Asek Trust v Canterbury Bankstown Council

[2017] NSWLEC 1157

Land and Environment Court

New South Wales

Medium Neutral Citation:	Asek Trust v Canterbury Bankstown Council [2017] NSWLEC 1157
Hearing dates:	22 and 23 September 2016
Date of orders:	28 March 2017
Decision date:	28 March 2017
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	The Court orders:  (1) The appeal is upheld. (2) The Applicant is granted leave to rely on amended plans listed in Annexure 'A' (3) Development Consent is granted to DA No. 418/2015 for redevelopment of a property at 5 Shadforth St, Wiley in accordance with the plans provided at Appendix ‘A’ and the conditions of consent annexed hereto as Appendix ‘B’. (4) The exhibits are returned with the exception of Exhibit 1.
Catchwords:	Development Application: residential flat development; local character; setback controls; car stacker;
Legislation Cited:	Canterbury Local Environment Plan 2012 Environmental Planning and Assessment Act Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) State Environmental Planning Policy 65 - Design Quality of Residential Apartment Development
Cases Cited:	Soueid v Canterbury City Council (2016) NSWLEC 1420
Texts Cited:	Apartment Design Guide 2015 Building Codes of Australia Canterbury Development Control Plan 2012
Category:	Principal judgment
Parties:	Asek Trust (Applicant) Canterbury City Council (Respondent)
Representation:	Counsel: McKee (Applicant) Jackson(Respondent)     Solicitors: McKees Legal Solutions Pikes & Verekers Lawyers
File Number(s):	2016/151208
Publication restriction:	Nil

Judgment

Background

1. This appeal concerns a development application (DA No. 418/2015) by ASEK Trust (the Applicant) for redevelopment of a property at 5 Shadforth St, Wiley Park (the Site), identified as Lot 158 in Deposited Plan 7298.

2. The Site has an area of 660.1m2, is rectangular in shape, with a 13.295m frontage to Shadforth St, a 14.435m frontage to Wiley lane, and a depth of 47.3m.

3. This is an isolated lot with a narrow frontage located between two existing residential flat buildings, each of which provides parking at ground level sitting under two levels of residential accommodation.

4. The application seeks approval for:

1. Demolition of all existing structure on site, comprising a single storey fibro and weatherboard clad residence and attached garage; and

2. Construction of a four (4) storey residential flat building comprising eight (8) dwellings and basement parking for (10) vehicles.

5. The proposed development comprises seven 2-bedroom dwellings and one 3-bedroom dwelling. The top storey sits within the roof line of the proposed building.

6. Apartments within the proposed building would be accessed via lift from the ground floor to an open gallery at each level.

7. The proposed development includes car parking in the basement level using a car-staking system.

8. The Applicant has appealed the decision of Canterbury Bankstown Council (the Respondent) to refuse development consent for its development application. The appeal is brought pursuant to s97(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

9. The development application was the subject of a conciliation conference under s34 of the Land and Environment Court Act 1979 (the LEC Act). As agreement was not reached in the conciliation phase, the conciliation conference was terminated under s34(4) of the LEC Act.

10. Amended plans for the proposed development, prepared by Ghazi Al Ali Architect, and dated 16/8/16, were tendered without objection during the hearing, and leave was granted to rely on these plans.

11. A copy of these plans accompanies this judgement at Annexure ‘A’.

Planning considerations

12. The EPA Act requires under s79C(1) that in determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

1. the provisions of:

1. any environmental planning instrument, and

2. any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

3. any development control plan, and

4. any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and

5. the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and

6. any coastal zone management plan (within the meaning of the Coastal Protection Act 1979),

2. that apply to the land to which the development application relates,

3. the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

4. the suitability of the site for the development,

5. any submissions made in accordance with this Act or the regulations,

6. the public interest.

13. The site is zoned R4 High Density Residential under the Canterbury Local Environment Plan 2012 (CLEP2012). A residential flat dwelling is permissible with consent on the subject site under its R4 zoning.

14. The provisions of the Canterbury Development Control Plan 2012 (CDCP2012) must also be considered in evaluating any development application associated with the site.

