Ian Ross Constructions Pty Ltd v Blacktown City Council

[1999] NSWLEC 235

Land and Environment Court

of New South Wales

CITATION:

Ian Ross Constructions Pty Ltd V Blacktown City Council [1999] NSWLEC 235

PARTIES

APPLICANT
Ian Ross Constructions Pty Ltd

RESPONDENT
Blacktown City Council

NUMBER:

10371 of 1999

CORAM:

Bignold J

KEY ISSUES:

Development :- Development - medium density housing - interference with amenity of surrounding residential area.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

10/07/1999; 10/08/1999

DATE OF JUDGMENT DELIVERY:

10/11/1999

LEGAL REPRESENTATIVES:

APPLICANT:
Mr M Prodromou, Solicitor

SOLICITORS:
Burrells

RESPONDENT
Mr P Kelso

SOLICITORS
Taylor Kelso

JUDGMENT:

TABLE OF CONTENTS

A. INTRODUCTION 1-3
B. THE DEVELOPMENT SITE AND ITS ENVIRONS 4-10
C. THE RELEVANT PLANNING CONTROLS 11-23
D. DESCRIPTION OF THE PROPOSED DEVELOPMENT 24-29
E. ADJUDICATION ON THE ISSUES IN DISPUTE 30-47
F. CONCLUSIONS AND ORDERS 48-49
IN THE LAND AND Matter No .10371 of 1999
ENVIRONMENT COURT OF Coram : Bignold J.
NEW SOUTH WALES 11 October 1999

IAN ROSS CONSTRUCTIONS PTY LTD

Applicant

v

BLACKTOWN CITY COUNCIL

Respondent

JUDGMENT

Bignold J:

A. INTRODUCTION

1. This is an appeal pursuant to the Environmental Planning and Assessment Act 1979 (EP&A Act) s 97 against the deemed refusal by the Council of the Applicant’s development application to redevelop land known as No 246 Flushcombe Road, Blacktown (the development site) by demolishing the existing single storey dwelling-house and by erecting seven two storey townhouses (in two separate groups of two and five dwellings respectively), each of such dwellings to be located on a strata lot in a proposed strata subdivision of the development site.

2. Subsequent to the filing of the appeal, the Council exercised its powers pursuant to the EP&A Act s 82(2) by determining the development application by refusing development consent for the following reasons (as notified in the Notice of Determination):
1. The proposed development does not conform with the objectives of the Residential 2(a) zone under the provisions of Blacktown Local Environmental Plan 1988, specifically objective (d) which requires that redevelopment for the purpose of medium density housing should only be approved where such would not interfere with the amenity of the surrounding residential area.
2. The proposal does not comply with the requirements of Blacktown Development Control Plan 1992, in terms of minimum frontage, maximum width, maximum number of units in a building, minimum setback from accessway, solar access, private open space and privacy considerations.
3. The proposal will have unsatisfactory impacts on adjoining land in terms of privacy and overlooking due to the need to raise the levels of the land in order to achieve drainage discharge to Merlin Street.
4. The proposal, if approved, would result in unacceptable impacts in terms of tree removal.
5. In the circumstances of the case, approval of the development application is not in the public interest.

3. These reasons are reflected in the Statement of Issues filed by the Council on 9 July 1999.

B. THE DEVELOPMENT SITE AND ITS ENVIRONS

4. The development site comprises Lot 14 DP 8716. It is a large residential lot of rectangular shape containing an area of 2004 m2 with a street frontage of 25.64 m and a depth of 78 m.

5. Topographically, the development site has a gradual fall from the street frontage to the rear boundary with an average gradient 1 in 14 (ie an overall difference in levels of 5.4 m over the 78 m depth of the lot).

6. The eastern section of the lot contains a number of substantial trees, including five large Grey Box Eucalyptus trees.

7. The development site is in a residential precinct situate some 1.5 m distant from the Blacktown Shopping Centre where Flushcombe Road (a local distributor road with four vehicle lanes) terminates.

