SDA Australia Pty Ltd v Ashfield Municipal Council
[2009] NSWLEC 1091
•31 March 2009
NEW SOUTH WALES LAND AND ENVIRONMENT COURT
CITATION:
SDA Australia Pty Ltd v Ashfield Municipal Council [2009] NSWLEC 1091
PARTIES:
APPLICANT
SDA Australia Pty Ltd
RESPONDENT
Ashfield Municipal Council
FILE NUMBER(S):
10635 of 2008
CATCHWORDS:
Development Application :- Residential flat buildings site specific DCP, heritage, building height and floor space ratio.
LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No. 1 - Development Standards
Ashfield Local Environmental Plan 1985
Ashfield Development Control Plan 2007
CASES CITED:
Zhang v Canterbury City Council [2001] NSWCA 167
CORAM:
Bly C
DATES OF HEARING:
13 - 14 November 2008 and 18 - 19 February 2009
JUDGMENT DATE:
31 March 2009
LEGAL REPRESENTATIVES
APPLICANT
Mr M. Craig QC
Instructed by Maddocks
RESPONDENT
Mr G McKee, solicitor
of McKee's Legal Solutions
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESBly C
31 March 2008
10635 of 2008 SDA Australia Pty Ltd v Ashfield Municipal Council
JUDGMENT
Introduction
This appeal involves three allotments of land at 67 - 75 Smith Street, Summer Hill. The development application is for the demolition of several existing industrial buildings and the construction of a building containing five three-storey terrace style dwellings, three residential flat buildings (Buildings A and B and Building C/D) containing a total of 23 dwellings and a basement car park for 46 cars. Also, there are to be alterations and additions to the existing heritage listed dwelling house at 67 Smith Street. The entire development is to be strata subdivided.
This relatively large development site has an amalgamated area of about 3,567 square metres with a frontage to Smith Street of just under 46 m. Surrounding development is mixed, there being residential, industrial and commercial buildings in close proximity to the site. Dwelling houses generally dominate although there is a three-storey residential flat building to the north-west and an industrial building on the neighbouring site at 51-61 Smith Street. The Summer Hill urban village centre and railway station are located a short distance to the east of the site.
The hearing commenced and was adjourned part heard in November 2008 to enable the applicant to prepare amended plans that have been advertised and subject to consideration by the experts.
Planning controls
The site is zoned 2(b) Residential under Ashfield Local Environmental Plan 1985 and is located in the vicinity of the Quarantine Ground Heritage Conservation Area, the proposed Fleet Street Heritage Conservation Area and a number of proposed heritage items.
Because the house at 67 Smith Street is an identified heritage item, clause 37 of the LEP is applicable and requires that the likely effect of the development on the heritage significance of the item must be taken into account.
Clause 17 imposes a maximum floor space ratio of 0.7:1 and cl 17A imposes a 6m building height limit in the 2(b) zone. I agree that the development exceeds these development standards and objections under State Environmental Planning Policy No. 1 - Development Standards have been provided.
Also applicable is the Ashfield Development Control Plan 2007 that was amended concurrently with the rezoning of 55 - 75 Smith Street (the subject site comprises about half of the rezoned land) from 4(b) to 2(a) (Amendment 114 to the LEP). Appendix 4 in Part C5 of the DCP applies to 55 - 75 Smith Street and contains a number of relevantly applicable site-specific development controls that are central to this appeal
A conservation management plan is required for the heritage item and this has been provided. Housing/dwellings along Smith Street are required to be designed as if they are terrace houses and this has been done.
Clauses 5.9 - 5.14 of the DCP deal with building height. Clause 5.9(b) sets a maximum height of two levels above ground level for land in the 2(b) zone. Clause 5.12 allows roof spaces to be utilised as an additional level if the space is wholly contained with a roof that does not exceed a slope of 36° (with the exception of dormer windows). Utilisation of this provision is subject to sunlight, privacy, views and ventilation concerns being adequately addressed and full compliance with the 6 m height limit in the LEP. Clause 5.13 explains that this roof space provision is to permit rooms within otherwise unused roof space. It does not permit the creation of additional de facto levels through increased external wall heights or the addition of roof protrusions larger than a typical dormer window.
