Brookes v Hurstville City Council

[2010] NSWLEC 1021

Land and Environment Court

of New South Wales

CITATION:	Brookes v Hurstville City Council [2010] NSWLEC 1021
PARTIES:	APPLICANT Edward and Jon Brookes RESPONDENT Hurstville City Council
FILE NUMBER(S):	10713 of 2009
CORAM:	Tuor C
KEY ISSUES:	DEVELOPMENT APPLICATION :- Residential flat building density, open space, building envelop and setback controls
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No. 65 – Design Quality of Residential Flat Buildings Hurstville Local Environmental Plan 1994 Development Control Plan No 1 Residential Flat Design Code
DATES OF HEARING:	21 and 22 December 2009
DATE OF JUDGMENT:	9 February 2010
LEGAL REPRESENTATIVES:	APPLICANT Mr D Thomas, solicitor of Wellings Lawyers RESPONDENT Mr P Rigg, solicitor of Deacons Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

9 February 2010

10713 of 2009 Brookes v Hurstville City Council

JUDGMENT

1 This is an appeal against the refusal by Hurstville City Council (the council) of a development application (09/DA-39) to demolish two existing dwellings and construct a 3-storey residential flat building with eight units and basement parking for 14 cars at 22B and 24 Macquarie Place, Mortdale (the site).

2 The main issue between the parties is whether the proposal is an overdevelopment of the site due to the non compliance with the density, open space and setback controls in Hurstville Development Control Plan No 1 (DCP 1).

Site and context

3 The site is located on the northern side of Macquarie Place near the corner of The Strand. It comprises two lots with a combined area of 720.6sqm, a street frontage of 20.12m and a depth of 35.81m. Each lot is developed with a single storey house.

4 The site adjoins residential flat buildings and Mortdale RSL Club is opposite the site. The surrounding area is characterised by residential flat buildings and single storey houses. Mortdale shopping centre is located approximately 200m to the east of the site.

Planning controls

5 The site is in zone 2 Residential under Hurstville Local Environmental Plan 1994 (LEP 1994). The proposal is permissible with consent.

6 Clause 8(3) of LEP 1994 provides that:

Except as otherwise provided by this plan, the council may grant consent to the carrying out of development on land to which this plan applies only if the council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out and has considered the extent to which the proposed development is consistent with those objectives.

7 The objectives of the 2 Residential Zone are:

(a) to preserve and enhance the character and amenity of established residential areas,
(b) to allow a variety of housing types within existing residential areas,
(c) to encourage the conservation of residential areas which include individual buildings and streets of heritage significance,
(d) to encourage greater visual amenity by requiring landscaping and permitting a greater variety of building materials and flexibility of design,
(e) to enable redevelopment for medium density housing forms, including townhouses, villas, cluster housing, semi-detached housing, residential flat buildings and the like, where such development does not interfere with the amenity of surrounding residential areas, and
(f) to allow people to carry out a reasonable range of activities from their homes, where such activities are not likely to adversely affect the living environment of neighbours.

8 DCP 1 also applies to the site. Section 4.8.2 of DCP 1 provides General Development Controls for Multiple Dwellings and Residential Flat Buildings which relevantly include: Site Planning (s 4.8.2.1), Building Form and Style (s 4.8.2.3)), Building Setbacks (s 4.8.2.4), Car Parking and Access (s 4.8.2.5), Fences and Front Boundary (s 4.8.2.8) and Landscape (s 4.8.2.9).

9 The objective and controls of s 4.8.2.1 - Site Planning relevantly provide:

Objective
Site planning aims to maximise the attributes of a site while establishing a good relationship between buildings on a site and with neighbouring property and buildings

Planning Controls
i) Minimum Size of Allotments and Site Amalgamations
…... In Development Areas C and D the minimum street frontage and general width for any form of multi unit development shall be 24 metres.

i)(a) Residential Densities
Residential density controls apply to Development Areas A, B, C and D. These Development Areas are shown on the Residential Development Control Code Map adopted by Council on 17 July 1996 (A-Green, B-yellow, C-grey and D-pink). The density control is expressed as the amount of site area required for each dwelling regardless of its size or the number of bedrooms provided…….. Multiunit developments in Area D require 105 square metres of site area per dwelling. The number of dwellings derived from the above calculations will not be rounded up to the nearest whole number.

