Meta v Liverpool Council

[2011] NSWLEC 1318

Land and Environment Court

New South Wales

Medium Neutral Citation:

Meta v Liverpool Council [2011] NSWLEC 1318

Hearing dates:

21 October 2011

Decision date:

21 October 2011

Jurisdiction:

Class 1

Before:

Hussey C

Decision:

(1)The appeal is dismissed.

(2)Development consent for DA 57/2011 for the demolition of an existing dwelling and construction of four townhouses at 2 Lamont Place, Cartwright, is refused.

(3)The exhibits may be returned except 1, 7 and A.

Catchwords:

DEVELOPMENT APPLICATION - Multi unit housing, consistency with future character controls, minimum lot size and frontage, car parking/access, setbacks

Legislation Cited:

Environmental Planning and Assessment Act 1979
Liverpool Local Environmental Plan 2008
Liverpool Development Control Plan 2008

Category:

Principal judgment

Parties:

Mr Adrian Meta (Applicant)

Liverpool City Council (Respondent)

Representation:

Mr M Vitale (Applicant's agent)

Mr A Seton (Respondent)

File Number(s):

10634 of 2011

Judgment

1. This appeal was lodged against council's deemed refusal of a development application for the demolition of an existing dwelling and construction of four threebedroom townhouses and eight onsite car parking spaces at No 2 Lamont Place, Cartwright. The site is within an established, predominantly low-density detached dwelling area, where new planning controls were adopted in 2008, rezoning the area to R4 High Density Residential.

1. Within the local neighbourhood, this proposed development is the first such application for the high-density redevelopment. For the appeal, council identified the following contentions:

• The development is inconsistent with the existing and likely future character of the area.
• Car parking and access.
• Non-compliance with frontage and lot size controls.
• Non-compliances with setback controls

1. Full details of the site and planning controls are contained in the Statement of Facts and Contentions on which I rely.

The site

1. The site is known as Lot 562 in DP 236840. It has an area of 720.8 sq m, and it is trapezoidal in overall shape, but with one curved side and splayed corner. It has two road frontages and one pathway frontage along the northern boundary. The primary frontage is 18.2 m to the unnamed pathway along this northern boundary. There is a curved secondary frontage of 35.6 m to Mawson Drive, a side boundary of 43.55 m, and a rear frontage of 18.36 to Lamont Place. The unnamed pathway has a reservation with the 2.743 m and Lamont Place has a reservation width of 12.192 m.

1. The site slopes from north to south from the pathway to Lamont Place. There is currently an existing single storey fibro-clad tiled roof dwelling facing the pathway with a rear garage facing Lamont Place on the side.

1. This property is located within the suburb of Cartwright, which is characterised by the Radburn subdivision pattern. This was initiated by the Housing Commission of New South Wales in its subdivisions created in the 1960s as part of the Green Valley housing development.

Planning controls

1. The planning controls comprise the Liverpool Local Environmental Plan 2008 (LEP) under which the site is zoned R4 - High Density Residential. As the proposal is classified as "multi-unit housing" the development is permissible with consent. The LEP contains a number of development controls which apply, including a maximum FSR of 0.75:1 and a height of 12 m in this area.

1. Other applicable controls include:

Greater Metropolitan REP No 12, Georges River Catchment .

• Liverpool Development Control Plan 2008 (DCP) under which Pt 1.1 contains the General Control for all development. It includes a comprehensive Vision Statement about the desired outcomes for future development.

1. There are additional controls in Pt 1.2 and they are of particular relevance in this matter.

The evidence

1. The main evidence presented was in the form of a joint report by Mr P Flynn, council's senior development planner, and Mr M Vitale, the applicant's architect. Accordingly, I have assessed this evidence on the following basis in order to determine the merits of the applicant's building design, within the planning framework, which apparently envisages a significant change in the character of this area by the introduction of high-density dwellings.

Character of the area

1. Reference to the zoning map shows that there is considerable area contained within the R4 zone. However, these controls also include:

• The FSR map whereby the subject land is within a relatively narrow strip with the allowable FSR of 0.7:1. It seems to be part of a transition area from the R4 land in the south where the FSR is 1.1 and to the north where an FSR of 0.5:1 is allowed in the adjoining RE1 zone.
• Height of building map whereby a height of 12 m is permitted on this transition site. The land to the south has a permitted height of 15 m, and the RE1 land to the north 8.5 m.

1. An interesting feature of this neighbourhood is that it was originally established on the basis of the Radburn design. Whilst there are no specific references to this original development form in the DCP, Mr Flynn says the controls seek to retain the characteristics of Radburn development, particularly dwellings fronting the internal pathway network.

Frontage and lot size

1. The broader building envelope controls are then complimented by the DCP controls, particularly the subdivision frontage and lot sizes. These controls in Part 1.2 of the DCP provide for the minimum lot size for multi-unit dwelling housing to be 1,000 sq m. Alternatively, where development pursuant to s 4 is pursued, the minimum lots size shall be 650 sq m.

1. The specified minimum lot width for multi-unit dwelling housing is 22 m. Where development pursuant to s 4 is proposed, the minimum lot width shall be 18 m. There is a note that the amalgamation of land parcels into larger development sites is encouraged as this will result in better forms of housing development and design.

1. Part 5 of the DCP deals with setbacks, including the following objectives:

(a)   To set back dwellings from the street and adjacent properties to provide reasonable space for landscaping, private open space and solar access.

(b)   To set back dwellings from one another to provide visual and acoustic privacy.

(c)   To provide setbacks that minimise impacts on adjoining neighbours by minimising overshadowing and overlooking.

(d)   To establish a streetscape of a scale and sense of enclosure appropriate to the locality.

(e)   To maximise the amount of area capable of allowing the growth of trees and shrubs.

