Ingleburn Developments Pty Limited v Campbelltown City Council

[2007] NSWLEC 432

Land and Environment Court

of New South Wales

CITATION:

Ingleburn Developments Pty Limited v Campbelltown City Council [2007] NSWLEC 432

PARTIES:

APPLICANT
Ingleburn Developments Pty Limited

RESPONDENT
Campbelltown City Council

FILE NUMBER(S):

10135 of 2007

CORAM:

Tuor C

KEY ISSUES:

Development Application :- Residential flat building,
impact on existing and desired future character, privacy and overshadowing.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Campbelltown (Urban Area) Local Environmental Plan 2002
State Environmental Planning Policy No 65

DATES OF HEARING:

26/06/07, 27/06/07 and 20/08/07

 
DATE OF JUDGMENT: 

31 August 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr G. Newport, barrister

RESPONDENT
Mr A. Seton, solicitor
of Marsdens Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

31 August 2007

10135 of 2007 Ingleburn Developments Pty Limited v Campbelltown City Council

JUDGMENT

1 This is an appeal against the refusal by Campbelltown City Council (the council) of a development application (1416/2006) under the Environmental Planning and Assessment Act 1979 for a residential flat building at 1-3 Norfolk Street, 52-54 Ingleburn Road and 13 Nardoo Street, Ingleburn (the site).

2 The site and its context is described in the Statement of Basic Facts as:

The subject site comprises six allotments and is located on the fringe of the Ingleburn CBD area. It is a ‘L’ shaped site with 35 metre frontage to Ingleburn Road, 27.6 metre frontage to Norfolk Street and 77 metre frontage to Nardoo Street. The total area of the land is 3773 square metres and is generally level. The subject land is vacant. There is no significant vegetation on the land.

Adjoining development includes a single storey weatherboard dwelling (15 Nardoo Street) and a town house development (56-60 Ingleburn Road) to the east and south of the site respectively. A three storey walk-up residential apartment building (48 Ingleburn Road) as well as a shopping centre to the north; and car park, associated with the shopping centre, is located to the west of the subject land.

History of the proposal

3 The application was lodged on 31 May 2006. It was notified to adjoining and nearby residents. Four submissions were received. The report to council recommended approval of the application. Council refused the application on 13 February 2007. The appeal was lodged on 20 February 2007.

4 On 26 June 2007, the first day of the hearing, the Court visited the site and heard evidence from the residents who had made written objections to the notification of the application.

5 On 27 June 2007, Mr Newport, for the applicant sought an adjournment to prepare amended plans to address issues raised, particularly in relation to the overshadowing impact on 15 Nardoo Street and 56 Ingleburn Road.

6 Mr Seton, for the council, did not oppose the adjournment, subject agreement between the parties on costs.

7 I subsequently issued Directions in relation to the following amendments to the plans:

1. Lower the building by 1m approximately.

2. Alter driveway entrance gradient/levels and parking spaces as required by lowering the building.

3. Set back south west corner alignment to Ingleburn Road of Units B7, B11, B20 and B26 and reduce such units to 1 bedroom units (or 1 larger unit on the upper level ie units 26 and 27)

4. Reduce roof eaves over south west corner to Ingleburn Road to 850mm approx width.

5. Delete in part the balcony wall to the Unit B 26 and adjust the balcony.

6. Delete balconies on Level 4 on the south elevation where encroaching on the 9m setback.

7. Adjust level 1 terrace area to Unit B 7 on the south elevation where above ground level and encroaching on the 6m set back.

8. Amend shadow diagrams to reflect above changes.

8 The amended plans filed on 25 July 2007 (exhibit G) have incorporated the amendments required by the Directions. A further hearing was held on 20 August 2007.

The Proposal

9 The proposal comprises:

· Construction of a four (4) storey residential apartment building containing 56 units with basement car parking for 76 vehicles

· Level 1: podium: 17 units, of which 2 are adaptable, gymnasium/recreation room, outdoor barbeque area and pool

· Level 2: 17 units, of which 2 are adaptable (6 of these units are two level units that are accessible from Level 1)

· Level 3: 20 units, of which 2 are adaptable

· Level 4: 14 units (of which 6 are two level units that are accessible from Level 3)

· Strata subdivision

Planning framework

10 The site is zoned 10(b) District Comprehensive Centre Zone under Campbelltown (Urban Area) Local Environmental Plan 2002 (LEP 2002). This zoning was introduced under Amendment No. 8 to LEP 2002, which was gazetted on 13 October 2006.

11 A residential flat buildings is the only use permissible with consent in the 10(b) zone in this location.

12 Under LEP 2002 a residential flat building is defined as:

Residential Flat building means a building containing two or more dwellings which achieve access from shared foyers, halls or stairways.

