Challita v Strathfield Council

[2005] NSWLEC 623

Land and Environment Court

of New South Wales

CITATION:

Challita v Strathfield Council [2005] NSWLEC 623

PARTIES:

Applicant:
Albert and Linda Challita

Respondent:

Strathfield Municipal Council

FILE NUMBER(S):

10365 of 2005

CORAM:

Roseth SC

KEY ISSUES:

Development Application :- definition of landscaped area

DATES OF HEARING:

31/10/2005 and 01/11/2005

 
DATE OF JUDGMENT: 

11/08/2005

LEGAL REPRESENTATIVES:

Applicant:
Mr M Sahade, barrister

Respondent:
Mr A Seton, solicitor of Marsdens Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

8 November 2005

10365 of 2005 Albert and Linda Challita v Strathfield City Council

JUDGMENT

1 Senior Commissioner: This is an appeal against the refusal by Strathfield City Council (the council) of a development application to demolish the existing buildings and erect a residential flat building containing 36 dwellings over basement parking on lot 3 section 21 DP 827 and lot A DP 44940, known as 40-42 Henley Road, Homebush West.

The site

2 The site is on the eastern side of Henley Road, close to its intersection with Tavistock Road. The width of the site is 30m, its depth is 63m, and its area is 1,913m2. The ground falls about 2m from the northwest to the southeast corner.

3 The locality is in transformation, having been a detached residential area that was rezoned for higher density in 2000. Since the rezoning a large number of sites have been redeveloped to apartment blocks. In the section of Henley Road between Tavistock Road and Arthur Street (ie the immediate locality) three allotments have been redeveloped, five are intact, and there are five undeveloped lots at the corner with Tavistock that, if amalgamated, would have the same area as two allotments facing Henley Road. Thus thirty percent of the street close to the site has been redeveloped (see Figure 1).

The proposal

4 The applicant proposes to demolish the existing buildings on the site and erect a three-storey-plus-attic residential flat building. Thirty-six dwellings are proposed over two levels of basement parking for 64 cars. The front wall is set back 9m from Henley Road, while the balconies are set back 6.8m. The side setbacks are 4m and 4.2m. The building is 45m long.

5 The applicant lodged the application in May 2004. Following notification, the council received five letters of objection. On the recommendation of its planning staff, the council refused the application in April 2005. In July 2005 the applicant requested a review of the determination and submitted amended drawings in an attempt to meet the council’s objections. In September 2005, again on the recommendation of its planning staff, the council refused the application on review.

Relevant planning controls

6 State Environmental Planning Policy 65 – Design of Residential Flat Development (SEPP 65) governs the design of apartment building. Detailed design criteria are contained in the Residential Flat Design Code (RFDC) called up by the SEPP. The Strathfield Planning Ordinance Scheme 1969 (the PSO) zones this site Residential 2(B), a zone that permits multiple-unit housing. The draft Local Environmental Plan 2003 has maintained the zoning and has no relevance to the arguments in the appeal. Development Control Plan 3 - Multi-unit Housing (DCP 3) contains the major development standards for multi-unit housing and is the most relevant document to the issues in the appeal.

The issues

7 The council filed a Statement of Issues containing seven issues. The main issues articulated during the hearing were:

• Is the landscaped area adequate?
• Are the front and side setbacks adequate?
• Is the impact on the privacy of the rear yards of the Tavistock Road properties acceptable?
• Should the building envelope be measured from natural or finished ground level?

8 There was also an issue concerning the play area; however, with an increased landscaped area, that issue could be resolved.

Landscaped are

9 DCP 3 requires that 50% of the site be landscaped area. According to the council’s planning expert, Ms R Osman, the application provides only 42%, being about 150m2 short. According to the applicant’s planning expert, Mr J Vescio, the landscaped area is 50%. The difference is due to the fact that Mr Vescio has included the terraces at the ground floor, while Ms Osman has excluded them.

10 DCP 3 contains the following definition of landscaped area:

Landscaped area means the portion of a site which is designed, developed and capable of being maintained and used as naturally planted gardens, and/or unenclosed pedestrian terraces or walkways, excluding garbage collection and handling spaces, vehicular driveways, parking, manoeuvring, loading, unloading, and ramp spaces and other appurtenant works, provided that if the council deems such a space to be readily accessible and/or suitable in location, treatment and appearance for acceptance as landscaped open space, then areas on top of constructed decks, flat roofs, and/or terraces, swimming pools, stairs, gazebos, and areas under covered ways, may be included within this definition.

11 In clause 2.7, under the table indicating that 50% of the site should be set aside as landscaped area, the DCP expands the above definitions as follows:

For the purposes of this clause, “landscaped area” is defined to include those parts of the site not occupied at or above ground level by any structure , which is or is proposed to be predominantly landscaped by way of trees, gardens, lawns or shrubs and is available for the use and enjoyment of the occupants of the building. (Emphasis added.)

12 When the two definitions are read together, the dispute between Ms Osman and Mr Vescio resolves itself clearly in Ms Osman’s favour. The terraces that Mr Vescio has included have balconies above them, and thus they comprise a part of the site that is occupied by a structure at above ground level (see Figure 2).

13 However, I do not think that one needs to rely on DCP 3 to reject the private terraces as part of the landscaped area. The terraces are enclosed on five out of six sides. They have a tiled floor and are likely to contain the private clutter of the occupants. While the drawings do not show a balustrade to the ground floor terraces, the lack of balustrade is likely to be a source of conflict, given that a communal pathway is located directly next to the terraces. The terraces appear to be part of the building. No person is likely to perceive them as part of the open space.

