Ignazzi v City of Ryde Council

[2014] NSWLEC 1115

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ignazzi v City of Ryde Council [2014] NSWLEC 1115

Hearing dates:

3, 4 June 2014

Decision date:

05 June 2014

Jurisdiction:

Class 1

Before:

Hussey C

Decision:

(1) The appeal is dismissed.

(2) Development consent to DA LDA2013/0277 for alterations and additions to the dwelling, new boundary fence, retaining walls and filling of land at 314 Morrison Road Putney is refused.

(3) The exhibits may be returned except 1, 3, 6, A, B and D.

Catchwords:

Development application: Basement alterations, FSR exceedence, extent of rear yard retaining walls and filling.

Cases Cited:

Salanitro-Chafei v Ashfield Council [2005] NSWLEC 366
Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21
Super Studio v Waverley Council [2004] NSWLEC 91

Category:

Principal judgment

Parties:

Mr Vito Ignazzi (Applicant)

City of Ryde Council (Respondent)

Representation:

Mr Vito Ignazzi (Applicant in person)

Mr Gough (Respondent)

File Number(s):

10170 of 2014

Judgment

Introduction

1. This appeal was lodged against Council's refusal of a development application for alterations to an existing basement area and external landscaping works at the recently completed dwelling located at 314 Morrison Road, Putney.

1. The proposed works include:

• Alterations and additions to the existing dwelling including the excavation of a subfloor area to facilitate a rumpus room, a bathroom, two bedrooms and two ensuites;
• Demolition of existing timber retaining walls in the rear yard;
• Filling of the rear yard and construction of retaining walls on the side and rear boundary to provide for a level yard area;
• Construction of new boundary fences having a height of 1.8 m upon the proposed retaining wall, resulting in a variable height up to 4 m above NGL.

1. The applicant requires these works in order to:

• Provide additional accommodation for his growing family
• Provide a larger, safer outdoor area to be accessed from the dwelling
• Allow the dwelling, which was approved in 2008 to be converted into a highly energy efficient house
• Clear existing weed type plants along the rear boundary and replace it with the relatively high retaining wall/fence structure to provide privacy to the neighbouring property, in accordance with a neighbour's agreement.

1. The appeal commenced by way of a s 34AA appeal, which involved an initial site inspection, some discussion with neighbours and consideration of design options. However there was no agreement and the s 34 conference was terminated and the matter proceeded to a merit hearing.

Planning controls

1. The following planning controls apply:

(1)    Environmental Planning and Assessment Act 1975.

(2)    Ryde Local Environmental Plan 2010 (RLEP); under which the land is currently zoned R2 - Low Density Residential. As the proposed works are ancillary to the dwelling house they are permissible with consent.

(3)    Draft Ryde Local Environmental Plan 2011 (RLEP 2011); under which the subject property is zoned R2 - Low Density Residential and the proposed development is permissible with consent. The planners agree that the gazettal of this draft RLEP 2011 is imminent and certain.

(4)    Ryde Development Control Plan (RDCP).

The Site

1. The subject site described as Lot B in Deposited Plan 362898and its street address is 314 Morrison Road, Putney.

1. The site is located on the south/western corner of Morrison Road and Regent Street, and is an irregular-shaped allotment with a total area of 709 sq m. The site has a frontage to Morrison Road of 15.48 m and a frontage to Regent Street of some 34.175 m. The site's predominant rear boundary adjoins 18 Simpson Street.

1. The site slopes down from the north-eastern boundary (with Morrison Road and Regent Street) towards the south-western corner having a total fall of 5.68 m.

1. The site contains a two-storey dwelling house with a double garage.

Contentions

1. The contentions identified for the appeal are as follows:

(1)    FSR: This concerns the excavation of the basement area to allow additional floor area to provide two additional bedrooms, a rumpus room and WC. Consequently, this increases the FSR to 0.57:1, which exceeds the development standard of 0.5:1. Council's contention is that this is unacceptable.

(2)    Impact on the topography: This concerns the amount of cut/fill associated with the development. In particular this relates to the (rear yard) retaining wall that has a proposed height in the order of 4 m above natural ground level (NGL).

(3)    Impact on amenity; primarily in terms of the visible bulk impacts on the neighbouring properties; together with privacy concerns.