15. Two factors restricting the site’s capacity to respond to the development controls of the CLEP2012 and CDCP2012 are:

1. The isolated nature of the site, which limits opportunities for its consolidation with either of its adjoining lots; and

2. Its narrow frontage of 13.295m, which limits responsiveness to side setback controls under CDCP2012.

16. The maximum Floor Space Ratio (FSR) prescribed by the CLEP2012 for the site is 0.9:1, with a maximum building height of 11.5m.

17. The development application is also made under the provisions of State Environmental Planning Policy Affordable Rental Housing (SEPP ARH), which inter alia permits ‘bonus’ floor space for developments complying with this policy.

18. The Parties agreed that the FSR and height of the proposed development were compliant with the controls under CLEP2012 and SEPP ARH.

19. Consequently, neither the FSR, nor the proposed building height, were pressed as contentions by the Respondent.

20. The proposed development is also subject to the provisions of State Environmental Planning Policy No. 65: Design Quality of Residential Flat Development (SEPP 65).

21. Under the provisions of clause 6A(2) of SEPP 65 the requirements, standards and controls contained in the in the CDCP 2012 are of no effect in relation to the following matters:

1. visual privacy,

2. solar and daylight access,

3. common circulation and spaces,

4. apartment size and layout,

5. ceiling heights,

6. private open space and balconies,

7. natural ventilation,

8. storage.

22. However, under SEPP 65, a consent authority must, inter alia, take into consideration the requirements of the NSW Department of Planning and Environment’s Apartment Design Guide (ADG) 2015, when determining development applications to which SEPP 65 applies.

23. Under cl. 8 of SEPP ARH, if there is inconsistency between SEPP ARH and any other planning instrument, the provisions of SEPP ARH prevails to the extent of the inconsistency.

24. However, under SEPP ARH s.16, nothing in the SEPP ARH affects the application of SEPP 65.

25. The SEPP ARH requires under s.16A that a consent authority must not consent to a development unless it has taken into consideration whether the design of the development is compatible with the character of the local development.

Contentions

26. An inspection of the Site was undertaken immediately prior to the hearing.

27. Notwithstanding notification to adjoining properties, no submissions were received in relation to the development application and no objectors sought to make submissions to the Court during the on-site inspection.

28. As noted above, during the proceedings, the Parties agreed that an earlier contention concerning the FSR of the proposed development had been resolved through the adoption of the amended plans.

29. The Respondent, citing the decision of O’Neill C in Soueid V Canterbury Bankstown Council [2016] LECNSW 1420, advised that the car parking mechanism proposed for the development was now considered appropriate for the development, and a contention with respect to that point was also not pressed.

30. The Parties also agreed that amenity issues with respect to solar access, ceiling heights of some units, and storage capacity available to future residents had also been resolved through the adoption of the amended plans.

31. The remaining contentions between the Parties are:

1. whether the design of the development is compatible with the character of the local area,

2. whether the proposed development is adequate with respect to the relevant statutory controls applicable to:

1. landscape plans,

2. amenity, in relation to gallery access and circulation,

3. stormwater concept design, and

4. setbacks.

Is the development consistent with the character of the local area?

32. SEPP ARH requires that a consent authority must not consent to a development unless it has taken into consideration whether the design of the development is compatible with the character of the local area.

33. For the purposes of this application the local area for assessment is that part of Shadforth St between Stanlea Parade and Lakemba St, Wiley Park.

34. This are is zoned R4 within the CLEP2012 High Density Residential. The redevelopment of the Subject Site to replace the current single storey dwelling on site with a residential flat building is consistent with Council’s long term built form outcome for the area.

35. Currently, dwellings in this area are most commonly characterised by 2 and 3 storey residential flat developments, often with the provision of ground floor garaging.

36. These dwellings are interspersed with occasional single or double story freestanding houses, similar to the existing dwelling on the Site.

37. These freestanding houses, when taken together with the more dominant residential flat dwelling forms surrounding the Site, create a character within the local area that is diverse and non-uniform.

38. Both parties acknowledged that the presentation of buildings to the street, including the building setbacks, contributed to the character of the local area.

39. The side setbacks of both residential flat buildings and free standing houses in the local area have setbacks that are generally consistent the requirements of the CDCP 2012.