10 The site is within Development Area D on the Residential Development Control Code Map.

11 Section 4.8.3 provides Specific Development Controls for each development area.

12 The Summary of the Controls for Development Area D states:

This is the only area where three storey development is permitted. The controls require minimum window to window privacy distances of 9m for the first two storeys of a development and 12m for the third storey.

Side boundary setbacks are a minimum of 4m so that good quality landscaping is encouraged and/or ground level courtyards can be provided.

On small sites (e.g. 24m frontages) the third storey will have to be setback from the side boundaries a minimum of 7m. Where larger sites are proposed, buildings would not need to be stepped for the third level provided the 7m setback can be achieved.

13 Section 4.8.3.4 provides the following objectives for Development Area D:

to encourage higher density housing forms in localities in close proximity to public transport and community services;
To provide opportunity for compatible infill development in older residential flat building areas;
To encourage high quality developments in new high density areas which take regard to the amenity of the existing housing in the locality and acknowledges the long term building form change in these areas;
To ensure properties are not isolated by properties adjoining.

14 Section 4.8.3.4 includes Specific Standards for Development Area D for Building Height and Form, Open Space and Landscaped Area.

15 State Environmental Planning Policy No. 65 – Design Quality of Residential Flat Buildings (SEPP 65) and the Residential Flat Design Code (the Code) are relevant. The proposal was referred to the Design Review Panel (the Panel) established under Part 3 of SEPP 65.

16 The Panel considered an earlier version of the application on 5 March 2009. The Panel generally supported the application but recommended some changes.

The issues and evidence

17 Ms P Bizimis, for the council and Mr W Long, for the applicant provided planning evidence. There was no resident evidence.

Street frontage

18 The planning experts agreed that although the site frontage of 20.12m did not comply with minimum street frontage of 24m specified in s 4.8.2.1(i) of DCP 1, the site was suitable for a residential flat building given that it adjoined other residential flat buildings and there was no opportunity to amalgamate the site with other sites. Ms Bizimis held this opinion on the basis that a residential flat building on the site should comply with the other requirements of DCP 1.

Density

19 The experts agreed that the proposal does not comply with the density control of 105sq m of site area per dwelling in s 4.8.2.1(i)(a) of DCP 1 as it provides eight units (4 x 3, 3 x 2 and 1 x 1 bedroom) with a density of 90sqm per unit. In Ms Bizimis’ opinion the non compliance with the density control resulted in a larger residential flat building with a greater footprint and less opportunity for open space and landscaping. She also considered that the increased density would place greater demand on services and infrastructure and set a precedent for other sites.

20 Ms Bizimis considered that the density control could not be considered in isolation but was part of a package of controls in DCP 1. In her opinion a reduction in the number of units to achieve the density control should be considered in conjunction with other controls for building envelope, setback and open space.

21 Mr Long stated that the density control is not based on the size of the units or the number of bedrooms. Six three bedroom units would comply with the density control but require the same number of car spaces and occupy the same footprint as the proposal. Further, it does not control population density as it does not relate to the size of the units. Utilising the occupancy rates in Hurstville Section 94 Plan for Community Services and Facilities (s94 Plan) he concluded that the population generated by the proposal and an almost complying proposal with 7 units and a density of 103sqm per unit would be one person (18 instead of 19). In his opinion the proposal “is not likely to result in an adverse impact on the availability of infrastructure and level of services required for the area on a broader scale”.

22 Mr Long referred to Principle 4 Density in SEPP 65 which provides:

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.

23 Mr Long undertook an analysis of site area and number of units in surrounding development which demonstrated that the existing density is greater than that of the proposal (average about 80sqm per unit). These developments were constructed prior to the current controls.