The evidence

1. Detailed evidence in this matter was presented by way of a Joint Expert Planning Report (Exhibit 3) for the assessment of the proposal within the prevailing planning framework by:

• Mr J Inwood; Consulting architect/planner for the Applicant
• Mr B Tesoriero; Consulting planner for the Respondent.

1. I note that a joint engineering report was tendered which confirmed that all structural and geotechnical aspects of the proposal could satisfactorily be covered by Conditions of Consent.

Planning Framework

1. Insofar as the proposal is permissible with consent, cl 2.3 of the RLEP deals with the zone objections and land use table and cl 2.3(2) provide:

(2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.

1. The relevant Zone R2 - Low Density Residential objectives are:

• To provide for the housing needs of the community within a low density residential environment.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
• To ensure that the general low density nature of the zone is retained and that development for the purposes of dual occupancy (attached) and multi dwelling housing (attached) do not significantly alter the character of a location or neighbourhood.
• To ensure that land uses are compatible with the character of the area and responsive to community needs.

1. The achievement of these objectives is facilitated by the FSR provisions that are contained in cl 4.4 of the RLEP on the basis of the details shown on the Floor Space Ratio Map (i.e. maximum 0.5:1) and the following objectives:

4.4 (1) The objectives of this clause are as follows:

(a) to provide effective control over the bulk of future development,.

(b) to allow appropriate levels of development for specific areas,

(c) to enable the consent authority to assess and respond appropriately to future infrastructure needs.

1. However cl 4.6 allows for exemptions to development standards as follows:

4.6 Exceptions to development standards

(1) The objectives of this clause are as follows:

(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard.

(4) Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and...

1. The associated development controls in the RDCP relevantly includes:

Part 1

1.5 Objectives of the Plan

4. To ensure new development is appropriate for its site and context.

Part 3.3, Dwelling Houses - objectives

3. To ensure that dwellings are comfortable with, and enhance the streetscape and desired future character of neighbourhoods and character areas.

Part 3.3, s2.0 General Controls

2.1 Desired Future Character

∙ Has a low scale determined by a maximum 2 storey height limit;

∙ Has a low density with free-standing dwellings;

∙ Has dwellings located in a landscape setting which includes a clearly defined front garden and back yard,

∙ Requires minimal disturbance to the natural topography, which means that excavation is to be minimised;

∙ Has backyards, which are maximised in size;

∙ Has backyards which form a connected strip of vegetation in neighbourhoods and which include large trees;

∙ Has mature trees in streets, front gardens and backyards (existing mature trees are retained and new tree plantings encouraged)

2.5.2 Topography and excavation provides:

The area of the site with natural ground levels should be maximised. The areas of excavation and fill are generally to be for the purpose of creating useable and practical outdoor recreation spaces where the existing ground level is not suitable and should not result in an unreasonable loss of the privacy or security of neighbours.

2.5.2 Objectives

1. To retain natural ground levels and existing land form.

2. To minimise the extent of excavation and fill.

Controls

3. Areas outside the dwelling footprint may be excavated and/or filled so long as:

(i) The maximum height of retaining walls is no greater than 900 mm; and

(ii) The depth of excavation is not more than 900mm; and

(iii) The height of fill is not more than 500 mm; and

(iv) The excavated and filled areas of not have an adverse impact on the streetscape; and

(v) The filled areas do not have an adverse impact on the privacy of neighbours; and

(vi) The area between the adjacent side wall of the house and the side boundary is not filled; and

(vii) The filled areas are not adjacent to side or rear boundaries.

Planning evidence

1. As noted the planners assessed the relative merits of the proposal including the s 4.6 written objection to the FSR development standard. Insofar as this is the threshold issue, I have considered the following evidence and the associated guidelines in order to assess the merits of the proposal relative to cl 4.4(b) of the LEP reference to "appropriate level of development".

1. In undertaking this assessment I understand that the following two main elements of the development are directly linked:

(1)    Internal works; the alteration of the basement area, and

(2)    External works; removal of vegetation, construction of a retaining wall/fence and land filling to achieve a level outdoor area.

FSR

1. From their conferencing, the planners agree that the exceedence in the FSR would equate to a 14% variation enabling an increase of approximately 40.5 sq m in floor area.

