Rickard Road Developments Pty Limited v City of Ryde; Mansooreh Rahimishahmirzadi v City of Ryde

Case •

[2014] NSWLEC 1104

•

02 June 2014

Land and Environment Court


New South Wales

Medium Neutral Citation: Rickard Road Developments Pty Limited v City of Ryde; Mansooreh Rahimishahmirzadi & Anor v City of Ryde [2014] NSWLEC 1104
Hearing dates:12-14 February 2014
Decision date: 02 June 2014
Jurisdiction:Class 1
Before: Tuor C
Decision:

Appeal No 10722 of 2013

1. The appeal is dismissed.

2. The development application LDA2013/0057 for a residential flat building at 7-9 Smith Street, Ryde, is refused.

3. The exhibits, except Exhibit 1, may be returned.

Appeal No 10747 of 2013

1. The appeal is dismissed.

2. The development application LDA2013/0289 for a residential flat building at 11 Smith Street, Ryde, is refused.

3. The exhibits, except Exhibit 2, may be returned.

Catchwords: DEVELOPMENT APPLICATIONS: residential flat buildings on adjoining land, amalgamation of allotments, side setbacks, whether "good design"
Legislation Cited: Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development
Ryde Local Environmental Plan 2010
Draft Ryde Local Environmental Plan 2013
Category:Principal judgment
Parties:

10722 of 2013
Rickard Road Development Pty Limited (Applicant)
City of Ryde (Respondent)

10747 of 2013
Mansooreh Rahimishahmirzadi
Reza Babiei (Applicants)
City of Ryde (Respondent)
Representation:

Mr C McEwen SC (Applicants)

Mr A Galasso SC (Respondent)
McKees Legal Solutions (Applicants)

Maddocks Lawyers (Respondent)
File Number(s):10722 of 2013 10747 of 2013

Judgment

  1. These are two related proceedings which, by consent of all parties, were heard concurrently. They relate to the construction of residential flat buildings over two adjoining properties at 7-9 and 11 Smith Street, Ryde (the sites).

  1. Appeal No 10722 of 2013 was lodged by Rickard Road Development Pty Limited (Rickard) and is against the refusal by Ryde Council (council) of Development Application LDA2013/0057 which sought consent for the "construction of underground parking for 19 cars, and 2x4 storey towers containing 12 two bedroom units, and 4 one bedroom units" at 7-9 Smith Street (Rickard site).

  1. Appeal No 10747 of 2013 was lodged by Mansooreh Rahimishahmirzadi Reza Babiei (Mansooreh) and is against the deemed refusal by the council of Development Application LDA2013/0289 which sought consent for the:

Demolition of existing house, construction mixed use development comprising 16 dwelling, basement car parking, subsequent strata subdivision" at 11 Smith Street (Mansooreh site). The application relies on a right-of-way across the Rickard site for vehicle access to the basement car park.

  1. The key issues in dispute between the parties are whether the proposed developments are "good design" as a result of the inadequate building separation and unacceptable bulk and scale. Council also contends that a single development application should be lodged for an amalgamated site.

The sites and their context

  1. The Rickard site comprises lots 1 and 3 in DP 528448. Each allotment contains one of a pair of semi-detached single storey dwellings used as professional consulting rooms. The combined area of the lots is 836.2sqm with a frontage of 18.29m and a depth of 45.72m. The land falls approximately 900mm to the street and also has a northerly cross fall of approximately 600mm at the rear to 1100mm at the front.

  1. The Mansooreh site comprises lot 12 in DP 5558. It has a frontage of 18.29m, depth of 45.72sqm and site area of 836.2sqm, and has similar crossfalls to the Rickard site.

  1. The sites are on the eastern side of Smith Street, opposite the intersection of Curzon Street. Ryde Public School, a listed heritage item of local significance, partially adjoins the rear boundary of 7 Smith Street. A residential flat building is currently under construction to the north east of the site, at 13 Smith Street.

