Australian Christian Services v Bankstown City Council

[2007] NSWLEC 656

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:    Australian Christian Services v Bankstown City Council [2007]  NSWLEC 656

PARTIES:
APPLICANT
Australian Christian Services

RESPONDENT
Bankstown City Council

FILE NUMBER(S):   10530  of        2007

CATCHWORDS:       Development Application :- Seniors Living Development, appropriate response to context, amenity impacts, drainage and landscaping.

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
State Environmental Planning Policy (Seniors Living) 2004
State Environmental Planning Policy No 65 -Design Quality of Residential Flat Development
State Environmental Planning Policy (Building Sustainability Index)
Bankstown Local Environmental Plan 2001

CASES CITED:

CORAM:        Hussey C

DATES OF HEARING:        20/09/2007

JUDGMENT DATE: 8 October 2007

LEGAL REPRESENTATIVES

APPLICANT
Mr G. McKee, solicitor
of McKees Solicitors

RESPONDENT
Mr R. Mascarenhas, solicitor
of Marsdens Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

8 October 2007

10530 of 2007  Australian Christian Services v Bankstown City Council

JUDGMENT

Background. 

1. This appeal was lodged against council's refusal of a development application for a 2-lot subdivision to then facilitate the construction of a new 133 unit housing development for age and disabled persons at 40 Hector Street and 34 Ellison Street, Chester Hill.

1. For the appeal, a number of contentions were raised, which include:

The proposal not providing an appropriate response to its context,
The proposal not providing appropriate built form and associated amenity, i.e. unsatisfactory internal amenity in terms of access to natural light and cross ventilation,
Resource, energy and water efficiency,
Unsatisfactory landscaping and stormwater drainage infrastructure locations,
Non-compliances with the Residential Flat Design Code (RFDC),
Non-compliance with the good urban design objectives in the Bankstown Local Environmental Plan,
Inadequate detailed information,
Inadequate drainage disposal arrangements.

1. The applicant responded to these contentions/issues by way of detailed amendments, which have been further assessed by Council, resulting in the parties’ agreement to consent orders.  There were 2 objectors to the original proposal, who were notified of the consent orders hearing, but made no further submissions against the proposal.

The Site.

1. The site is known as Lot 100 in DP 866504 and Lot 10 in DP 14364 (Nos 40 Hector Street and 34 Elliston Street, Chester Hill.  It has total area of 27,096 sq m.

1. The Southern Cross Bible College is located on the site, which is accessed from Hector Street. Open space is located in the western portion of the site and there is access to Priam Street.

1. The development site is irregularly shaped and has dimensions of:

214.2 m to the eastern boundary;
95.7 m to the northern boundary;
110.9 m to the southern boundary; and
257.1 m to the western boundary.

1. There is a cross-fall of approximately 7m from west to east, apart from the relatively flat playing field area.

1. The site contains several small buildings.  A substantial concrete water tower stands in the south - western portion of the site, close to the Priam Street access. Considerable vegetation exists on the site, and he is predominantly located around the periphery.

The proposal. 

1. This proposal involves:

i)     The subdivision of the site to create 2 allotments, i.e. Lots A with an area of 38215 sq m and retaining the Bible College and school and Lot B with an area of 27096 sq m forming the new development site.

ii)     The demolition of existing structures on Lot B.

iii)    Alterations and additions to the existing college structures.

iv)   Construction of a new housing development for age and disabled persons, comprising:

13 residential flat buildings, containing a total of 133 self-contained dwellings.  The residential flat buildings vary in height between 2 storeys and 3 storeys.  Accommodation for community facilities is provided in 3 separate single storey buildings.
Car parking is proposed within 2 separate basement parking areas.  One basement car park is accessed from Ellison Street and provides parking for 63 vehicles.  Another basement car park is accessed from Priam Street and provides 7 separate parking cells, connected by common access corridor, with parking for 95 vehicles.
An access road provides opportunities for ground level vehicular access to the individual buildings.  A total of 15 visitor car parking spaces are to be provided at ground level.
Acoustic walls of 2.1m height are proposed for the full length of the driveways at Ellison Street and Priam Street entrances to the site.  The acoustic walls are proposed on both sides of each driveway.

