Moscaritolo v Ryde City Council

[2012] NSWLEC 1024

Land and Environment Court

New South Wales

Medium Neutral Citation:

Moscaritolo v Ryde City Council [2012] NSWLEC 1024

Hearing dates:

30 January 2012

Decision date:

07 February 2012

Jurisdiction:

Class 1

Before:

Brown ASC

Decision:

1. The appeal is upheld.

2. Development Application LDA2011/120 for the demolition of all existing improvements and the construction of an Affordable Rental Housing development at 22 Myra Ave, Ryde is approved subject to the conditions in Annexure A.

3. The exhibits are returned with the exception of exhibits 2 and B.

Catchwords:

DEVELOPMENT APPLICATION: demolition of all existing improvements and the construction of an Affordable Rental Housing development - compatibility of the proposed development with the character of local area - consistency with the zone objectives - floor space ratio - resident concerns

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Ryde Local Environmental Plan 2010
State Environmental Planning Policy (Affordable Rental Housing) 2009

Cases Cited:

Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191

Category:

Principal judgment

Parties:

Gino and Anna Moscaritolo (Applicants)
Ryde City Council (Respondent)

Representation:

Mr G McKee, solicitor (Applicants)
Ms C Morton, solicitor (Respondent)
McKees Legal Solutions (Applicants)
Sparke Helmore (Respondent)

File Number(s):

10945 of 2011

Judgment

1. ACTING SENIOR COMMISSIONER: This is an appeal against the refusal by Ryde City Council of Development Application LDA2011/120 for the demolition of all existing improvements and the construction of an Affordable Rental Housing development at 22 Myra Ave, Ryde (the site).

1. The development provides four dwellings in two detached buildings and their subdivision. Two dwellings are located in each building. Single garages are proposed for Dwellings 2, 3 and 4 and a tandem garage for Dwelling 1 off the longer frontage of Myra Avenue with two dwelling sharing a common driveway.

1. The appeal was subject of conciliation conferences on 16 December 2011 (including a site inspection) and 30 January 2012 under s 34 of the Land and Environment Court Act 1979 (the Court Act). As no agreement was reached, the conciliation conference was terminated pursuant to s 34(4)(a). The parties consented to me disposing of the proceeding forthwith pursuant to s 34(4)(b)(i) and on the basis of what occurred at the conciliation conference pursuant to s 34(4)(b)(ii).

1. The contentions raised by the council relate to:

• the incompatibility of the proposed development with the character of local area and the inconsistency with the zone objectives relating to streetscape and character,
• the excessive floor space ratio (FSR), and
• the breaches of the Ryde Multi Dwelling Housing Development Control Plan 2010 (the DCP) and Seniors Living Policy .

1. Other contentions raised by local residents, and not raised by the council, include:

• loss of privacy,
• overshadowing,
• impact on a nearby heritage property,
• removal of established trees,
• increasing drainage and storm flow, including the existence of a natural spring,
• pedestrian safety, and
• increased street parking.

The site

1. The site comprises Lot D in DP 22520. Myra Street is u-shaped and the site has frontages of around 15.265 m and 55.85 m to Myra Avenue and a total site area of 865.6 sq m. The site is similar to a corner lot. There are no significant trees on the site however there are a number of trees/shrubs along the boundaries.

1. The area comprises predominantly residential development of different forms and of different ages. A school is located on the corner of Myra Avenue and Lane Cove Road.

Relevant planning controls

1. The site is within the R2 Zone under Ryde Local Environmental Plan 2010 (LEP 2010) although the application is submitted under the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (the ARH Policy). The ARH Policy applies by way of cl 20 and the reference to Zone R2 in cl 20(b).

1. The development application was lodged with the council on 15 March 2011 and the ARH Policy was amended on 20 May 2011. Clause 54A states:

54A Savings and transitional provisions-2011 amendment

(1) .

(2) If a development application (an existing application ) has been made before the commencement of the amending SEPP in relation to development to which this SEPP applied before that commencement, the application may be determined as if the amending SEPP had not been made. (my emphasis)

1. In this case, the applicant accepted the council's position that the application be considered under the amending provisions of the ARH Policy notwithstanding that the lodgement of the development application pre-dated the amending provisions of the ARH Policy and the flexibility provided by cl 54A.

1. Relevantly, cl 8 of the ARH Policy states:

8 Relationship with other environmental planning instruments

If there is an inconsistency between this Policy and any other environmental planning instrument, whether made before or after the commencement of this Policy, this Policy prevails to the extent of the inconsistency.

1. Clause 14 provides standards that cannot be used to refuse consent. These standards relate to site area, landscaped area, deep soil zones, solar access, car parking and dwellings size. There was agreement that the proposed development satisfies these standards.