  1. The locality comprises mainly dwelling houses and professional consulting businesses to the east of Smith Street and predominantly residential flat buildings to the west. Ryde Shopping Centre is at the southern end of Smith Street.

Background and the proposals

  1. The Rickard development application was lodged with the council on 11 March 2013. It involved the following works:

  • Demolition of existing site improvements and tree removal;
  • Construction of four storey and five story residential flat buildings comprising 16 apartments (4 x 1 and 12 x 2 bedroom) over a single level basement carpark for 19 vehicles;
  • Use of proposed unit 1 as a home business (home office);
  • Strata subdivision.

  1. The council refused consent on 26 August 2013.

  1. The Mansooreh development application was lodged on 9 August 2013 and proposed:

  • Demolition of existing site improvements and tree removal;
  • Construction of 2 x 5 storey residential flat buildings with 16 apartments (1 x 1 bedroom with home office, 2 x 1 and 13 x 2 bedroom) above a single level basement carpark for 18 vehicles (with a notation that one space is for 7-9 Smith Street);
  • Provision of vehicular access to that carpark through the adjoining property (7-9 Smith Street) by way of a right-of-carriageway to be registered over that land.
  • Strata subdivision

  1. Mansooreh lodged an appeal against the deemed refusal of the development application on 26 September 2013 and the council has not determined the matter since that date.

  1. With the exception of the vehicle entry to the basement carpark, the proposals have been designed so that they could be built independently with a party wall proposed along the common boundary of the sites. It is proposed to register a right-of-way to provide for single vehicular entry point to the carpark.

  1. Prior to the hearing the applicants sought and were granted leave by the Court to rely on amended plans that reflected some of the issues raised in the council's original Statements of Facts and Contentions. (Exhibits B and C). The changes to the plan reduce the number of parking spaces in the Rickard basement to 18 and alter the layout and design of the buildings. During the hearing, leave was granted for further amendments to the Mansooreh development to principally address an anomaly in the survey information for this site.

The planning controls

  1. The sites are zoned B4 - Mixed Use under the provisions of Ryde Local Environmental Plan 2010 (LEP 2010). The developments are permissible with consent in the B4 zone.

  1. The aims of the plan are contained in clause 1.2 and are:

(a) to create a broad framework of controls for the future development of all land in Ryde,
(b) to encourage the management and development of land to provide a range of land uses, employment activities and housing types that respond to the welfare of the citizens of Ryde,
(c) to conserve items and places in Ryde that are of natural, indigenous, cultural, social and historical significance,
(d) to manage development of Ryde to create a better environment.

  1. Clause 2.3(2) of LEP 2010 requires that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. The objectives of the B4 zone are:

    • To provide a mixture of compatible land uses.
    • To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.
    • To create vibrant, active and safe communities and economically sound employment centres.
    • To create safe and attractive environments for pedestrians.
    • To recognise topography, landscape setting and unique location in design and land-use.

  1. Ryde Development Control Plan 2010 (DCP 2010) applies to the sites and includes the following objectives in cl 1.5:

    • To enhance the existing amenity and character of the City of Ryde;
    • To ensure new development is appropriate for its site and context;
    • To provide guidelines for specific development types and development sites to ensure appropriate high quality development within the City of Ryde.

  1. The DCP also contains controls relevant to the contentions in the appeals including Part 4.4 - Ryde Town Centre, Part 8.3 - Driveways and Part 9.2 - Access for People with disabilities.

  1. State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65) and the Residential Flat Design Code (RFDC) are also relevant to the applications.

  1. Draft Ryde Local Environmental Plan 2013 (Draft LEP) is a relevant consideration but there is no material difference with the provisions of LEP 2010 that are relevant to the appeals.

The evidence

  1. The Court visited the site and surrounding area and heard from objectors to the developments. The key concerns were that the proposals are an overdevelopment of the sites which would affect the residential amenity of the surrounding area, particularly through unacceptable bulk, increased traffic generation and demand for on street parking.