Planning controls.

1. Bankstown Local Environmental Plan 2001. (BLEP).  Under this BLEP the site is zoned Special Uses - Educational Purposes and portion of the development site with frontage to Ellison Street is zoned 2 (a) – Residential. 

1. State Environmental Planning Policy (Seniors Living) 2004. The development is permissible with consent under the provisions of this policy.

1. State Environmental Planning Policy No 65 -Design Quality of Residential Flat Development.

1. State Environmental Planning Policy (Building Sustainability Index).

The evidence. 

1. A comprehensive set of technical details for the proposal was provided for assessment.  Consequently, the evidence included a detailed s 79C assessment of the proposal (included in councils bundle of documents), which supported the proposal for conditional consent.

1. However, following the refusal of the application, further amendments were undertaken this resulted in an assessment report from Ms K Gordon (consulting town planner), supporting the amended proposal.

1. The amended proposal was assessed by Mr D Bushby (councils town planner), resulting in his conclusion that it now merits conditional consent.  This conclusion was adopted by Council in agreeing to the consent orders.

1. In response to the contentions/issues, Mr Bushbys’ assessment is:  

   1. Proposal is inconsistent with the aims of State Environmental Planning Policy (SEPP) No. 65 and does not promote a high standard of urban design. The proposal is inconsistent with the Design Quality Principles of the SEPP relating to context; built form; resource, energy and water efficiency; landscape; and amenity.

   The amended plans submitted by the applicant demonstrate that the proposal is now satisfactory with regard to solar access and ventilation to dwellings, and impacts on existing vegetation. Resolution of these matters is discussed below. Council considers that the proposal now responds appropriately to the Design Quality Principles of SEPP 65.

   2.Proposal is inconsistent with the Residential Flat Design Code (RFDC) of SEPP No. 65:

   (a) Maximum internal plan depth exceeds 18 metres.

   Refer to Item 2(c) and Item 2(d) below. The amended plans submitted by the applicant demonstrate that dwellings within the proposal will now achieve satisfactory solar access and cross ventilation. Despite not complying with the numerical provisions the RFDC, it is considered that the intent of the Code is satisfied. The proposed internal plan depth is therefore supported.

   (b) Communal open space provision is less than 25%.

   The applicant has provided additional information regarding the calculation of communal open space. Council has reviewed this information, and agrees that a minimum of 25% of the site has been designed, or is adaptable, as communal open space.

   (c) The back of kitchens are more than 8 metres from a window.

   60% of dwellings in the proposal located the back of the kitchen more than 8 metres from a window. Amended plans submitted by the applicant demonstrate that only 31 % of dwellings now have the back of the kitchen greater than 8 metres from a window, and only 13% of dwellings now have the back of the kitchen greater than 9 metres from a window. The amended plans also indicate that skylights have been provided to top floor units, further improving solar access.
   Council considers that the amended proposal is satisfactory with respect to solar access to kitchens and is now consistent with the intent of the RFDC.

   (d)Less than 60% of dwellings are naturally cross-ventilated.

   Only 44% of dwellings were provided with cross ventilation acceptable to Council. Amended plans submitted by the applicant indicate that additional windows are provided to external walls and the opportunities for cross ventilation of the dwellings have been increased, such that 65% of dwellings are now satisfactory.

   (e) Ground floor apartments do not adequately respond to the streetscape and public domain at pedestrian scale.

   The applicant has agreed to a condition of consent requiring that the finished floor level of ground floor dwellings G01 and G02 in Block 4 be raised to provide a more appropriate relationship with the finished surface levels adjacent to the building. The applicant has also accepted a condition of consent requiring that the enclosing walls of ground floor external courtyards be treated with materials consistent with the finishes of the corresponding building. The relationship between the public and private domain is now considered acceptable.

   (f)Little or no passive surveillance is provided to the street.

   The amended plans provide for additional windows and increases opportunities for surveillance of the internal roads and open space areas.

   (g) Communal open space areas do not achieve satisfactory solar access.

   Following the submission of additional information by the applicant, the portion of the site adaptable as communal open space has been increased. Solar access to the communal open space provided by the proposal is now satisfactory to Council.