40. The side setbacks of proposed development present to Shadforth St as approximately 2.5 metres to the south and between 3 metres to the north. These side setbacks extend along the length of the proposed development, other than at the ground floor level.

41. The side setbacks at ground floor level (called level 01 in the amended plans) reflect the upper floor setbacks at the front of the building. They then reduce to zero at approximately 16m from the front boundary on the southern side of the proposed development and some 28m from the front boundary on its northern side.

42. The Applicant contended that these setbacks were a consequence of the narrow and constrained nature of the subject site, and were necessary to facilitate:

1. entry to, and the operation of, the proposed basement car parking area and associated systems to the south.

2. security and privacy to the landscaped areas of the ground floor areas to the north side of the property to the north,

43. The Applicant said that because these setback reductions were located at some distance from the street, the building would be read as having side setbacks that were adequate and consistent with the site’s constrained width. As a consequence the Applicant said that the proposed setbacks would not be read as inconsistent with the character of the local area.

44. The Respondent said that side setbacks are an important contributor to the assessment of the proposed development’s character in relation to the local area, and that the proposed side side-backs were inconsistent with the existing local character.

45. Considering the above points, it is my view that the proposed development is compatible with the character of the local area, given:

1. the proposed residential flat building form is consistent with the future character of the local area as set out in the CLEP2012;

2. the proposed dwelling, while functionally a four storey residential flat building, nevertheless presents as a 3 storey development on its frontage to Shadforth Street. This building form is consistent with the presentation of current dominant dwelling forms in the local area of Shadforth Street;

3. the proposed development will be read from the street boundary as having side setbacks appropriate to both the scale of the proposed development and the site on which it is located;

4. the dwellings in the local area are, in any case, diverse in form and so some variability in presentation to Shadforth Street is acceptable,

46. I conclude that the proposed development is compatible with the character of the local area.

Are the proposed landscape plans adequate?

47. An amended landscaping plan was tendered as evidence during the hearing.

48. The Applicant noted that under SEPP ARH, consent to a development must not be refused if:

1. in relation to landscaped areas, the development meets the requirements of cl 14 (1) c) (ii) that at least 30% of the site area is to be landscaped

2. in relation to deep soil areas, the development meets the SEPP ARH requirements under:

1. cl.14 (1) (d) (i), that there is soil of a sufficient depth to support the growth of trees and shrubs on an area of not less than 15 per cent of the site area; and

2. cl.14 (1) (d) (ii), that each area forming part of the deep soil zone has a minimum dimension of 3 metres; and

3. cl.14 (1) (d) (iii), that, if practicable, at least two-thirds of the deep soil zone is located at the rear of the site area

49. A joint report of the landscaping experts, Ms Kierath for the Respondent and Mr Frew for the Applicant, was tendered in evidence.

50. In that report the Respondent’s expert was of the view that:

1. In relation to the requirements of cl 14(1)(c)(ii):

1. the amended landscape plan may satisfy, or could be adequately conditioned to meet, the requirements of this clause;

2. amendments to the plans may be required to redesign the first floor planter boxes on the southern boundary to ensure that landscaping requirements are maintained should any plan revisions be made to respond to privacy loss to the adjoining property.

2. In relation to the requirements of cl 14(1)(d)(i), (ii) and (iii):

1. the proposed area of deep soil at ground level does provide the 15% deep soil as required by that clause.

2. amendments to the plans may be required to ensure that the deep soil area calculations continue to meet the requirements of this clause should any amendments be made to the proposed design of the rear balconies in order to to support healthy plant and tree growth.

3. The objectives of CDCP2012 in relation to ‘providing residential streets and yards that are green and leafy, with adequate space between buildings for household activities and landscaping’ may be satisfied if the deep soil and landscaping area requirements of the ADG can be met.

51. These positions were not challenged in the joint report by the Applicant’s landscape expert, Mr Frew.

52. It was the position of the Applicant that the draft landscape plans could be amended to ensure that the requirements of SEPP ARH cl 14(1)(c)(ii) and cl. 14(1)(d)(i), (ii) and (iii) were met, and, in doing so, that the objectives of CDCP2012 in relation to landscaping would also be met.

