Lexington Homes Pty Ltd v Parramatta City Council

[2015] NSWLEC 1503

Land and Environment Court

New South Wales

Medium Neutral Citation:	Lexington Homes Pty Ltd v Parramatta City Council [2015] NSWLEC 1503
Hearing dates:	4,5 November 2015
Date of orders:	06 November 2015
Decision date:	06 November 2015
Jurisdiction:	Class 1
Before:	Brown ASC
Decision:	1. The appeal is dismissed. 2. Development Application No. 124/2015 for the demolition of an existing dwelling and structures and the construction of an in- fill self care housing development at 5 and 7 Grandview Parade Epping is refused. 3. The exhibits are returned.
Catchwords:	DEVELOPMENT APPLICATION: whether the development is consistent with the residential character of the area – whether the development provides acceptable access – whether the development provides adequate solar access, landscape area and communal open space – whether the development will create unacceptable amenity impacts on adjoining properties
Legislation Cited:	Environmental Planning and Assessment Act 1979 Parramatta Local Environmental Plan 2011
Category:	Principal judgment
Parties:	Lexington Homes Pty Ltd (Applicant) Parramatta City Council (Respondent)
Representation:	Counsel: Mr G McKee, solicitor (Applicant) Mr S Nash, barrister (Respondent)   Solicitors: McKees Legal Solutions (Applicant) Sparke Helmore Lawyers(Respondent)
File Number(s):	10375 of 2015
Publication restriction:	No

Judgment

1. ACTING SENIOR COMMISSIONER: This is an appeal against the decision of Parramatta City Council to refuse Development Application DA124/2015 for the demolition of existing structures, removal of trees, and construction of 10 infill self-care housing dwellings pursuant to State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP Seniors), with associated basement car parking at 5 and 7 Grandview Parade, Epping (the site).

2. The council maintains that the application should be refused because:

1. the proposed development is generally inconsistent with the residential character of the area,

2. the proposed development does not provide acceptable access,

3. the development does not provide adequate solar access, landscape area and communal open space; and

4. the proposed development will create unacceptable amenity impacts on adjoining properties.

The site

3. The site is Lot 24 in DP6837 (5 Grandview Parade) and 23 in DP6837 (7 Grandview Parade). Both 5 and 7 Grandview Parade are rectangular shaped allotments; each containing a residential dwelling, detached garage, and ancillary structures; and are located on the western side of Grandview Parade, Epping. They have a combined frontage measuring 40.23 m, and a combined rear boundary of 60.96 m, with a combined site area of 2452 sq m. The site has a natural fall from north-west to south-west of approximately 6.2 m.

4. The prevailing land use in the immediate vicinity of the site is residential, consisting of a mixture of single and double storey dwelling houses. There is also a small group of shops at Midson Road within close vicinity of the site.

Relevant planning controls

5. The site is zoned R2 Low Density Residential, under Parramatta Local Environmental Plan 2011 (LEP 2011). The development could be characterised at multi-unit housing and if so, is a prohibited use within this zone. Seniors housing is a permissible use under LEP 2011. The application gains the opportunity for permissibility through SEPP Seniors and this is the planning document relied on by the applicant in these proceedings.

6. The proposal is defined in cl 13 as, "Infill self-care housing," which is defined as:

infill self-care housing is seniors housing on lands owned primarily for urban purposes that consists of two or more self-contained dwellings where none of the following services are provided on-site as part of the development; meals, cleaning services, personal care, nursing care.

7. SEPP Seniors provides aims at cl 2(1) and the means of achieving the aims at cl (2). These are:

(a) setting aside local planning controls that would prevent the development of housing for seniors or people with a disability that meets the development criteria and standards specified in this Policy, and;

(b) setting out design principles that should be followed to achieve built form that responds to the characteristics of its site and form, and;

(c) ensuring that applicants provide support services for seniors or people with a disability for developments on land adjoining land zoned primarily for urban purposes.

8. Clause 29(2) requires the Court to take into consideration those matters relevantly identified in cl 25(5)(b)(i),(iii), and (v).