Character/ streetscape

The evidence

1. A fundamental difference between Mr Don Smith, the council's expert town planner and Mr Andrew Minto, the applicant's expert town planner was the presentation to the longer frontage to Myra Avenue, where the garages are located below a level of accommodation. Mr Smith maintains that the building form is not compatible with the character of the local area. In accepting that multi dwelling housing can be compatible with the character of a low-density residential area, Mr Smith states that the proposed development does not have a defined two-storey component on the street frontage with a single storey dwellings behind. Multi dwelling housing is often characterised by a single storey carports that provide a separation between dwellings. The proposed development, by the use of basement garages, presents as two storeys to the street and does not provide a separation to create a visual appearance of four separate dwellings. The excavation required to provide access to the garages will also result in the footpath being of an undulating appearance.

1. Mr Minto disagrees and maintains that the proposal is compatible with the character of the area. Mr Minto maintains that the height, bulk and scale of the proposed development is compatible with dwellings located on the adjoining properties, particularly given the prevalence of two-storey dwellings within the locality. In relation to the character test required by cl 16A of the ARH Policy; Mr Minto states that the question of compatibility is not about a proposal being the same as other development, but rather being capable of existing in harmony with other development and respecting the streetscape of the locality ( Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191 ). Despite the immediate area being dominated by single dwelling houses, there are also examples of multi dwelling housing in the vicinity of the site.

Findings

1. The character test referred to by Mr Minto is found in cl 16A and states:

16A Character of local area

A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the

local area.

1. The clause requires the Court to consider whether the proposal "is compatible with the character of the local area". Without this consideration, consent cannot be granted. "Local area" is not defined in the ARH Policy however Myra Avenue, together with the cul-de-sacs of Adam Street and Semple Street, forms a distinct precinct with the only access to this area from Lane Cove Road.

1. I agree with Mr Minto that Project Venture provides some guidance in considering the question of compatibility. The relevant parts state:

Planning principle: compatibility in the urban environment

22 There are many dictionary definitions of compatible. The most apposite meaning in an urban design context is capable of existing together in harmony. Compatibility is thus different from sameness. It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve.

23 It should be noted that compatibility between proposed and existing is not always desirable. There are situations where extreme differences in scale and appearance produce great urban design involving landmark buildings. There are situations where the planning controls envisage a change of character, in which case compatibility with the future character is more appropriate than with the existing. Finally, there are urban environments that are so unattractive that it is best not to reproduce them.

24 Where compatibility between a building and its surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked.

Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites.

Is the proposal's appearance in harmony with the buildings around it and the character of the street?

25 The physical impacts, such as noise, overlooking, overshadowing and constraining development potential, can be assessed with relative objectivity. In contrast, to decide whether or not a new building appears to be in harmony with its surroundings is a more subjective task. Analysing the existing context and then testing the proposal against it can, however, reduce the degree of subjectivity.

26 For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment. In some areas, planning instruments or urban design studies have already described the urban character. In others (the majority of cases), the character needs to be defined as part of a proposal's assessment. The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping . In special areas, such as conservation areas, architectural style and materials are also contributors to character.

27 Buildings do not have to be the same height to be compatible. Where there are significant differences in height, it is easier to achieve compatibility when the change is gradual rather than abrupt. The extent to which height differences are acceptable depends also on the consistency of height in the existing streetscape.

28 Front setbacks and the way they are treated are an important element of urban character. Where there is a uniform building line, even small differences can destroy the unity. Setbacks from side boundaries determine the rhythm of building and void. While it may not be possible to reproduce the rhythm exactly, new development should strive to reflect it in some way.

29 Landscaping is also an important contributor to urban character. In some areas landscape dominates buildings, in others buildings dominate the landscape. Where canopy trees define the character, new developments must provide opportunities for planting canopy trees.

1. In this case, I accept that any assessment of the proposed development against the character of the local area should include an assessment of existing building forms and also the character envisaged by the forms of development contemplated by the R2 Zone, i.e., Dual occupancies (attached), Dwelling houses, and Multi dwelling housing. This was an approach adopted by Mr Smith but with a different conclusion. The Dictionary defines "dual occupancy (attached)" as "two dwellings on one lot of land that are attached to each other, but does not include a secondary dwelling" and "multi dwelling housing as "three or more dwellings (whether attached or detached) on one lot of land, each with access at ground level, but does not include a residential flat building" . The DCP provides further requirements for these forms of development.