  1. The Court heard expert planning and urban design evidence from evidence from Mr S Reddy and Mr B McDonald, for the council, and Mr A Minto and Mr S Kennedy, for the applicants. Mr D Pearce, for the council, and Mr R Varga, for the applicant, provided evidence on vehicle access and the design of the basement car park.

  1. Ms N Tarlao, council's heritage officer, acknowledged that the impact of the proposal on the heritage significance of Ryde Public School was acceptable. Her principle concern was that the reduced setbacks would establish a pattern of development for other sites in Smith Street, which would impact on view corridors to the school and it heritage significance. Ms Tarlao was not required for cross examination.

  1. The key issue in dispute between the planning and urban design experts was whether the setbacks were adequate and whether each development would provide an acceptable urban form if developed separately, given that the sites had not been amalgamated and the proposals were separate development applications.

  1. Mr Minto and Mr Kennedy considered that despite the proposals being separate applications designed by different architects, they presented a coordinated approach and streetscape presentation with shared access, internal courtyard, setbacks, materials and design approach. The experts acknowledged that driveway access from 11 Smith Street would be logical but that the proposed location was acceptable as it was in a central location for both sites and did not result in traffic or design issues. They were not concerned that if 11 Smith Street did not proceed or was not commenced at a similar time to 7-9 Smith Street that it would result in an unacceptable development. In their opinion, the process of two separate applications was little different to a staged development.

  1. Mr Minto and Mr Kennedy acknowledged that the nil setback between 7-9 and 11 Smith Street provided a benefit to both sites by enabling greater floor space. They did not consider that a blank wall on the boundary would be an unacceptable presentation if either development did not proceed. Particularly, as a similar form of development could result if the sites were developed for commercial purposes, which is permissible within the zone and no side setback control is specified.

  1. Mr Minto considered the side setbacks to 13 and 5 Smith Street of less than the three metres and the blank façade walls were reasonable and did not result in unacceptable impacts of visual bulk, privacy or overshadowing. He noted that the setback distances recommended in the RFDC recognise that on "narrow infill" sites building separation may not be able to be achieved. Although, on cross examination, he conceded that the combined sites were not "narrow".

  1. Mr Minto and Mr Kennedy considered that the side setbacks were consistent with the character of existing residential flat buildings and would be appropriate response to the emerging character sought for the area. In their opinion, two terraces at 13 Smith Street front the central courtyard between the proposed buildings on 11 Smith Street and therefore the visual bulk would be acceptable. Similarly the visual bulk of 5-9 would be acceptable when viewed from the existing house at 5 Smith Street and would not prejudice the redevelopment of this site.

  1. Mr Reddy and Mr McDonald agree that a coordinated approach to the development of the two sites is preferable but consider that this should be achieved through a single development application and amalgamation of the sites. Mr McDonald considered that the applications gained the benefit of a zero setback on the common boundary but did not fully achieve the benefits of a consolidated approach given matters such as the location of the access driveway not being at the lowest point of the site, inefficiencies in the design such as lift and fire stair locations and fire separation for each site.

  1. Furthermore, Mr McDonald considered that the setback from the side boundaries, landscaping and extent of blank walls resulted in an unacceptable visual impact on the adjoining properties and the streetscape. The rear terraces and dining areas of the recent residential flat building at 13 Smith Street are orientated towards 11 Smith Street. Mr McDonald acknowledged that the six metre setback of 13 Smith Street and the change in levels between its terraces and 11 Smith Street shown in Exhibit U would achieve an acceptable, although not optimal, relationship between the courtyards of the two developments. However, he considered that the two metre setback of the rear building at 11 Smith Street was inadequate and would present an unacceptable four to five story bulk and visual presentation when viewed from most of 13 Smith Street, which would be further exacerbated by the elevated basement above ground level.

  1. In Mr McDonald's opinion, a three metre setback was a compromise and below what was recommended in the RFDC. It did not enable 11 Smith Street to take advantage of its north east elevation and the predominantly blank wall with narrow windows were not a desirable urban design outcome. The proposed setback was insufficient to enable adequate landscaping to screen the blank walls.