9. Clause 31 requires that the Court must take into consideration the provisions of the document Seniors Living Policy: Urban Design Guidelines for Infill Development (the Guidelines). Clause 32 provides that the Court must not consent to a development application unless it is satisfied that the proposed development demonstrates that adequate regard has been given to a number of principals. The relevant principals in this case are neighbourhood amenity and streetscape (cl 33), visual and acoustic privacy (cl 34), solar access and design for climate (cl 35) and accessibility (cl 38). Clause 40 provides development standards for minimum sizes and building heights. The clause provides that consent must not be granted unless the standards are complied with. The development satisfies the standards for site size (cl 40(2)), site frontage (cl 40(3)), and height (cl 40(4)).

10. Clause 50 provides standards that cannot be used to refuse an application if the standard is complied with. The development satisfies the standards in relation to building height (cl 50(a)), deep soil zones (cl 50(d)), private open space (cl 50(f)), and parking (cl 50(h)).

11. The parties agreed that the proposed development did not satisfy the density and scale standard of 0.5:1 or less, the development, having an agreed floor space ratio (FSR) of 0.59:1. The parties disagreed as to whether the standards for landscaped area (cl 50(c)), and solar access (cl 50(e)) are satisfied.

Is the development inconsistent with the character of the residential area nearby?

12. Expert evidence for the applicant was provided by Mr Stuart Harding and for the Council by Ms Diep Hang. The relationship of the proposed development with the nearby and surrounding development is addressed in a number of locations in SEPP Seniors.

13. Clause 29(2) requires the Court to take consideration as to whether the development is compatible with surrounding land uses, having regard to relevantly :

(i) the natural environment,( including known significant environmental values, resources, and hazards)and the existing uses and approved uses of land in the vicinity of the proposed development.

(v) without limiting any other criteria, the impact that the bulk-scale and built form and character of the proposed development is likely to have on the existing uses, approved uses, and future uses of land in the vicinity of the development.

14. Clause 32 requires the Court to be satisfied that regard has been certain principles, namely:

(a) recognise the desirable elements of the location's current character or, in the case of precincts undergoing a transition, where described in local planning controls, the desired future character, so that new buildings contribute to the quality and identity of the area;

.

.

(c) maintain reasonable neighbourhood amenity and appropriate residential character by:

(i) providing building setbacks to reduce bulk and overshadowing;

(ii) using building form and siting that relates to the site's land form;

(iii) adopting building heights at the street frontage that are compatible in scale with adjacent development, and;

(iv) considering where buildings are located on the boundary, the impact of boundary walls on neighbours;

(d) be designed so that the front building of the development is set back in sympathy with but not necessarily the same as the existing building line;

(e) embody planting that is in sympathy with but not necessarily the same as other planting in the streetscape;

(f) retain, where reasonable, major existing trees.

15. Ms Hang states that the development is incompatible with the prevailing character of the area and is therefore not in accordance with the consideration required by cl 25(b)(i) and (v). In her opinion, this site is located within an area that is predominantly one and two-storey detached developments. While a multi-unit housing development is located opposite the site at 4 – 6 Grandview Parade: this was approved under a different planning regime. Further, Ms Hang notes that the development has non-complying side setbacks of 4.095 m and 1.94 m. Also, the development has its floor area massed, such that it is uncharacteristic of the existing low-density scale of the development in Grandview Parade. The street setbacks are also unacceptable, as is the rear 3 m- setback.

16. Mr Harding states that it is inevitable that housing provided under SEPP Seniors will have a different form to the single dwellings in Grandview Parade because of the aims of SEPP Seniors. Mr Harding states that the proposal will provide a significantly better streetscape outcome than for other possible developments on the site, largely through the deletion of one of the driveways. In his opinion, the proposal will reinstate existing landscaping that is nearing the end of its useful life, provide an attractive façade at the Grandview Street frontage, have appropriate setbacks to the street, and reflect elements of existing building forms in the design of the building.

17. In considering how the development relates to the surrounding nearby development and the specific provisions in SEPP Seniors, I agree with the conclusions of Ms Hang, but not for all the reasons she states in her evidence. Ms Hang and Mr Harding agree that the area is not a precinct undergoing a transition, as referred to in cl 33(a). The desirable elements of the locations character were more accurately described by Ms Hang as a one and two‑storey attached residential development. In my view, a more expansive description would include that the one and two-storey residential development are generally set in a landscaped setting, with the dwelling located near the street frontage and the rear area used for the recreational needs of the occupiers. The multi-unit housing development opposite the site is more of an aberration to this established character and should not be used in any consideration of determining the general character of the area.

