Randall v Ashfield Council

[2012] NSWLEC 1287

Land and Environment Court

New South Wales

Medium Neutral Citation:

Randall v Ashfield Council [2012] NSWLEC 1287

Hearing dates:

30-31 August 2012Conditions filed 14 September 2012

Decision date:

17 October 2012

Jurisdiction:

Class 1

Before:

Tuor C

Decision:

See paragraph 44 and 45

Catchwords:

DEVELOPMENT APPLICATION, residential units. Height, streetscape and solar access.

Legislation Cited:

Ashfield Local Environmental Plan 1985
Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development
State Environmental Planning Policy No. 1 - Development Standards.

Cases Cited:

Project Venture Developments v Pittwater Council [2005] NSWLEC 191

Category:

Principal judgment

Parties:

David Randall (Applicant)

Ashfield Council (Respondent)

Representation:

Ms S Duggan, barrister (Respondent)

Mr G McKee, solicitor (Applicant)
Solicitors
McKees Legal Solutions (Applicant)

Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

10530 of 2012

Judgment

1. This is an appeal against the refusal by Ashfield Council (council) of a development application (DA10.2012.051) under the Environmental Planning and Assessment Act 1979 (the Act) for the demolition of existing industrial buildings, alterations and additions to the existing heritage item, construction of 27 dwellings within 4 new residential buildings and a new underground car park for 43 cars at 67-75 Smith Street, Summer Hill (site).

1. The contentions that remain in dispute are whether the height of the terrace houses on Smith Street is acceptable and whether their two storey form is consistent with the streetscape and whether the dwellings within the development achieve an adequate level of solar access.

The site and its context

1. The site comprises three adjoining allotments known as 67, 71 and 75 Smith Street, Summer Hill and is located on the northern side of the road between Lackey and Fleet Streets. It has a frontage of 45.89 m, depth of 68.15/ 83.75 m and site area of 3567 sq m.

1. A two storey factory building is located at No. 71 and a staff carpark is provided on No. 75. The dwelling house at 67 Smith Street is listed as a heritage item under Ashfield Local Environmental Plan 1985 (LEP 1985) and is currently used as an office associated with the neighbouring industrial use. A substantial garden area exists to the front of this property.

1. Surrounding development is mixed, with residential, industrial and commercial buildings in close proximity to the site. Adjoining development to the west of the site is a row of single storey attached dwellings (79-89 Smith Street) with a residential flat building at the rear (91A Smith Street). To the east, are industrial buildings (51-61 Smith Street). Dwelling houses are located further east and the Summer Hill local village is further west. An industrial building (96 Smith Street) and dwellings are located immediately opposite the site. Dwellings adjoin the site to the rear with frontages to Carlton Crescent.

The proposal

1. During the hearing, the applicant was granted leave to rely on amended plans. The main change made was the deletion of an "attic" third storey within the roof space of the proposed buildings. The effect of that change is that the provisions of State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP 65) no longer apply to the application and the contention in relation to a "Design Verification Statement" was resolved. The change also resolved the contentions in relation to floor space ratio (FSR) and overdevelopment of the site.

1. The development application, for which consent is now sought, includes alterations and additions to the existing single storey heritage building for use as a three bedroom dwelling (Building E). The existing front garden is retained and utilised as the main communal open space area for the development.

1. The remaining buildings on the site would be demolished and four new buildings erected above a basement car park for 43 cars accessed via a ramp in the south-western corner of the site off Smith Street.

1. Building A would address Smith Street. It comprises four attached, two storey, terrace-style dwellings. Each dwelling has ground floor living, kitchen and dining areas and courtyards are provided to the front and rear. The upper floor contains two bedrooms and bathrooms.

1. Building B would be located to the rear of Building A and in the centre of the site. It is a two storey residential flat building containing nine units (2 x 2 bedrooms, 6 x 1 bedroom and 1 x studio).

1. Building C is located in the north-western corner of the site and contains 10 units (1 x 3 bedrooms, 2 x 2 bedrooms, 6 x 1 bedroom and 1 x studio).

