Kyselov v Campbelltown City Council

[2014] NSWLEC 1013

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Kyselov v Campbelltown City Council [2014] NSWLEC 1013
Hearing dates:	22-23 January 2013
Decision date:	29 January 2014
Jurisdiction:	Class 1
Before:	Morris C
Decision:	Appeal dismissed
Catchwords:	Development application: dual occupancy, whether consistent with planning controls, bulk and scale
Legislation Cited:	Environmental Planning and Assessment Act, 1979 Land and Environment Court Act 1979; Campbelltown (Urban Area) Local Environmental Plan 2002;
Cases Cited:	Trebincevic v Campbelltown City Council [2007] NSWLEC 557
Texts Cited:	Campbelltown (Sustainable City) Development Control Plan 2009; Australian Standard 2890.1 - Off Street Parking Facilities
Category:	Principal judgment
Parties:	Yeugen Kyselov (Applicant) Campbelltown City Council (Respondent)
Representation:	Solicitors Mr P Duffy Duffy Law Group Instructed by Peters Lawyers (Applicant) Mr A Seton Marsdens Law Group (Respondent)
File Number(s):	10812 of 2013

Judgment

1. Mr Kyselov lodged Development Application 2159/2012 with Campbelltown City Council seeking consent to construct a detached dual occupancy development and subdivide the land into two allotments. The council refused consent and Mr Kyselov is appealing that decision.

1. The matter commenced as a conciliation conference under the provisions of s34AA of the Land and Environment Court Act 1979 however, no agreement between the parties was reached so the conference was terminated and a hearing held forthwith as required by s34AA(2)(b)(i). The parties agreed that the evidence provided during the conciliation phase could be evidence in the proceedings with agreement reached in relation to changes to windows to address privacy concerns and the amendment of the landscape plan.

The site and its context

1. The site is Lot 2736 in Deposited Plan 811889 and known as No. 15 Nepean Towers Avenue, Glen Alpine. It is located on the north-eastern side of the street, has a frontage of 21.78m, side boundaries of 44.175m and 43.885m and rear boundary of 24m resulting in a site area of 1,005sqm.

1. The Deposited Plan is the subject of a restriction on the use of land including two mentioned at 4(d) and (e) in the Instrument creating Easements and Restrictions in accordance with the provisions of Section 88B of the Conveyancing Act, 1919. That clause states:

(d) Not more than one main building shall be erected or permitted to remain on any lot.

(e) No such main building shall be erected or used otherwise than as a single private dwelling house.

1. That restriction applies to all of the lots within the subdivision except lots 2748 and 2749 and benefits every other lot except lots 2748 and 2749. The name of the person or persons empowered to release, vary or modify the restriction was Sherwood Hills Pty Ltd up until 31 December 1997 and thereafter is the registered proprietor of any lot having a common boundary with the lot in respect of which the restriction applies with the cost of such release being borne by the person requesting same in all respects.

1. The site falls steeply from its rear to the street with a level difference of approximately 8.5m. That fall is emphasised across the building platform due to the upper portion of the site being comparatively level compared to the lower sections where the gradient is steeper.

1. Development immediately to the south east of the site (No. 17) and beyond comprises detached dwelling houses setback towards the centre of the allotment to take advantage of views to the south and west. To the north-west there is a vacant allotment and then detached housing on setbacks of approximately 6m to the street.

1. The locality is described by the planning experts as being:

The suburb of Glen Alpine is characterised by very large typically brick dwellings which display a mix of single and two storey built forms. There are also numerous examples of three storey buildings within the suburb. The suburb was developed around Campbelltown Golf Course with the majority of land released during the 1980s. Accordingly the suburb is now well established. Residential lot sizes are typically quite large by modern residential release standards and are generally in the range of 700 to 1000sqm. Landscaping within the front setback areas of dwellings is frequently of a formal design. Due to the relatively steep topography in the area, retaining walls, benching and terracing of landscaped setbacks is very common.

This broad description of the character of Glen Alpine is also true for development within the vicinity of the subject site.

Background and the proposal

1. The development application was lodged with the council on 31 October 2012 and, in response to objections received during the notification process and the staff's preliminary assessment of the application, amended plans were lodged on 25 March 2013.