53. The draft conditions of consent tendered by the Respondent at hearing included eight conditions (proposed/draft conditions 33-42) in relation to the finalising of a landscape plan for the proposed development. These conditions were not challenged by the Applicant.

54. The Applicant tendered a series of further conditions, proposed as additions to the Respondent’s proposed/draft condition 42, to address matters raised by the Respondent during the hearing. These conditions, which would be added as bullet points to the draft/proposed condition 42, were:

1. ‘A stainless steel open balustrade complaint with the Building Codes of Australia (BCA) is to be erected on the southern and western sides of the planter surrounding the gallery access core as a safety precaution’.

2. ‘The detail of masonry planter (details 08 on sheet 3) on slab is to be amended to clearly identify the height of the planter structure to be a minimum of 750mm deep and provide for soil depth of a minimum of 650mm’.

3. ‘The planting areas nominated to the north and south of units 102 and 103 are to form part of the common property’.

55. The Respondent’s position in respect of these proposed additions were:

1. In relation to the proposed balustrade: that it specified no balustrade height.

2. In relation to the proposed planter depths: that a 750mm depth would require that the on-site detention (OSD) tank be lowered, or the planter height increased, with a further increase in the boundary wall height.

3. In relation to the addition of planting areas to common property: that the respondent did not embrace this condition.

56. In response to the Respondent’s position concerning the potential for the 750mm minimum depth of planter structure to require a lowering of the OSD tank, the Applicant proposed the addition of a further condition 6.10:

1. ‘The ceiling height of the pump room is to be lowered by 1m in relation to drawing A1700’.

57. Having given consideration to the positions of the parties on these matters I have concluded that:

1. In relation to the proposed balustrade: the proposed condition is acceptable as the BCA includes a height requirement for balustrades.

2. In relation to the proposed planter depths: the landscape plans for the proposed development, if required, be amended to lower the OSD tank to ensure that a planter depth of 750mm can be achieved. In this regard, I also accept the proposal of the Applicant to add a condition 6.10 as described above at [56(1)].

3. In relation to the proposed addition to common property of planting areas to the north and south of units 102 and 103: the proposed condition is acceptable as it adds amenity to the proposed development.

58. It was the position of the Respondent that additional clarity was in relation to maintenance of communal open space areas that may require access through an area of private open space.

59. The Respondent proposed that a condition of consent be included requiring that the Applicant prepare a plan of management to confirm arrangements for managing the maintenance of communal open space areas should that require access through areas of private open space.

60. Having given consideration to the positions of the parties on this matter I support the position of the Respondent as a practical proposal to address its concern.

61. Consequently, the first sentence of the proposed/draft condition of consent 42 would be amended to read:

1. ‘An amended landscape plan, including a plan of management for the maintenance of communal open space areas should that require access through areas of private open space, and to address the issues outlined below, is to be submitted to Council or certifier prior to the issue of the Construction Certificate’.

62. Given the potential for the management of landscaping to require managed access through areas of private open space, the Applicant also proposed the addition of a further condition. This was styled as condition 42A, and sought to provide assurance as to the integrity of the future management of landscaping within the proposed development. The condition would read:

1. ‘All landscaped areas are to be maintained by a single contractor engaged by the Strata Manager appointed by the body corporate for a minimum period of 5 years in accordance with the landscape plan approved as part of the construction certificate’.

63. This proposal was not opposed by the Respondent. Consequently, I support the proposal for the addition of a condition 42A described above at [61(1)].

Amenity

64. The majority of the contentions in relation to amenity were resolved to the satisfaction of both Parties through the adoption of the amended plans.

65. The remaining amenity contention was whether the design of gallery access and circulation areas provided adequate amenity and privacy.

66. The Respondent, supported by the evidence of its planning expert, Mr McNamara, said its principal concern related to circulation within gallery spaces on levels 1 and 2, and whether the design of those spaces would provide adequate privacy to future residents moving through the space, and to neighbours.

67. The Applicant’s planning expert, Mr Kennan, gave evidence that the privacy of residents and neighbours in relation to movements through the gallery and other circulation areas would be adequately protected by the proposed landscaping associated with those areas. He noted that the proposed development included a total of eight apartments, and that the number and frequency of movements generated by the number of apartments proposed was low. He concluded that, as a consequence of this, the risk of compromise to the privacy of residents and neighbours was small.