8. The residential precinct (in which the development site is located) is an established residential suburb characterised by single detached dwelling-houses

9. As I have mentioned, the development site is a large lot of 2000 m2 and in common with the adjoining lot 15 which is the same size, is larger than other residential lots in the residential precinct, although a number of the lots on the opposite side of Flushcombe Road in the vicinity of the development site are themselves larger lots, having depths exceeding 70 m.

10. The residential precinct in which the development site is included is designated within the Residential 2(a) zone under Blacktown Local Environmental Plan 1988 (the LEP).

C. THE RELEVANT PLANNING CONTROLS

11. Clause 9 of the LEP stipulates (i) the objectives for each zone designated by the LEP and (ii) the permitted, permissible and prohibited purposes for which development may, or may not, be carried out in each zone.

12. Clause 9(3) imposes an additional limitation on the power to grant development consent. It provides as follows:

(3) Except as otherwise provided by this plan, the consent authority shall not grant consent to the carrying out of development on land to which this plan applies unless the consent authority is of the opinion that the carrying out of development is generally consistent with one or more of the objectives of the plan and one or more of the objectives of the zone within which the development is proposed to be carried out.

13. The objectives of Zone No 2(a) include the following:

The objectives are -

(a) …………….

(b) to identify existing residential areas of a predominantly single dwelling character, and to maintain that character by prohibiting residential flat buildings;

(c) to enable sensitive infill development of other housing types;

(d) to enable redevelopment for medium density housing forms, including townhouses, villas, cluster housing, semi-detached housing and the like, where such development does not interfere with the amenity of surrounding residential areas;

14. Within Zone No 2(a), permitted development includes “dwelling-houses” and prohibited development includes “residential flat buildings”. Permissible development includes purposes other than permitted and prohibited purposes. Such permissible development includes “medium density housing” defined by cl 6(1) of the LEP as follows:

medium density housing means 3 or more dwellings on the same parcel of land where each dwelling has an individual entrance and direct private access to private open space at natural ground level for the exclusive use of the occupants of the dwelling but, in the Table to clause 9, does not include any other form of dwellings elsewhere specifically defined in this plan;

15. It is common ground that the proposed development constitutes “ medium density housing ” as defined.

16. Reverting to the effect of cl 9(3) of the LEP, the appeal has been conducted on the basis that the relevant zone objective is objective (d). However the parties are in dispute as to whether the proposed development is “consistent” with that objective, the Council contending that the proposed development “would interfere with the amenity of surrounding residential areas”.

17. The objectives of the LEP are stated in cl 2(2) and relevantly include—

to allow for a variety of residential lifestyles

18. An express aim of the LEP is:

to maintain the opportunity for public involvement and participation in environmental planning and assessment by using development control plans to supplement the broad controls in the plan : cl 2(1)(d) .

19. In this respect, the Council in 1992 adopted Blacktown Development Control Plan 1992 (the DCP).

20. The Introduction to Part C of the DCP includes the following statements:

One of the major objectives of Blacktown LEP 1988 is to provide for a variety of residential zones used in the LEP. The 3 residential zones all provide for detached dwellings and a range of attached and integrated housing developments of a low to medium density. Opportunities for innovative housing designs throughout the City will ensure a choice of accommodation across the spectrum of the housing market.

…………

The purpose of this Part of the DCP is to provide detailed guidance for the preparation of Development Applications for both residential and non-residential development in the 3 residential zones.

21. Section 6 of the DCP deals specifically with “ Medium Density Housing ” cl 6.2 , stating that the provisions “ fill out the standards on which the Council will rely when considering any development application for medium density housing ”.

22. The DCP prescribes detailed standards relating to (i) drainage; (ii) site requirements; (iii) building setbacks; (iv) building design; (v) solar access and (vi) many other matters.

23. It is only necessary at this stage to note the following DCP provisions concerning “site requirements”:

Council has no specific site density requirements for medium density housing. The appropriate density of development proposals is determined by compliance with the totality of Council’s requirements for this type of development.

