Melissa Grech v Auburn Council

[2004] NSWLEC 40

Land and Environment Court

of New South Wales

CITATION:	Melissa Grech v Auburn Council [2004] NSWLEC 40
PARTIES:	APPLICANT Melissa Grech RESPONDENT Auburn Council
FILE NUMBER(S):	10984 of 2003
CORAM:	Brown C
KEY ISSUES:	Development Application :- Erection of a residential flat building - Site area - Site coverage setbacks - Open space - Dwelling size - Isolation of adjoining site
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No. 65 Auburn Local Environmental Plan 2000
CASES CITED:
DATES OF HEARING:	04/02/2004 and 05/02/2004
DATE OF JUDGMENT:	03/02/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr B Goldsmith, agent SOLICITORS B T Goldsmith Planning Services RESPONDENT Ms C Schofield, solicitor SOLICITORS Pike Pike and Fenwick

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

10984 of 2003

Brown C

2 March 2004

Melissa Grech
Applicant

v

Auburn Council
Respondent

Judgment

1 This is an appeal against the refusal by Auburn Council (the council) of Development Application No. 565/01 to demolish an existing building and erect a residential flat building at 3 Clarence Street, Lidcombe (the subject site).

2 I record that an inspection of the subject site and surrounding area was undertaken on the morning of the first day of the hearing with representatives of both parties.

3 In balancing the competing evidence, I have concluded that the appeal should be dismissed and the development application refused. I have come to this conclusion principally because of the non-compliance with the relevant planning control in relation to minimum lot size, landscaping and streetscape.

The subject site and surrounding area
4 The subject site is Lot 24, Section 2, DP 751. It is rectangular in shape with the frontage of 15.24 m to Clarence Street (western boundary), a depth of 45.72 m giving a total area of 696.77 m ² . It has a slight fall from the Clarence Street frontage and is subject to flooding.

5 The subject site is currently occupied by a single storey dwelling house and a garage and shed adjacent to the northern boundary.

6 The property to the north at 1 Clarence Street (the adjoining site) is a single storey weatherboard dwelling with the frontages to Clarence Street, Milton Street and Railway Parade. It has a similar frontage to the subject sight to Clarence Street and an area of 680 m ² .

7 The general area contains other single dwellings however the predominant form of development consists of residential flat buildings, up to four storeys in height. A relatively recent residential flat building adjoins the subject site to the south and provides for three residential levels above ground level parking.

The proposed development
8 T he proposed development seeks the demolition of all existing structures and the erection of a four storey residential flat building containing eight apartments above a ground level carparking area for 12 vehicles.

9 The ground level carparking area is an enclosed area and is located at a level approximately 1.85 m above natural ground level at its eastern end. This level is to accommodate the impacts of flooding and is consistent with the recommendations of a recent flood assessment report adopted by the council.

10 The first and second floor levels each contain three apartments with identical floor plans. The most recent plans provide for 2 x 2 bedroom and study and 1 x 1 bedroom and study apartments on each level. The third level contains 2 x 1 bedroom and study apartments.

Relevant planning controls
11 The subject site is within Zone No 2(c) - Residential (Residential Flat Buildings) Zone in Auburn Local Environmental Plan 2000 (the LEP). The proposed development is a permissible use with consent within this zone.
12 Clause 8 provides objectives for specific matters, such as social development (cl 8(3)) and character and amenity (cl 8(4)). Clause 9(5) states that consent must not be granted unless the development is "consistent with the objectives of the zone". Clause 13 provides objectives for the 2(c) zone. In regard to cl 9(5), the council raises no issue with the requirements of this clause.

13 Clause 14 requires that consent that may be granted only if the development is compatible with the existing and likely future character and amenity of nearby properties in terms of a number of specific matters. In this case, the relevant matters are "scale" , "bulk" and "siting" (cl 14(a)).

14 Clause 48 requires that consent must not be granted if the Court "considers that the development will prevent the surrounding lots from being developed in accordance with this plan".

15 Clause 54 relates to flood liable land. The council provided levels from their recent flood assessment report for the basement carpark. These levels were included in the plans before the Court, and as I understand no further issues relating to flooding were pressed by the council.

