Goreski v Hurstville City Council (No. 2)

[2012] NSWLEC 1026

Land and Environment Court

New South Wales

Medium Neutral Citation:

Goreski v Hurstville City Council (No. 2) [2012] NSWLEC 1026

Hearing dates:

3 February 2012

Decision date:

09 February 2012

Jurisdiction:

Class 1

Before:

Brown ASC

Decision:

1. The appeal is upheld.

2. Development Application 09/DA-228 for the demolition of an existing dwelling and the construction of a dual occupancy development and Torrens Title subdivision at 165 Carrington Avenue Hurstville is approved subject to the conditions in Annexure "A".

Catchwords:

DEVELOPMENT APPLICATION: demolition of existing structures and construction of a dual occupancy development - remitted to consider error of law - whether minimum allotment size objective satisfied and consequently, whether objection under SEPP 1 well founded.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
State Environmental Planning No 1

Cases Cited:

Dem Gillespies v Warringah Council [2002] NSWLEC 224
Goreski v Hurstville City Council [2010] NSWLEC 1288)
Hurstville City Council v Goreski [2011] NSWLEC 188
Marina Bay Developments Pty Ltd v Pittwater Council [2007] NSWLEC 42
Project Venture Developments v Pittwater Council [2005] NSWLEC 191
Veloshin v Randwick Council [2007] NSWLEC 428

Category:

Principal judgment

Parties:

Paul and Valentina Goreski (Applicants)

Hurstville City Council (Respondent)

Representation:

Mr M Staunton, barrister (Applicants)

Mr A Seton, solicitor (Respondent)
Bartier Perry (Applicants)

Marsdens Law Group (Respondent)

File Number(s):

10557 of 2010

Judgment

1. ACTING SENIOR COMMISSIONER: This matter comes before the Court in response to the orders of Sheahan J, on 3 November 2011, following an appeal under s 56A of the Land and Environment Court Act 1979 (Hurstville City Council v Goreski [2011] NSWLEC 188) . The appeal upheld one of the four grounds of appeal against the Courts approval of Development Application 09/DA228 (Goreski v Hurstville City Council [2010] NSWLEC 1288) for the demolition of an existing dwelling and the construction of a two-storey dual occupancy and subdivision of the land into two Torrens Title lots at 165 Carrington Avenue, Hurstville (the site).

1. His Honours orders are:

(1) The appeal is allowed in part, and the decision of Commissioner Brown is set aside so far as it displays an error of law in relation to objective in cl 11A(1)(d)(iii) of the relevant LEP.

(2) The appeal is otherwise dismissed.

(3) The matter is remitted to Commissioner Brown for further consideration in the light of these reasons.

(4) The respondents are ordered to pay the appellant's costs of this appeal up to and including 3 February 2011, and the appellant is ordered to pay 50% of the respondents' costs of the appeal subsequent to that date.

(5) The exhibits may be returned.

The remitted hearing

1. The site is within Zone No 2 (Residential Zone) under Hurstville Local Environmental Plan 1994 (LEP 1994). Dual occupancies are permissible with consent within this zone. Clause 11A provides requirements for dual occupancies. Hurstville Development Control Plan (the DCP) contains more specific requirements.

1. Clause 11A(2A) of LEP 1994 requires a minimum allotment size of 630 sq m and a width of at least 15 m for dual occupancy developments. The proposed development satisfies the width requirement but does not satisfy the minimum allotment size development standard, having an area of 619.8 sq m. An objection under State Environmental Planning No 1 - Development Standards (SEPP 1) was provided to show why strict compliance with the minimum allotment size development standard is unreasonable and unnecessary, in this case.

1. Clause 11A(1) provides objectives for cl 11A. The relevant objectives in cl 11A(1)(d) state:

(d) provide a minimum allotment size and width required for the development of dual occupancy so that:

(i) the pattern of subdivision in residential areas is retained as reflected in lot size, orientation and shape;

(ii) allotments have a minimum size so as to provide landscaped areas that are suitable for tree planting; and

(iii )the scale and density of development is compatible with the existing streetscape.

