Multiplan Constructions Pty Ltd v Campbelltown City Council
[2016] NSWLEC 1208
•31 May 2016
|
New South Wales |
Case Name: | Multiplan Constructions Pty Ltd v Campbelltown City Council |
Medium Neutral Citation: | [2016] NSWLEC 1208 |
Hearing Date(s): | 29 April 2016 |
Date of Orders: | 31 May 2016 |
Decision Date: | 31 May 2016 |
Jurisdiction: | Class 1 |
Before: | Tuor C |
Decision: | (1) The appeal is upheld. |
Catchwords: | DEVELOPMENT APPLICATION: Multi dwelling housing. Objectors concerns, loss of residential amenity, compatibility with character of the local area and removal of canopy trees. |
Legislation Cited: | Environmental Planning and Assessment Act 1979 |
Cases Cited: | Blackmore Design Group Pty Limited v North Sydney Council 2001 NSWLEC |
Category: | Principal judgment |
Parties: | Multiplan Constructions Pty Ltd (Applicant) |
Representation: | Counsel: |
File Number(s): | 2016/158135 (previously 10848 of 2015) |
JUDGMENT
Multiplan Constructions Pty Ltd (applicant) is appealing under s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of a development application (DA2775/2014DA-MAH) by Campbelltown City Council (council) for demolition of an existing dwelling and construction of multi-dwelling housing comprising nine two storey dwellings and strata subdivision at 17 Lyndia Street, Ingleburn (site).
The contentions in the Amended Statement of Facts and Contentions filed by council on 8 April 2016 have been resolved by amended plans, conditions and the agreement of the experts. The parties are not seeking consent orders from the Court but council does not press its contentions.
Site and locality
The site is located on the western side of Lyndia Street and is rectangular in shape with a street frontage of 20.115m and side boundaries of 90.53m and an overall area of 1821sqm.
The site has a slope from the front to the rear and contains a number of large trees principally along the southern boundary and towards the rear of the site. The site is developed with a detached dwelling.
Adjoining the site to the north is a recent subdivision with detached dwellings that front Michael Place (1-7 Michael Place). To the west, the site adjoins a large lot with trees in the rear and a single dwelling that fronts Drumalbyn Street (5 Drumalbyn Street) and to the south it adjoins dwellings which front Desmond Avenue (14-18 Desmond Avenue) and Lyndia Street (19 Lyndia Street. The back yards of all these dwellings face the site.
Surrounding development is predominantly detached dwellings with some multi-dwelling housing developments.
Background and proposal
The development application was lodged on 19 November 2014 and notified to nearby properties. The report to council recommended approval of the application but it was refused on 18 August 2015.
The applicant lodged an appeal against on 22 September 2015. A conciliation conference under s34 of the Land and Environment Court Act1979 was held. The parties did not reach agreement and the conference was terminated. On 4 March 2016, the applicant was granted leave to rely on amended plans which were renotified. At the commencement of the hearing, the applicant was granted leave to rely on further amended plans which made minor changes to the application in response to the evidence of the planning experts.
The application seeks consent to:
Remove all existing vegetation on the site;
demolish the existing structures;
construct nine two storey dwellings (1x4 bedroom, 6x3 bedroom, 2x2 bedroom), a common driveway, carparking for 11 cars and a communal bin enclosure;
landscaping; and
strata subdivision.
Statutory framework
The site is zoned Residential 2(b) – Residential B Zone under Campbelltown (Urban Area) Local Environmental Plan 2002 (LEP 2002). The proposal is defined as “multi dwelling housing” under LEP 2002 and is permissible with consent. The proposal is also permissible under the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) and the application was considered under this policy and the other relevant matters under s79C of the EPA Act.
The aims of SEPP ARH in cl 3 are:
(a) to provide a consistent planning regime for the provision of affordable rental housing,
(b) to facilitate the effective delivery of new affordable rental housing by providing incentives by way of expanded zoning permissibility, floor space ratio bonuses and non-discretionary development standards,
(c) to facilitate the retention and mitigate the loss of existing affordable rental housing,
(d) to employ a balanced approach between obligations for retaining and mitigating the loss of existing affordable rental housing, and incentives for the development of new affordable rental housing,
(e) to facilitate an expanded role for not-for-profit-providers of affordable rental housing,
(f) to support local business centres by providing affordable rental housing for workers close to places of work,
(g) to facilitate the development of housing for the homeless and other disadvantaged people who may require support services, including group homes and supportive accommodation.