1. Those plans are the plans before the Court and propose the construction of a detached dual occupancy development with Torrens Title subdivision. The dwellings are designed to step up the slope of the land and are, in the main two storeys in section with the rear uppermost level at grade with the rear yard.

1. The proposed subdivision would create two allotments, Lot 15A the north-western allotment, would have a frontage of 10.888m, depth of 44.175m and 43.893m and site area of 503sqm. Lot 15B would have a frontage of 10.89m, depth of 43.893m and 43.885m and site area of 502sqm. The rear boundary of each allotment would be 12m.

1. The proposed dwelling on Lot 15A would contain a double garage with storerooms and the entry foyer and portico at the ground floor with the garage erected on a 6m setback to Nepean Towers Avenue and the portico roof, which slopes in the opposite direction to the main dwelling roof, extending a further 500mm into the setback area. This dwelling would contain four bedrooms, associated bathrooms, media area, rumpus room, laundry, living, dining room and kitchen on the upper three levels. Two balconies, one off the main bedroom on level one and one off the lounge on level three and a rear deck adjacent to the kitchen/dining area are incorporated into the design of the dwelling. The roof of this dwelling is on one plane following the slope of the land uphill with the windows and verandahs set into the roof in an "eyelid" configuration.

1. Dwelling 15B also steps up the site however has a different roof form. It also contains a double garage and store on the lowest level setback 6m from Nepean Towers Avenue. A stairway to the northwest of the garage provides access to the dwelling entry porch, foyer and bedroom on level one with the roof of the garage forming a balcony that is enclosed by a 1.05m high brick parapet wall. Level 2 comprises an additional 3 bedrooms, bathrooms and sitting area with a balcony space off bedroom 2. That balcony is enclosed on three sides and fully roofed. The upper level, level 3 is split level and comprises a full width balcony opening off the lounge/kitchen area with a laundry, WC and family room at the rear that opens onto a covered deck.

1. The plans are poorly dimensioned in terms of designating setbacks however, the experts calculated that the dwellings would be setback 8.745m (15A) and 9.775m (15B) from the rear boundary and a minimum of 900mm from side boundaries increasing to over 1.5m towards the rear side boundaries with adjacent properties. The area between the two proposed dwellings would be stepped to provide pedestrian access along the sides of each dwelling. No landscaping is proposed along the common boundary with No. 17 with a landscaped strip approximately 1m wide proposed along the rear half of the north-western side boundary with further access paths along the remainder of that side. Garden areas are proposed along both sides and in the centre of the area between the front façade of the building and the street apart from that area required for driveway and pedestrian access to the garages/dwellings.

1. Following assessment of the amended plans, the application was considered by the council's Planning and Environment Committee, which deferred determination pending a site inspection by the council. The council considered a staff report recommending approval of the application at its meeting of 16 July 2013 following the onsite inspection conducted on 2 July 2013. The council resolved to refuse consent. The reasons for refusal are contained in the Notice of Determination dated 16 July 2013 as follows:

(1) Pursuant to the provisions of Section 79C(1)(b) of the Environmental Planning and Assessment Act 1979, it is considered that the proposed development does not achieve a high quality design and would adversely impact upon the existing and future desired streetscape.

(2) Pursuant to the provisions of Section 79C(1)(e) of the Environmental Planning and Assessment Act 1979, it is considered that in the circumstances of the case, approval of the development would set an undesirable precedent for similar inappropriate development and is therefore not in the public interest.

The planning controls

1. The site is within Zone 2(b) Residential B under the provisions of Campbelltown (Urban Area) Local Environmental Plan 2002 (LEP). The objectives of the zone are contained in clause 9(2) and include requirements that the consent authority must consider in determination of an application as follows:

(a) to make general provision for land to be used for housing and associated purposes, and

(b) to permit the development of a range of housing types, and

(c) to encourage a variety of forms of housing that are higher in density than traditional dwelling houses, including accommodation for older people and people with disabilities, in locations which are accessible to public transport, employment, retail, commercial and service facilities, and

(d) to allow the carrying out of a reasonable range of activities from dwellings, where such activities are not likely to adversely affect the amenity of the locality, and

(e) to allow development which:

(i) is compatible with residential use, and

(ii) is capable of visual integration with the surrounding buildings, and

(iii) serves the needs of the surrounding population without conflicting with the residential intent of the zone, and

(iv) does not place demands on services beyond the level reasonably required for residential use.