16 The proposed development is also subject to the requirements of Auburn Development Control Plan 2000 - Residential Flat Buildings (the DCP). The relevant areas in the DCP are Site Area (cl D 2.1), Site Coverage (cl D 2.7), Site Setback (cl D 2.9), Deep Soil Zone (cl D 3.6 - 3.9), Private Open Space (cl D 3.17) and Communal Open Space (cl D3.23, D3.24).

17 The proposed development is also subject to the provisions of State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65).

The issues
18 The council filed a Statement of Issues containing 12 issues. These can be conveniently grouped into the following areas:
1 whether the departures from the DCP requirements for building envelope, site coverage, setbacks, dwellings size, deep soil zone , private open space and communal open space are acceptabl e and provide a building of suitable bulk, scale and appearance in the streetscape, and;
2 whether the proposed development should be approved because of the non-compliance with the minimum site area requirements and the ability of the adjoining property at 1 Clarence Street to be developed in accordance with the LEP.


DCP requirements
19 Mr James Lovell, a town planner provided evidence for the applicant and Mr Jeffrey Mead, also a town planner provided evidence for the council. The experts provided a joint statement although it did little to progress the matter. Both experts acknowledge the subject site is constrained by potential flooding impacts and is below the site area requirements in the DCP. The proposal having a width of 15.24 m and an area of 696.77 m2 compared to the DCP requirement of an average minimum width of 24 m and a minimum site area of 1000 m2. Mr Lovell's overall view was that after considering the constraints, i.e. the flooding and the undersized lot, the proposed development represents an appropriate response to the site and the nature of the surrounding development. Mr Mead takes the opposite view and concludes that the proposed development is unsuitable as the constraints do not justify the extent of the non-compliance with the DCP requirements. The relevant DCP requirements are:

Site area
20 Clause D2.1 requires that " a residential flat building development should have a minimum site area of 1000 m2 and an average minimum width of 24 m". Clause D2.2 states that "where lots are very deep and have narrow street frontages the capacity for maximising residential development is limited. Two or more sites may need to be amalgamated to provide a combined site with sufficient width for board building design" .

21 Mr Lovell states that the proposed development is capable of being accommodated on the subject site without imposing any significant or unreasonable impacts on the amenity of surrounding land in terms of overshadowing, loss of privacy or loss of views. Additionally, the proposed building makes an appropriate response to the streetscape and internal amenity. Mr Mead, on the other hand, sees the proposal as being excessive in bulk and scale when assessed relative to the dimensions of the subject site. While the area is generally characterised by residential flat buildings of similar height and larger footprints, these developments are generally situated on sites significantly larger than the subject site and providing substantially lower site coverage, larger areas of deep soil landscaping and generally significantly larger boundary setbacks. He further suggests that the proposed development will severely limit the potential for the future development of the property at 1 Clarence Street.

Site coverage
22 Clause D2.7 requires the "built upon area should not exceed 50% of the total site area. The non-built upon area should be landscaped and consolidated into one communal open space and a series of courtyards".

23 Mr Lovell calculates the built upon area at 67.5% of the site area. If the portion of the ground level carpark that extends beyond the floor plate of the habitable level above was excluded the built upon area would be 51.5%. In his opinion, the non-compliance primarily arises because of the need to provided ground level parking. Mr Mead calculates the built upon area at 68.3%. He states that the consequence of the excessive built upon area is inadequate area available for landscaping and open space, particularly deep soil planting and insufficient spatial separation between buildings.

Side setback
24 Clause D2.9 requires that the external walls "where those walls have no windows or only windows to bathrooms/laundries, shall be at least 2 m from a side boundary. Where there are windows in the walls to living rooms they should be at least 3 m from a side boundary".

25 Mr Lovell states that the proposed development technically complies with this requirement although this is disputed by Mr Mead. He states that the proposed carpark provides a zero setback to the southern boundary and as such does not comply with the requirements of the DCP. The effect of the zero setback is to limit the area for landscaping and the opportunity to soften the building bulk.

Rear setback/Communal open space
26 Clause D2.10 requires that "rear setbacks should be a minimum of 10 m". Clause D3.23 requires that "communal open space should be usable, having a northern aspect and contain a reasonable proportion of unbuilt upon (landscaped) area and paved recreation area". Clause D3. 24 requires that " the communal open space area should have minimum dimensions of 10 m".