Clause 8 provides that if there is an inconsistency between SEPP ARH and any other environmental planning instrument the Policy prevails to the extent of the inconsistency.
Part 2 Division 1 of SEPP ARH applies to in-fill affordable housing, including multi-dwelling housing subject to certain criteria (cl 10).
Clause 13 of SEPP ARH applies if the percentage of gross floor area of the development used for affordable housing is at least 20%. It provides a “bonus” floor space ratio (FSR) which would permit a maximum FSR for the development of 0.72:1. The proposed FSR is 0.48:1.
Clause 14 of SEPP ARH provides standards which cannot be used to refuse consent including site area, landscaped area, deep soil zones, solar access, parking and dwelling size. The parties agreed that these are met.
15(1) of SEPP ARH requires that provisions of the Seniors Living Policy: Urban Design Guidelines for Infill Development published by the Department of Infrastructure, Planning and Natural Resources in March 2004 (Seniors Guidelines) must be considered.
Clause 16A of SEPP ARH provides:
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.
Campbelltown (Sustainable City) Development Control Plan (DCP) is relevant only to the extent that it is not inconsistent with the provisions of SEPP ARH and it provides a guide as to the likely future character envisaged for the area. Section 3.9 of the DCP includes provisions for multi dwellings, which include minimum allotment width of 22.5m, density requirements of two dwellings for the first 700sqm and one dwelling per 300sqm thereafter and maximum FSR of 0.45:1, side setbacks of 900mm for ground floor and 1.5m for first floor, minimum private open space of 60sqm for each dwelling with minimum level area of 5x5m.
Campbelltown Local Environmental Plan 2015 (LEP 2015) commenced in March 2016 after the lodgement of the application and the provisions of cl 1.8A apply (see Blackmore Design Group Pty Limited v North Sydney Council 2001 NSWLEC, Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC, Terrace Tower Holdings Pty Limited v Sutherland Shire Council 2003 NSWCA). Under LEP 2015, the site is zoned R2 –Low Density Residential and the development is permissible with consent, the maximum building height is 8.5m (cl 4.3), the maximum FSR is 0.45:1 (cl 4.4(2A), and the minimum lot size for multi-unit housing is 1000sqm with a minimum lot size of 300m if subdivided (cl 4.1(c)).
The evidence
The Court visited the site and heard from objectors whose principal concerns were that the height, bulk and density of the proposal was not compatible with the character of the area of predominantly detached dwellings. In particular, they were concerned about the row of two storey dwellings close to the common boundary and rear private open space of the properties that front Michael Place and the impacts of overlooking and noise. They were also concerned about the removal of trees on the site which contribute to the character and amenity of the area and the increased traffic and demand for parking generated by the proposal.
A joint report of planning experts has been prepared by Mr P Grech, for the applicant and Mr G Turrisi, for the council (Exhibit 1). The joint report addresses how the Contentions have been resolved and concludes that no contentions remain in dispute.
In response to the evidence of the objectors, the Court raised concerns about the compatibility of the proposal with the character of the locality, including the removal of all exiting trees on the site. The planners were given the opportunity to provide oral evidence to address this issue.
Mr Grech and Mr Turrisi agreed that the existing character of the locality was one and two storey single detached housing with some multi-dwelling housing. Under the planning controls, the desired future character would maintain this character with further larger blocks being redeveloped for multi-dwelling housing. The controls anticipate the form of development proposed for the site. In particular, the development is below the maximum building height in LEP 2002 and LEP 2015 and, although marginally above the maximum FSR in LEP 2015, it is well below what is permissible under SEPP ARH. From the street the development appears as a single dwelling that is setback 5-7m consistent with the setback of other dwellings. There is a single driveway that is offset with landscaping to screen the full length of the driveway and avoid a “gun barrel”.