  1. Similarly, Mr McDonald and Mr Reddy considered that the setback of less than three metres from the boundary of 5 Smith Street was inadequate. Although they accepted that a setback of 1.65m at ground level for the home office and Bedroom 1 of Unit G.1 might be acceptable as it was at a lower level to 5 Smith Street and would improve the entrance arrangements for the building. The south west elevation of the buildings would present as four to five storey blank walls to Smith Street and the adjoining house, which has an unacceptable visual bulk that is not able to be screened by landscaping due to the inadequate setback. The redevelopment options for 5 Smith Street would also be limited as it would need to provide a greater setback to meet the requirements of the RFDC, particularly if it were to take advantage of its north east aspect with openings to habitable rooms facing 7-9 Smith Street.

  1. In Mr McDonald's opinion, parallel "walls of buildings" separated by internal courtyards was not the form of development sought for Smith Street. It is important to provide "breaks" between buildings, the higher the building the greater the separation, to provide appropriate urban form, landscaping and environmental conditions such as solar access and ventilation. It is also important to maintain view corridors to Ryde Public School. Both Mr McDonald and Mr Reddy considered that a three metre setback to be a 'compromise' and the minimum requirement to meet the objectives of the "Rule of Thumb" in the RFDC and that in the context of the site anything less was unacceptable. In their opinion, the setback and resultant bulk of development did not satisfy the design quality principles in SEPP 65.

  1. Mr McDonald and Mr Reddy were concerned about other aspects of the proposed developments which include:

  • the efficiency of the basement garage layout;
  • the location of the access driveway to minimise ramp gradients and the raised ground floor levels of 11 Smith Street, although they acknowledged that this had improved with the correct survey information and amended plans;
  • access to the rear communal open space;
  • the amenity and functionality of the central open space due to fire stairs, ramps and level changes;
  • removal of the existing "significant" eucalyptus tree in the north west corner of 7-9 Smith Street;
  • the size of some balconies and units;
  • provision of storage; and
  • compliance with fire safety requirement of National Construction Code (NCC)

  1. Mr Minto and Mr Kennedy considered that the above were either not matters of concern or could be dealt with by conditions or minor redesign of the proposal. Mr McDonald and Mr Reddy agreed that some matters could be addressed by conditions but that others would require changes to the development and that there is a degree of uncertainty with the final design. Mr McDonald noted that due to the constraints of the sites and the "tight planning" of the developments, changes would be best addressed by a development application for an amalgamated site.

Findings

  1. The two appeals are separate development applications for adjoining sites. 11 Smith Street relies on 7-9 Smith Street for vehicular access to its basement car park and 11 Smith Street provides one car parking space for 7-9 Smith Street. Mr McEwen SC, for the applicants, and Mr Galasso, SC, for the council, made different submissions as to the power of the Court to impose a condition under s 80A(1) on 7-9 Smith Street, obliging it to provide access to 11 Smith Street. They agreed that the Court had the power to impose a condition on 11 Smith Street requiring it to obtain access from 7-9 Smith Street. It is not necessary for me to adjudicate on these competing submissions as, for the reasons discussed below, I have found that neither of the development applications achieves "good design" for the purpose of SEPP 65, and both must fail.

  1. Although the development applications have common elements, they are separate applications for different sites and each application must be assessed independently under s 79C of the Environmental Planning and Assessment Act 1979 against the relevant considerations. There is clearly the intention of the current applicants that each development will proceed in the form proposed, however, there is no certainty that this will occur. For whatever reason, circumstances can change and even if there are legal arrangements between the owners, an owner can decide not to proceed with a development consent or can seek to amend such a consent. The impacts of each application must be acceptable in its own right and not rely on the development proposed for the adjoining site to achieve acceptability. The development application on the adjoining site is relevant, but I must be satisfied that the development proposed for 7-9 Smith Street is acceptable even if the development for 11 Smith Street does not proceed, and vice versa.