Of considerable importance is Diagram 1 in Appendix 3 to Part C5 that depicts how the land at 55 - 75 Smith Street should be developed, particularly in relation to Key Open Space Areas and Minimum Deep Soil Areas. Relevantly applicable clauses in the DCP are referenced on the diagram.
Diagram 1 depicts the heritage item at 67 Smith Street and clause 14 requires the provision of an 8m deep private rear garden. It also relevantly requires, immediately to the west of the item an open space area of approximately 12m x 25m. Clause 7 of the DCP notes that this area is to be communal open space in order to provide a central focal area for the establishment of large trees and to maximise its usability. Diagram 1 also requires a 3m open space area along the rear boundaries of the site and along the front half of the western boundary of the site. Clause 4 of the DCP notes that these are to be deep soil areas to provide a tree buffer for adjoining dwelling allotments and to protect the roots of adjoining trees. Similarly there is to be provided an area of open space along the majority of the frontage of the site (excluding the frontage of the heritage item). Clause 8 requires that this be a deep soil area for the establishment of trees and for reasons of amenity and streetscape. Similarly, clause 10 requires that dwellings along Smith Street have a front garden area with deep soil planting of approximately 5m in width with a minimum of hard paved areas. Also required is a further strip of open space approximately 2.5m wide, along the western boundary of 67 Smith Street that connects the open space along the frontage with the communal open space.
Part C 11 of the DCP deals with parking and relevantly the associated Design Principles in Section 5.2 require that in residential zones, entries to underground car parks are to be set back behind the building line and located at the side or rear of buildings so as not to be visible from the street front. The design guidelines in Section 5.3 provide that excavations for driveways in front garden areas in residential zones is not characteristic, requiring the first 6 m of any driveway to be at grade for aesthetic and pedestrian safety purposes. Clause 15 in Part C 5 requires that vehicular driveways off Smith Street be provided generally in the location shown on Diagram 1, relevantly here immediately to the east of the 3m open space area along the western boundary of the site. Notwithstanding the generally applicable 6m requirement in Section 5.3, clause 15 requires that the driveway be generally flat for a distance of 20m from Smith Street. It is to be landscaped to provide a buffer for adjacent dwellings. Also, clause 3.5 requires that the entry to underground parking must not be visible from the Street front.
The contentions
According to the Statement of Facts and Contentions the respondent contends that the following matters warrant the refusal of the application.
The proposal represents an overdevelopment of the site, is excessive in bulk and scale, and detracts from the streetscape. Particular concerns include the exceedences of the maximum floor space ratio and building height requirements in the LEP, the excessively bulky roof forms, non-compliance with DCP setback requirements, insufficient deep soil planting areas, building separation and the car park entrance.
The proposal will adversely impact on the amenity of neighbours. Concerns include the overbearing visual presence when viewed from properties in Carlton Crescent and loss of privacy for those properties.
The proposal will adversely impact on internal residential amenity.
The proposal does not incorporate universal design principles in accordance with Part C1 of the DCP and fails to comply with AS 1428.1 and AS 4299.
The proposal will detract from the character and significance of the heritage item at 67 Smith Street.
The proposal does not satisfy the requirements of the building code of Australia although this is a matter, which may be dealt with by way of condition.
The location and design of the underground secondary garbage collection area prevents bins from being collected by council's waste contractors.
Details have not been provided outlining security access arrangements for the car park and lift foyers although this matter was not pressed.According to the respondent, the main concerns arise from the proposal's disregard for many of the applicable planning controls, especially the very site-specific controls in the DCP.
The evidence
On behalf of the respondent Council expert evidence was given by Mr R Moore (heritage) and Mr R Chambers (town planning).
On behalf of the applicant expert evidence was given by Mr S. Hopkins (architecture), Mr G. Brooks (heritage) and Mr M. Buckley (town planning).
17 When the hearing began on-site I had the opportunity of inspecting the site, the locality including surrounding residential development. I also heard from a number of residents who raised concerns in relation to: overdevelopment of the site; excessive building height; overshadowing of neighbouring properties; insufficient open space; traffic generation and car parking; and the removal of garbage bins.
The development control plan
Contrary to the provisions of the DCP:
The required central deep soil communal open space area adjacent to the heritage item is effectively reduced in width by up to about one third, taking into account the proposed footprint of Building B.