13 The relevant objective of the 10(b) zone that applies to the site is:

To encourage a variety of forms of higher density housing, including accommodation for older people and people with disabilities, in locations which are accessible to public transport, employment, retail, commercial and service facilities.

14 Campbelltown (Sustainable City) Development Control Plan (the DCP) is relevant. It includes specific controls for residential apartment buildings, which are defined in the DCP as:

(a) Three (3) or more storeys (not including levels below ground level provided for carparking or storage, or both protrude less than 1.2 metres above ground level) and

(b) Four (4) or more self contained dwellings.

15 The objectives for residential apartment buildings are:

• Encourage high quality, high-density residential apartment development within close proximity to public transport and business centres, which is innovative and responsive to the site’s environmental characteristics and setting.
• Ensure a high level of amenity for the occupants of residential apartment buildings, adjoining developments and public places.

16 Schedule 1 of the DCP permits a residential apartment building of a maximum of four storeys on the site. The parties initially disagreed whether the basement level constituted a storey and consequently whether the proposal complied with the height limit. The amended plans addressed this concern by lowering the basement level by 1 metre so that no part of the basement protrudes beyond the required 1.2 metres above natural ground level thereby complying with the number of storeys.

17 The parties also disagreed as to whether the proposal complied with the setback control in cl 4.3.3 of the DCP which states:

(a) Residential apartment buildings shall be setback a minimum of:

…….

iii) 6 metres from side and rear boundaries for up to 3-storey buildings; and

iv) 9 metres from side and rear boundaries for buildings greater than 3 storeys.

18 The wording of the DCP is unclear as to whether all levels of a building greater than 3 storeys are required to be setback 9 metres. Following the adjournment Mr Seton, for the council, clarified that only the level above three storeys required the 9m setback and that the amended proposal complied with the setback requirements.

19 Clause 4.3.6 (b) of the DCP provides the following design requirements for solar access:

a)……

b) The height of buildings shall not result in significant loss of solar access and amenity to adjacent properties (including existing solar collectors) and the public domain. A minimum of 40sqm of private open space on adjoining land shall receive at least 4 hours of sunlight between the hours of 9.00am and 4.00pm on 21 June (winter solstice).

20 Clause 4.3.8 of the DCP provides the following design requirements for privacy:

(a) No window of a habitable room or balcony shall be directly face a window of another habitable room, balcony or private courtyard of another dwelling located within 9
metres of the proposed window or balcony.
(b) Notwithstanding 4.3.8(a) a window of a habitable room may be permitted only where it:
i) is offset by 2 metres to limit views between windows, or
ii) has a sill heights 1.7 metres above the floor level; or
iii) is splayed to avoid direct views between windows; or
iv) has a fixed translucent glazing in any part of the window within 1.7 metres of the floor level.
(c) Notwithstanding 4.3.8(a), a balcony will be considered where the private open space area of any adjacent
dwelling is screened from view.

21 Development Control Plan 85 – Business and Comprehensive Centre Zones applies to the site but does not include any provision relevant to the application.

22 State Environmental Planning Policy No 65 – Design Quality of Residential Flat Buildings (SEPP 65) is relevant and establishes ten design principles for residential flat development. SEPP 65 requires consideration of the Residential Flat Design Code (RFDC).

23 The Statement of Issues at the start of the hearing contained 4 issues. The issues were not amended in response to the amended plans. The key issues in dispute can be summarised as:

1. Whether the proposed development is unacceptable in that it will have an adverse impact on the existing and likely future character and streetscape of the locality.
2. The proposed development will have an unacceptable impact on solar access and privacy of adjoining residential development to the south.

Evidence

24 The Court visited the site on 26 June 2007 and heard evidence from the following residents:

· Mrs D. Livermore, 20 Nardoo Street

· Mr R. Bonney, 24 Nardoo Street

· Mr N. Cousins, 15 Nardoo Street

· Mr Bracher, 14 Nardoo Street

25 The main concerns of the residents were parking and traffic impacts and the height and bulk of the proposal, which they considered to be inconsistent with the character of the area.

26 Mr Cousins raised concerns about the overshadowing impact on his property.

27 Council did not raise parking or traffic as an issue. The proposal complies with the parking requirements of the DCP and in council’s assessment had an acceptable impact on traffic. In the absence of any expert evidence to the contrary I accept council’s assessment.

28 Mr McMahon, the Court-Appointed expert provided planning evidence, which concluded that the proposal and the amendments were acceptable and could be supported.

Existing and desired future character

29 In his initial Statement of Evidence Mr McMahon stated that:

Any new infill development will generate impacts on the existing character of the streetscape and locality. It will also, similarly, potentially impact on the future character of an area undergoing transition. The degree of impact depends on the site’s context and the desired character of future development for the site…..