1. His Honour found that an error of law was made in the interpretation of the objective in cl 11A(1)(d)(iii) and this invalidated the Court's finding that the SEPP 1 objection was well founded, and ultimately the upholding of the appeal and the approval of the development application. The remitted hearing was to determine only whether the proposed development satisfies the objective in cl 11A(1)(d)(iii), i.e. whether the proposed development is compatible with the scale and density of development in the existing streetscape. A finding that the objective of the development standard is satisfied , notwithstanding non-compliance with the standard, would allow a finding that the SEPP 1 objection was well founded and given the acceptable merit assessment, development consent could be granted to the proposed development. Alternatively, a finding that the objective of the development standard is not satisfied must result in the dismissal of the appeal and the refusal of the development application.

The submissions

1. Mr Staunton submits that cl 11A(1)(d)(iii) requires consideration of four relevant terms; being "scale", "density", "compatibility" and "streetscape". None of these terms are defined in LEP 1994 so it is necessary to construe these terms in a practical and commonsense way having regard to the context in which the words are found and the purpose of LEP 1994 ( Marina Bay Developments Pty Ltd v Pittwater Council [2007] NSWLEC 42 at [18] - [22]).

1. The meaning of "scale" is dealt with in Veloshin v Randwick Council [2007] NSWLEC 428 at [29] where it states:

While bulk and scale tend to be used interchangeably, strictly speaking, bulk refers to the mass of a building and scale is properly used only when referring to the relative size of two or more things.

1. In the context of the relevant objective, the issue is the compatibility of the scale of a development in the streetscape so the appropriate consideration is the relative size of the proposed dual occupancy building to other buildings in the existing streetscape, noting that the controls encourage two dwellings within the one building rather than two separate buildings.

1. Mr Staunton submits that "density" could refer to a number of matters such as floor space ratio, site coverage, number of dwellings, intensity or apparent bulk. He notes that LEP 1994 does not use the words bulk or mass and having regard to the context and purpose; that being an assessment of existing streetscape, the word density must refer to the appearance of the bulk and existence of two dwellings in the streetscape.

1. The term "compatibility" has been addressed in Dem Gillespies v Warringah Council [2002] NSWLEC 224 at [74] and Project Venture Developments v Pittwater Council [2005] NSWLEC 191 at [22] to [31] where the term was found to mean "capable of existing together in harmony". Project Venture also states that "compatibility does not mean sameness".

1. "Existing streetscape" is not defined in LEP 1994 however Mr Staunton submits that "existing" obviously means the streetscape at the time of any consideration and for the term "streetscape", some guidance can be gained from the DCP definition, which states:

the character of a locality (whether it is a street or precinct) defined by the spatial arrangement and visual appearance of built and landscape features when viewed from the street

1. In other words, and adopting the meanings in the previous paragraphs, what is required by the objective is not sameness of scale and density but rather that the proposed dual occupancy development exists in harmony, in terms of scale and density with the existing streetscape.

1. Given the existing eclectic streetscape, Mr Staunton submits that the Court could comfortably conclude that when consideration of the compatibility of scale and density of the development is limited to the existing streetscape of Carrington Ave, the objective in cl 11A(1)(d)(iii) is satisfied notwithstanding the non-compliance with the minimum allotment size of 630 sq m and as such strict compliance with the development standard is unnecessary in an unreasonable and the circumstances of this case. There is no basis to conclude other than the SEPP 1 objection is well founded and that the granting of consent is consistent with the aims of the SEPP 1.

1. Mr Seton submits that there are three relevant questions that need to be asked. First, what is the existing streetscape? He submits that the existing streetscape should at least include the visual catchment from Carrington Road in the immediate vicinity of the site. Second, what is the scale of the development in the existing streetscape? Mr Seton submits that any assessment of the scale of the development in the existing streetscape should include both sides of Carrington Avenue. He submits that the proposed development is inconsistent with the scale of development in the existing streetscape given the number of smaller older-style cottages and the existence of two-storey residential dwellings, including those on either side of the site on lots. These dwellings have the same lot size as the site of 619 sq m. The dwellings on the opposite side of Carrington Avenue are located on even smaller lots around 600 sq m. and less. Third, what is the density of development in the existing streetscape? Mr Seton submits that density could have a number of meanings and include intensity, floor space ratio and number of dwellings. Importantly, Mr Seton submits that there are no dual occupancy developments in the existing streetscape and the absence of this form of development means that the proposed dual occupancy, with two dwellings on a lot that would normally only accommodate a single dwelling, must be inconsistent with the density in the existing streetscape. Also, as dwellings on the opposite side of Carrington Road are located on smaller blocks there is an even greater inconsistency in terms of density.