27 Mr Lovell indicates that if the objective of the setback is to provide an area of communal open space then the provision of this form of open space it is not necessary for a development of this size. Further, if the standard also relates to the relationship with adjoining land then the proposed building is sufficiently separated adjoining buildings. Overall, he describes the 10 m setback as impracticable and unnecessary. Mr Mead describes the minimum 3 m setback as unacceptable and reiterates his previous concerns over the reduced area for landscaping. The proposal provides no areas with dimensions of 10 m that can be used for communal open space. The front setback area is inaccessible and could not constitute a communal area. The actual usable area in the rear setback, the deducting service and garden area is used only 21.89 m2 which in the opinion of Mr Mead, fails to satisfy the objectives of the standards.

Dwellings size
28 Clause D2.22 provides a minimum dwellings size based on the number of bedrooms within that dwelling. There was no dispute that the proposal satisfied these requirements if the rooms designated as "study" were not used as bedrooms. Mr Mead expressed some concern that the studies would in fact be used as bedrooms as previous versions of the development application had designated these areas for this purpose. The rooms have the same dimensions and vary only in the provision of double entry doors. Mr Lovell maintained that the change of use for the rooms did not alter the good internal amenity of the apartments, particularly solar access, ventilation and layout.

Deep soil zone
29 Clause D3.6 requires that "at least 30% of the site area should be a deep soil zone …" Clause D3.7 requires that " the majority of the deep soil zone should be provided as a consolidated area at the rear of the building". Clause D3.8 requires that " deep soil zone should have a minimum dimension of 5 m" . Clause D3.9 requires the "deep soil zones should not include any impervious (hard) surfaces such as paving or concrete".

30 Mr Lovell places some emphasis on the unencumbered ground level landscaping to Clarence Street and along the northern and eastern boundaries. The presentation to the south is of diminished visual importance given that the adjoining development does not incorporate any openings or areas of open space orientated towards the subject site. Mr Mead notes that the only area of deep soil provided with the 5 m dimension is located within the front setback and provides an area of only 32 m2 (or 4.6% of the site). Even if those areas less than 5 m are included, the proposal provides deep soil areas of only 134 m2 or 19% of the total site area.

Findings
31 The departures from the requirements of the DCP are not in themselves a reason for the refusal of the development application. These departures must be measured against the objectives of the requirements and, in a broader context, the form of development envisaged by the Council Planning Controls. Clause 8(4)(b) of the LEP has an objective to ensure that development improves the environmental character and quality of streetscapes. Clause 14 requires development to be compatible with the existing unlikely future character and amenity of nearby properties, in relation to scale, bulk and siting.

32 In general terms, the DCP has Built Form objectives that seek to ensure that all development contributes to the improvement of the character of locality, is sensitive to the landscaped setting and environmental conditions of the locality, is of high visual quality and enhances and addresses the street, ensure that the form, scale and height protects the amenity of adjoining properties and that the development relates well to other development (cl 2.0).

33 SEPP 65 provides additional requirements above those set out in the LEP and the DCP. Part 2 provides Design Quality Principles that provide a guide to achieving good design.

Principle 1: Context states " good design respondents and contributes to its context. Context can be defined as the two natural and Built features of an area".
Principle 2: Scale states " good design provides an appropriate scale in terms of the bulk and height that suits the scale of the street and the surrounding buildings".
Principle 3: Built form states "good design provides an appropriate built form for a site and the buildings purpose, in terms of building alignments, proportions, building type and manipulation of building elements".
Principle 4: Density states "good design has a density appropriate for a site and its context, in terms of floor space yields (or number of units or residents)" .
Principle 6: Landscape states " good design recognises that together landscaping and buildings operate as an integrated and sustainable system, resulting in greater aesthetic quality and amenity for both occupants and the adjoining public domain" .


34 In considering the departures from the requirements in the DCP in the context of the more general considerations in the DCP, the LEP and SEPP 65, I prefer the conclusions reached by Mr Mead. While the proposed development satisfies the DCP requirements for floor ratio (FSR) and the building height, I have little doubt that the departures to the DCP requirements are the direct result of the density that is being sought in the development application.