In this instance there is a significant amount of information concerning Council’s desired future character for the site and locality in Council’s Planning documents, which suggest that the intention of development is higher density building forms akin to what is proposed (ie. 4 storey medium density residential building forms). The location of the site adjoining the heart of the town centre, and the excellent railway access it enjoys, give weight to supporting a higher density form of residential density within the site.

30 The residents were concerned that the proposal was not consistent with existing residential development and proposed an unacceptable form of development. Mr Seton submitted that while the area is undergoing transition the proposal had unacceptable impacts on adjoining properties and therefore adequate consideration had not been given to its existing context. The proposal did not meet the objective for residential apartment buildings in the DCP which required “a high level of amenity for occupants of adjoining development”.

31 The site is located in an area that has recently been rezoned to permit medium density development. This is the first application under Amendment No 8. The proposal complies with the controls in the DCP and is clearly consistent with what is envisaged under the planning controls for the desired future character of the area. The question is whether adequate regard has been given to the existing context, recognising that this will change over time.

32 The surrounding area is predominantly single storey houses with some townhouses and residential flat buildings. The proposal is clearly larger than the existing single storey development and while it is likely that houses will be redeveloped, recent development such as the adjoining townhouses are likely to remain. The proposal is clearly of a different bulk and scale to this development, however, given the setback of the upper level of the proposal it will read as a three storey building from the adjoining properties to the south. The proposal, including the balconies, is also setback a minimum of six metres from its southern boundary and adequate landscaping is provided to soften the development. For the reasons below the proposal has acceptable impacts on the amenity of these adjoining properties. I accept Mr McMahon’s evidence that the proposal has an acceptable impact on the existing and likely future character and streetscape of the locality.

Privacy

33 Mr Seton submitted that the balconies off units B2-B5 and B 15-B18 did not comply with the 9m separation required under cl 4.3.8 of the DCP. The balcony of Units B5 and B 18 are 6.715m from the private courtyard of “unit 3” at 56 - 60 Ingleburn Road. The other balconies would restrict future development on 15 Nardoo Street if private courtyards adjoined its northern boundary.

34 Mr McMahon did not consider that there was a privacy issue as the balconies are small and off bedrooms and are unlikely to be used. As they faced south he considered they would provide little amenity for the occupants of the units. He noted that the building complies with the setback requirements of the DCP and any future development of 15 Nardoo Street would also be required to comply with the DCP. Nevertheless McMahon considered the balconies could be deleted, incorporated into the bedrooms or screened to a height of 1.7m. He preferred the latter option suggested a condition which was agreed to by the council but not by the applicant (Condition 1A).

35 With the imposition of the condition the balconies comply with cl 4.3.8(c) of the DCP and acceptable privacy is achieved.

Overshadowing

36 Mr Seton submitted that the proposal did not comply with cl 4.3.6(b) of the DCP in that a minimum of 40 sqm of private open space of “unit 3” of the adjoining townhouse development did not receive a minimum of 4 hours of sunlight between 9am and 4pm on 21 June.

37 Mr McMahon considered the control to be unrealistic for medium density residential development and that the more usual requirement in an urban environment was two hours of sunlight. He stated that the shadow diagrams indicate that the proposal will overshadow “unit 3” until 2 pm. By 3 pm the courtyard will be free of shadow. He noted that the shadow from the existing fence was not included in the diagrams, which he estimated would extend 2.5 to 3m into the courtyard at midday and estimated that even a single storey house would impact on the courtyard in a similar manner to the proposal. The courtyard is 4.6m deep and 7.2m long (33 sqm) and therefore does not meet the 40 sqm requirement. None the less he considered that the proposal would not result in ”significant” overshadowing of the townhouses as “unit 3” would achieve at least 2 hours of solar access and the other two units would achieve the 4 hours.

38 I accept Mr McMahon’ opinion. The proposal has been amended to reduce the overshadowing impact on the properties to the south by measures such as reducing the overall height and greater setbacks. While the proposal will impact on “unit 3” I do not consider this to be “significant” considering the sunlight retained in this and the other courtyards, the size of the courtyard, its vulnerability to impact, the impact results from a complying development and a similar impact would result from even a single storey house. The impact is not such as to warrant refusal of the application.

1. The appeal is upheld.

2. The development application (1416/2006) for a residential flat building at 1-3 Norfolk Street, 52-54 Ingleburn Road and 13 Nardoo Street, Ingleburn, is approved subject to the conditions in Annexure A.

3. The exhibits, except exhibits 3, 4, 13, G and J, may be returned.

___________________

Annelise Tuor
Commissioner of the Court