14 I have considered the applicant’s submission that in past applications the council has considered similar terraces as part of the landscaped area. I do not know if this is correct. If it is true of nearby developments, it might explain why they appear so harsh and lack the softening effect of adequate and well-landscaped open space. It would not justify the Court’s endorsing an interpretation that leads to such undesirable results in the residential environment.

15 The shortfall in landscaped area is a serious shortcoming of the application. The landscaped area that is provided appears to be no more than the left over land at the edges of the site.

Front and side setbacks

16 DCP 3 requires a 9m setback from the street. The actual setback is 6.8m to the balconies, of which there are six in the front elevation. The front wall is set back 9m. Mr Vescio’s argument is that in other recent developments the council has allowed the front balconies to intrude into the front setback. This is the case in the development at the corner of Arthur Street. Ms Osman argued that the majority of Henley Road between Tavistock Road and Arthur Street has not yet been developed and that permitting a reduced setback on this site will determine the future setback for the entire block.

17 In my opinion, Ms Osman is correct in saying that the setback on this site will determine the setback on the remaining sites between Tavistock Road and Arthur Street. Moreover, I cannot understand why the applicant does not respect the 9m setback, given that the site is more than 60m deep so that there is ample area for a long building even with the required setback. In my opinion, the building should set back 9m from the street alignment, including the balconies.

18 The setback from the side boundaries poses a more difficult issue. The RFDC requires a separation at least 12m. If the proposal were to follow the guidelines of the RFDC, it would have to set back half that distance from the common boundaries with allotments where apartment buildings are likely to be built in the future. However, I note that DCP 3 requires only a 4m setback from side boundaries. While I consider this distance to be inadequate, it would be unfair to impose a larger setback on this proposal than that required by the DCP, particularly in view of the fact that an earlier version of the DCP required only 2m. In the circumstances the 4m-setback is acceptable.

Privacy of the Tavistock Road properties

19 The Court heard the evidence of Mrs T B Despotov, who lives at 8 Tavistock Road, but who spoke also on behalf of the owners of Nos 4, 6, 10 and 12, who were not proficient in English. The concern of the five owners was noise and overlooking from the 16 balconies facing them.

20 The applicant proposed to overcome the privacy problems by installing 1.6m high screens on all the balconies. A section drawn through the balconies and the Tavistock Road properties submitted by the applicant demonstrates that the screen would prevent overlooking from a sitting position on the balconies. However, the screen would also seriously reduce the amenity of the balconies and would probably render the solar access to the living rooms unacceptable.

21 I note that the section also indicates that a much less draconian measure would achieve the desired result. For example an upturned sill at the balustrade that diverts views down into the Tavistock Road rear yards may be all that is required. As concerns noise, in my opinion, this is an intractable problem for the Tavistock Road-properties that arises from the rezoning of the area, rather than this particular application. There is no way to treat the noise without sealing off the north-facing apartments on the subject site, a measure that would be unacceptable for other reasons.

Building envelope

22 It was common ground between the experts that the proposal fitted into the building envelope established by DCP 3. According to Ms Osman, the compliance was merely technical, as it has been achieved by excavating the building into the ground. In her opinion the building envelope should be applied from the finished ground line rather than the natural ground line.

23 I note that DCP 3 requires the building envelope to be measured from natural ground level. The DCP says nothing about the undesirability of excavating the building to achieve compliance. I agree with Ms Osman that it is against the spirit of the building envelope control to achieve compliance by sinking the building. However, the control says what it says and the applicant has complied with it. What Ms Osman’s evidence points to is the desirability of an amendment to the DCP that points out that compliance with the building envelope should not be achieved by the lowering of buildings.

Additional issues

24 Apart from the issues raised by the council, the Court found several other aspects of this application unsatisfactory. If the proposal had been otherwise worthy of approval, the Court would have provided the applicant with an opportunity to respond to these issues by adjourning the proceedings. The only reason for mentioning the unsatisfactory aspects of the proposal in this judgment is that it may assist in the preparation of any future application for the site.

25 A Design Verification Statement under SEPP 65 accompanied the development application. Attached to the statement is a RFDC Checklist. The Checklist states “building separation” is “not applicable”. This is incorrect. Building separation is twice the distance of a proposal’s setback from the common boundary with another site that has been or may be redeveloped. In addition, the Checklist does not include information on the hours of sunlight to the living rooms. While many of the living rooms face north, there are deep balconies in front of them with dividing walls between the balconies, so good solar access may not be possible despite the ideal orientation. A well-considered development application would include an accurate assessment of solar access to the living room of each dwelling.

26 I note that the council’s Design Review Panel recommended that the second floor and attic be redesigned so that all apartment have north-facing living spaces. The Panel then went on to describe how this could be achieved. The applicant has disregarded this recommendation without explaining why.

27 The drawings submitted with the application did not comply with Schedule B of the Court’s Practice Direction 17. Obvious things like adequate sections; section lines and levels were missing. The landscape plans were inconsistent with the architectural plans, gave only the sketchiest of information about intended plantings, indicated no levels, revealed conflicts between communal and private areas, and contained areas to which there was no access for maintenance.

Conclusion

28 The major shortcoming of this application is that it provides too little landscaped area. The converse is also true: the building covers too much of its site. The leftover open space is just that: long and narrow areas along the edges of the site. I accept that achieving a high development potential is a legitimate objective of applicants. However, where this becomes the only objective at the expense of amenity and good design, the results are unacceptable. For these reasons the appeal is dismissed.

Orders

1. The appeal is dismissed.

2. Development application to demolish the existing buildings and erect a residential flat building containing 36 dwellings over basement parking on lot 3 section 21 DP 827 and lot A DP 44940, known as 40-42 Henley Road, Homebush West is determined by refusal.

3. The exhibits are returned.

___________________
Dr John Roseth
Senior Commissioner