68. Having given to consideration to the evidence of the experts, I prefer the position of the Applicant, supported by the evidence of Mr Kennan, in this regard. I am of the view that the combination of proposed landscaping and the likely low number, and so infrequency, of resident movements though the gallery and circulation areas at all levels, is unlikely to compromise the privacy of residents and neighbours.

69. I conclude that the contention in relation to privacy amenity does not require further amendment to the amended plans adopted for the proposed development, nor the imposition of specific conditions for its management.

Stormwater

70. A concept stormwater design prepared by S&G Consultants Pty Ltd was marked for information during the hearing.

71. Both Parties acknowledged that this plan would require amendment to ensure its alignment with landscape plan amendments required under any conditions of consent, and particularly in relation tof the on-site detention (OSD) tank design.

72. The Applicant proposed that the finalisation of the stormwater concept design be subject to a deferred commencement condition as follows:

1. ‘Pursuant to section 80(3) of the Environmental Planning and Assessment Act 1979, this consent does not operate until the following information is submitted to Council:

1. The provision of the stormwater concept design for proposed residential development at 5 Shadforth Street, Wiley Park, prepared by SGC Project number 20150256 Drawing No. SW01-05 Rev B dated 22 September 2016.

2. Such information must be submitted within 24 months of the date of this notice.

3. Upon Council’s written satisfaction of the above information, the following conditions of development consent apply’.

73. The Respondent’s position was that, given its importance, the finalisation of a satisfactory stormwater concept design should not be subject to a deferred commencement position.

74. Having reviewed the material presented during the hearing, and having considered the positions of both Parties, I agree with the position of the Applicant for a deferred commencement condition. My reasons for this are:

1. a draft of the stormwater concept design was available and marked for information at the hearing;

2. the imposition of a deferred commencement condition, and its wording, was at the urging of the Applicant, and places the onus for its successful completion on the Applicant;

3. the deferred commencement condition nevertheless requires that the final stormwater concept design be of a sufficient standard to secure the written satisfaction of Council, thus ensuring that the Respondent’s concerns can be addressed in the finalisation of the plan.

75. Finally, and in response to the Respondent’s submissions, I would also modify the condition to specify that, if necessary, the identified stormwater concept design be amended to ensure its alignment with any landscape plan amendments required under conditions of consent.

Are setbacks adequate?

76. CDCP 2012 (cl. 2.1.7 (xxxiii) requires a 6 metre minimum setback to the front and rear boundaries for multi-dwelling housing (R4 zone – with basement parking permitted) and residential flat buildings.

77. CDCP 2012 (cl. 2.1.7 (xxxiv) requires out a 4 metre minimum setback on side boundaries for multi-dwelling housing (R4 zone – with basement parking permitted) and residential flat buildings to provide for clear visual separation of adjacent building forms.

78. Notwithstanding these requirements, the CDCP2012 (cl 2.1.7) notes that variations to minimum setback controls may be considered on merit where it can be clearly demonstrated that the objectives of the CDCP2012 are met and architectural interest is created.

79. Under SEPP 65, a consent authority must also, inter alia, take into consideration the requirements of the NSW Department of Planning and Environment’s Apartment Design Guide (ADG) 2015, when determining development applications to which SEPP 65 applies, including setback requirements.

80. The objectives for setbacks in CDCP2012 as set out at cl.2.1.6, their relevance to the current development application, are as follows:

1. Objective: Establish the desired spatial proportions of the street and define the street edge;

1. Relevance: This objective relates to the front setback of the proposed development. The Parties agreed that the front setback, which defines the street edge, met the numerical requirements of the CDCD2012. Further, as the proposed development is compatible with the character of the local area [46] I conclude that the proposed development establishes the desired spatial proportions of the street.

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

1. Relevance: This objective relates to one aspect of the development’s landscape plan. As discussed above at [47-63] the open space proposed in the development’s landscape plan, as amended by proposed conditions of consent, would adequately address the requirements of the ADG. Consequently, I consider that this objective would be met in the proposed development.