1. According to Mr Tesoriero, the existing three level dwelling is visually dominant and appears excessive in terms of bulk; scale and massing when viewed externally from the south and west, within this low density neighbourhood. He says that the incremental increase in FSR will exacerbate this visual bulk of the dwelling. Also, the exceedence is inconsistent and out of character with similar development in the area and is not compatible with the desired future character of the area.

1. In this regard he identified the following character elements of this neighbourhood:

• sloping topography
• rear yards with boundary fences approved 1.8 m high
• distinct rear vegetation corridor
• inherent amount of overlooking
• vegetated backyards
• little evidence of retaining walls, with existing rear walls being predominately less than 0.9 m
• terraced rear yards

1. Against this opinion Mr Inwood says that the issue of bulk and scale is not relevant because the increased floor area is fully contained within the existing building envelope. Therefore, he supports the proposal on the basis that:

• there are no impacts to the site and the neighbouring properties in the context that the proposal is fully compliant with the objectives of the zone R2 and FSR. He considers that the large family living in an 'environmentally efficient design' would benefit immensely from the negligible increase in FSR.

1. However in the examination of the FSR issues the planners were taken to criterion of density in relation to whether the density of the proposal is consistent with the character of the area. Mr Inwood said that this relates to the density of dwellings per lot, whereby the proposal is consistent with the surrounding lots, which each contain a single dwelling. Mr Tesoriero has an alternative view, which is subsequently discussed.

Impact on Natural Topography

1. This issue concerns the proposed external retaining walls and fences involving:

(1)    the removal of the existing timber retaining walls and removal of most mature vegetation, including weed species (privet) along the rear boundary of the property.

(2)    the replacement of the existing low level wire fence located predominately at NGL, with block retaining wall along the southern boundary, atop of which is a 1.8 m fence. This structure extends from the existing dwelling to the common boundary with 316 Morrison Road, an overall length of approximately 21 m.

1. The retaining wall component would have an average height of 1.2 m, increasing to 2 m at the common boundary with 316 Morrison Road. This results in an overall height in the order of 4 m at this point. The area behind the retaining wall is to be filled with excavated material from the basement.

1. Insofar as Mr Tesoriero considers that the level of excavation to be undertaken results in a significant modification to the natural ground levels, he says that the proposed level of fill within the rear yard would result in an outcome that is highly inconsistent with that of adjoining development, particularly as the fill level will place the rear yard area some 2 m higher than the ground level of 316 Morrison Road and 18 Simpson Street - the neighbouring property to the south.

1. He does not consider there has been any real attempt to minimise the extent of fill in the rear yard in the quest to maximise the level yard area of the subject property. In his opinion, a terracing option would be more compatible with the existing character of the neighbourhood.

1. Against this, Mr Inwood's opinion is that the excavation is of a minor nature. As the resultant fill area covers only 5.3% of the overall lot surface area, he says this is minor and is consistent with the DFC statement.

1. Furthermore, he says that the proposed height of the boundary structure as shown in his "missing tooth" plan indicates that the structure comfortably steps down along the natural contours, so as to achieve a harmonious outcome.

1. In response to Mr Tesoriero's observation about terracing, Mr Inwood says that a terracing option was considered but did not provide sufficient privacy to adjoining downhill neighbours. He stated in the joint report that:

"The proposed design submitted was the only solution that satisfied all the requirements of the Ryde LEP and DCP 2010".

1. As the neighbours have apparently been consulted and agree to the retaining structure, then Mr Inwood says that it is beneficial because it improves utility of the elevated lawn area and reduces maintenance of hedges and vegetation.

Impact on amenity

1. This issue predominately concerns the visual amenity of the boundary structure, which is in the order of 3-4 m above NGL for a significant part of its length. The associated issue concerns privacy.