Almost all of the communal open space and the connecting landscape strip to Smith Street are positioned above the car-parking basement.
The vehicular driveway and ramp into the basement, is positioned adjacent to the heritage item instead of being located 3 m from the western boundary of the site. The entry is visible from the street.According to Mr Brooks, there are no adverse impacts on the heritage item as a result of the placement of the driveway. Indeed it provides some 3-5m of additional curtilage width, something akin to what might have previously existed. Mr Moore disagreed arguing that the ramp was too close to the heritage item, thus adversely affecting its curtilage and reducing its heritage value. The opening into the basement is fundamentally unacceptable because it would give the appearance of hollowing out the site creating the impression that the item would be sitting on a basement.
Mr Buckley said that the driveway, in its proposed location would not compromise the heritage item or its open space, curtilage and access whereas if it were to be located near the western boundary (as required by the DCP), adjacent to No. 79 Smith Street the amenity of that dwelling would be detrimentally affected by vehicle noise. Mr Chambers disagreed explaining that there were no sound reasons why the DCP requirement to keep driveways away from the heritage item should not be complied with. A driveway and ramp could be designed in accordance with the DCP that did not adversely affect No.79. In its proposed location it encroaches into the boundaries of the heritage item and adversely affects it by placing the basement entry within its immediate visual curtilage. Conversely, other than providing slightly greater views to the side of the heritage item there are no benefits to justify the non-compliance with the DCP.
In his submissions on behalf of the respondent, Mr Craig submitted that the design of the development ignores the site-specific controls of the DCP, especially those in Appendix 4. It is markedly different from the development layout contemplated by the council and reflected in the DCP. He emphasised that the differences that involve the location of the driveway into the site, the provision of deep soil landscaping and the communal open space, these matters being of particular concern in relation to the heritage item.
In response Mr McKee for the applicant argued that a straitjacket approach to the application of the DCP was not appropriate. Whilst the DCP has been partially set aside by the proposal its intent has not been ignored and taking into account the landscape plan, the heritage item has been respected by the proposed development.
It is now well established that in dealing with the merits of a development application the council and the Court have a wide-ranging but not unfettered discretion. To this end, a properly prepared development control plan is to be considered as a "fundamental element" in or a "focal point" of the decision making process. (See Zhang v Canterbury City Council [2001] NSWCA 167). Of course this does not mean that failure to comply with the provisions of a development control plan means that a noncompliant development application must be refused. In this regard the circumstances of the case and the applicable provisions of the development control plan can be considered together to determine the weight that should be attached to the development control plan.
Most development control plans contain provisions that are generally applicable. However in this instance the DCP also contains very detailed controls that are specific and unique to this particular area of land zoned 2(b) that surrounds the heritage item. Also to be taken into account here is the fact that this is the first development application to be considered under these provisions. In these circumstances the DCP should, in the public interest, attract considerable weight.
In addressing the noncompliances with the DCP it is in my opinion relevant to consider two matters: first, is there a good reason for the noncompliances; and second are there any adverse consequences that flow from the noncompliances.
Having considered the evidence it seems to me that the only reason of any substance that might justify the location of the driveway as proposed by comparison with its location adjacent to the western boundary of the site is that there might be adverse impacts on the dwelling at No. 79 Smith Street. Plainly an access driveway to a basement car park that accommodates 46 cars is likely to have visual and noise impacts on that dwelling house. Despite this I agree with Mr Chambers these impacts could be sufficiently mitigated by design measures such that, bearing in mind that this is at the zone interface where some impacts can be anticipated, the amenity of this house would not be critically affected.
As for adverse consequences that would result from the noncompliances I agree with Mr Chambers and Mr Moore that the heritage item would be unnecessarily adversely affected by the provision of the driveway and the visible opening into the basement so close to the heritage item and having no direct association with it. In this regard I accept that whilst the driveway would open up views to the item, this is not of sufficient benefit to overcome the contextual impacts that it would have on the curtilage, especially as there is no evidence to show that there was ever any vehicular access to residential development in this location.