Findings

1. The Court is required to make a finding on whether the proposed dual occupancy development, on a lot that is below the minimum size, has a scale and density that is compatible with the existing streetscape. This raises a number of separate matters, such as:

What is the "existing streetscape"?

1. The area in the vicinity of the site was inspected on the morning of the remitted hearing. There appeared to be no disagreement on what constituted the existing streetscape. The extent of Carrington Road to be included in the streetscape was generally accepted as the area that could be viewed when standing in the general vicinity of the site in both directions and from both sides of the street. Mr Staunton submitted that this could be extended further along Carrington Road although it was not a matter that would alter his submissions.

1. With the benefit of a site inspection, the existing streetscape could reasonably be described as exclusively single residential dwelling but with a wide range of building forms, designs and ages. It is an area undergoing a transition from an older style single storey cottage character to a more modern form of residential development that includes renovated original single storey cottage dwellings, large two-storey residential dwellings and more modern and contemporary designs also of large two-storey construction. There were a relatively small number of older style single storey cottages (including the site) in the existing streetscape. There is a predominance of pitched roofs and newer dwellings are mostly brick or rendered construction. Dwellings have either a single or double garage door facing Carrington Avenue with hard paving from the street boundary to the garage and dwelling. Car parking is available in front of the garages and within the property boundary. Given the relatively small street setback, some landscaping is provided but is generally limited to grass and shrubs.

What does "compatible" mean?

1. Project Venture provides guidance in considering the meaning of compatibility in a town planning context. The relevant parts state:

Planning principle: compatibility in the urban environment

22 There are many dictionary definitions of compatible. The most apposite meaning in an urban design context is capable of existing together in harmony. Compatibility is thus different from sameness. It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve.

23 It should be noted that compatibility between proposed and existing is not always desirable. There are situations where extreme differences in scale and appearance produce great urban design involving landmark buildings. There are situations where the planning controls envisage a change of character, in which case compatibility with the future character is more appropriate than with the existing. Finally, there are urban environments that are so unattractive that it is best not to reproduce them.

24 Where compatibility between a building and its surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked.

Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites.

Is the proposal's appearance in harmony with the buildings around it and the character of the street?

25 The physical impacts, such as noise, overlooking, overshadowing and constraining development potential, can be assessed with relative objectivity. In contrast, to decide whether or not a new building appears to be in harmony with its surroundings is a more subjective task. Analysing the existing context and then testing the proposal against it can, however, reduce the degree of subjectivity.

26 For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment. In some areas, planning instruments or urban design studies have already described the urban character. In others (the majority of cases), the character needs to be defined as part of a proposal's assessment. The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping . In special areas, such as conservation areas, architectural style and materials are also contributors to character.

27 Buildings do not have to be the same height to be compatible. Where there are significant differences in height, it is easier to achieve compatibility when the change is gradual rather than abrupt. The extent to which height differences are acceptable depends also on the consistency of height in the existing streetscape.

28 Front setbacks and the way they are treated are an important element of urban character. Where there is a uniform building line, even small differences can destroy the unity. Setbacks from side boundaries determine the rhythm of building and void. While it may not be possible to reproduce the rhythm exactly, new development should strive to reflect it in some way.

29 Landscaping is also an important contributor to urban character. In some areas landscape dominates buildings, in others buildings dominate the landscape. Where canopy trees define the character, new developments must provide opportunities for planting canopy trees.

1. There is no reason why the meaning in Project Venture and Dem Gillespies that compatibility means "capable of existing together in harmony" should not be adopted in this case.

What does "scale" mean?