24 In Mr Long’s opinion, the proposal is consistent with the density of the area and appropriate in its context.

Open space

25 Section 4.8.3.4(b) of DCP 1 requires a minimum of 60sqm of ground level open space per unit with three or more bedrooms and a minimum of 12sqm for upper level balconies with a minimum width of 2.5m. A number of the balconies do no comply. However, the experts agreed that a condition could be imposed to require compliance.

26 Ms Bizimis was concerned that unit 3 provides 48sqm of open space which does not meet s 4.8.3.4(b) of DCP 1. Unit 1 provides 64sqm but this is located forward of the building line and therefore does not meet s 4.8.2.8 of DCP 1. In her opinion, the area is characterised by low fences and open space forward of the building line. The proposed 1.5m high fence necessary to provide privacy to the private open space for unit 1 would have a detrimental impact on the streetscape. She agreed that if the front and side fence were redesigned the interface with the street would be improved. The experts agreed to a condition to achieve this although Mr Long considered the front fence should be further set back from the street front. Ms Bizimis did not agree as this would reduce the area of private open space to unit 1.

27 Ms Bizimis also considered that the proposal does not meet the recommendations of the Code as it provides no communal open space. In her opinion, an area of communal open space in the street front would be characteristic of the area. She acknowledged that DCP 1 does not require communal open space and that the Code recognises that communal open space may not be able to be provided in dense urban areas in which case increased private open space or contributions to public open space may be appropriate. The Code recommends a minimum of 25sqm of ground level private open space, which is exceeded by the proposal.

28 Mr Long acknowledged that the proposal did not meet the numerical controls for open space but considered that the objective in s 4.8.3.4(b) of DCP 1 was achieved as the proposal provided usable private open space with good amenity off the living areas. He considered that the communal areas of open space in the front of existing buildings were sometimes poorly landscaped and poorly maintained and provided little benefit to the streetscape. In his opinion private open space would be of greater amenity to the users of the development and the street. Further, he stated that there is ample public open space in close proximity to the site.

Setbacks

29 The experts agreed that compliance with the building envelope would make it difficult to achieve a third storey. They stated that:

In the overall context and considering the specific relationship to adjoining properties, the proposed side setbacks and building envelope is acceptable.

30 Although, as discussed above, Ms Bizimis considered that the footprint of the proposal could be reduced and the side setbacks increased, if less units were provided as required by the density control. Ms Bizimis also raised concerns about the 300mm projection of the balcony off unit 4 into the side setback. She considered it should be redesigned to comply. Mr Long stated that the balcony was opposite the indentation in the adjoining building and would not result in adverse privacy impacts.

Findings

31 The site has a frontage which is below the requirement in DCP 1. This is a similar width to other land in the vicinity, which has been developed under prior planning controls with residential flat buildings. These buildings generally have parking at ground level with three levels of residential above with side access driveways and landscaped front and rear areas and, to a lesser extent, side areas. Some land is similar to the site and remains developed with single dwelling houses on two lots which if amalgamated would be of a similar width and size to the site.

32 A residential flat building is the appropriate form of development for the site given the adjoining residential flat buildings and its surrounding context. The question is whether the proposed development is an overdevelopment of the site and beyond what is envisaged by the planning controls.

33 The principle non compliance is with the density control. I accept Mr Long’s evidence that this control, when applied in isolation, would not necessarily result in a building with a smaller footprint or of lesser bulk given that it relates only to site area per unit regardless of the unit’s size or number of bedrooms. There is also no evidence that the proposed density would place an unreasonable demand on infrastructure and services. However, I do not accept that the control is independent of other controls, particularly the setback, landscape and building envelope controls.