1. The controls allow for setbacks to the primary frontage varying from 4.5 m (ground) to 5.5 m (1 st floor). The rear setbacks vary from 4 m (ground level) to 4.5 m (1 st floor without windows), or 6 m (1 st floor with windows).

1. Mr Vitale acknowledges these controls and also the fact that the subject site with an area of 720 sq m is below the designated 1,000 sq m minimum lot size. However, he considers the proposal for four townhouses is responsive to the site conditions and that it will result in an appropriate streetscape presentation in this emerging high-density area. He also supports the application on the basis that the FSR is in the order of 0.64:1, which is lower than that permitted.

1. He considers that significant weight should be given to the constraints of the site and the fact that the applicant was unable to amalgamate the adjoining lot to achieve a site larger than that prescribed minimum lot size of 1,000 sq m.

1. Against this, Mr Flynn clearly states that council has no plans to abolish or attempt to reverse the Radburn pattern in the neighbourhood. Accordingly, he does not consider the proposal respects the existing future Radburn character, and in particular, it does not satisfactorily address the pathway.

1. On this basis, he considers the main frontage is to the pathway with the rear boundary adjacent to Lamont Place. Also, the side boundary of this quarter lot is the Mawson Drive frontage. Consequently, the frontage control is 4.5m/5.5 m, and the proposal is in the order of 1 m to 2.079 m, which is a significant deficiency. The rear controls are 4.5 m to 6 m, and the proposal shows at 4, a strict non-compliance with these controls.

1. Taking into account also that the minimum width specified for a frontage is 22 m, and this lot has a frontage in the order of 18 m to the pathway, then Mr Flynn says the cumulative effect of the non-compliance is significant and unacceptable.

Car parking

1. The car parking controls in the DCP require two spaces per large three-bedroom unit, and one visitor space per four dwellings. The proposal would therefore require a total of nine spaces but only provides eight, with the applicant relying on the proposition that there is ample on-street parking for visitors. However, a further concern is that the entry arrangement to unit 4 is severely compromised by the location of the onstreet parking bay that is to remain. Consequently, the curved travel path manoeuvre for vehicles to this dwelling is tight, and not satisfactory to Mr Flynn.

1. I note that during the proceedings the applicant offered to mirror reverse this dwelling unit 4, in order to improve the manoeuvring, but this was not formalised.

Conclusion

1. My conclusion is that having considered the evidence, the submissions, and undertaken a view, I do not consider the proposal merits consent. It is apparent that there is a comprehensive set of recently adopted controls that contain the framework to guide the redevelopment of this area to achieve a higher density outcome.

1. Interestingly, the subject land is somewhat strategically located to act as a transition from the higher and denser development to the predominantly low-density residential RE1 zone. Accordingly, the controls prescribe the minimum lot size of 1,000 sq m with the alternative option that a smaller block with a minimum lot size of 650 sq m can be developed to incorporate affordable townhouse designs.

1. Section 4 deals with this, and it has a number of controls whereby on this smaller lot size there must be at least two dwellings having a maximum floor space of 80 sq m and a carport rather than a garage. However, the application does not comply with the s 4 controls and the applicant advised that it was not pursuing this form of development.

1. Therefore, the deficiency in the minimum area and the frontage for the proposed development is a significant restriction in this case, according to my assessment of the evidence. The associated controls for frontage and setbacks also prescribe the building envelope parameters.

1. In the subject case I am satisfied to rely on Mr Flynn's opinion that the Radburn concept is to be retained. In doing so, I am aware of the applicant's submissions of this type of development in areas has been abandoned for various reasons. Nevertheless, the view indicated that most of the neighbouring dwellings have their main frontages to the pathway in accordance with the Radburn principles.

1. On this basis then, the controls require the 22 m frontage to the pathway and the existing frontage of 18 m is another deficiency. Also, the required setbacks would be in the order of 4.5m to 5.5 m but the proposal is significantly deficient in this area and does not front the pathway.

1. Consequently, I consider that the cumulative effect is that the proposal represents excessive development for the capacity on this existing lot size, notwithstanding that a proposal is less than the allowable FSR .75:1. Considering the desired outcomes from the current set of controls, it seems they encourage the amalgamation of lots to achieve a more open but higher form of development, which particularly satisfies the building setback and building footprints.

1. However I do not consider this application achieves this. While some negotiations have apparently been undertaken with the adjoining property owner, there is no substantive evidence to confirm that an amalgamation was unrealistic or unachievable.

1. From reference to the zoning/ building height maps, it is apparent that this site is part of a somewhat unusual smaller sliver of land that is to provide the transition from the higher residential flat buildings of 15 m height and in its corner position off Mawson Drive, it will be one of the main entry gateways to the Radburn pathways.

1. In these circumstances, I accept that the appropriate building setbacks should be provided, so the pathway is relatively open to provide an attractive entrance to the other internal properties. The non-compliance with the main frontage does not achieve this condition in my opinion.

1. In summary then, I do not consider this proposal has adequately responded to the particular site constraints of the 720 sq m lot in its corner location adjacent to the existing pathway as required by the LEP and DCP controls. Therefore, I do not consider its approval would positively contribute to the redevelopment outcome proposed by these controls, particularly the transition between the various residential zones. If the amalgamation option is unrealistic, then I consider the s 4 option in the DCP should be considered prior to any significant departure from the controls is allowed, as proposed by this application.

Court orders

1. Accordingly, the Court orders are:

(1)   The appeal is dismissed.

(2)   Development consent for DA 57/2011 for the demolition of an existing dwelling and construction of 4 townhouses at No 2 Lamont Place, Cartwright, is refused.

(3)   The exhibits may be returned except 1, 7 and A.

R Hussey

Commissioner of the Court

Decision last updated: 07 November 2011