1. Mr Tesoriero is dissatisfied with the property boundary structure because:

• the proposed 2.23 m high retaining wall, with a 1.8 m high boundary fence atop of the wall, effectively presents as a sheer wall over 4 m in height from the rear private open space area of 18 Simpson Street.
• the adjoining development at 316 Morrison Road, the rear private open space deck area and pool area will be presented with a sheer wall of over 2.8 m in height.
• the proposed retaining walls and subsequent boundary fences atop the retailing walls will result in unacceptable levels of visual impact to adjoining property at both 18 Simpson Street and 316 Morrison Road. The overbearing scale of these walls will therefore unacceptably impact on the amenity of these adjoining properties in particular.
• the proposed retaining walls and subsequent 1.8 m high fencing atop the walls are inconsistent with the desired future character for residential development established by the Ryde DCP 2010 as significant disturbance to the natural topography of the land is proposed, along with the creation of a built element that is considered incompatible with the scale of other retaining walls and effective fence heights of surrounding development.
• due to the orientation of the subject site, the 4 m effective height of the proposed retaining wall and boundary fence will reduce the level of sunlight access to the private open space area of adjoining property, particularly that of the private open space of 18 Simpson Street which is located south of the proposed 4 m high wall. Therefore there is a clear impact on the solar amenity of this private open space area as a result of the proposed development.
• whilst there may be letters in support for the proposed development from current adjoining land owners, there is a need to consider the impact on adjoining allotments as future land owners would be burdened by the amenity impacts of the proposed development, whether residing in the existing dwellings or proposing to redevelop adjoining land.

1. Against this, Mr Inwood maintained his opinion that the proposed structure was a harmonious fit with the neighbouring properties and that it should be approved because:

• the proposed retaining wall and fence are consistent with the local area character, in that the near vicinity is characterised by retaining walls and fences of about the same height of the proposal, as identified in the Statement of Facts and Contentions in Reply.
• all of the abutting neighbours have made written submissions of support for the proposed retaining wall and fence and are therefore in favour of the improved visual amenity. In response to the concern that "future land owners would be burdened by the amenity impacts of the proposed development", that cannot arise as potential future neighbours would readily notice the scale of the retaining wall and fence and thus make a decision on purchasing the property.
• in response to the concern about the solar amenity to 18 Simpson Street, the shadow diagrams clearly note there is negligible effects from the proposed works.

Conclusion

1. For the determination of this matter, I have carefully considered the evidence, the submissions and observations at the view. In particular, I have taken into account the balancing of the site constraints together with the applicant's preference to expand the existing large dwelling from 5 bedrooms to 7 bedrooms with 9 bathrooms (E/S); 3 living areas and 3 food preparation areas, and a large flat rear yard, within the existing neighbourhood context.

1. Insofar as Mr Inwood considers the proposed increase in FSR minor, and not applicable because it is within the existing building envelope, nevertheless it does change the density of the development as stated by Mr Tesoriero. I do not accept Mr Inwood's opinion that any density consideration relates to dwelling/lots. In this regard, I accept the respondent's submission that the findings of Roseth SC in Salanitro-Chafei v Ashfield Council [2005] NSWLEC 366 are relevant. In that judgement he expressed to the following planning principle.

Planning principle: relationship of density and residential character

23 The Ashfield planning controls are not unusual in that they do not contain a maximum FSR for dwelling houses; very few planning instruments control the density of detached housing. The question arises: is there an upper level of density above which it is hard to achieve compatibility with the character of typical single-dwelling areas?

24 As early as 1972 a publication of the then State Planning Authority of NSW described the FSR of low-density residential areas as under 0.35:1; the FSR of low medium density areas as between 0.35:1 to 0.55:1; and the FSR of medium density areas as between 0.55:1 and 0.9:1 (Technical Bulletin 3 - Planning Control of Residential Development November 1972).

25 A later publication by the Authority's successor, the Department of Environment and Planning (Technical Bulletin 15 - Residential Development Standards, July 1982) suggested that:

"...a control over building bulk in the form of a floor space ration of the order of 0.5:1 should be included in planning instruments where a suburban open character is sought." (p 16)

26 The standard of 0.5:1 FSR has found expression in numerous planning instruments and policies whose aim is to integrate increased density housing into low-density residential areas without destroying the existing open character. The Seniors Living State Environmental Planning Policy adopts a FSR of 0.5:1 as a "deemed to comply" standard. State Environmental Policy 53 - Metropolitan Residential Development adopts it as the maximum permissible density in relation to dual occupancy. Many local planning instruments and policies guiding dual occupancy development in suburban areas also contain a mixture of FSR control of 0.5:1.

