Spaoak Pty Ltd v Ashfield Municipal Council
[2004] NSWLEC 272
•01/08/2004
Land and Environment Court
of New South Wales
CITATION: Spaoak Pty Ltd v Ashfield Municipal Council [2004] NSWLEC 272 PARTIES: APPLICANT
RESPONDENT
Spaoak Pty Ltd
Ashfield Municipal CouncilFILE NUMBER(S): 11246 of 2003 CORAM: Nott C KEY ISSUES: Development Application :- mixed development - building of three levels - commercial on ground floor and three residential units above - floor space ratio - bulk and scale - carparking - narrow lot LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 97
State Environmental Planning Policy No. 1--Development StandardsCASES CITED: DATES OF HEARING: 7 - 8 January 2004 EX TEMPORE
JUDGMENT DATE :01/08/2004 LEGAL REPRESENTATIVES: RESPONDENT
APPLICANT
Ms L Byrne, barrister
SOLICITORS
Brock Partners
Mr P Jackson, solicitor
SOLICITOR
Pike Pike & Fenwick
JUDGMENT:
11246 of 2003
Nott C
8 January 2004
Spaoak Pty Ltd
Applicant
v
Ashfield Municipal Council
Respondent
Reasons for Judgment
Overview
1. This is an appeal against the council's refusal of a development application to erect a mixed development at 31 Byron Street, Croydon. The application was advertised and there were five objections.
2. A planning report from a council officer recommended the granting of consent subject to conditions, and a resolution of the council was passed adopting this recommendation. However, it seems that immediately a recession motion was passed and subsequently the council resolved to refuse the development application. The reasons the council gave for refusing the application are set out in a notice of determination dated 7 October 2003.
3. At the hearing, the issues were reduced to the following main categories:
(1) bulk, scale, height and design of the proposed development,
(2) amenity of future occupants,
(3) carparking and access arrangements,
(4) matters raised by local objectors and the public interest.
4. Consultant town planner Mr D Smith gave evidence for the applicant. There was also written evidence from Mr B Anstee a director of the applicant company which owns the subject land. Mr Anstee has architectural qualifications and experience.
5. For the council, evidence was given by two of the local residents who objected, namely Mrs S Caponas of 49 Dalmar Street, and Mrs K Clysdale who lives further from the subject land than Mrs Caponas but who regularly walks past the subject land on her way to catch a bus to work. Evidence for the council also included the expert evidence of consultant town planner Mr A Moody.
6. The subject land is zoned neighbourhood business 3(c) under the Ashfield Local Environmental Plan 1985. The proposed development comes within the definition of "mixed development”. Such a development is not a permissible use in the zoning table to clause 10 of the LEP. However, mixed development is nevertheless permissible in the 3(c) zone in accordance with clause 39B.
7. It is relevant to note that for purely commercial development on the subject site, a development standard would limit the floor space ratio to 0.5:1 as specified in clause 17 of the LEP. However, clause 40 permits in respect of certain land that does not have a frontage to Parramatta Road an FSR concession for a mixed development containing commercial and residential uses. In respect of such a mixed use development the council may permit an FSR of up to 1:1.
8. There is no development control plan that applies to mixed development in the 3(c) zone other than Development Control Plan–Access Adaptability and Mobility adopted by the council in 1998. Under this DCP one of the proposed units has to be designed in such a way that it can be modified easily in the future to become accessible to both occupants and visitors with disabilities or progressive frailties.
9. The subject land is a small parcel having a frontage of 12.19 m and a depth of approximately 24.5 m. It has an area of 297.3 sq m. The subject land faces west towards Byron Street in a stretch of that street located between Parramatta Road to the north and Dalmar Street to the south. Immediately to the north of the subject land is a used car sales yard with its administration or car-repair building close to the northern boundary of the subject land. To the east of the subject land there are other properties whose rear yards have access to a right of way which runs westward from those properties across the southern part of the subject land. These properties to the east have a frontage to Parramatta Road and as a result these properties would not have the benefit of clause 40 of the LEP referred to earlier.
10. The right of the way across the subject land is 3.66 m wide and runs the full length of 24.5 m of the subject land. If one were to exclude from the subject land the right of way, the subject land would have an area only of approximately 208 sq m. For the purpose of calculating the FSR for the subject land, the area of the right of way is nevertheless to be taken into account. Immediately to the south of the subject land is the access handle of the property at 25A Byron Street. This access handle is at least 3 m wide. Immediately to the south of that access handle and proceeding further to the south in Byron Street there are single-storey dwelling houses. Beyond Dalmar Street much further from the subject land in Byron Street, there are some larger dwelling houses of two storeys. Dalmar Street, which is fairly close to the subject land, would appear mainly to have single-storey dwellings and perhaps some two-storey dwellings in the vicinity of the subject land.
11. Opposite the subject land in Byron Street there are also dwelling houses if one moves in a southerly direction. However, on the corner of Byron Street and Parramatta Road there are firstly a service station and next to it a building used for car repairs, having a parapet height at the street frontage of about 6 m and a pitched roof sloping up from behind the parapet.