35 The comments of Mr Mead on the site area requirements have some merit. From a streetscape perspective, the proposal will present a much narrower elevation to the street. When combined with the limited area for landscaping, the proposal will be inconsistent with the general form of development in area. I also share the concerns of Mr Mead that the proposed development will likely impact on the redevelopment of the adjoining property. This will likely be to the detriment of the streetscape, character of the area and the form of development envisaged by the DCP. In some circumstances the development of undersized lots may be unavoidable however in this instance the opportunity exists for amalgamation with the adjoining property at 1 Clarence Street. This aspect is addressed in further detail later in the judgment and based on the evidence provided to the Court, this opportunity should be further considered.

36 The existence of the enclosed carparking area abutting the southern boundary is an undesirable element of the design and supports Mr Mead's conclusion that the proposal is an over development. Its presence cannot be simply accepted because it has no impact on the adjoining property. The fact that the carpark extends to the southern boundary is directly related to the amount of carparking that is required to be provided for the amount of development and not any issues associated with flooding, as suggested by Mr Lovell. The loss of this area for landscaping, particularly deep soil planting has an adverse impact on the streetscape. It is a design feature not found anywhere else in the general area and is contrary to many of the objectives in cl 3.0 of the DCP dealing with open space and landscaping, particularly objectives (c) and (f) relating to enhancing the appearance and amenity of residential flat developments through integrated landscape design and providing adequate opportunity for tall trees to grow and spread. It is also inconsistent with Principle 6: Landscape in that dominance is given to built form over landscaping.

37 Similarly, the lack of communal open space cannot be so easily dismissed. Mr Mead conceded that an area of 10 m x 10 m, as required by the DCP, may not be necessary for a development of this size. He did however, suggest that some usable area of communal open space should be provided as part of the development. I concur.

38 The issue over dwelling size was technically addressed through amended plans although I agree with Mr Mead that the simple relabelling of a room to address this issue does not practically address the DCP requirements and only produces an artificial compliance.

39 The design philosophy clearly gives density priority over other DCP requirements. It is not surprising that there are significant departures to the DCP requirements as these requirements are based on a minimum site area. In my view, it is an unreasonable expectation that the maximum density can be achieved on a site so far below the minimum required by the DCP and still achieve a development that would satisfy the objectives of the DCP.

40 The departures from the DCP requirements provide a development that will have a number of unacceptable impacts on the internal amenity of the proposed building and the character and amenity of the wider area. These impacts are of sufficient severity to warrant the refusal of the development application.

Redevelopment of 1 Clarence Street
41 Clause 48 states that consent must not be granted if the Court "considers that the development will prevent surrounding lots from being developed in accordance with this plan" .

42 Mr Lovell considers that the clause can be satisfied as the adjoining site satisfies the minimum site area and average minimum width requirements for other uses permissible in the zone, such as detached dwellings, attached multiple dwellings and detached multiple dwellings. Mr Mead disagrees and states that the proposed development will restrict the development of the adjoining site for a residential flat building through the limited site area and design features of the proposed development. The amalgamation of the subject site and the adjoining site would result in a far superior development parcel and be consistent with the intentions of cl 48.

43 Clause 48 places an obligation on the Court to consider the impact of the development on the adjoining site. If it is found that the development will prevent the adjoining site from being developed in accordance with the requirements of the LEP then consent must not be granted.

44 Mr Lovell's approach to this clause is to say that other forms of development can be carried out on the adjoining site without the need for the amalgamation with the subject site. While this is technically correct, based on the permissible uses within the zone, it is an unlikely scenario. The form of development most likely to occupy the adjoining site (and putting aside the site area requirements) would be a residential flat development. This is recognised in the zone description and is specifically referred to in the relevant zone objective. It is also consistent with the general form of development in area.

45 In considering the practical application of this clause (and also the general planning implications), it is incumbent on the Court to ensure that all reasonable attempts have been made to ensure that the two sites cannot be developed together. This has increased importance when the proposed development seeks approval on a lot below the minimum size and any approval will isolate another lot below the minimum size.

46 Mr Lovell states that attempts to amalgamate the subject site with the adjoining site have been unsuccessful. As I understand, Mr Lovell relies on a paragraph in the council’s officers report (Exhibit 4, Folio 67) on the development application, dated 7 July 2003, which states "the applicant has provided direct evidence of attempts have purchasing the site including telephone calls to the owners, letters and the statutory declaration. The owners of No. 1 Clarence Street have no intention of selling their land".