The minimum width, when measured at the building setback line to the street frontage, of any site on which medium density housing is proposed must be no less than 26 m. The width is, in Council’s opinion, the minimum across which a development can be designed to fulfil the requirements outlined in this DCP regarding setbacks, accessway dimensions, private court dimensions and the like. This width is also the minimum width within which Council considers acceptable medium density housing development can occur on land in the City of Blacktown.

The maximum depth of any site must be no greater than 2.75 times the width of the site at the building line, when any depth is measured along a line drawn perpendicular to the building line. This depth is, in Council’s opinion, sufficient to enable developments to be proposed on a range of large existing allotments whilst restricting the development of very large allotments where the depth is disproportionately large in relation to the frontage and where undesirable elongated development may result.

D. DESCRIPTION OF THE PROPOSED DEVELOPMENT

24. The proposed development comprises a total of seven townhouses contained in two separate groups of buildings, each of two storey construction.

25. The first group containing two dwellings is located near the street frontage and is oriented to the street in an easterly direction.

26. The second group, containing five dwellings is separated some 6.7 m from the first group and extends for some 51 m down the centre of lot to a point 5 m from the rear boundary. It provides north facing courtyards to the rear of each of the five dwellings which are accessed via a driveway running along the southern boundary.

27. A common open space area comprising some 140 m2 is located in the south eastern corner of the lot.

28. The dwellings contain floor areas of 90 m2 (for the single two bedroom dwelling) ranging up to 128 m2 (for each of the six three bedroom dwellings).

29. The development density is equivalent to one dwelling per 286 m2 site area.

E. ADJUDICATION ON THE ISSUES IN DISPUTE

30. I have earlier mentioned the five issues raised by the Council. In respect of all issues raised (except for the issue concerning impact of tree loss on which I heard separate expert evidence), I have had the benefit of the competing planning opinions of Ms Galt, the Council’s Senior Statutory Planner and Mr King, Planning Consultant, called by the Applicant. I have also considered the written objections received by the Council against the proposed development from neighbouring residents (in Flushcombe Road and Merlin Street) and the evidence of Mr Scanlon who had himself objected and instigated one of the petitions received by the Council. He resides in a two storey residence situate two properties removed to the south from the development site.

31. Ms Galt’s opinions were to the effect that the proposed development did not satisfy the zone 2(a) objective that medium density housing not interfere with the amenity of the surrounding residential area principally because of the visual and physical dominance of the elongated built form of the larger group of five dwellings with an uninterrupted length of 51 m visible from properties situate both to the north and south of the development site. She also considered that the development would tower over the residences situate in Merlin Street to the east and below the development site. (This last-mentioned opinion was in part founded upon the premise that the eastern end of the development site would require to be built up to facilitate off site drainage to Stanley Street. At the hearing it emerged that off site drainage could feasibly be achieved without the need for extensive filling at the rear of the lot, as had earlier been contemplated.)

32. Mr King’s opposing view was that the proposal would not interfere with residential amenity and that the elongated built form of the large group of five dwellings was mitigated by some articulation in the northern wall and facade and by the roof line having a stepping down effect.

33. In my judgment, the elongated built form of two storey construction of the larger of the two residential buildings will involve an interference with the amenity of the surrounding residential area by dint of it being totally out of character with the prevailing single dwelling development within the residential precinct in which the development site is located. In its physical context, the proposed development will be visually dominating and intrusive Another feature of the proposal obviously impacting upon residential amenity of the area is the sevenfold increase in household density with concomitant physical effects (eg increased people and vehicle activity associated with the development site).

34. Mr King’s Report (Exhibit 1) deals with the matter in his response to the objections raised in the public submissions raising objection against the proposed development and in particular to the specific objection that the proposal was “out of character with adjoining development”.

35. Mr King’s Report, at p 15 expresses the following rebuttal of the objection:

This Objection is considered to be idealistic as it ignores the 11 year old planning controls which apply to the locality, which provides for medium density housing forms, including townhouses. Townhouse development by necessity requires demolition and site clearing to be undertaken and results in a changed housing profile for a locality. This in itself is not detrimental as it is a low density form of housing which is generally considered compatible with low density housing.