18. I am satisfied that the proposed development will have unacceptable impacts on existing uses by way of its bulk, scale and built form on the surrounding low density residential development. The proposal does not recognise the desirable elements of the location's current character, largely because of the amount of floor space spread across the site and the visibility of this floor space from adjoining residential properties, brought about largely by the small rear and side setbacks.

19. I agree with Mr Harding's comments that applications lodged under SEPP Seniors will have a different appearance to the single and two‑storey residential character of the area. The applicant in this case chose not to provide an FSR of 0.5:1, thereby excluding the application from the deemed to comply provisions relating to density and scale in cl  50(b). The consequence is that it is then subject to a merit assessment on density and scale by cl 29(2) and 30(2), and according to the council, also cl 4.6 of LEP 2011. There can be little doubt that a SEPP Seniors development at an FSR of 0.5:1 will have a different character to the existing character, but would be deemed to be acceptable in terms of density and scale, by cl 50. In my view, that is the trade-off that facilitates the aims of SEPP Seniors

20. The parties differed on whether a written request is required under cl 4.6 of LEP 2011, because of the exceedance of the deemed to comply FSR requirements in cl 50(b). In my view, it is not necessary to answer this question beyond stating that if the exceedance is tested against the FSR objectives in cl 4.4 of LEP 2011, particularly objectives (a), (b) and (d), then I would comfortably conclude that the exceedance would be in conflict with those objectives.

21. For the previously mentioned reasons, I find that having considered the matters in cl 25(5)(i) and (v), the proposed development should not be approved. Similarly, I find that adequate regard has not been given to cl 33(a) and as such, the development should not be approved for this reason also.

22. I would also add that I do not accept the conclusions of Ms Hang in relation to the streetscape impacts. I am satisfied that the setback to Grandview Parade is acceptable and is consistent with cl 33(d), the articulation and design of the buildings to the streetscape is acceptable, and that the removal of the trees in the setback area is justified by the applicant's arborist report.

Access

23. With the submission of the Exhibit J plans that flowed from the comments of Mr Relf, the council's access expert, I find that there are no access issues that would warrant the refusal of the application.

Landscaped area

24. Mr Harding and Ms Hang differed on whether the application satisfied the deemed to comply standards in relation to landscaped area in cl 50(c) and solar access, cl 50(e).

25. On this matter, I agree with Mr Harding that the difference between himself and Ms Hang as to whether the individual terraces should be included as landscaped area should be answered in the affirmative. Given the definition of landscaped area in cl 3 of SEPP Seniors, it seems that if things such as rainwater tanks and swimming pools are included as landscaped area, then it would be difficult to exclude private terraces given that these clearly provide, "Open-air recreational facilities for each unit." On this basis, the landscaped area satisfies the deemed to comply provisions in cl 50(e).

Solar access

26. The solar access deemed to comply requirements provide that 70 % of units must receive a minimum of three hours direct sunlight to living rooms and private open spaces between 9am and 3pm mid-winter. Ms Hang and Mr Harding agree that there is no issues with solar access to the private living rooms, and they also agree that six units (or 60 % of private open space areas) satisfy this criterion. The difference between Ms Hang and Mr Harding centred on the usability of the solar access. Mr Harding maintains that the private open space areas would allow people to enjoy the sunlight if seated, notwithstanding that the sunlight casts a relatively small footprint on the ground. As a general proposition, I accept Mr Harding's approach and consequently find that the solar access deemed to comply provisions in cl 50(e) are satisfied.

Acoustic impacts

27. The potential acoustic impacts on adjoining properties were raised in the context of Plan 04b in the Guidelines that suggests that courtyards should not face the adjoining side properties. While plan 04b is meant to provide guidance, I am not satisfied that it should be given the weight suggested by the council. The issue of acoustic and visual privacy should be addressed on the individual circumstances of each application.

Communal open space

28. The final disputed matter is the adequacy of the communal open space, where I agree with Ms Hang that even with the Exhibit J plans, the area is unsuitable because of its small size and location at the front of a property. While the applicant argued that it was not required by SEPP Seniors, it is clearly identified as a necessary part of seniors' development by part 5 of the Guidelines which are adopted by cl 31 of SEPP Seniors.

Orders

29. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application No. 124/2015 for the demolition of an existing dwelling and structures and the construction of an in- fill self care housing development at 5 and 7 Grandview Parade Epping is refused.

3. The exhibits are returned.

_________________

G T Brown

Acting Senior Commissioner

Decision last updated: 02 December 2015