CSA Architects v Randwick City Council

[2004] NSWLEC 179

Land and Environment Court

of New South Wales

CITATION:	CSA Architects v Randwick City Council [2004] NSWLEC 179
PARTIES:	CSA Architects Pty Ltd Applicant Randwick City Council Respondent
FILE NUMBER(S):	11551 of 2003
CORAM:	Roseth SC
KEY ISSUES:	Development Application :- Residential flat building Planning principle for development on small or narrow sites
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	19/04/04
DATE OF JUDGMENT:	04/27/2004
LEGAL REPRESENTATIVES:	Mr P Clay, barrister Mr J Kildae, barrister

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

11551 of 2003

Roseth SC

27 April 2004

CSA Architects Pty Ltd

Applicant

v

Randwick City Council

Respondent

Introduction

1 This is an appeal against the refusal by Randwick City Council (the council) of a development application to demolish the existing buildings and construct a residential flat building containing nine dwellings over basement parking on lot X & Y DP 402501, known as 260-260a Maroubra Road, Maroubra.

The site

2 The site is on the north side of Maroubra Road and has a rear frontage to Galvin Street. It has a width of 13.7m and a depth of 67m, with an area of 920m2. It accommodates a pair of single-storey semidetached houses. The adjoining property to the east, No 262, accommodates a three-storey (but four-level) block of flats over parking, the balconies of which come to within 2.5m of the common boundary. The site to the east of that, No 264, is also a three-storey block of flats over basement parking. To the west, the site adjoins two properties: No 258, which has single-storey semi on it, and No 21 Galvin Street, which has a two-storey house. Beyond No 258 to the west is another semi. To the west of that is a three-storey block of flats.

3 The site is thus at the east end of three allotments with single-storey semis between substantial residential flat development.

The proposal and its history

4 The applicant proposes to demolish the existing building on the site and to erect a three-storey apartment building over basement parking. The design provides for a gap in the building about one-third along its length from Maroubra Road.

5 The applicant lodged the application in November 2002. Following notification, the council received six objections. The notification of amended drawings generated four objections. The objections came from the residents of 262 Maroubra Road and 21 Galvin Street. The proposal was referred to the council’s SEPP 65 Design Review Panel, which suggested several amendments. The Court had no evidence on whether or not the applicant incorporated the amendments and the proposal was not referred again to the Panel.

6 In December the council received a recommendation from its planning staff for approval. The council did not accept the recommendation and refused the application on 15 December 2003. The applicant lodged the appeal on the following day.

Relevant legislation, planning instruments and policies

7 The Randwick Local Environmental Plan 1998 zones this site Residential 2C, a zone in which residential flat buildings up to three storeys are permissible. The maximum Floor Space Ratio (FSR) is 0.9:1. State Environmental Policy 65 (SEPP 65) also affects the proposal. The policy dealing with detailed design is Development Control Plan for Multi-unit Housing (the DCP).

The issues

8 The council submitted a Statement of Issues containing eight issues. These were discussed during the hearing, where it emerged that the major issue in the case was the narrowness of the site and the consequent inability of the applicant to comply with the DCP’s guidelines for setbacks from side boundaries.

The objectors’ concerns

9 The Court heard the objections of three residents of the apartment building at 262 Maroubra Road. Ms Yvonne Gibson, who lives in Unit 7 on the first floor, said that she was concerned about the loss of openness and afternoon sunlight. Her apartment is not located opposite the proposed gap. Mr K Wild, who lives in Unit 9 on the second floor, said that he was concerned about loss of privacy, sunlight and open outlook. He said that his apartment was badly impacted by the development east of him, at No 264. Ms L Peters, who lives at Unit 4 on the second floor, said that her concerns were loss of privacy and sunlight and being hemmed in.

Development of narrow site

10 Under Performance Requirements, the DCP requires that sites have appropriate areas and dimensions to allow for the satisfactory siting of buildings and ensure adequate separation between buildings. Under Preferred Solutions, the DCP states that sites should have a frontage of at least 20m. In a note, the DCP adds: “narrow and irregular shaped blocks may not be suitable for redevelopment. Development on these sites may need to be scaled down to reduce the potential for adverse impacts on adjoining properties”.

11 The two planning experts were Mr S King, for the council, and Mr L Fletcher, for the applicant, both consultant town planners. Mr King’s opinion was that the site was too narrow for the proposed development, the side setbacks inadequate and the impacts on the first floor apartments in No 262 unacceptable. Mr Fletcher said that the impacts were an inevitable outcome of developing the site and, therefore, acceptable.

12 It was common ground between the experts that the overshadowing impact would reduce the existing 3 hours of sunlight to three apartments on the first floor of No 62 to 2.5 hours at mid-winter. It was common ground that there would be no major overlooking. There would be a loss of outlook from all the apartments. There would also be the bulk of a three-storey building about 3m from the common boundary.

13 It was also common ground that amalgamation with the property at No 258 could not be achieved. While there was no evidence before the Court that this was so, the council did not raise it as an issue, so I accept the parties’ position. I understand Mr Fletcher to agree that a wider site would be preferable. However, because it is not achievable, in his opinion the proposal should be approved, notwithstanding its failure to meet the preferred 20m-width stipulated by the DCP.