1. I disagree with Mr Smith that it is not necessary that development under the ARH Policy should slavishly follow the form of development anticipated by the DCP for dual occupancies and multi dwelling housing. The test in cl 16A is compatibility and not replication. The ARH Policy is a State wide planning policy and clearly allows for a form of development that may not necessarily reflect the exact form anticipated by a local government authority. This is highlighted by cl 8 that gives primacy to the ARH Policy over any other environmental planning instrument but, importantly only so far as any development is compatible with the character of local area. The words in Project Venture about compatible developments being "capable of existing together in harmony" and "generally accepted that buildings can exist together in harmony without having the same density, scale or appearance" have added importance in this context.

1. The local area is best characterised as exclusively residential with the exception of the school located on the corner of Myra Avenue and Lane Cove Road. The form of residential development is varied and often reflects the undulating topography. Older style residential dwellings predominate although some have significant alterations to include a second storey and some, due to the topography, have a garage underneath the living areas of the dwelling. Some newer forms of residential development have a similar configuration. There are also a number of substantial contemporary two-storey residential dwellings and what appear to be new villa developments. The local area also contains a heritage item. There is no consistent theme of fencing at the street boundary or consistent landscaping within the front setback area although most properties have some form of landscaping in this area.

1. If the proposed development is considered against the matters set out in Project Venture and in the context of the character of the local area, then I accept the conclusions of Mr Minto. I am satisfied that the proposed development will be in harmony with the buildings around it and the character of the street, given the building height, setbacks and landscaping of the proposed development. The absence of a separation between the buildings and the use of garages below the living areas of the dwellings, does not, in my view, raise issues of such significance, given the existing form of development in the local area, that it would be a reason to refuse the application on character and streetscape grounds. I note that Mr Smith raised no concerns over the physical impacts on surrounding development or site coverage, front setback and side setbacks.

1. Mr Smith also raised concern over the inconsistency with some objectives in the R2 Zone. These objectives are:

1 Objectives of zone

· To ensure that the general low density nature of the zone is retained and that development for the purposes of dual occupancy (attached) and multi dwelling housing (attached) do not significantly alter the character of a location or neighbourhood.

· To ensure that new development complements or enhances the local streetscape.

· To ensure that land uses are compatible with the character of the area and responsive to community needs.

1. Mr Smith's concerns, in relation to be zone objectives, are similar to those he expressed over cl 16A and unsurprisingly, Mr Minto's responses were similar to those he expressed in relation to this clause. For reasons outlined in the previous paragraphs, I am satisfied that the proposed development will not be inconsistent with the character of the neighbourhood or area and the local streetscape.

Floor space ratio

1. The difference between Mr Smith and Mr Minto centres on whether the FSR requirements in LEP 2010 are applicable. Mr Smith maintains that any increase in the FSR requirements in cl 4.5A of LEP 2010 must be accompanied by written submission under cl 4.6 of LEP 2010. Mr Smith acknowledges that any increase in FSR is permissible however any increase needs to be justified and this has not been done.

1. Mr Minto relies on the provisions of cl 13 of the ARH Policy, relating to FSR, to override the FSR requirements in LEP 2010. The proposal provides for an FSR of 0.545:1, which exceeds the LEP 2010 requirement of 0.5:1 by 9%. Based on cl 13(2)(a)(ii), 9% of the floor area of the development is to be provided as affordable housing. He notes that Dwelling 3 (the affordable dwelling for the development) has a floor area of 106.25 sq m. This floor area equates to 22.25% of the total floor of the development, therefore exceeding the required 9% in cl 13(2)(a)(ii).

1. On the issue of FSR, I agree with Mr Minto. There is no dispute that the proposed development satisfies the requirements in cl 13 and as cl 8 requires that the ARH Policy prevails over LEP 2010 to the extent of any inconsistency, there is no basis to refuse the development application because the proposed development does not comply with the FSR requirements in LEP 2010.

Parking

1. Mr Smith maintains that no visitor parking has been provided ,which is inconsistent with cl 3.8.1 of the DCP. Mr Minto maintains that the proposed development satisfies requirements in cl 14(2)(a) of the ARH Policy and as such, car parking cannot be reason to refuse the application. On the issue of car parking, I agree with Mr Minto. There is no dispute that the proposed development satisfies the requirements in cl 14(2)(a) and as cl 14 identifies standards that cannot be used to refuse consent, the absence of visitor car parking spaces cannot be a reason for refusal.

The DCP/Seniors Living Policy

The evidence

1. Mr Smith and Mr Minto disagree on the weight to be given to the provisions of the DCP. Mr Smith states that the DCP controls are complimentary to those in the ARH Policy and in the event of any inconsistency the provisions of the ARH Policy prevail. He also states that the application does not address the design requirements of the Seniors Living Policy as required by cl 15 of the ARH Policy or provide justification for non-compliance with the relevant provisions of the DCP. In his opinion, the proposed development is in conflict with the Seniors Living Policy by way of its two-storey presentation and massing (Context, Design, Streetscape and Impact on Neighbours). In relation to the DCP, Mr Smith's concerns also relate to the design and the two-storey appearance in the street. Other matters in the DCP, as such as site coverage and building setbacks considered acceptable while other concerns may be addressed by way of conditions.