Internally, the dwellings along the length of the site are separated by single storey elements to break up the length and bulk of the building. Units 1-7 have their courtyards adjoining the rear and/or private open space of the dwellings in Michael Place. The courtyards exceed the minimum width of 3m under the DCP. The ground floor of the dwellings to the rear (Units 8 and 9) are set back 5m and the first floor the setback is 10m, which is consistent with the DCP. The experts agreed that the proposal will not result in any unreasonable impacts such as overlooking, noise or loss of solar access to adjoining dwellings. The internal living areas and courtyards of the proposed dwellings would achieve a minimum of three hours sunlight in midwinter and the experts recommended changes to the landscaping plan to limit overshadowing of the courtyards by vegetation.
The experts had sought to have Tree 4 retained but the Supplementary Arborist Report indicates that this is not feasible due to its proximity to the driveway and the garages of Units 6 and 7. They considered the removal of all 13 trees from the site to be reasonable as they will be replaced by 17 trees that are more able to adapt to the development, particularly the size of the courtyards. Some of the replacement trees will be the same species as those that are to be removed. The experts considered that large canopy trees are not part of the existing character of the locality. Furthermore, it is difficult to retain large canopy trees on multi-dwelling developments and provide access for vehicles, courtyards and increased residential density. They also did not consider that tree retention of large canopy trees or their replacement on multi dwelling developments will be part of the desired future character of the area. They noted that there are no specific requirements in the planning controls to retain existing canopy trees or to provide large replacement canopy trees on multi-dwelling developments.
The experts addressed the objectors’ concerns in relation to parking. Even though the proposal does not meet the requirements under the DCP, it satisfies those in SEPP ARH and the application cannot be refused on this basis.
Similarly, the width of the site does not meet the minimum width of 22.5m in the DCP but satisfies the 20m minimum in the Seniors Guidelines.
The only disagreement between the experts related to whether to ground floor plan of Unit 7 should be mirror reversed. Mr Turrisi considers that it should be as it would achieve a better connection between the outdoor and indoor living areas. Whereas Mr Grech considers that while the mirror reverse option would be acceptable, it is unnecessary as Unit 7 already achieves an acceptable indoor/outdoor relationship and the façade of Units 6 and 7 is better resolved if the garages are joined with a complementary first floor projection and gable immediately above.
Submissions
Mr Wright, for the applicant, submits that the contentions have been resolved by the amended plans and the agreement of the experts. Furthermore, the experts have adequately addressed the concerns of the objectors and those of the Court in relation to the compatibility of the development with the character of the local area. He referred to the report to council (Report), which recommended approval of the application and included an assessment of the character of the local area and concluded that the proposed building height, bulk and scale, setbacks and architectural style and materials are consistent with development in the locality and the requirements of the planning controls. It stated:
An architectural outcome similar to that proposed under this application would not be unexpected were a multi-dwelling development to be constructed on the site without the use of the Affordable Housing SEPP provisions.
In dealing with the requirements of the Seniors Policy and the DCP in relation to tree retention, the Report referred the Arboricultural Impact Assessment and Flora and Fauna Assessment Report and concluded that the existing trees on the site were not significant enough to warrant retention.
Mr Nash, for the council, made similar submissions that the contentions had been resolved but that the Court must have regard to the submissions of the objectors.
Findings
Clause 16A of SEPP ARH requires a consideration of whether the design of the development is compatible with the character of the local area. LEP 2015 and the DCP provide guidance as to the desired future character. Similarly the Seniors Guidelines provide guidance to the character sought for development under SEPP ARH.
The experts have agreed the proposal would be compatible with the existing and desired future character of the area. The existing character is predominantly large detached dwellings with some landscaping and few canopy trees. The desired future character under LEP 2015 and the DCP permits multi- dwelling housing and this is likely to occur on large blocks such as the site and the adjoining property to the rear. The built form of the proposal is generally consistent with the built form sought under the planning controls. The height, bulk and scale of the dwellings is not dissimilar to the that of surrounding development, although the space between and surrounding the dwellings is less than for detached dwellings but is not dissimilar to what is anticipated for medium density development. The landscape setting is also not dissimilar to what would be envisaged for a multi dwelling development on the site if it did not contain existing trees that are worthy of retention.