27 The above suggests that there is a general acceptance by the planning profession that an open suburban character is most easily maintained when the FSR of buildings does not exceed 0.5:1. The question raised above may therefore be answered thus:

The upper level of density that is compatible with the character of typical singledwelling areas is around 0.5:1. Higher densities tend to produce urban rather than suburban character. This is not to say that a building with a higher FSR than 0.5:1 is exceeded, it requires high levels of design skill to make a building fit into its surroundings.

1. Taking into account the applicant's preferences for the proposal, it seems to me that from the rear of the dwelling, the additional windows and door at basement level will highlight the three distinct levels, with the conversion of the basement area from the existing basement utility area. As there do not appear to be any obvious high level design features to mitigate this visual bulk, I do not consider it satisfies the planning principle outcome and in my assessment it is not consistent with the character of the existing dwellings. Therefore it is likely to have a negative impact on the character of this neighbourhood, as stated by Mr Tesoriero.

1. As noted initially, the applicant requires the maximisation of the rear yard area for private recreation. However, this requires the construction of the retaining wall structure, up to 4 m in height, along the rear boundary, which I agree with Mr Tesoriero's opinion is not a characteristic element in this neighbourhood.

1. Insofar as the applicant provided details of other relating high retaining wall structures, I think that those located in the front yards along Morrison Road can be distinguished because there is a consistency in these walls to retain the roadway at the front of the property and they are in a different visual context to any similar "high" retaining structures/fences along the common rear boundary. In my opinion the section of retaining wall along the rear of 18 Simpson Street is a different context because it is effectively a rear boundary considering the orientation of the existing dwelling.

1. In this regard I give little weight to the existing retaining wall along the side of 1 Regent Street because its approval was not established, the property is subject to redevelopment and the fence is dangerous because it does include any safety fence or railing. As it is inconsistent with the DCP provisions, I give it minimal weight as a precedent.

1. Instead it seems to me that the RDCP - 2010 seeks to avoid this type of structure in future development and therefore I consider its provisions should be given considerable weight.

1. It is quite obvious that the proposed retaining wall/fence structure and associated building has little regard, if any, for the provision of the part 3.3, s 2.5.2 controls because:

• The retaining wall substantially exceeds the maximum 900 mm height
• The height of fill significantly exceeds the maximum specification of 500 mm
• In my assessment the filling and wall height will have an adverse impact on neighbours as opined by Mr Tesoriero.

1. Therefore, I consider that the non-compliance with the DCP provisions is a negative as part of the proposal, notwithstanding the some discretion can be exercised in the application of these guidelines.

1. But the overriding provisions of cl 2.3(2) of the RLEP require the consent authority to have regard to the zone objectives, whereby I consider the following is particularly relevant.

• To ensure that land uses are compatible with character of the area and responsive to community needs.

1. In this regard I have carefully considered the applicant's submissions on the following aspects of the development:

(1)   Vegetation removal: I accept that there are several weed species within the mature vegetation corridor along the back boundaries of the properties. However the approval of this DA is not necessary to remove these weeds, which is apparently a neighbourhood concern.

(2)   Privacy: It appears that the extensive (4m) retaining wall/fence structure is required to provide a high level of privacy between the subject dwelling and the kitchen window of 18 Simpson Street. But considering that there is some 30 m separation between the two buildings, this proposed privacy mitigation measure seems extraordinarily high in this context. As the applicant has provided no landscaping details to mitigate the impact of the structure, I do not consider the introduction of this foreign element is sympathetic or harmonious with the character of the area. In the circumstances, there are alternate good design options such as privacy screens on the subject property that could probably address this issue and concurrently allow for a more acceptable transition between the neighbouring property, which is consistent with neighbourhood character.

(3)   Landscaping: The contentions identified the issue of landscaping. However the applicant has not addressed this in detail because his expectation is that the entire reclaimed and elevated backyard is to be filled and turfed. Whilst somewhat belatedly there was an indication that some replacement vegetation may be provided, the absence of any landscaping plan causes some concern to the Court.

1. As noted there is a mature landscaped strip along the rear boundaries that provides a filtered privacy barrier and is an attractive feature of this neighbourhood. This was observed at the site and is confirmed in the photo in exhibit 7. In my assessment the removal of this vegetated strip and replacement with 3 m - 4 m high retaining structures and fully turfed yard area does not adequately satisfy the DFC elements, especially taking into account the exposure of the 3 level south/west elevations of the dwelling.