Except as otherwise provided by this plan, consent must not be granted for development on land within this zone unless the consent authority is of the opinion that carrying out the proposed development would be consistent with one or more of the objectives of this zone.

A further objective of this zone is to encourage a high quality standard of development which is aesthetically pleasing, functional and relates sympathetically to nearby and adjoining development.

1. Dual occupancy development is permitted with consent in the 2(b) zone and consent is required, pursuant to the provisions of clause 32, for subdivision of land. Clause 34(1) applies to dual occupancies within Zone 2(b) and states:

If two dwellings are situated on the same lot within Zone 2 (b):

(a) the separate occupation of the lots illustrated by a proposed strata plan relating to the dwellings is prohibited, and

(b) subdivision of the land under the Conveyancing Act 1919 or the Community Land Development Act 1989 is prohibited,

unless the area of each lot that will be the subject of a separate title for a dwelling when the plan is registered is not less than 350 square metres.

1. The area of the proposed allotments, being 502 and 503sqm exceed the 350sqm minimum allowed.

1. Clause 40 of the LEP applies to the suspension of covenants, agreements and similar instruments and states:

(1) Subject to this plan, if any agreement, covenant or other similar instrument prohibits development allowed by this plan, then it will not apply to that development, to the extent necessary to allow that development.

(2) Nothing in subclause (1) affects the rights or interests of any public authority under any registered instrument.

(3) In accordance with section 28 of the Act, the Governor approved of subclauses (1) and (2) before this plan was made.

1. The effect of this clause is to allow consent to be granted for dual occupancy development on the land as the provisions of the LEP would override any private covenant that applies to the land. The terms of the covenant remain with the owners of the site and the adjoining allotment as described in [5].

1. Campbelltown (Sustainable City) Development Control Plan 2009 (DCP) applied to the site at the time the application was lodged and, pursuant to the provisions of clause 1.1.9 of Campbelltown (Sustainable City) Development Control Plan 2012, would continue to apply to the assessment of the application. The provisions of Parts 2 and 3 of the DCP are particularly relevant to the application.

1. Numerical controls applicable are contained in clause 2.8.1 Cut and Fill with a maximum of 900mm permissible; clause 3.3.1 Streetscape with garage doors facing a public street not to exceed 50% of the width of the building at its street fronting façade; clause 3.3.2 Building Height, with a 2 storey and 7.2m maximum; 3.6 Solar Access with an area of 20sqm of private open space receiving at least 3 hours solar access between 9am and 3pm on 21 June; 3.9 Multi Dwellings (includes dual occupancy) 700sqm minimum lot size, 15m minimum site width, 0.45:1 maximum floor space ratio (FSR), 5.5m minimum set back from the primary street boundary for dwelling component and 6m for garages, 0.9m for the ground level and 1.5m for all levels above the ground level from side boundaries and 5m at ground level and 10m for levels above from rear boundaries, minimum of one carparking space, 60sqm minimum area for private open space, no more than 30% of the area forward of any building line shall be surfaced with impervious materials, 20% minimum deep soil planting.

1. The proposed development meets all of these controls with the exception of cut and fill, streetscape and side boundary setbacks to the upper floors.

1. In addition to the quantitative controls, the DCP contains a number of qualitative measures. Those relevant to the contentions in the case are detailed below:

New development needs to incorporate good building design principles and be appropriate to its context to ensure in future, there is a positive contribution to the overall architectural and landscape quality of the City (clause 3.2).

Objectives for Building Form and Character (clause 3.3)

Ensure that the massing and scale of new development are complementary to the existing and desired residential buildings in the neighbourhood.

Maintain a low-medium density spatial character within existing neighbourhoods.

Ensure that buildings are designed to enhance the existing and future desired built form and character of the neighbourhood by encouraging innovative and quality designs that fit harmoniously with their surroundings.

Ensure that parking areas, garages and driveways are appropriately sited, designed and constructed so that they do not detract from the appearance of the development or the streetscape.

Ensure the provision of equitable access to natural light and ventilation for the occupants of all residential buildings.

Streetscape design requirements (clause 3.3.1)

Building design (including façade treatment, massing, roof design and entrance features), setbacks and landscaping shall complement the scale of development, character and qualities of the desired streetscape.