34 DCP 1 does not specify the objectives of the street frontage or the density control. The objective for s 4.8.2.1 – Site Planning is:

Site planning aims to maximise the attributes of a site while establishing a good relationship between buildings on a site and with neighbouring property and buildings

35 Street frontage and density are part of the suite of planning controls to achieve the site planning objective. Within this context the purpose of the density control is to ensure that there is adequate site area to accommodate units and their associated requirements such as parking and access, private open space, landscaping etc. While the control is independent of the size of the unit, it can be argued that this provides a degree of flexibility for the applicant to select the size of units that best meet the economic requirements of the development while still meeting the development controls. For example, 6 x 3 bedroom units would require 14 car spaces, but would be difficult to accommodate on the site unless the basement is built to the side boundaries thereby limiting the amount of landscaping within the setback area. In comparison, 6 x 2 bedroom units would require only 8 car spaces and therefore require a much smaller footprint and greater scope for deep soil planting and landscaping.

36 Presumably the density control (105 sqm per unit) is established with the knowledge that it provides less density than the existing residential flat buildings, which based on Mr Long’s survey average about 80sqm of site area per unit. The assumption being that a larger site area is required to achieve the controls such as 50 -.60 sqm of private open space for ground floor units, 45% of the site being landscaped open space and minimum 4m side setbacks.

37 Principle 4 Density in SEPP 65 recognises that density should be consistent with the existing density in an area or, in precincts undergoing a transition, are consistent with the stated desired future density. The proposal is within an area with existing residential flat building approved under different planning controls. While the current controls clearly envisage residential flat buildings, the density control in DCP 1 provides for a density that is lower than the existing context. The area is one undergoing a transition to the extent that the form of residential flat buildings envisaged under the DCP 1 is of lower density.

38 There are no particular characteristics of this site which would justify the variation to the density control, particularly given that there are other potential development sites in the vicinity, which would be of similar size and characteristics.

39 The proposal does not comply with the private open space requirement for unit 3 and the private open space for unit 1 is forward of the front building line. Of itself, these would not be a reason to refuse the application. The requirements for ground level private open are generous, particularly when compared to the 25 sqm required under SEPP 65. The areas meet the objectives of the control in s 4.8.3.4(b). However, unlike SEPP 65, DCP 1 has no requirement for communal open space. The private open space must therefore meet the users needs but also provide the landscape setting for the development as a whole and its separation from other developments and the street.

40 Within this context the provision of private open space which occupies the frontage of the building and requires a 1.5m fence for privacy is uncharacteristic of the area, which generally has open landscaped frontage with no or low fences. As currently designed, and even with the part solid part open style fence suggested by the planners, I do not accept that the proposal would meet the objective for fences at the front boundary in s 4.8.2.8.

41 While the building is setback the minimum requirement of 6m, it would be preferable if the building and its front balconies were set back to reflect the setback of the adjoining buildings and that the ground level open space be set back from the street frontage with an unfenced landscaped area directly fronting the street. It may be appropriate for this to be in common ownership to ensure maintenance of the landscaping. While this would reduce the area of private open space to unit 1 it could meet the objectives of the control provided the area is usable with good amenity. This was originally proposed but was amended in response to the comments of the Panel. I understand that larger private open space would provide greater amenity to the occupants but on balance the landscape setting in the front of the building and its interface with the street should be improved to better reflect the character of the area.

42 There is no landscaping along the driveway to the basement car park and the retaining walls to the open space area of unit 1 are not screened, which is a negative feature of the development and uncharacteristic of the area. I do not accept that the proposed condition to provide an area of landscaping on the boundary at the street frontage will adequately ameliorate this impact, which results from inadequate side setbacks of the driveway and the building.

43 The side setback requirements for Area D are not clearly stated, but I accept Mr Rigg’s submission, for the council, that a minimum side setback of 4m applies to the first two floors and a minimum setback of 7m applies to the third floor.

44 Section 4.8.2.4 of the General Development Controls provided the following objective for setbacks:

Objective
Setbacks define a building line from the front, side and rear boundaries of a property. The objective of these setbacks is to provide adequate space for landscaping, visual and acoustic privacy, sunlight penetration, safety requirements and for the establishment of an attractive streetscape.