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

1. Relevance: This objective relates to a further aspect of the development’s landscape plan. As discussed above at [47-63 ] the proposed development’s landscape plan, as amended by proposed conditions of consent, would adequately address the requirements of the ADG. Consequently, I consider that this objective would be met in the proposed development.

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

1. Relevance: This objective relates to side setback controls and amenity. As discussed above at [64-69] the proposed development adequately addresses the requirements of the ADG in relation to visual amenity. Other potential impacts are addressed in the consideration of side setbacks below at [90-106]. Should the issue of side setbacks be satisfactorily resolved then I would consider that this objective would be met in the proposed development.

5. Objective: Minimising stormwater run-off by retaining deep soil that allows rainwater infiltration.

1. Relevance: This objective relates to a further aspect of the development’s landscape plan and the proposed stormwater concept design. As discussed above at [47-63] the proposed landscape plan, as amended by proposed conditions of consent, would adequately address the requirements of the ADG in terms of deep soil areas. The further issue of the stormwater concept design has been addressed through a proposed deferred commencement condition. Consequently, I consider that this objective would be met in the proposed development.

81. The ADG notes that side and rear setbacks are tools for achieving amenity for new developments and buildings on adjacent sites. It notes that setbacks vary according to the building’s context and type, and that side and rear setbacks can be used to create useable land for common open space, tree planting and landscaping.

82. The ADG sets no numerical standards for side and rear setbacks, but identifies aims for side and rear setbacks in residential flat developments.

83. These aims are:

1. provide access to light, air and outlook for neighbouring properties and future buildings;

2. provide adequate privacy between neighbouring apartments;

3. retain all create a rhythm or pattern of spaces between buildings that refine and add character to the streetscape;

4. achieve setbacks that maximise deep soil areas, retain existing landscaping and support mature vegetation consolidated across sites;

5. manage a transition between sites or areas with different development controls such as height and land use.

Front setback

84. The plans for the proposed development provide for a front setback of between 8m at ground floor level, to 6m for the first and second storeys, and 5.4 metres at level 3 where the front roof margin extends forward of the 6m standard by 0.6m.

85. The Applicant’s position was that the front setback complied with the numerical standard set out in the CDCP2012 of a minimum 6m setback.

86. I have concluded that, notwithstanding the minor exceedance at the front setback of 0.6m at the roof level, the setbacks proposed do establish the desired spatial proportions of the street and adequately define the street edge.

87. As this exceedance has no other impact on the achievement of the setback objectives set out in CDCP2012, I conclude that the objectives of the CDCP2012 are met by the proposed development.

88. The exceedance of the forward roof line is minor and consistent with the presentation of roof structures of adjoining buildings. As a consequence, this feature creates architectural interest in the presentation of the proposed development to Shadforth St insofar as it is consistent with surrounding built form.

89. Consequently, I agree with the Applicant that the minor variation to the minimum setback as established under CDCP2012 has merit and should be accepted in this instance.

Side setbacks

90. The side setbacks and their adequacy in terms of the requirements of the ADG was the subject of expert testimony during the hearing.

91. In evidence, the planning experts Mr Kennan and Mr McNamara expressed the view that, given the constrained nature of the Subject Site, side setbacks of 4m as prescribed under CDCP2012 would be an unreasonable expectation for a development on the Subject Site.

92. The planning experts were also of the view that side setbacks in the range of 2m and 3m from the proposed building form to the boundary could be an acceptable outcome in relation to the aims established by the ADG.

93. The Applicant’s expert, Mr Kennan, said that the articulation created by the variations in the side setbacks was a beneficial feature of the proposed design. I agree with Mr Kennan on this point, and view this as creating a point of architectural interest.

94. The proposed development generally provides side setbacks from the proposed residential building form elements to the boundary that are in the range 2m to 3m.

95. The exception to this is in one location along the proposed development’s southern building form. In this location, along one 12m stretch, the proposed development has a side set-back of 1.5m between the residential building form and the southern boundary facing the property at 1-3 Shadforth St.

96. The experts were of differing positions with respect to the acceptability of the narrowest of the northern side setbacks.