Development on corner sites shall incorporate facade treatments that address both street frontages and achieve positive articulation in building design.

The built form shall relate to the natural landform and setting.

On-site parking areas shall be designed and sited to reduce the visual prominence of garage doors and external parking spaces as viewed from the street or other public place.

Garage doors facing a public street shall be no wider that 50% of the width of the building (at its street fronting facade).

No carports or garages (or like structures) shall be located within 6 metres of the primary street boundary.

Objectives for Multi Dwellings (clause 3.9)

Encourage quality designed multi dwellings that makes a positive contribution to the streetscape and amenity of the neighbourhood.

The issues

1. The contentions in the case are whether the development is consistent with the objectives of the 2(b) zone and the building form and character controls of the DCP; the proposal is an overdevelopment of the site and achieves a high quality standard of design; the design, bulk and scale of the proposed dwellings are consistent or complementary to the existing residential buildings in the neighbourhood and the future desired streetscape of the local area and adversely impact same.

The evidence

1. The matter commenced on site with evidence heard from the owners of the adjacent property to the south-east. The issues raised are summarised as being:

• Contrary to the 88B instrument that applies to the site;
• Area created with larger blocks and larger homes with the absence of duplexes, town houses and units;
• Negative impact on property values;
• Development does not fit in visually with the existing homes in the street;
• Loss of visual and aural privacy;
• Overshadowing;
• Poisonous trees and inappropriate plant species proposed by landscaped plan;
• Not in community interest to allow subdivision of land.

1. Expert town planning evidence was heard from Mr D Haskew for the applicant and Mr M Brown for the council. Their description of the surrounding development is provided at [8]. They agree that the proposed development is consistent with objectives (a), (b) and (e)(i) and (e)(iv) of the 2(b) zone, that (c), (d) and (e)(iii) are not applicable to the proposed development and that because at least one zone objective is satisfied, consent can be granted to the application. They disagree whether the proposed development satisfies objective (e)(ii) and "the further objective".

1. They agree that the maximum extent of cut and fill under the DCP is 900mm and that the cut associated with the basement level car parking for both dwellings is approximately 3m and a small area at the eastern end of Level 1 also exceeds 900mm (approximately 1.8m cut proposed).

1. Mr Haskew opines the proposed level of cut is satisfactory and will be unlikely to result in adverse amenity or environmental impacts and overall, the proposal has adopted a very sensitive approach to the site's topography with 4 separate benches over the site's 44m length and further split levelling within each dwelling. He says the extent of cut required is to accommodate the garages so as to comply with Australian Standard 2890.1 - Off Street Parking Facilities and Figure 3.4.1 of the DCP as well as a design objective of minimising bulk and scale. Any alternative design which sought to reduce the extent of cut would result in the garage floor plate being elevated from its presently proposed position, the garaging having a greater visual impact and hence, poorer streetscape outcomes, may raise the floor levels of the remainder of the dwelling with the potential for greater amenity impacts through increased bulk, scale, overshadowing and overlooking with safety consequences of steeper driveway gradients. He says the DCP objective to ensure that development appropriately responds to site conditions with proper consideration given to land capability and privacy/amenity of adjoining properties is met and cites other examples of garaging within Nepean Towers Avenue which appear to be excavated to greater than 900mm. He concludes the proposed basement car parking achieves a satisfactory level of consistency with character and form of development within the locality.

1. Mr Brown disagrees and cites other examples of dwellings within the immediate street where dwellings have not been excessively cut into sites and have used the fall of the land to reduce any impacts, with the garaging located on the lower side of the site or dwellings located further back on the lot. He says that the subdivision of the land to create two lots results in the proposed development having to develop up the slope for essentially the entire length whilst noting that where dwellings have been constructed across the frontage, the rear yard areas have reasonable open space setbacks.

1. Mr Haskew disagrees and says the extent of the building footprint is informed by achievable FSR and building height controls under the DCP, both of which are met. Regardless, he says the footprint complies with all setback and volume requirements and whilst the development involves two very large dwellings, this is entirely consistent with much, if not most of the residential development that has occurred within Glen Alpine.