1. In Veloshin v Randwick Council [2007] NSWLEC 428 at [29], the meaning of "scale" is given in a town planning context. It states:

29 .... The terms excessive height, bulk and scale and overdevelopment are probably the most frequently used phrases in councils' Statements of Contention. While bulk and scale tend to be used interchangeably, strictly speaking, bulk refers to the mass of a building and scale is properly used only when referring to the relative size of two or more things. When scale is used to mean apparent size , it is better to use those words. When scale is used to denote the character of an area, it is better to use that word. All the above are highly subjective terms, since a building that one person perceives as too big, another person finds appropriately sized.

1. There is no reason why "scale" should not mean "the relative size of two or more things" in this case.

What does "density" mean?

1. The submissions of Mr Staunton and Mr Seton accept that density can have a number of meanings, including intensity, floor space ratio and number of dwellings, site coverage, intensity or apparent bulk. I accept the submission of Mr Staunton that in an assessment of existing streetscape, the word density is a reference to the appearance of the bulk, form and the existence of two dwellings when viewed in the streetscape.

Does the proposed development have a scale and density that is compatible with the existing streetscape?

1. Based on the meaning of the identified words in the preceding paragraphs, the answer to this question must be yes. The test is compatibility and not replication and I am satisfied that, in response to the first question in Project Venture (at par 24), the scale and density of the proposal's appearance is in harmony with the buildings around it and the existing streetscape for a number of reasons. First, the height is compatible as it is located between two existing two-storey residential dwellings that will have similar heights: the small differences in height generally reflects the change in natural ground levels between the buildings. The height is also similar to most two-storey residential dwellings in the existing streetscape based on observations on the site inspection.

1. Second, the setback to the street of 5.5 m is compatible with other development in the existing streetscape, particularly the two adjoining residential dwellings. I note that the side setbacks of 1.5 m exceeds the side setbacks of both adjoining residential dwellings and even without any other side setback measurements in the existing streetscape, I can comfortably conclude, from observations on the site inspection that the proposed development maintains the rhythm of setbacks in the existing streetscape.

1. Third, I am satisfied the amount of landscaping is compatible with other development in the existing streetscape. Reasonable areas for planting are available on either side of the combined driveway that provides access to the garages.

1. Fourth, and on the matter of density, I agree with Mr Staunton that the density of the proposed development, in the context of the objective, should be considered against the bulk and form of other dwellings in the existing streetscape, including the presence of the two dwellings that make up the proposed development. In my view, the architectural style and materials are compatible with the newer forms of residential development in the existing streetscape. The proposed building form is well articulated through the garages, windows and doors at ground level and by windows and balconies at first-floor level. The building provides for a pitched roof, similar to many other residential developments within the existing streetscape. I do not accept that the presence of features that can characterise a dual occupancy development, such as the two front doors and the two separate garages, compromise the appearance of the development in the existing streetscape or create the impression of a building that is overly bulky or dense. Even though the existing streetscape consists predominantly of residential development, I have little trouble in concluding that the proposed dual occupancy development is compatible in this context, being simply a different form of residential development that shares many of the characteristics or elements of the single residential dwellings in the existing streetscape. I note there was no dispute that the proposed development satisfies the floor space ratio requirements for this form of residential development.

1. In my view, the proposed development falls squarely within the comments in Project Venture (at par 22) that state:

It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve.

1. Overall, I do not accept that any differences in density, scale or appearance between the proposed development and other residential dwellings disturbs the harmony of the existing streetscape.

1. For these reasons, I am satisfied that the objective in cl 11A(1)(d)(iii) is satisfied, notwithstanding the non-compliance with the minimum 630 sq m allotment size in cl 11A(2A) of LEP 1994. Consequently, strict compliance with the minimum allotment size is unnecessary and unreasonable in the circumstances of this case. I am satisfied that the SEPP 1 objection is well founded and that the granting of consent is consistent with the aims of SEPP 1 so consequently there are no reasons why the appeal should not be upheld and development consent granted.

1. The orders of the Court are:

1. The appeal is upheld.

2. Development Application 09/DA-228 for the demolition of an existing dwelling and the construction of a dual occupancy development and Torrens Title subdivision at 165 Carrington Avenue Hurstville is approved subject to the conditions in Annexure "A".

_____________

G T Brown

Acting Senior Commissioner

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Decision last updated: 10 February 2012