1. Building D would be attached to the rear of the heritage dwelling and contain 4 units (1 x 2 bedrooms and 3 x 1 bedroom).

The planning controls

1. The site is zoned 2(b) Residential under LEP 1985 and the development is permissible with consent.

1. 67 Smith Street is listed as a heritage item under Clause 31 and Schedule 7 of the LEP 1985 and the site is located within the vicinity of the Quarantine Ground Heritage Conservation Area.

1. Clause 17A of LEP 1985 contains development standards in relation to the height of residential flat buildings which relevantly provides:

(1) This clause applies to land within Zone No 2 (b) or 2 (c).

(2) In this clause:

height, in relation to a building, means the greatest vertical distance (expressed in metres) between any level of the natural surface of the site area on which the building is, or is to be, erected and the ceiling of the topmost habitable floor of the building.

natural surface, in relation to a site area, means the level determined by the council to be the natural surface of the site area.

(3) The maximum height to which a residential flat building may be erected on land to which this clause applies shall be:

(a) in the case of a building within Zone No 2 (b)-6 metres, and.....

1. Building A exceeds the 6m ceiling height in cl 17A and an objection to the development standard has been lodged under the provisions of State Environmental Planning Policy No. 1 - Development Standards (SEPP1).

1. Ashfield Development Control Plan 2007 (the DCP) applies to the development and relevantly includes provisions in relation to Access, Adaptability and Mobility (Part C1); Multi-Unit Development in Residential Zones (Part C5); Heritage Conservation (Part C10); Public Notification in the Planning Process (Part C12) and Planning for Less Waste (Part D1).

1. Appendix 4 of the DCP provides site specific provisions for 55-75 Smith Street, Summer Hill, which are in addition to those for multi unit development in Part C5 of the DCP.

1. The council exhibited Draft Ashfield Local Environmental Plan (the draft LEP) from 27 June to 21 August 2012. Under that plan the existing heritage house at 67 Smith Street, the adjoining terraces at 79-89 Smith Street and houses to the north of the site fronting Carlton Crescent identified as 42-43, 46-47 and 48 are proposed heritage items. Additional conservation areas are also proposed in the vicinity of the site under the draft LEP. Those are the Summer Hill, Tavistock Estate and Fleet Street Conservation Areas.

The evidence

1. The hearing commenced on site and evidence was heard from a number of objectors to the application, prior to the amendments that deleted the "attic" storey. The key concerns were the potential conflict between pedestrians and vehicles; the height and bulk of the buildings and the precedent that a third storey would set for a development on the remainder of the land under the site specific controls in Appendix 4 of the DCP; overshadowing and privacy impacts; and the excessive number of dwellings.

1. Expert town planning and urban design evidence was provided by Mr D Furlong and Mr D Hopkins, for the applicant, and Mr P North and Mr R Dickson, for the council.

1. Mr G Brooks, for the Applicant, prepared a Heritage Impact Statement and a Joint Report with Mr R Moore, for the council. These experts recommended changes to the development that have been incorporated into the amended application and the draft conditions. These address the contentions raised by council and the heritage experts were not required for cross examination.

Height and streetscape

1. The key contention in the proceedings was the height of the development resulting from the inclusion of "attics" in the roof space. Council contended that the "attics" represent the ceiling height of the top most habitable floor and result in three storey buildings, which exceed the height control in cl 17A of LEP 1985 and cl 5.9 in Part C5 of the DCP. The amended application included the removal of the "attics" which resolved this contention. Although the overall height and roof form remained unaltered.

1. In the amended proposal, Buildings B, C and D comply with the height limit in cl 17A of LEP 1985. Part of Building A still exceeded the height limit, being 6.3 m above the "natural surface" to the ceiling height of the top most habitable floor. The variation results from the building's compliance with cl 13 of Appendix 4 of the DCP, which provides:

Floor levels of dwellings along Smith Street shall be a minimum of 600mm above footpath level in order to maintain privacy for occupants. .....