1. The experts agree that the proposed development complies with all numeric requirements contained within Part 3 of the DCP with the exception of clause 3.3.1(e) that applies to the maximum garage width. The Court notes that the parties agreed that the dwellings did not comply with the 1.5m setback to side boundaries for upper floors. In addition, Mr Brown says that certain non-numeric, merit based requirements are not satisfied. They agree that the issues relate to overall design quality and streetscape presentation of the proposal.

1. Mr Haskew adopts the views of the council's assessment report in regard to the garage door width control, saying the control relates to streetscape and the appearance of the development, and is to ensure that the garage doors do not dominate the built form of a development when viewed from the street. The report states:

The double garage with internal storage is located at street level as one single level before the dwelling steps up to the next level, becoming double storey in height, as it ascends up the slope. The only component on the ground floor is the double garage, which naturally exceeds the 50% garage width requirement. It is considered that the design of the dwellings to step up the slope is a better planning outcome than having to either cut and/or fill substantially to create a flat building envelope to then put a double storey dwelling on top of which would mean that the height of the actual dwelling would be higher than the design as proposed. This would then also have far greater overlooking and overshadowing issues.

1. Mr Haskew says that in the case of a single storey development, a garage which is wider than 50% of the dwelling streetscape elevation would, in most cases, dominate the elevation. However in the case of two and three storey development, there is an additional surface area of street elevation, so that garages can often be greater than 50% of the building width, but nonetheless still represent a modest proportion of the overall elevation. Accordingly, in the case of two or more storey development, variation to the 50% requirement is frequently supported on the basis that the objectives of the control are not offended. He says the terracing, or progressive setback of the first, second and third floors tends to reduce the visual dominance as compared to a three or four storey building where each level was directly above the other. The fact that the ground level garages are the forward most element of the building is relevant. It results in a different streetscape situation to say, a two storey building with the first floor positioned directly above the ground level garages. However in counterbalance to this, is that both dwellings present four levels as visible from the street with each level progressively more setback than the preceding one, each level contributing to the overall streetscape presentation of both dwellings.

1. He does not regard the proposed garages as being overly dominant and therefore not, "detracting from the appearance of the development or the streetscape". He cited many other dwellings within Glen Alpine providing three car garages and says garages form a significant part of the streetscape in most streets. He says the design addresses the visual prominence of the garages in three ways, there is either a roof or parapet above to add visual weight and mass to the building, No 15A has a porch and skillion roof that draws the eye upwards which he considers to be a clever design response and responsive to the site due to the fact it cascades uphill. It is that visual mass that is seen, not just the garage doors, you see the entirety of the building en globo, its roof, articulation and its angles. The juxtapositioning of the garages further assists with one to the left and one to the right of the site separating the doors as far as possible. He concludes that the proposed garages do not derogate from the streetscape and are an appropriate design response to the site's topography and to its surrounding built form context.

1. Mr Brown says that the garages represent 51.5% (15A) and 57.3% of the width of the dwelling and, in his oral evidence, says that the objective of the control refers to the street fronting façade, and that this would only be the garage component of the structure. Applying that interpretation, the extent would be 73% and 79.3% respectively. Mr Haskew disagrees and says that if this was the case, the majority of garaging within Glen Alpine would be non-compliant as the garages are generally forward of the remaining front façade of the dwelling. I do not accept Mr Brown's interpretation of the control and agree that the street fronting façade includes the full width of the dwelling.

1. Mr Brown does concede that there are examples of where garage doors exceed the 50% control but says the dominance of the garage doors in this instance is excessive and impacts on the streetscape so is inconsistent with the objectives of the control. He says the fact that the garages are the forward most element of the dwellings emphasise the dominance and, when combined with the narrow lot width, is out of character with the area.

1. The experts disagree whether the proposal is acceptable having regard to the streetscape provisions contained in clause 3.3.1 of the DCP. The parties agree that the primary consideration in this regard is the bulk and scale of the proposal. Mr Haskew has calculated that the site coverage of the proposed development is in the order of 60% and is therefore substantially higher than prevailing development (in the order of 25-40%) however, is expected in the case of dual occupancy development and, in the case of the proposal, results in less impact on character and accepts that it does have some impact on adjoining properties, in this case No. 17, but concludes these impacts are not particularly significant and reasonable in the circumstances of the case.