   (h)Waste collection areas, kitchens, and wet areas have unsatisfactory access to natural light and ventilation.

   It is discussed at Item 2(c) that the amended proposal is satisfactory with respect to solar access to kitchens and is now consistent with the intent of the RFDC.
   With regard to wet areas, the applicant has agreed to a condition of consent requiring that the layout of bathrooms in 33 of the proposed dwellings be modified to provide a window for natural light and ventilation. Ventilated skylights have also been provided
   With regard to ventilation of the basement car park, the applicant has agreed to a condition of consent requiring that ventilation louvres be provided to exposed basement walls, in locations where they do not conflict with ground floor external courtyards.

   (i)The proposal does not demonstrate a flexible apartment layout.

   Council accepts the applicant's submission that the development is designed to provide a specific form of accommodation, and therefore should not be subject to the same unit mix requirements as a typical residential flat building development. Nonetheless, the applicant has agreed to a condition of consent requiring the conversion of five dwellings within Block 4, Block 5 and Block 6, from two-bedroom units to 2x one-bedroom units, in order to increase housing choice. Council considers that these changes can be achieved without any modification to the proposed building envelopes.

   3. Proposal is inconsistent with the objectives of Bankstown Local Environmental Plan 2001 as it does not demonstrate good urban design and energy and resource efficiency.

   It is discussed at Item 2(c), Item 2(d) and Item 2(h) that the proposal is now acceptable with regard to solar access and ventilation to dwellings. Furthermore, the amended plans and supporting detail submitted by the applicant demonstrate that the development is now satisfactory in its response to the Design Quality Principles of SEPP 65.
   Council considers that the development now satisfies the urban design, and energy and resource efficiency requirements of Bankstown LEP 2001.

   4.Proposal is inconsistent with the aims of State Environmental Planning Policy (Seniors Living) 2004) and is not of good design.

   The amended proposal is now considered to be of good design as required by the SEPP.

   5.The application is not accompanied by a design verification in accordance with the requirements of the Environmental Planning and Assessment Regulation 2000.

   Satisfactory design verification has been submitted by the applicant. The design verification now meets the requirements of the EP&A Regulation 2000.

   6.The information submitted with the application is inadequate and does not enable a proper assessment:

   (a)The tree management strategy, tree schedule and arborist appraisal are inconsistent in terms of identifying the trees to be retained and removed.

   The tree management strategy and arborist appraisal have been amended by the applicant, and are now consistent with regard to nominating trees to be removed and retained. Council now agrees to the proposed tree removal.
   The plan inaccuracies and omissions have now been resolved by the applicant, with the exception of an incorrect dwelling reference in Block 4, and inconsistencies between the landscape plans and architectural plans with regard to the location of ground floor courtyards. The applicant has agreed to conditions of consent to address these matters.

   7.The Concept Stormwater Drainage Report is inadequate and does not enable a proper assessment:

   (a) Summary table of storm events has not been submitted.

   This information has been submitted to Council, however a condition of consent has been agreed to by the applicant to ensure the results of the analysis are satisfactory.

   (b) Design information is required showing how the surface flowpaths will function.

   The submitted information remains unclear, however Council accepts that the intent of the design is satisfactory. A condition of consent clarifying the detail necessary for the preparation of Construction Certificate plans has been accepted by the applicant.

   (c) Lack of existing spot levels and contours shown on the plans.

   No further information regarding spot levels and contours has been provided by the applicant, however Council accepts the proposed drainage concept on the balance of the applicants submission.

   (d) Design levels have not been provided on all site drainage plans.

   The applicant has agreed to a condition of consent, considered by Council to be necessary to ensure that a step down is provided from habitable floor levels, and to ensure the top of grate levels for the on­site detention tanks are consistent.

   (e) Down pipes, down pipe connecting lines and sufficient surface inlet pits have not been indicated on the site drainage plans.

   This information is shown on the amended plans, however is still incomplete. Further information will be needed for the preparation of Construction Certificate plans, and the applicant has accepted a condition of consent to this effect.

   (f)Basement drainage plans have not been submitted.