97. Mr Kennan was of a view that the variation in proposed northern side setback of 2m and 3m between the residential building form and northern boundary was acceptable given the constraints of the site, and because it introduced a beneficial design element.

98. Mr McNamara, while agreeing that side setbacks in the range of between 2m and 3m could be an acceptable outcome, maintained that the portion of the northern side setback at the lower limit of 2m should not be supported.

99. The planning experts were also not in agreement as to whether the southern side setback was an acceptable outcome for the proposed development.

100. Mr Kennan contended that a setback of 1.5m along the 12m length of the residential building form on its southern side was acceptable. He based this assessment on the limitations presented by the constrained nature of the Subject Site, as well as the positioning of that setback against a 3m long portion of the existing building on the neighbouring property. He noted that this portion of the neighbouring building contained no living space widows, and otherwise the narrow setback was set against a vacant parking area at the rear of the neighbouring property.

101. Mr Kennan also noted that should the adjoining block be subject to redevelopment, the size of the lot afforded an opportunity for a future design to respond to the setback at this point.

102. Mr McNamara was of the view that this setback was inadequate as it was too far below the required setbacks set out in the CDCP 2012, and it may constrain future redevelopment of the neighbouring property.

103. Having given consideration to the perspectives of both experts I prefer the position of Mr Kennan on this matter because in terms of the objectives of the ADG for side setbacks, the proposed setbacks of the residential building form to the north and south boundaries:

1. are able to provide access to light, air and outlook for neighbouring properties;

2. do not unreasonably constrain this possibility for future a neighbouring building on the site to provide residents with light, air and outlook. This is because the size of the adjoining double block to the south would afford significant opportunity for any future building design to respond to these requirements;

3. provide adequate privacy between neighbouring apartments;

104. The other aims provided for setbacks within the ADG are relevant to the consideration of front and rear setbacks, and so do not require further consideration in terms of the proposed side setbacks.

105. The ADG identifies several further considerations in the setting of side and rear setback controls for residential flat buildings. In relation to this development proposal the considerations of relevance are to:

1. ‘test side and rear setbacks with height controls for the overshadowing of the site, adjoining properties and open spaces’;

2. ‘test side and rear setbacks with the requirements for:

1. building separation and visual privacy;

2. communal and private open space;

3. deep soil zone requirements.’

106. In relation to these tests, and based on the evidence of the experts planners, I am of the view that:

1. the proposed side setbacks do not create excessive overshadowing of the site, adjoining properties and open spaces;

2. the side setbacks proposed do provide adequate building separation and visual privacy to the neighbouring property, do not compromise communal and private open space, and do not compromise deep soil zone requirements; and

3. The variation in side setbacks is beneficial to the overall building design, and does create architectural interest.

107. As a consequence, I conclude that the side setbacks of the proposed development are adequate in relation to the aims of the ADG and so provide an acceptable response to the constraints of the Site.

Rear setbacks

108. The CDCP 2012 (cl. 2.1.7 (xxxiii) requires a 6 metre minimum setback on rear boundaries for multi-dwelling housing (R4 zone – with basement parking permitted) and residential flat buildings.

109. The rear setback of the proposed development is 5.327m from the boundary to the rear wall of the residential flat building.

110. However, as previously noted:

1. variations to minimum setback controls may be considered on merit where it can be clearly demonstrated that the objectives of the CDCP2012 are met and architectural interest is created;

2. under SEPP 65, a consent authority must, inter alia, take into consideration the requirements of the NSW Department of Planning and Environment’s Apartment Design Guide (ADG) 2015, when determining development applications to which SEPP 65 applies;

3. the ADG notes that, like side setbacks, setbacks are tools for achieving amenity for new developments and buildings on adjacent sites;

4. setbacks vary according to the building’s context and type, and that side and rear setbacks can be used to create useable land for common open space, tree planting and landscaping;

5. the ADG sets no numerical standards for side and rear setbacks, but identifies aims for side and rear setbacks in residential flat developments.

111. As discussed at [80] above, the ADG requirements for open space, landscape plan and deep soils would be met through the final landscape plan as amended by proposed conditions of consent. As a consequence, I am of the view that the proposed rear setback would also meet the CDCP2012 objectives of relevance to rear setbacks [being those described above at 80(2), 80(3) and 80(5)].

