Heritage Inventory.

9 Ashfield Development Control Plan No. 1 – Dwellings in Residential Zones (“DCP 1”) was tendered although the applicability of parts of this document was in dispute between the parties.

10 State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development (“SEPP 65”) applies to the proposal by way of cl 4(1)(a) as the proposal is defined as “the erection of a new residential flat building”. Part 2 provides design quality principles for residential flat development. These design quality principles seek to provide a guide to achieving good design and a means of evaluating the merits of proposed development.

11 The relevant design quality principles of SEPP 65 are:

Principle 1: Context
Good design responds and contributes to its context. Context can be defined as the key natural and built features of an area. Responding to context involves identifying the desirable elements of a location’s current character or, in the case of precincts undergoing a transition, the desired future character as stated in planning and design policies. New buildings will thereby contribute to the quality and identity of the area.
Principle 2:Scale
Good design provides an appropriate scale in terms of the bulk and height that suits the scale of the street and the surrounding buildings. Establishing an appropriate scale requires a considered response to the scale of existing development. In precincts undergoing a transition, proposed bulk and height needs to achieve the scale identified for the desired future character of the area.
Principle 3: Built Form
Good design achieves an appropriate built form for a site and the building’s purpose, in terms of building alignments, proportions, building type and the manipulation of building elements. Appropriate built form defines the public domain, contributes to the character of streetscapes and parks, including their views and vistas, and provides internal amenity and outlook.
Principle 4: Density
Good design has a density appropriate for a site and its context, in terms of floor space yields (or number of units or residents). Appropriate densities are sustainable and consistent with the existing density in an area or, in precincts undergoing a transition, are consistent with the stated desired future density. Sustainable densities respond to the regional context, availability of infrastructure, public transport, community facilities and environmental quality.

12 Clause 30 of SEPP 65 provides that a consent authority is to take into consideration the design quality principles (cl 30(2)(b)) and the publication Residential Flat Design Code (cl 30(2)(c)).

The Issues

13 The Council filed an Amended Statement of Issues containing eleven issues. Site remediation (Issue 7) was not pressed by the Council and the issues raised by resident objectors (Issue 11) are addressed as part of the consideration of the remaining issues.

14 The remaining substantive issues can be conveniently grouped into the following main areas:

(i) whether the proposed height, bulk and scale is appropriate (Issues 1 and 8)

(ii) whether the proposed development creates unacceptable amenity impacts in relation to overshadowing and loss of privacy (Issues 2 and 3)

(iii) whether the proposed development has unacceptable heritage impacts (Issue 4)

(iv) whether the proposed development provides acceptable loading and unloading facilities (Issue 5)

(v) whether the proposal provides acceptable landscaping and open space (Issue 6)

How does DCP 1 apply?

15 Clause 1.2 of DCP 1 states that the “Plan applies to all land zoned Residential under Ashfield Local Environmental Plan 1985”. Even though the site is zoned Special Business 3(b), the site is specifically addressed in Appendix 2 of the document (see Attachment 1). The parties agreed Appendix 2 applies but disagree on its interpretation. Appendix 2 includes a diagram and states in part:

1. Non residential building to Parramatta Road to buffer remainder of site from road noise, fumes etc and retain employment floorspace.
2. Height of this building to be in scale with this section of Parramatta Road and not overlook or overshadow residential to south.
3. Height of buildings decreasing to domestic scale to south and east of site.
The Applicant’s evidence

16 Mr Joe Vescio and Associate Professor John Toon provided urban planning evidence for the Applicant. They noted that the diagram in Appendix 2 does not show any dimensions. Professor Toon maintained that the diagram does not give a definitive and/or fixed profile for the building fronting Parramatta Road leading to the assumption that the site could be filled by building if desirable from an urban planning point of view.

17 Mr Vescio stated that Appendix 2 does not specifically or intentionally identify the number of storeys or an overall profile in contrast to other sites addressed in Appendix 2, except in one other instance. Had a height control been required it would have been clearly stated.

18 Overall Professor Toon described the height of the proposed development as relatively modest which could not be seen as an undesirable precedent. In his opinion, it has an acceptable height and scale for this section of Parramatta Road. Mr Vescio had a similar view and stated that the building has been designed to respond to its context insofar as it is within a precinct undergoing transition and subject to a new planning regime which defines the subject site as suitable for higher density development.

The Council’s evidence

19 Mr Rohan Dickson and Dr Richard Lamb provided evidence for the Council. They disagreed with Mr Vescio and Professor Toon that Appendix 2 does not provide the desired building form. In the diagram (Attachment 1) the number of storeys is identified on the adjacent building (Ashfield Gardens) and the number of storeys are shown diagrammatically on the building at the subject site.

20 Mr Dickson stated that the substantial bulk of the proposal, with no side setbacks, and its height in comparison to surrounding development which is likely to be two or three storey commercial development, does not fit the current context of the area. It does not contribute positively to the streetscape as the height is excessive for the locality and there is a lack of vegetation at the street frontage.