  1. The key difference of opinion between the experts in both appeals is whether the side setbacks are adequate to achieve "good design".

  1. SEPP 65 establishes ten design quality principles for residential flat development to "provide a guide to achieving good design". These include Context (cl 9), Scale (cl 10), Built Form (cl 11), Density (cl 12), Landscape (cl 14) and Amenity (cl 15). Clause 30(2)(b) requires consideration of the design quality of the residential flat development when evaluated in accordance with the design quality principles.

  1. The RFDC provides additional detail and guidance for applying the design quality principles and under cl 30(2)(c) of SEPP 65 it must be taken into consideration.

  1. Part 1 of the RFDC includes a Primary Development Control for Building Separation which provides the following "rule of thumb":

Objectives
    • To ensure that new development is scaled to support the desired area character with appropriate massing and spaces between buildings.
    • To provide visual and acoustic privacy for existing and new residents.
    • To control overshadowing of adjacent properties and private or shared open space.
    • To allow for the provision of open space with appropriate size and proportion for recreational activities for building occupants.
    • To provide deep soil zones for stormwater management and tree planting, where contextual and site conditions allow.
Designing the controls
    • For buildings over three storeys, it is recommended that building separation increase in proportion to building height to ensure appropriate urban form, adequate amenity and privacy for building occupants. Suggested dimensions within a development, for internal courtyards and between adjoining sites are:
- up to four storeys/12 metres
-12 metres between habitable rooms/balconies
-9 metres between habitable/balconies and non-habitable rooms
-6 metres between non-habitable rooms
- five to eight storeys/up to 25 metres
- 18 metres between habitable rooms/balconies
- 13 metres between habitable rooms/balconies
and non-habitable rooms
- 9 metres between non-habitable rooms
.........
    • Allow zero building separation in appropriate contexts,
such as in urban areas between street wall building
types (party walls).

  1. Section 4.4(k) of DCP 2010 also requires a statement, which outlines how the design quality principles of the RFDC are met.

Appeal No 10722 of 2013 for 7-9 Smith Street

  1. The council's experts consider that under the RFDC a greater setback than 3m should be provided from the south west boundary of 5-9 Smith Street. They accept a "compromise" setback of three metres but that this is the minimum acceptable setback for a 4 - 5 storey building. The predominant setback proposed for the front building is 2.64m and the rear building is 2m. I accept the evidence of the council experts that this is inadequate and does not meet the objectives for building separation in the RFDC. The orientation of the buildings towards the front, rear and central courtyard means that issues of privacy are addressed with the reduced setback. Solar access is also not raised as a concern. However, the height of the buildings relative to the setback from the boundary does not provide a scale of development, which is consistent with the desired character sought for the area.

  1. The experts agree that this part of Smith Street is an area undergoing transition and is on the border of two zones, but they disagree on the desired future character for the area. The applicant's experts consider a continuous wall of buildings with no or minimal setback is an appropriate model for future development, particularly given that the land is within a mixed use zone and commercial or development other than residential may occur and there are examples of earlier residential flat buildings with minimal setbacks. I do not accept that this is the model for future development for this part of Smith Street.

  1. Under DCP 10 the site is within (or adjoins due to a mapping error) Precinct 6, which is a "commercial edge precinct" that is a transition between the town centre and nearby residential areas. I accept the council's experts opinion that the most likely form of development is residential with ground floor commercial and that the appropriate form of development is one which provides adequate separation between buildings consistent with the recommendations of the RFDC to ensure an appropriate scale of development that facilitates residential amenity, space for landscaping and view corridors, particularly to Ryde Public School, which is a heritage item.

  1. The side setbacks from the south west boundary are below those recommended in the RFDC and do not achieve an appropriate form of development for the site. The blank walls of four to five storey will be visible from 5 Smith Street and the streetscape. The setback is inadequate to enable effective landscape screening and the blank walls would present as unacceptable visual bulk when viewed from 5 Smith Street and the streetscape. Furthermore, the future and likely development of 5 Smith Street would be constrained by the proximity of the proposed buildings to the common boundary.