Further, it is noted that Flushcombe Road is a direct road linkage into Blacktown Shopping Centre, some 1.5 kilometres, and is therefore considered a most appropriate location for developments of this nature and is in a locality that is envisaged to undergo housing changes of this nature over time.

36. I am entirely unpersuaded by this attempted rebuttal of what I consider to be a very pertinent and valid objection. Mr King’s dismissal of the objection is founded upon the fact that for the past 11 years the LEP has provided the opportunity for medium density housing to be undertaken in Zone No 2(a) . However, the true basis for the objection lies in the existing physical reality, namely that the prevailing residential development in the residential precinct is single detached dwelling houses. Thus, despite the opportunity during the past 11 years, no such medium density development has manifested itself in the residential precinct.

37. Moreover, the LEP in objective (b) itself recognises that the predominant character of Zone No 2(a) is single dwellings and seeks to maintain that character by prohibiting residential flat buildings. objectives (c) and (d) for Zone No 2(a) logically and naturally subserve Objective (b) inasmuch as objective (c) enables “sensitive infill development of other housing types” (ie other than single dwellings) and objective (d) enables medium density housing “which does not interfere with the amenity of surrounding residential areas”. These are expressly qualified opportunities for non-single dwelling type residential development.

38. For the reasons that I have already given, the proposed medium density development does interfere with the amenity of the surrounding residential area which is characterised by single detached dwellings.

39. Moreover, in my judgment, this conclusion is of such weight, that independently of the operation of cl 9(3) of the LEP, I would in the exercise of planning discretion conferred by the EP&A Act s 79C by refusing development consent.

40. In these circumstances, my adjudication on the other disputed issues may be expressed briefly.

41. Issue 2 raises the question of non-compliance with a number of standards contained in the DCP. It may be accepted, as both Ms Galt and Mr King recognised, that the degree of non-compliance with the relevant standards considered in isolation of one another, was but slight, if not insignificant. Where the experts parted company, was Ms Galt’s opinion that the combined or cumulative effect of these non-compliances was profound and unacceptable and suggestive of an overdevelopment of the development site.

42. I think there is much force in this opinion, particularly in respect of the exceedances by the proposed development of the permitted maximum depth of the site and the prescribed maximum number of dwellings to be contained in a single built form. In large measure, the excessively elongated form of the larger building group is a product of the great depth of the development site.

43. In so concluding, I have not overlooked the fact that the Applicant has so designed its proposal with a view to retaining two significant trees located towards the rear of the lot. However, the retention of significant remnant vegetation is not only to be considered a commendable development aim, but truly operates as a legitimate development constraint. Accordingly, although I have some sympathy for the Applicant who had earlier submitted to the Council a proposal for seven townhouses (in three building groups instead of the two now-proposed) I am not seised of the earlier application (which was voluntarily withdrawn by the Applicant in preference for the submission of the present proposal) and my adjudication must be confined to the application that is before the Court.

44. It is that proposal which I have found to be excessively elongated in built form as to be visually intrusive and so out of character with the prevailing single detached residences, as to interfere with the surrounding residential amenity.

45. Issue 3 appears to have been satisfactorily resolved by the Applicant’s ability to facilitate off site drainage without the need to significantly fill the rear of the development site.

46. Issue 4 relates to the impact of tree removal from the development site. Ultimately, it came down to the question whether the two significant trees sought to be retained would safely survive the construction of the development. Whereas the ultimate outcome was somewhat problematical in respect of the significant tree located in the proposed common open space area in the south-eastern corner of the development site, I think that the Applicant’s proposals (including the tree management plan) should be accepted.

47. Issue 5 concerns the public interest factor constituted by the level of local resident objection raised against the proposal. This aspect of the objection has been dealt with in my consideration of Issue 1. There is no need for me to consider the other less central aspects of local resident objection.

F. CONCLUSIONS AND ORDERS

48. For all the foregoing reasons, my evaluation of the proposed development in terms of the EP&A Act, s 79C leads me to conclude that development consent should be refused.

49. Accordingly, I make the following orders:
1. Appeal dismissed.
2. Development consent refused.
3. Exhibits be returned
4. No order as to costs.