1. The experts agree that the setback of Building A from Smith Street is sufficient to maintain privacy for the occupants and that the floor level could be reduced to 300 mm above footpath level. The applicant has agreed to a condition to this effect and consequently the proposal, as further amended, would comply with the 6m ceiling height control in cl 17A of LEP 1985 and an objection under SEPP 1 is not required.

1. Although the proposal, with the proposed condition, complies with the numerical control in cl 17A, council experts maintained their concern about the height of Building A, being two storeys. Mr Dickson and Mr North considered that Building A should be single storey with an "attic" to meet the requirements of cl 2 of Appendix 4 of the DCP which provides:

Housing/dwellings along Smith Street shall be designed to appear as if they are terrace houses, and take architectural cues, or mimic, the forms of adjacent and nearby historic dwellings, in order to complement the character of the street

1. In Mr North and Mr Dickson's opinion, the form of adjacent and nearby historic dwellings is single storey and consequently a two storey development does not complement the character of the street. They recognise that there are two storey buildings in the area but these are predominantly commercial/industrial buildings, with only a couple of two storey dwellings in the visual catchment that they consider forms the character of the street. They were particularly concerned about the relationship of Building A to the adjoining single storey dwelling at 67 Smith Street, which is a heritage item under LEP 1985, and the single storey terraces at 79-89 Smith Street, which are proposed heritage items under the Draft LEP.

1. Mr Furlong acknowledges that the "adjacent and nearby historic dwellings" are mostly single storey but that other nearby dwellings are two storeys as well as larger commercial/industrial buildings. He stated that the proposal complies with the 6 m height limit in LEP 1985 and that the height limit proposed in the Draft LEP is 9 m (although this is to the highest point of the building). In his opinion, Building A is consistent with what is envisaged for the site under the planning controls.

Findings

1. Building A is four attached terraces that, with the proposed reduction in height, comply with the height control in LEP 1985. Clause 5.9 in Part C5 of the DCP permits 2 levels in the 2(b) zone. The site specific controls in Appendix 4 of the DCP do not contain a height control nor do they limit the dwellings along Smith Street to single storey. Clause 2 of Appendix 4 refers to the dwellings along Smith Street. It requires that they are "designed appear as if they are terrace houses". The parties agree that this is achieved. Clause 2 also requires that the houses "take architectural cues, or mimic, the form of adjacent and nearby historic dwellings in order to compliment the character of the street."

1. Ms Duggan SC, for the council, submits that the "adjacent and nearby historic dwellings" are the only buildings in the street that can be considered. These are predominantly single storey and therefore the proposal must also be single storey to compliment the character of the street.

1. The adjacent and nearby dwellings are single storey, however, I do not accept that this is the only architectural cue that the proposal must respond to, or that it is only this form that must be mimicked to achieve a complementary development. The difference in scale between a single storey and a two storey form is not so disparate that it would preclude a two storey development on the site along Smith Street. Particularly, given that the heritage experts raise no objection to the two storey scale and its relationship to the adjoining heritage and draft heritage items and the conservation area opposite the site.

1. Part 10C of the DCP identifies the Distinctive Qualities of the Quarantine Ground Conservation Area, which include the "variety of housing types, styles and materials" and identify that "to keep all the attributes of the Conservation Area" it is necessary to retain the "existing scale of development - a mixture of one and two storeys".

1. As noted by Roseth SC in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 at [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.

1. A similar principle would apply to determining whether a development complements the character of a street. The two storey form of Building A is agreed by the heritage experts to be compatible with the heritage significance of the conservation area, the adjoining heritage items and the proposed heritage items.

1. Ms Duggan submits that cl 2 of Appendix 4 limits the consideration to only "historic dwellings" whereas the consideration by the heritage experts and the applicant's experts included non-residential uses in the conservation area. While this may be the case, I do not accept that it would alter the conclusion that a two storey proposal can complement the streetscape which includes a "variety of housing types, styles and materials".