The removal of all the trees on the site is a negative feature of the development and I do not agree that it is an inevitable consequence of multi - dwelling development on this or other sites or that the desired future character for multi - dwelling development sought under the planning controls would generally preclude the retention of existing trees on the site. Existing trees on a site are a constraint, which needs to be addressed in the design of new developments and it may not be possible to achieve the maximum density envisaged under the controls.
It is not sufficient to prepare an arboricultural assessment which identifies trees with high retention value but concludes that the trees cannot be retained due to the design of the development. Particularly, if alternate designs have not been considered. The arboricultural report should inform the design rather than justify it. If the automatic conclusion of an arboricultural report is that significant trees can be removed because they are within the development footprint then there is little point in applicants being required to incur the expense of preparing such an assessment.
The location of significant trees on a site may preclude their retention, particularly if they are located in the centre of a site or would result in unreasonable impacts on the functional requirements or the development potential of a site. However, in some cases, a more skilful design may be able to achieve these outcomes and retain the tree. These are factors that should be considered at the design stage of the development and justification should be provided as to why a tree that is identified as significant cannot be retained.
It is also not sufficient to rely on replacement trees to justify the removal of significant existing trees. While a landscape plan may indicate that a tree of the same species is to be provided it is unrealistic to consider that a 20m high tree with a spread of 10m that has taken decades to grow and has sufficient space to accommodate its size will be replaced by a tree, which will achieve the same size in a courtyard with a width of 5m. Even if it were to achieve this size and the canopy were to be above the dwelling and courtyard, this is likely to result in conflict between the users of the courtyard and the tree, particularly as the tree canopy would effectively cover the courtyard and restrict solar access.
Furthermore, if a tree is a threatened species or forms part of an ecologically endangered community (EEC) there are requirements under the EPA Act, Threatened Species Conservation Act 1995 (TS Act) and the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) principally to determine whether removal of the tree would further endanger the species. These requirements are different to whether a tree is worthy of retention due to other factor such as the visual amenity it provides to an area.
The above factors are relevant to the consideration of tree retention which is required under the Seniors Guidelines and the DCP. However, in the circumstances of this case, the evidence before the Court in the Report, the Arboricultural Impact Assessment and Flora and Fauna Assessment Report as well as the evidence of the experts is that the existing trees on the site are not significant enough to warrant being retained, that the proposed landscaping would enhance the development and consists of locally endemic species and that the proposed landscaping would be compatible with the existing and desired future character of the area. In the absence of expert evidence to the contrary, I accept that this would not be sufficient reason to warrant refusal of the application. Similarly, the concerns raised by the objectors have been addressed by the experts and would not be reasons to warrant refusal of the application.
Conditions
The proposed conditions have been agreed by the parties with the exception of conditions 30 and 57. Part of condition 30 requires amendments to Unit 7 discussed by the experts. I accept the evidence of Mr Grech that this change is not required as the paved area is easily accessible off the living area. I have therefore deleted this part of condition 30.
Condition 57 requires a geotechnical report prepared by a NATA registered lab if excavation or filling exceeds 900mm in depth or is identified as filled land. The applicant submits that this is an onerous condition as the site is generally flat and no excavation is proposed beyond 900mm, except potentially for the footings. Council submits that it is a standard condition and that it should be imposed as so many properties adjoin the site and potential impacts should be minimised. In the absence of geotechnical information, including whether the site has been filled, I accept that the condition should be imposed but have excluded the requirement for excavation of footings beyond 900mm.
Orders
(1)The appeal is upheld.
(2)The development application (DA2775/2014 DA-MAH) for demolition of an existing dwelling and construction of multi-dwelling housing comprising nine two storey dwellings and strata subdivision at 17 Lyndia Street, Ingleburn, is approved subject to the conditions in Annexure A.
(3)The exhibits, except Exhibits A, D and E, are returned.
Annelise Tuor
Commissioner of the Court
158135.16 Tuor (C) (340 KB, pdf)
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