21 Dr Lamb agreed with Mr Dickson. He states that in the visual catchment along Parramatta Road there is no building anywhere near the height proposed. He further noted the incompatibility of the unattractive treatment of the end walls of the proposed building.

DCP 1 - Findings

22 The bulk, scale and height of the proposed development is controlled through DCP 1 and SEPP 65. The emphasis to be given to a DCP is addressed in Zhang v Canterbury City Council (2001) 115 LGERA 373. Spigelman CJ, at [75], raises three important propositions. First, although the Court has a wide-ranging discretion, the discretion is not unfettered. Secondly, the provisions of a development control plan are to be considered as a fundamental element in, or a focal point to, the decision making process, particularly if there are no issues relating to compliance with a local environmental plan. Thirdly, a provision of a development control plan directly pertinent to the application is entitled to significant weight in the decision making process but it is not in itself determinative.

23 In relation to Appendix 2, I do not share the view expressed by Mr Vescio and Professor Toon that the diagrams do not give a reasonable understanding of the form of development anticipated by DCP 1. In the words used in Zhang, the diagram and its supporting Desired Outcome provide the focal point or fundamental element in deciding whether the proposed development is acceptable.

The Appendix 2 Diagram

24 The diagram clearly provides for two main features. Firstly, a building of approximately three storeys at the Parramatta Road frontage; secondly, a non-residential use at the Parramatta Road frontage to buffer the remainder of the site from road noise and fumes which are considerable. The non-residential use is anticipated as an employment use. Even though the diagram is not overly detailed, I have little trouble in concluding that a reasonably trained person could understand its intentions. Consequently I find that the proposal fails both requirements and is inconsistent with the emphasis to be given to development control plans in Zhang, particularly when no guidance can be obtained from the Ashfield LEP.

Other design features

25 I also agree with Mr Dickson and Dr Lamb that the proposal is inconsistent with the requirement that the height is to be in scale with this section of Parramatta Road (Requirement 2 in Appendix 2 at par 15). With the benefit of the site view, there are no buildings within the visual catchment that are anywhere near five or six storeys. The majority of the buildings do not exceed two or three storeys. Many buildings in the vicinity are also well set back from the boundary.

26 Professor Toon suggested that the redevelopment of the site to the south would largely screen the bland southern elevation of the proposed building, however in the absence of any evidence on a possible design, his evidence is purely speculative. I am also mindful that the adjoining site has a maximum floor space ratio (“FSR”) of 0.5:1 and that the potential level of development would severely limit the ability to provide a building form to screen the five storey elevation of the proposed building.

27 A similar scenario exists to the north where a FSR of 0.5:1 also applies. Again, no evidence was presented to indicate any future building form that could screen the similar bland southern elevation of the proposed building. Overall, the proposed development is substantially inconsistent with the form of development contemplated by Appendix 2 of DCP 1 and the refusal of the development application is clearly warranted.

28 For completeness I will briefly deal with the other issues.

SEPP 65 - Findings

29 The same evidence as set out in par 16 – 21 above for DCP 1 Appendix 2, applies to SEPP 65.

30 There was agreement between the experts that the site is an area in transition for the purposes of SEPP 65. The consequence of the agreement is that any future development should be consistent with the stated desired future character of the area. Principle 1 describes this character as being outlined in planning and design policies.

31 The requirements in DCP 1, as a planning and design policy referred to in SEPP 65, do not contemplate a six or seven storey building in this location. A building of this form will be totally inconsistent with the three storey streetscape on Parramatta Road identified in Appendix 2 of DCP 1 and will sit uncomfortably between the adjoining sites that have a maximum FSR of 0.5:1 as the proposed development has a FSR of 1.94:1, according to the Applicant.

32 For these reasons, and those reasons mentioned in the assessment of the development application under DCP 1, I also find that the proposed development is unacceptable in terms of the design quality principles relating to context, scale, built form and density. I consider the proposal is excessive overdevelopment of the site.

Loss of privacy

33 The issue of the loss of privacy relates to the separation distances between the rear balconies of the proposed development and balconies on the Ashfield Gardens development. The experts relied on the building separation guidelines in the Residential Flat Design Code (“RFDC”) for their assessment.

34 Mr Robert Tillott provided evidence for the Applicant and Ms Narelle McDonnell provided evidence for the Council. They prepared a joint statement, however differed fundamentally on the interpretation of the separation requirement in the RFDC.

35 Mr Tillot stated that the RFDC suggests a separation distance of 18 metres between habitable rooms/balconies in buildings that contain between five and eight levels. On his assessment, the proposal provides an adequate separation, varying between 19.5 metres and 20 metres.

36 Ms McDonnell agreed with Mr Tillot on the RFDC requirement but disagreed that balconies should not be included in the separation distance. On her interpretation, the separation distance varies between 15.4 metres and 16.5 metres on the fifth and sixth levels of the proposed development and the Ashfield Gardens development.

37 On this matter I agree with Ms McDonnell. The description in the RFDC groups habitable rooms and balconies together. They are seen as a single entity for determining an appropriate separation and consequently any measurement must be taken from the closest part of the habitable room/balcony to the other point of measurement. I consider this proposal will result in a breach of the RFDC on separation distances and will result in loss of privacy to residents of Ashfield Gardens.