   Basement drainage plans have still not been submitted by the applicant. Council considers that this matter can be addressed by a condition of consent, given that the proposed drainage concept is accepted on the balance of the applicants submission.

   (g)The concept of drainage line 17/13 to 17/5 is not supported. Amongst other things, there is unnecessary impact on trees proposed to be retained.

   Drainage line 17/13 to 17/5 has been relocated to address this matter.

   (h) Drainage line 15/4 to 15/3 is in a location under which a basement is proposed.

   Drainage line 15/4 to 15/3 has been relocated to address this matter.

   (i)Drainage line 17/12 to 17/11 is in a disruptive location with regard to trees that are proposed to be retained.

   Drainage line 17/12 to 17/11 has been relocated to address this matter.

   (j)Drainage line 11/5 to 11/2 should be located further west, as clear as possible of the existing trees and canopies.

   Drainage line 11/5 to 11/2 has been relocated, however is still unsatisfactory. A condition of consent has been accepted by the applicant, requiring that this drainage line be located adjacent to Block 9 and Block 10, and as clear as possible of the existing trees in the vicinity.

   (k) Surface flowpaths that will direct catchment water to OSD systems in the event of pit and pipe blockage are not indicated on the drainage plans.

   Council proposes to include a condition of consent requiring that this matter be addressed in the preparation of Construction Certificate plans. This condition has been accepted by the applicant.

   (l)Grates over OSD tanks have not been provided to ensure no point in the tank is greater than 3 metres from an access point.

   Grates over the on-site detention tanks have been modified. This matter is now addressed to Council's satisfaction.

   8.Existing vegetation, trees and ecosystems are not preserved as part of the proposal.

   A root investigation report has been prepared by the applicant, which examines the potential impact of the development on trees T149, T204, T218 and T232, which were identified by Council as being worthy of retention.
   Amendments to the design of the basement car parking areas beneath Blocks 2 and 3, Block 7 and Block 9 have been made, with a reduction in the basement area to ensure there would be no impact on the root structure of trees T149, T204 and T218.
   Following a review of the applicants further root investigation, Council now agrees to the removal of tree T232, subject to replacement planting as recommended by the applicants consulting arborist.
   The stormwater concept plan has been amended. Drainage lines 17/13 to 17/5, 17/12 to 17/1, and 11/5 to 11/2, which previously conflicted with the location on existing trees along the east and west boundaries of the development, have been relocated.
   Council considers that the amended proposal will now have an acceptable impact on existing vegetation at the site.

   9.The proposal will have an adverse impact on the existing native flora on the subject site.

   Please refer to Item 8 above.

   10. The proposal will set an undesirable precedent for similar inappropriate development in the area and is not in the public interest.

   The amended plans and supporting documentation submitted by the applicant have satisfactorily addressed the matters raised in Part B of Council's Statement of Facts and Contentions.
   Council no longer considers that the proposal would set an undesirable precedent for development within the Bankstown Local Government Area.

Conclusions. 

1. Having considered the evidence presented to the Court and undertaken a view, I am satisfied that the amended proposal now merits granting the consent orders. This conclusion is based on the expert opinions of Ms Gordon and Mr Busby, whose detailed s 79 C assessment of the proposal supports the approval.

1. I also note that the Court was informed that one of the objectors had withdrawn their objection to the amended proposal and the other objector’s concerns about traffic amenity in Ellison Street would be satisfactorily covered by the conditions consent.

1. Notwithstanding this, I expressed some concerns about the conditions involving the orderly construction of the drainage works, particularly those downstream of the development on Lot A.  Following my preliminary findings on this issue, the parties agreed to alterations of the drainage requirement conditions, which I now find satisfactory.

1. In the absence of any challenge to the consent orders, I now consider it reasonable that they should be made.

Court Orders

1.     The appeal is upheld.

2.     Development Application 491/2006 for the subdivision, demolition of existing structures, works to existing college site and construction of a new housing development for aged and disabled persons on the land at 40 hector Street and 34 Elliston Street, Chester Hill is approved subject to the conditions in Annexure A.

3.     The exhibits may be returned except for Exhibits 1, A, B and C.

___________________

R Hussey
Commissioner of the Court

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