47 Mr Mead refutes the statement of Mr Lovell. He notes that there is no written response to confirm that the offer made by the applicant to purchase the adjoining site has been rejected. Further, the adjoining site has not been the subject of an independent valuation and as such the adequacy of the offer is uncertain.

48 This issue was the subject of late evidence by both parties. Ms Schofield, the council’s advocate, provided an affidavit (Exhibit 12) addressing a conversation she had with Mr Lam, one of the owners of the adjoining site on 5 February 2004. The affidavit also appends a memorandum from Mr Mead on a conversation with Mr Lam on 4 February 2004. The affidavit describes negotiations between a real estate agent acting on his behalf and representatives of the owner of the subject site. The memorandum and affidavit indicate a willingness by Mr Lam to sell his property. The affidavit states that he was "looking for the market price for the site" . Mr Lam also provided a letter (Exhibit 13) outlining recent negotiations and indicating that he is prepared to sell the property "for a fair market price" . Due to this matter being raised late in the proceedings, Mr Lam was not available for cross-examination on the contents of the memorandum and affidavit.

49 Mr Waise Yusofzai provided oral evidence on this issue for the applicant. He is the husband of the owner of the subject site. He is also identified in Ms Schofield's affidavit as the person who had discussions with the real estate agent acting on behalf of Mr Lam. Mr Yusofzai outlined his recollection of the negotiations over the potential sale of Mr Lam's property.

50 For the purposes of these proceedings is not necessary to delve too deeply into negotiations between the representative of Mr Lam and Mr Yusofzai, particularly in terms of what may constitute a reasonable offer. What can be ascertained is that the recollection of the negotiations differs significantly. Of importance for these proceedings is that the presumption that the adjoining site is not for sale is incorrect. The basis for the statement in the council officer’s report that the owners of the adjoining site have no intention of selling could not be clarified that the hearing. It was suggested that this comment flowed from an affidavit outlining the applicant's attempts to negotiate a sale of the adjoining site. This affidavit was not found on the council’s file and the applicant did not retain a copy after submitting the document to the council.

51 In light of the requirements of cl 48 and also the more general planning considerations relating to the isolation of land through redevelopment, it seems that three main principles apply to any assessment:

Firstly, where a property will be isolated by a proposed development and that property cannot satisfy the minimum lot requirements then negotiations between the owners of the properties should commence at an early stage and prior to the lodgement of the development application.

Secondly, and where no satisfactory result is achieved from the negotiations, the development application should include details of the negotiations between the owners of the properties. These details should include offers to the owner of the isolated property. A reasonable offer, for the purposes of determining the development application and addressing the planning implications of an isolated lot, is to be based on at least one recent independent valuation and may include other reasonable expenses likely to be incurred by the owner of the isolated property in the sale of the property.
Thirdly, the level of negotiation and any offers made for the isolated site are matters that can be given weight in the consideration of the development application. The amount of weight will depend on the level of negotiation, whether any offers are deemed reasonable or unreasonable, any relevant planning requirements and the provisions of s 79C of the Environmental Planning and Assessment Act 1979.


52 If the proposed development is tested against these principles, the evidence does not suggest that an approval should be granted. The court was unable to determine whether a reasonable offer has been made to the owner of the isolated lot. The negotiations, at best, were inconclusive. The provisions of cl 48 place an increased responsibility on the applicant to ensure that the adjoining property can be developed in accordance with the LEP or in this case a residential flat building. Notwithstanding the provisions of cl 48, there is a more general planning responsibility to ensure that land is developed in an orderly manner. The absence of a fixed position by the owners is inconsistent with the requirements of cl 48 and the more general planning approach. Consequently, I find that the proposed development will prevent the adjoining site from being developed for the purposes of a residential flat building and as such the appeal must also fail for this reason.

Orders
1) The appeal is dismissed
2) Development Application No. 565/01 to demolish an existing building and erect a residential flat building at 3 Clarence Street, Lidcombe, is refused
3) The exhibits are returned.

_________________
G T Brown
Commissioner of the Court
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