  1. The zero setback to 11 Smith Street relies on the redevelopment of that site proceeding in the form proposed. If the development of 11 Smith Street were not to proceed, a blank wall built to the boundary of 7-9 Smith Street would present an unacceptable visual bulk and would constrain the future development of 11 Smith Street.

  1. For these reasons, I am not satisfied that the proposal adequately addresses the RFDC and design quality principles in SEPP 65 and achieves "good design".

Appeal No 10747 of 2013 for 11 Smith Street

  1. The council's experts raised similar concerns about the setback of 11 Smith Street from 13 Smith Street and, for similar reasons to those discussed above, I find that the setback is inadequate and does not meet the objectives for separation in the RFDC. In particular, the five storey scale of the rear building and its two metre setback from the boundary to 13 Smith Street would present an unacceptable visual bulk and does not support the desired area character with appropriate massing and spaces between buildings. The space is not adequate to provide landscaping at a scale that would screen the predominantly blank facades.

  1. Furthermore, the location of the driveway access at a higher point on 7-9 Smith Street, results in the elevation of the ground level and exacerbates the scale difference between 13 Smith Street.

  1. The zero setback to 7-9 Smith Street relies on the redevelopment of that site proceeding in the form proposed. If the development of 7-9 Smith Street were not to proceed, a blank wall built to the boundary on 11 Smith Street would present an unacceptable visual bulk and would constrain the future development of 7-9 Smith Street.

  1. The development application for 11 Smith Street relies on 7-9 Smith Street for access to its basement car park. Clearly the development application cannot be approved unless there is certainty that legal and physical access will be able to be provided. Mr Galasso SC, accepted that a condition could be imposed on 11 Smith Street, which requires that a right of way burdening 7-9 Smith Street be obtained for its access. He did not accept that a condition could be imposed on 7-9 Smith Street requiring it to provide such access to 11 Smith Street. Whether or not mechanisms can be employed on both developments to ensure that access is provided to 11 Smith Street from 7-9 Smith Street, I am not satisfied that the proposal adequately addresses the RFDC and design quality principles in SEPP 65 and achieves good design.

Conclusion

  1. The parties support coordinated development of the sites and despite the proposals being separate applications with different architects there are clearly benefits from each development having a similar streetscape presentation, shared vehicular access, internal courtyards, setbacks, materials and design approach.

  1. A key contention of council was that a single development application for an amalgamated development of the sites should occur. A single application for both sites would clearly be a simpler option and enable greater design flexibility and certainty. However, of itself, it is not a reason for refusal. Rather each application is to be considered on its merits. For the reasons discussed above, I am not satisfied that the proposals provide adequate side setbacks which would achieve the objectives for separation in the RFDC and consequently that the design quality principles in SEPP 65 are addressed to achieve "good design".

  1. The other concerns about the proposals discussed by the experts, although individually would not warrant refusal of the applications, are also matters that collectively are negative features and add to the applications' unacceptability.

  1. Mr McEwen, SC, submits that, if the developments are found to be unacceptable, the applicants should be afforded the opportunity to amend the applications. Council did not support this course of action and I accept that, in the current circumstances, it is not appropriate to allow further amendments to the applications, particularly given that the zero setback to the common boundary of each site is only acceptable if the other development proceeds.

Orders

Appeal No 10722 of 2013

1. The appeal is dismissed.

2. The development application LDA2013/0057 for a residential flat building at 7-9 Smith Street, Ryde, is refused.

3. The exhibits, except Exhibit 1, may be returned.

Appeal No 10747 of 2013

1. The appeal is dismissed.

2. The development application LDA2013/0289 for a residential flat building at 11 Smith Street, Ryde, is refused.

3. The exhibits, except Exhibit 2, may be returned.

Annelise Tuor

Commissioner of the Court

Decision last updated: 04 June 2014

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