Overshadowing

38 There was agreement between Mr Tillot and Ms McDonnell that the impact of overshadowing on the Ashfield Gardens development would satisfy the solar access requirement in DCP 1.

39 It was submitted by Mr Griffiths, the Council’s advocate, that Annexure 2 to DCP 1 provides that the Ashfield Gardens development should not be overshadowed to any extent, as shown in Appendix 2. This requirement supersedes the more general requirements in DCP 1 on overshadowing.

40 While this issue is now largely irrelevant because of my findings on the unsuitability of the height, bulk and scale, I accept that the Annexure 2 requirements have some role to play in the assessment of solar access. The diagrams provide for unconstrained solar access because of the three storey buildings to the north at Parramatta Road. At worst, I accept that the level of solar access could exceed the more general requirements in DCP 1.

Heritage

41 Clause 37 of the Ashfield LEP provides requirements for development in the vicinity of heritage items and heritage conservation areas. This clause requires the Court to assess and take into account the likely effect of the proposed development on a heritage item and a heritage conservation area and its setting.

The evidence

42 Mr Robert Moore provided evidence for the Council and Mr Tony Prescott provided evidence for the Applicant.

43 The difference between the experts centres on the bulk and height of the proposed development. Mr Moore states that a five and six storey building will have an unacceptable visual impact on Yasmar Detention Centre and the whole Haberfield Conservation Area. Mr Prescott disagrees.

Findings

44 Yasmar Detention Centre is located on the opposite side of Parramatta Road, directly opposite the site. No buildings are visible because of the substantial vegetation along the street frontage of the heritage site. The Haberfield Conservation Area extends some distance on the opposite side of Parramatta Road.

45 Again, this issue is largely academic having found that the height of the proposed development is unacceptable, however the impact on the Haberfield Conservation Area is an additional reason to warrant the refusal of the application. In coming to this conclusion, I accept that there is some merit in Mr Moore’s evidence that a building of around three storeys would have less impact on the heritage item and the Haberfield Conservation Area.

Loading/unloading

46 Mr Graham Pindar provided evidence for the Council and Mr Richard Varga provided evidence for the Applicant on traffic management for the proposal. The major issue was the approach to be taken to loading and unloading.

47 The traffic experts provided a joint statement and, following further discussions, provided an amended driveway and loading/unloading area which continued for much of the length of the building at the front. This satisfied Mr Pindar’s previous concerns on the partial use of the road reserve for loading and unloading. The experts provided further conditions to address the amended loading/unloading area.

48 While the amendment satisfied the traffic experts, Mr Dickson raised concerns over the visual appearance of the loading/unloading area that was located largely on the front setback. Even though additional planting was proposed in this area he saw the extent of the hard paving as a negative aspect of the proposal.

Findings

49 I agree with the concerns of Mr Dickson. Parramatta Road is a relatively harsh environment and every attempt should be made to soften this environment through designs that provide a reasonable level of landscaping. I do not accept that the proposal satisfies this requirement.

50 I am also not convinced that a loading/unloading facility is best placed in such a prominent location along the entire length of a large development. In my view, this type of facility is best located away from public view and integrated in a more orderly fashion into the design.

51 There was dispute between the parties as to whether the balance of DCP 1 apart from Appendix 2 applied because cl 1.2 of DCP 1 states that it applies to land zoned Residential and this site is not so zoned. I note that the Council’s planner’s evidence that the whole of DCP 1 had been applied to the next door development at Ashfield Gardens was not disputed.

The Council’s evidence

52 Ms McDonnell stated that the proposal does not satisfy the DCP 1 requirement in relation to the overall landscaped area (677 square metres compared to 953.5 square metres), soft landscaping (411.4 square metres compared to 677 square metres), and deep soil planting (470 square metres compared to 566 square metres). Because of the non-compliance with DCP 1, she concluded that the proposal provides inadequate and inappropriate areas of open space and does not satisfy the objectives in DCP 1.

The Applicant’s evidence

53 Mr Tillot’s position is that the requirements in DCP 1 do not apply. His evidence stated that on this basis he is unable to further assist the Court.

Findings

54 I do not need to decide if the balance of DCP 1 applies. There can be no doubt that any form of residential development must have a reasonable level of open space. The reasons for providing open space and landscaping are set out in cl 8.0 of DCP 1. Mr Tillot’s approach is largely unhelpful with his reliance on a strict interpretation of DCP 1. I do consider that the task of assessing a reasonable amount of landscaping and open space is not helped by the Council’s lack of requirements for mixed use developments. Clearly, the imposition of specific controls for open space and landscaping for residential development cannot be directly used for mixed use development. There is a fundamental difference in the form of development before me and the need for open space and landscaping compared to a solely residential use.

55 For this reason, I make no specific finding on the issue of the adequacy of the proposed landscaping and open space.

Orders

56 The Court makes the following orders:

1. The appeal is dismissed;

2. Development application 2003/367 is refused;

3. No order as to costs.

4. The exhibits are to be returned.