14 Proposals on allotments that are below a preferred (or minimum) area and/or width are often before the Court. Where a council’s desire to restrict redevelopment to sites of a certain area or width is expressed as a development standard for minimum area or width in a LEP, the standard can be varied only by an Objection under State Environmental Planning Policy 1 (SEPP 1). The principles that apply to assessing a SEPP 1 Objection have been dealt with in numerous judgments of this Court and the Court of Appeal. In this case, however, the council’s desire that redevelopment should occur on sites that are at least 20m wide is expressed as a Preferred Solution in the DCP. This raises the question as to what planning principles should guide the assessment of an application on a site that cannot achieve the preferred area or width.

Planning principle: development on small or narrow sites

15 Where the council has a policy for small or narrow sites, the Court should, where reasonable, apply that policy. (This is a valid principle for all matters before the Court.) In the absence of a council policy, the assessment of a proposal on a site that is below the preferred area or width should be considered both as a development on its own site as well as in the context of possible developments on neighbouring sites. The following questions should be asked:

· Would approval of the application result in the isolation of neighbouring sites?

· Would it render the reasonable development of neighbouring sites difficult?

· Can orderly, economic and appropriate development of the subject site as well as neighbouring sites be achieved?

16 The main criterion for assessing the proposal on its own site is whether it meets other planning controls, eg:

· Does the proposal meet density, setback and landscaping controls? The most critical control for small and narrow sites is that for setbacks.

· Is its impact on adjoining properties and the streetscape worse because the development is on a small or narrow site?

17 Where an application meets other planning controls and the area and width of the site does not exacerbate its impacts, the failure of the site to meet the preferred area or width would usually not be a reason for refusal.

18 Applying the above principles, I find in the DCP only one sentence suggesting how narrow sites should be dealt with, quoted at Par 10 above. This suggests that the development potential of narrow sites may be less than that of sites that reach the preferred 20m minimum width.

19 I turn to the development of the subject site in the context of its neighbours. Nos 260, 258 and 256 are three allotments with single-storey buildings between two blocks of flats. Neither of the experts had turned his mind to the question of how Nos 258 and 256 might be redeveloped if this proposal goes ahead. It is, of course, physically possible for Nos 256 and 258 to be amalgamated; however, the question arises whether it would be reasonable to refuse an application for developing either of those sites separately if the subject application is approved. The prospect of three more three-storey buildings on 13m wide allotments with 6m-separation between them is not one that would enthuse a town planner’s heart. It is precisely the kind of development that the DCP appears to be designed to avoid.

20 I turn to the question whether the proposal meets other planning controls. The critical control is the setback from side boundaries. The DCP’s Preferred Solution is an average setback of 5m and a minimum setback of 3.5m. On the east side (which is the critical side) the proposal achieves an average of 3.4m and a minimum of 2.8m. The proposal thus falls significantly short of the preferred solution.

21 According to the DCP, the Performance Requirements of the side setback are to achieve

· adequate separation between buildings to maintain reasonable levels of solar access and minimise overshadowing,

· reasonable levels of privacy between neighbouring dwellings,

· opportunities for landscaping; and

· streetscape amenity.

22 The proposal reduces the sunlight in three dwellings on the first floor of No 262 to below three hours in mid-winter. This amount of impact may need to be accepted as unavoidable if the proposal complied with the setbacks in the preferred solutions. Although there was no evidence on this aspect, I must assume that a complying setback would allow more sunlight to the apartments in No 262. The experts agreed that there was no impact on privacy. The opportunities for landscaping are clearly less in a reduced setback. However, the applicant has compensated for this by providing a gap in the building where landscaping is possible. The experts agreed that the proposal did not have an adverse impact on the streetscape. They did not consider how three narrow three-storey buildings on Nos 260, 258 and 256 with narrow gaps between them would appear. Mr King expressed concern about the building bulk that the residents of 262 Maroubra Road would see from their living room window. This impact is clearly worse as a result of reduced setbacks.

23 In fairness to the applicant I note three things. First, by including a gap in the building, the applicant has reduced the impact on No 262. The gap is a positive feature of the proposal. However, the problem with the gap is that it benefits only one of four dwellings on the first floor. The others still face the prospect of a three-storey building less than 5m from their balconies. Second, the proposal complies with other planning controls, such as landscaped area and FSR. Indeed, the FSR of the proposal is about 10% less than the permissible. However, the crucial control for a narrow site is the setback from side boundaries, since it is the setbacks that determine the impact on neighbours.

24 Third, I understand that on a 13m wide site it is not possible to design a functioning building and achieve an average side setback of 5m. This suggests that, unless the site can be amalgamated with its neighbour, a three-storey development is not appropriate on it. If the impact on No 262 cannot be reduced by an increased setback, then it might be mitigated by a lower development.

25 I conclude that the proposal meets neither the performance requirements nor the preferred solution in the DCP for the width of the site or the setbacks from side boundaries. The appeal is therefore dismissed.

Orders

1. The appeal is dismissed.

2. Development application to demolish the existing buildings and construct a residential flat building containing nine dwellings over basement parking on lot X & Y DP 402501, known as 260-260a Maroubra Road, Maroubra is determined by refusal.

3. The exhibits are returned.

_________________
Dr John Roseth
Senior Commissioner