1. I note the applicant has not implemented the approved landscaping plan associated with the dwelling, which approved landscaping within the rear yard context to achieve a more consistent transitioning to neighbouring properties.

1. According to Mr Gough's submissions, the proposal results in an unsatisfactory impact on the natural topography and is noncompliant with the DCP's desired outcomes. His submission is that the extent of the external works is unacceptable and unreasonable based on the provisions of the following planning principles stated in Super Studio v Waverley Council [2004] NSWLEC 91:

5 Several planning principles are relevant to the determination of this appeal. The first is that the acceptability of an impact depends not only on the extent of the impact but also on reasonableness of, and necessity for, the development that causes it. For example, the privacy impact of a second-storey side window in an area of two-storey buildings should be accorded a higher threshold of acceptability than the impact of a second-storey side balcony in a house that already has three other balconies. Applying this principle to the present case, I note that the approved proposal already has three outdoor areas. The surrounding houses do not have roof terraces, so a roof terrace would be a new element in the area. This does not mean that it is inappropriate, only that its impact should be assessed with heightened sensitivity. A roof terrace would be acceptable only if its impact were minor or negligible.

1. Applying this principle to the subject application, it seems to me that the aforementioned applicant's expectations for the exceedence of the numerical controls of FSR, height of fill and retaining walls in this relatively large development requires heightened sensitivity. In the circumstances, I do not consider the applicant's subjective opinion that as the various qualitative objectives are achieved, then the proposal merits consent. Instead, I consider the overall impact proposal is unreasonable, particularly the external works, which are not compatible with the character of the area and responsive to community expectations as expressed in the RLEP and RDCP.

1. Accordingly, I give diminished weight to the personal interests of a small group of neighbours who agree on substantial variations to the RDCP development control guidelines that represent the desired public interest outcomes.

Clause 4.6 written submission

1. In the ultimate, the cl 4.6 written submissions requires determination. Insofar as the proposal exceeds the cl 4.4 FSR development standard, cl 4.6 provides flexibility to grant consent to a development application that exceeds a development standard, it is necessary that:

• The justification must be in the form of a "written request" (cl 4.6(3)),
• The written request must justify the contravention of the development standard by demonstrating that firstly, "that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)) and "that there are sufficient environmental planning grounds to justify contravening the development standard" (cl 4.6(3)(b).
• Consent must not be granted unless the Court is satisfied that the written request has adequately addressed those matters in firstly, cll 4.6(3)(a) and (b) ((cl 4.6(4)(i)) and secondly, the proposal is consistent with the applicable development standard objectives and zone objectives ((cl 4.6(4)(ii)).
• Clause 2.3(2) provides that the Court must have regard to the zone objectives.

1. Clause 4.6 of RLEP 2012 imposes a number of preconditions on the Court in exercising the power to grant consent to the proposed development. The first precondition (and not necessarily in the order in cl 4.6) requires the Court to be satisfied that the proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii), the second precondition requires the Court to be satisfied that the proposed development will be consistent with the objectives of the FSR standard (cl 4.6(4)(a)(ii)), the third precondition requires the Court to consider a written request that demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and with the Court finding that the matters required to be demonstrated have been adequately addressed (cll 4.6(3)(a) and 4.6(4)(a)(i)) and the fourth precondition requires the Court to consider a written request that demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard and with the Court finding that the matters required to be demonstrated have been adequately addressed (cll 4.6(3)(b) and 4.6(4)(a)(i)).

1. A negative finding for any precondition must see the appeal dismissed and a positive finding would enliven the power to grant development consent subject to a merit assessment.

1. In response to the Floor Space Ratio objectives in cll 4.4(a), (b) and (c) of the RLEP the written submission states:

"In this instance it is considered that the objectives of cl 4.4 Floor Space Ratio are met by the proposed development as:

(a) The increase in FSR is fully located within the subfloor space with no external wall changes, therefore there is no effect on bulk.

(b) The increase in FSR maintains the appropriate level of development for the area as detailed in s10.7 of this document.

(c) The increase in FSR will not increase the load on infrastructure. The number of residents of the dwelling will remain unchanged and therefore there is no impact on infrastructure. In fact, with reduced energy demands, state electricity regeneration, transmission and distribution infrastructure will be favourably affected.