112. In terms the ADG, the applicable aims for the assessment of rear setbacks for the proposed development are to:

1. achieve setbacks that maximise deep soil areas, retain existing landscaping and support mature vegetation consolidated across sites;

2. manage a transition between sites or areas with different development controls such as height and land use.

113. In relation to the first of these aims, a revised landscape plan for the proposed development was tendered during the hearing. The total deep soil area in the proposed development is 137m2 representing some 20% of the site area.

114. The ADG (Part 3E Deep Soil Zones) provides that for developments on sites with an area of between 650m2 and 1500m2 the minimum deep soil zone on the site should be not less than 7% of the site area. It provides additional guidance that depending on the site context and area it may be possible to achieve up to 10% of site area. The revised landscape plan as tendered exceeds the ADG design criteria and guidance.

115. The revised landscape plan does propose the removal of existing vegetation along the rear boundary of the property and proposes their replacement by new tree plantings.

116. In relation to the second aim set out above at [112(2)], the rear of the Site is located on Wiley Lane. The properties on Wiley Lane opposite the Site have a ront onto King Georges Rd and are zoned B2 (Local Centre).

117. The portions of those neighbouring properties backing onto Wiley Lane are occupied by car parking areas.

118. The landscaping proposed for the rear of 5 Shadforth St consists of tree plantings that would provide visual amenity to any future residents of the proposed development, and in my view would adequately manage the transition between the adjacent R4 and B2 zones.

119. Given this, I am of the view that the proposed landscape plan for 5 Shadforth St, Wiley Park responds adequately to the aims of the ADG with respect to rear setbacks.

120. The ADG also identifies several considerations in the setting of side and rear setback controls for residential flat buildings that include:

1. ‘test side and rear setbacks with height controls for the overshadowing of the site, adjoining properties and open spaces’;

2. ‘test side and rear setbacks with the requirements for:

1. building separation and visual privacy;

2. communal and private open space;

3. deep soil zone requirements.’

121. In relation to these, the Applicant said that:

1. The rear setback is adequate with respect to height controls and potential overshadowing impacts on neighbouring sites as the adjacent portions of those properties are used for car parking.

1. The rear setbacks adequately respond to the ADG requirements for:

1. building separation and visual privacy;

2. communal and private open space;

3. deep soil zone requirements.

122. These positions were not challenged by the Respondent.

123. Consequently, I agree with the position of the Applicant that the proposed rear setbacks are an adequate response to the constraints of the site and the objectives of the ADG.

Setbacks – conclusion

124. I find that the front, rear and side setbacks of the proposed development address the setback objectives of the ADG;

125. I find that the as well as the relevant objectives of CDCP2012;

126. I find that the proposed front, rear and side setbacks clearly meet the objectives for setbacks within CDCP2012 and are of a form that creates architectural interest.

127. As a consequence, I find that while the proposed setbacks, while being variations to the minimum setback controls within the CDCP2012, have merit and should be accepted.

Conclusion

128. I find that the proposed development at 5 Shadforth St, Wiley Park is compatible with the character of the local area.

129. I find that the amended plans provided at Annexure ‘A’, together with draft/proposed conditions of consent provided at Annexure ‘B’, meet the requirements of the CLEP2012, CDCP2012, SEPP 65, SEPP (ARH) and the ADG in relation to:

1. landscape plans, including open space and deep soils;

2. amenity in relation to gallery access and circulation,

3. stormwater concept design, and

4. front, side and rear setbacks.

Orders

130. The Court order that;

1. The appeal is upheld;

2. The Applicant is granted leave to rely on amended plans listed in Annexure 'A';

3. Development Consent is granted to DA No. 418/2015 for redevelopment of a property at 5 Shadforth St, Wiley in accordance with the plans provided at Annexure ‘A’ , and the conditions of consent annexed hereto as Annexure ‘B’;

4. The exhibits are returned, except Exhibit 1.

151208.16 Chilcott (C) (311 KB, pdf)

151208.16 Plans (19.7 MB, pdf)

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Decision last updated: 28 March 2017