Regarding the central deep soil communal open space area that is required to be provided adjacent to the heritage item, even with its reduced width, it would still be of benefit to the item's setting by providing a central focal area. Of greater concern however is the loss of the connecting landscaped strip from the communal open space through to Smith Street that adjoins the landscaped front garden of the item and in turn links with the landscape strips along Smith Street.
As indicated above almost all of the communal open space and the connecting landscape strip are positioned above the car-parking basement contrary to the requirement of the DCP that these should provide for deep soil planting. Whilst I accept that the landscaping regime as proposed would be successful I am not satisfied that the establishment of large trees as sought would be possible. The reduced size of this space compounds this problem.
Considering these matters together with the weight that should be given to the DCP results in my concluding that the application should be refused. It is therefore unnecessary to deal with the remaining matters although I make the following observations in relation to floor space ratio.
Floor space ratio
The town planning experts agreed that the floor space ratio as calculated by the architect is 0.85:1. Excluding the heritage item the floor space ratio would be 0.81:1. Both of these calculations indicate an exceedence of the permissible floor space ratio development standard. In this regard Mr Buckley said that it was appropriate to use the lower figure taking into account the provisions of clause 37A(2) of the LEP that enables the exclusion of the floor space of a heritage item if the conservation of the building depends on the exclusion. Bearing in mind that the heritage item is to be conserved and effectively integrated into the entire development I accept that the benefit of this provision could be extended to this application. Alternatively if not strictly available it could be generally taken into account in dealing with the floor space ratio exceedence.
The applicant has provided an objection under SEPP 1 that contends that, in addition to the more general aims and objectives of the LEP the underlying objective or purpose of the development standard is to minimise the impact of development on adjoining land and to control the bulk and scale of development. Having taken into account the requirements of the DCP and the relationship of the development to neighbouring development together with the aims of the policy the objection concludes that the underlying objectives are met. Therefore strict compliance with the development standard is unnecessary and unreasonable and refusal of the development application on the basis of non-compliance with the development standard is not warranted.
I understand that the extent of the floor space exceedence roughly equates to the floor space contained in the roofs of Buildings B, C and D.
For the most part these buildings comply with the DCP's two-storey height limit. However, in order to maximize the floor space within the buildings the external walls in some instances are between 0.5 and 0.8 m higher than what would otherwise be the springing point for a conventionally constructed roof above a two storey building. Whilst these additional heights may not be significant (taking into account that in some instances the relevant walls are positioned in excavated parts of the site) in contributing to building bulk, they nevertheless elevate the roof form higher than what it might otherwise have been the case. Moreover these additional heights contravene the DCP requirement that does not permit the creation of additional levels through increased external wall heights. These matters together with the large building footprints and with what I accept are larger than usual dormers contribute to the considerably bulky roof forms that are of concern to Mr Chambers, notwithstanding that they comply with the 36° maximum pitch allowed by the DCP. What I also find to be of concern in relation to the additional heights of the external walls is that rather than the floor space being provided in a roof form that simply responds to the building that it covers, at least some of the floor space provided dictates the height and form of the roof including the dormers. This is contrary to the intent of the DCP.
Had Buildings B, C and D met the requirements of the DCP in relation floor space in roof areas, external wall height and other requirements associated with height bulk and scale and privacy I might have accepted the SEPP 1 objection. This would have been on the basis that the underlying bulk and scale objective of the development standard had been met because the additional floor space was appropriately accommodated in the roof without adding any unreasonable bulk. Despite this, I agree with Mr Chambers that these buildings have an oversized roof forms that pay little regard to its neighbours and in their present form should not be approved.
Conclusions
This former industrial, now residential site being close to the Summer Hill station and shops unquestionably provides an excellent opportunity for a successful urban consolidation development. Whilst this is, in some ways, an appropriate development, by failing to appropriately and sufficiently respond to the site-specific requirements of the DCP I have decided that the development application should be refused.
Orders
The orders of the Court are therefore:
1. The appeal is dismissed
2. The development application for the demolition of existing industrial buildings and the construction of a building containing five three-storey terrace style dwellings, three residential flat buildings and basement car park together with alterations and additions to the existing dwelling house and strata subdivision at 67 - 75 Smith Street, Summer Hill is determined by refusal.
3. Exhibit H and K is retained.
___________________________
T A Bly
Commissioner of the Court
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