45 Section 4.8.3 Specific Development Controls states:

Boundary setbacks are intended to be sufficient to provide good quality landscaping potential and screening where appropriate. The side boundary setbacks are intended to be sufficient to allow for individual ground level open space for dwellings, e.g. courtyards, rather than just providing narrow rather useless common areas or side passage ways. An outcome of compliance with the building envelope controls

46 The Summary of Controls for Development Area D includes the requirement that:

Side boundary setbacks are a minimum of 4m so that good quality landscaping is encouraged and/or ground level courtyards can be provided.
On small sites (e.g. 24m frontages) the third storey will have to be setback from the side boundaries a minimum of 7m. Where larger sites are proposed, buildings would not need to be stepped for the third level provided the 7m setback can be achieved.

47 The diagrams which accompany the Building Height and Form Control in s4.8.3.4(a) illustrate these setbacks.

48 The proposal does not comply with the minimum side setback controls or the building envelope control. The basement level is built to the boundary and the ground level has a setback to the north of 3m and to the south of between about 3m and 3.6m. No landscaping is provided on either side of the driveway to the basement car park and part of the landscaping in the side setback areas on both sides of the building is provided in planter boxes above the car park roof slab with a depth of about 440mm (south) and 500mm (north). I do not accept that this is adequate to provide landscaping that would meet the objectives for side setbacks.

49 Council did not raise landscaped area as an issue on the basis that the proposal complies with s 4.8.3.4 (c) which requires:

All residential development in Development Area D must provide a minimum of 45% of the total site area as landscaped open space.

50 Landscaped open space is defined in DCP 1 as:

Landscaped Open Space means an area which is proposed to be landscaped by way of planting, gardens, lawns, shrubs or trees and does not include any part of the site occupied at or above ground level by any building or any area set aside for driveways and parking. Where landscaping at or about finished ground level is proposed over a building structure, the soil depth must be a minimum of 600mm.

51 No information was provided as to what is included as landscaped open space and therefore it is unclear as to whether the planters above the slab are included. Regardless of whether there is numerical compliance, the landscaping along the drive way could be improved, particularly as this adjoins a driveway at 24A–26 Macquarie Place, which has little landscaping.

52 The side setbacks of the second and third level do not comply with the building envelope control. The Planning report states that there are breaches between 2.4 –2.6m on the first level and between 3.1 to 4.5m on the second level. Given that there are no material environmental impacts from these breaches and the height and form of the adjoining residential flat buildings (which are not stepped to conform to a building envelop), I accept the experts opinion that these breaches of the building envelop are acceptable.

53 None the less, compliance with the 4m setback control would not only provide greater landscaping but would also provide greater separation between the adjoining residential flat buildings. I note that the Code recommends a setback of 9m between habitable rooms/balconies and non habitable rooms and 12m between habitable rooms for up to 4 storeys. No information was provided as to the use of the rooms in the adjoining buildings, which face the development. The separation of the proposal and 22 Macquarie Place does not meet the 9m (other than the large indent on 22 Macquarie Place) and a greater setback may enable more advantage to be taken of the north aspect of the building, such as providing larger windows than highlight windows to units 1, 4 and 7. It also appears that the side setback of existing buildings with similar street frontages is greater than the setback that can be achieved by the proposal.

54 The site is clearly suitable for a residential flat building however, I am not satisfied that the density and form of the proposal meet the objectives of DCP 1. A proposal with one less unit and less parking would enable greater side setbacks for the building, the car park and its driveway and more opportunity for landscaping. Options for amendments to the proposal were discussed during the hearing but not pursued by the applicant. In its current form, the proposal is not suitable for approval.

55 The orders of the Court are:

1. The appeal is dismissed.
2. Development Application to demolish two existing dwellings and construct a 3-storey residential flat building with eight units and basement parking for 14 cars at 22B and 24 Macquarie Place, Mortdale, is refused.
3. The exhibits, except Exhibits 1 and D, are returned.

_______________________

Annelise Tuor
Commissioner of the Court