1. Mr Minto states that the primary development controls are those contained within the ARH Policy with the secondary controls, to the extent that those provisions are consistent with the ARH Policy, contained within the Seniors Living Policy. In his opinion, the relevance of the DCP is more generic and is of assistance only in gaining an appreciation of the likely future character, in so far as it is relevant in determining the compatibility, in accordance with cl 16A. The ARH Policy seeks to provide for a scale of development greater than that which would be permitted by council's controls and as such departures from the DCP should be expected. Notwithstanding the departures, Mr Minto is of the opinion that the form of development is generally consistent with that envisaged by the DCP and is compatible with the character of development within the area.

Findings

1. Mr Smith consistently raises the issue of the two-storey presentation of the proposed development to the street and neighbours and the consequent massing. These concerns are raised through different avenues, such as the character test in cl 16A, the non-compliance with the DCP and the Seniors Living Policy. The DCP is not an irrelevant consideration but in the same way as this LEP 2010 must give way to the ARH Policy where there is any inconsistency, the DCP must reasonably also give way to the ARH Policy, even though it is not a defined environmental planning instrument, like LEP 2010.

1. I agree with Mr Minto that the ARH Policy was designed to provide for a development that was not necessarily the same as the forms of development permissible in the zone. The aims in cl 3 clearly seek to facilitate and create incentives for the development of affordable rental housing through specific development standard. Development under the ARH Policy is not however unconstrained, as cl 16A requires a consideration of the compatibility of the proposed development with the character of the local area. In this case, I have found the proposed development to be compatible with the character of local area.

Resident concerns

1. The local residents, at the site inspection and the correspondence with the council raised a number of contentions, not raised by the council. With the benefit of the site inspection and an understanding of the architectural plans, I am satisfied that the contentions relating to loss of privacy and overshadowing do not warrant the refusal of the application. Any privacy issues with the adjoining property are addressed by the location of windows and fencing at ground level. Given the orientation of the block, there will be no overshadowing impacts.

1. The affect on the heritage item at 26-28 Myra Avenue ("Palmyra") was addressed in a Statement of Heritage Impact by Archnex Designs where it concluded that there are no adverse impacts either on the setting or significant of "Palmyra". I concur with this conclusion.

1. As I understand, amendments were made to the proposed design that retained the existing streets trees, with the exception of a single tree that is required to be removed. The landscape plan provides for a replacement tree, considered acceptable by the council. The loss of a street tree would not be reason to refuse the application.

1. A number of residents raised concerns over drainage and storm flow, including the existence of a natural spring, however this was not a matter raised by council. In the absence of any expert evidence to refute the position of the council that the drainage design is acceptable, including the existence of a natural spring, I accept that this matter is adequately addressed by the council's drainage conditions.

1. In accepting that the proposed development may generate increased street parking, the proposal provides appropriate levels parking based on the requirements in the ARH Policy. Similarly, and accepting that the proposed development will likely bring additional population for the area, I do not accept that this automatically creates unacceptable levels of pedestrian safety.

Conditions

1. A number of conditions were dispute between the parties at the hearing however further agreement was reached over the re-drafting of some conditions, such as condition 1 that identifies the approved plans and condition 37 that addresses sight lines for vehicles entering and leaving the garages. The remaining conditions in dispute are:

1. Condition 1(a) - this condition requires the wall separating the living area and study in Houses 3 and 4 to be deleted. The council seeks this condition to ensure that the study is not used as a bedroom where as the applicant maintains that a sufficient amount of wall has already been removed to ensure it is not used as a bedroom. After considering the architectural plans, I agree with the applicant's submission and the condition can be deleted.

1. Conditions 74 and 78 - these conditions require the construction of a footpath along the frontages of the site. The applicant opposes these conditions on the basis that there are no other footpaths in the area and in the absence of these footpaths, there is no utility in providing them just for the site. I accept this submission and the conditions can be deleted.

Orders

1. The orders of the Court are:

1. The appeal is upheld.

2. Development Application LDA2011/120 for the demolition of all existing improvements and the construction of an Affordable Rental Housing development at 22 Myra Ave, Ryde is approved subject to the conditions in Annexure A.

3. The exhibits are returned with the exception of exhibits 2 and B.

____________

G T Brown

Acting Senior Commissioner

**********

Decision last updated: 10 February 2012