From the perspective of the cl 4.4 floor space ratio objectives, the proposed development fulfils all the objectives and therefore adherence to the strict numeric control is unnecessary."

1. The reference to the s10.7 details are:

"Comment Zone R2 Low Density Residential

In this instance it is considered that the objectives of Zone R2 Low Density Residential are met by the proposed development as:

∙ The increase in FSR provides for the housing needs of the residents without altering the density.

∙ The increase in FSR provides facilities and services to meet the day to day needs of the residents.

∙ The increase in the FSR has no effect on the density since the proposed floor space expansion is fully located within the subfloor space with no external wall changes.

∙ The increase in the FSR does not affect the streetscape as the proposed expansion is not visible from the street.

∙ The increase in FSR does not change the two storey pitched roof form character of the dwelling.

∙ The increase in the FSR does not change the character of the dwelling or responsiveness to community needs as the expansion is contained entirely within existing external walls and provides much needed amenity increases for the residents.

From the perspective of the Zone R2 Low Density Residential objectives, the proposed development fulfils the objectives and therefore adherence to the strict numeric control is unnecessary."

1. For my consideration of the written submission, it seems to me that the relevant zone objectives are:

• To provide housing needs of the community within a low density residential environment
• To ensure that land uses are compatible with the character of the area.

1. However the written request is based on the premise that as the additional floor space is located within the approved building envelope, then it is acceptable and has no effect on the density. But I consider the applicant's reference to density is misplaced because it is not in accord with the Super Studio planning principle, which I rely upon.

1. On that basis, the density of the development will increase and the proposal will change the façade of the dwelling by substantial opening up of the wall areas (i.e. the rumpus room and bedroom from the approved vented structure), thereby emphasising the three level form of the dwelling. I do not consider this results in an acceptable level of compatibility with the character of the area, and therefore the submission is not made out in this request.

1. Regarding the cl 4.4 FSR objectives, it seems (b) concerning appropriate levels of development are particularly appropriate. Therefore this includes demonstration that the additional density of the development (as previously determined) is appropriate. In my opinion, the applicant's s.10.7 controls do not effectively address this because any increase in density is denied, which I do not accept, in these circumstances.

1. With regard to the third precondition, I am not satisfied that the written submission demonstrates that compliance with development standards is unnecessary or unreasonable. It appears to me that compliance with the FSR development standards would most probably achieve the desired outcome on this relatively steeply sloping site. The written request does not show why compliance with this development standard would not achieve the objective in and those circumstances be unreasonable to impose.

1. With regard to the fourth precondition dealing with the broad "environmental planning grounds" I accept the respondent's submission that:

• The degree of flexibility requested is not appropriate in the circumstances of this case given the constraints of the subject property including the size of the allotment and its topography.
• The variation does not provide better outcomes from the development. The written request places excessive reliance upon the needs of the applicant to provide a guest bedroom and two studies, at the expense of development's relationship with neighbouring buildings. A variation by 14% does not result in a better town planning outcome.
• The variation does not result in the proper management of resources, in that the application will see the removal of the natural topography of the subject property to accommodate a development of this intensity.

1. For these reasons, I do not consider the cl 4.6 written submission satisfactorily makes out the case to vary the FSR development standard to allow the proposed increase in this case. Therefore the application must fail.

1. Apart from this, I also consider the application would also fail on merit considerations, particularly because of the introduction of the large retaining wall/fence structure, which is a foreign element and not compatible with the character of the area. In this regard, I rely on the evidence of Mr Tesoriero, which I consider represents a more objective assessment of the existing character of this neighbourhood.

1. The approval of this wall would also remove a significant element of the rear vegetation corridor without any effective replacement vegetation. This would result in the considerably more exposure of the 3 level dwelling, which I do not consider is compatible with zone objectives requiring compatibility with the character of the area. It seems to that the existing low level fence, with terraced setbacks would more reasonably achieve this outcome based on the character elements identified by Mr Tesoriero, which I rely upon.

Court Orders

(1)   The appeal is dismissed.

(2)   Development consent to DA LDA2013/0277 for alterations and additions to the dwelling, new boundary fence, retaining walls and filling of land at 314 Morrison Road Putney is refused.

(3)   The exhibits may be returned except 1, 3, 6, A, B and D.

R Hussey

Commissioner of the Court

Decision last updated: 19 June 2014