1. Mr Brown says the development is not in character with the area and to that end is an overdevelopment of the site because it produces two buildings that are unusually large in relation to the site area and the other dwellings in the area, the site coverage of the dwellings on the proposed lots compared to existing dwellings and the height being greater than adjoining dwellings and the reduction in landscaped area and increase in hard paved areas.

Conclusion and findings

1. I agree that at least one of the objectives of the 2(b) zone is met and that the 88B instrument that applies to the site does not prevent the grant of consent. Therefore, subject to an assessment of the application as required under s79C of the Environmental Planning and Assessment Act, 1979, the threshold is passed and there is no legal reason why consent could not be granted.

1. Having regard to the evidence and considering the merits of the application as required under s79C of the Act, I am not satisfied that the development should be approved and my reasons are set out below.

1. Firstly, the further objective of the 2(b) zone as detailed in the LEP is to encourage a high quality standard of development which is aesthetically pleasing, functional and relates sympathetically to nearby and adjoining development. Having regard to the character of the area, and in particular nearby and adjacent development, I prefer the evidence of Mr Brown that the bulk, scale and siting of the proposed dwelling up the site is not characteristic of that development, nor does it relate sympathetically to it. The verticality of the proposal and in particular the sloped roof emphasis this and do not sit sympathetically with the character of the area with dwellings that sit across the site.

1. The DCP is clear that it intends to ensure that new development incorporates good building design principles and is appropriate to its context to ensure in future, there is a positive contribution to the overall architectural and landscape quality of the City. Whilst I accept the evidence of Mr Haskew that the design of the dwellings responds to the constraints of the sloping site, I do not consider that it is appropriate to its context nor positively contributes to the overall architectural and landscape quality of the City. The siting of the dwellings and their bulk and scale and prominence of garaging and in particular the dominant roof form of No. 15A adding to its mass, is out of character with the context of development in the vicinity of the site. Limited area is available within the building alignment for planting due to the significant areas required for driveways and pedestrian pathways, and the presence of landscaping is a feature that is characteristic to the locality so the development fails to respond to this aspect.

1. That bulk and scale is not complementary to the existing and desired residential buildings in the neighbourhood. As stated by Mr Haskew, the site coverage typical within the area is between 20-40% and the proposal is 60%. This is significantly greater and is emphasised by the design of the development sloping up the site adding to its visual bulk. That verticality contrasts with the character of the area that is typified by buildings sited across the block with landscaped front and rear yards and does not maintain the low-medium density spatial character of the existing neighbourhood. The building design and its visual mass, in particular the sloped roof, massing of the enclosed verandahs and building bulk, do not complement the scale of development or qualities of the streetscape.

1. The visual prominence of the garaging forward of the main dwelling houses, the extent of hardstand driveway and pedestrian pathways is also not typical of the locality and detracts from the appearance of the development and the streetscape.

1. Whilst I accept the evidence of Mr Haskew that the physical impacts resulting from the proposal are acceptable, subject to the agreement amendments to window size, and that the design relates to the natural landform, I am not satisfied that the buildings, as sited on the land, fit harmoniously with the surrounding development or its setting, nor do they enhance the existing and future desired built form and character of the neighbourhood.

1. I distinguish this application from the other dual occupancy developments within the Glen Alpine suburb relied on by the applicant and the decision of Murrell C in Trebincevic v Campbelltown City Council [2007] NSWLEC 557. The mass and scale of those developments is more in keeping with the streetscape within which they are located, the developments either present as a single dwelling house or they are of a size that is complementary to the adjoining neighbourhood.

1. Accordingly, I am not satisfied that the proposal makes a positive contribution to the streetscape and amenity of the neighbourhood, nor achieves the further objective of the LEP or satisfies the requirements of the DCP. The site is not suitable for the development proposed. For these reasons, consent should not be granted.

1. The Orders of the Court are:

(1)   The appeal is dismissed.

(2)   Development Application 2159/2012for the construction of a detached dual occupancy development and subdivision of land at 15 Nepean Towers Avenue, Glen Alpine into two allotments is refused consent.

(3)   The exhibits, other than exhibits A, D, 2 and 3, may be returned.

___________________

Sue Morris

Commissioner of the Court

**********

Amendments

06 February 2014 - typographical errors

Amended paragraphs: 12, 25, 30, 44, 47

Decision last updated: 06 February 2014