1. The proposal is setback five metres from Smith Street as required by cl 10 of Appendix 4, which complements the setback of the adjoining single storey terraces. The proposal is separated about nine metres from these terraces by the driveway and planting, in a similar manner that a driveway separates the single storey terraces from the commercial buildings to the west. The experts agree that the style and materials of the terraces are acceptable. The proposal adequately responds to these architectural cues.

1. In reaching this conclusion, I note that the pitch of the roof of Building A is 34 degrees which is similar to that of adjoining and nearby dwellings, however, the springing point of the roof results in it being a dominant element and some four metres higher than the ceiling height. The scale relationship between Building A and the adjoining terraces would be improved if the roof pitch were reduced to 30 degrees or if the pitched roof extended over the front of the building with a skillion at the rear. The introduction of dormer windows, as previously proposed, would further add to the dominance of the roof element and would be inappropriate in the context of the street.

1. As discussed below, a reduction in the roof pitch and the eaves of Buildings B, C and D would improve solar access within the development. It would also reduce the dominance of the roof form, which adds considerably to the bulk and height of the buildings. This was raised as a concern by the residents, which I accept is valid. The roof form results from the original proposal to include "attics" within the roof space. The "attics" were deleted in the amended proposal but the roof form remained the same. As the "attics" are no longer included in the proposal before the Court, the bulk and height of the proposal should be reduced by reducing the pitch of the roof and the depth of the eaves. Further, the height of the buildings exceeds the 9 m height limit in the Draft LEP. While this is not imminent and certain, it is a relevant consideration.

Solar access

1. The council contends that the amended proposal does not achieve the solar access requirements of cl 5.16 of Part C5 of the DCP. The applicant has proposed conditions which will reduce the overshadowing resulting from Buildings B and C within the development. These conditions include a reduction in the southern eaves to 600 mm deep and the roof pitch of Buildings B and C from 34 degrees to 30 degrees. As well as the living room glazing to units 6, 7, 15 & 16 being moved in a northerly direction by 750 mm and the walls separating the outdoor area of these units being reduced in height. Solar access would be further improved if the other eaves of Buildings B and C and those of Building D were reduced to 600 mm and if the roof pitch of Building D were also reduced to 30 degrees. These changes would further reduce the overall height and bulk of the development by reducing the dominance of the roof forms from within the development and from adjoining properties. I accept that with these changes to proposal will achieve acceptable solar access.

Conditions

1. During the hearing the applicant sought an amendment to the requirement to pay the s 94 contribution prior to the issue of the Construction Certificate (CC) to be payable instead prior to the Occupation Certificate (OC). The parties' agreed conditions were filed on 14 September 2012, which amends the condition to require payment prior to the issue of the CC for any structure or any part of any structure (excluding a construction certificate for excavation or earthworks only). I accept that this is a reasonable resolution of the dispute between the parties on this issue.

Conclusion

1. For the reasons discussed above, I am satisfied that with the above changes, the proposal will have an acceptable impact and may be approved. However, as the proposed changes to the roof form of Buildings A and D were not discussed in any detail with the applicant during the hearing, it is appropriate to allow the applicant time to consider the implications of this decision. Further, while the changes could be imposed as conditions, it is preferable that they be incorporated into a final set of plans and conditions to ensure consistency and certainty in the development consent.

1. If the applicant chooses not to incorporate the above changes, Orders will be issued in Chambers dismissing the Appeal.

1. If the application chooses to incorporate the above changes and those in the proposed conditions, Orders will be issued in Chambers upholding the appeal once the plans and conditions which reflect this decision are finalised.

Directions

1. The applicant is to advise the Court by ecourt on 22 October 2012 whether it intends to amend the plans to reflect this decision. If so, the applicant is to file and serve plans which incorporate the changes by 29 October 2012. The parties are to file agreed conditions by 2 November 2012.

1. Final Orders will be issued in Chambers

_______________________

Annelise Tuor

Commissioner of the Court

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Decision last updated: 17 October 2012