12. The proposed development is shown on the plans exhibit A. It involves the construction of a building of three levels. At the ground-floor level it is proposed to have at the street frontage a commercial space of about 32 sq m. Behind this space more or less at ground level it is proposed to have carparking spaces. One space is proposed for the commercial part of the building, next to that there is a visitor's space shown on the plans exhibit A which is open, and then there are three garages, one of which is a double garage.
13. During the course of this hearing the layout of the carparking spaces was changed and what is now proposed in the amended layout is seen in the plan exhibit E. For the residential component of the development there is proposed a total of five carparking spaces including the visitor's space. On the proposed first floor and on the top or second floor, it is intended to have three residential units which include three bedrooms each. The living and dining room areas of these units are on the first floor and all the bedrooms together with two bathrooms are on the second floor.
14. The building extends from the street boundary to the rear eastern boundary with no setback. There is also no setback from the northern boundary for the lower part of the building. On the southern side, the building extends right up to the northern side of the right of way on the subject land at the upper two levels. At the ground level the garages and parking space are recessed. However, the commercial part of the building does extend right to the northern side of the right of way, coinciding with the floors above that part of the building.
15. During the course of the hearing, remarks were made on behalf of the applicant that there was an entitlement to erect a mixed development building having an FSR of 1:1. However, there is no such entitlement because one has to consider all relevant matters under s 79C of the Environmental Planning and Assessment Act 1979, and a development that complies with the FSR of 1:1 does not necessarily warrant an approval.
16. The proposed development exceeds the FSR of 1:1 by about 17.5 sq m and so an objection under State Environmental Planning Policy No. 1–Development Standards is needed in order for the Court to be able to grant consent. Such an objection under SEPP 1 has been lodged and is contained in the written evidence of Mr Smith.
17. An exceedance of the development standard by 17.5 sq m might not seem to be a great amount. However, it is necessary to take into account the particular constraints in relation to the subject land and the fact that the subject land has an area of only 297.3 sq m. One of the constraints is that from a practical point of view it would be unlikely that a development would be acceptable if it extended over the right of way. Probably a clearance to the underside of any building extending to the right of way would have to be in the order of about 4 m in order to enable trucks with a high top, such as delivery or removalist vans, to be able to readily access eight of the properties that lie further to the east beyond the subject land. Such a building may give rise to various unacceptable impacts. Probably for this reason the applicant only proposed that the two upper levels of the proposed development should extend to the right of way but not over it.
18. It was submitted that if there were a refusal to grant consent pursuant to SEPP 1, there would be a sterilisation of the land. However, this is not necessarily so. A development complying with the standard or having a lesser floor space ratio than 1:1 could be erected.
19. I note that in 1989 the council approved the erection of a two-storey building with a shop and residence. The shop was for the sale of computers and associated software. One of the reasons given by Mr Jones in support of the objection under SEPP 1 was that a commercial building on the subject site with an FSR of 1:1 is likely to have less articulation and have a bigger footprint at all levels and be higher than the proposed development. However, as I indicated earlier, a purely commercial building complying with the relevant development standard could only have an FSR of 0.5:1, and I consider that a more suitable form of development could be erected than that envisaged by Mr Jones.
20. One of the main grounds for refusal of the application could be summarised as being that the bulk, scale and design of the proposed development is unacceptable. It was pointed out on behalf of the applicant that there is no height restriction in the LEP and no DCP relating to height applying to the subject land. However, it is necessary to consider the proposed development in the context of surrounding and likely future development and having regard to the character of the locality.
21. The proposed development is clearly three storeys in appearance as viewed from Byron Street. I incorporate in my judgment a graphic representation of the proposed development taken from exhibit B:
22. The building immediately to the north of the subject land is shown as apparently extending to the common boundary with the subject land. The front wall of that building does extend to the common boundary, but the roof of the building would appear to be set back from the common boundary by about 900 mm. A survey of the subject land and of the adjoining properties with their improvements was not tendered in evidence, so I cannot state precisely the distances involved. The representation nevertheless gives a fair idea of what is proposed on the subject land in relation to the building to the north and in relation to the dwelling house on the southern side at 25 Byron Street. Besides the elevation to the street the representation also shows the northern elevation of the proposed building.
23. The council did not raise any strong objection to the design of the northern elevation. Clearly, that elevation has articulation. However, through its evidence the council did criticise the design of the southern elevation. The two uppermost levels of the development extend, as I mentioned, from the street alignment to the eastern boundary, and there is no articulation in this elevation other than the provision of windows, which do not give the appearance of depth. Admittedly, there will be some variation in the appearance of the elevation by reason of the fact that face bricks are proposed around windows but otherwise the elevation is rendered. This variation in materials is desirable but it does not provide any articulation for a fairly long stretch of wall. This southern wall of the building will be readily visible from Byron Street, as seen by persons proceeding north from Dalmar Street down Byron Street, because of the uninterrupted view that is provided by the access to No. 25A and by the right of way itself over the subject land. The council in its evidence also criticised the western elevation, which rises to a vertical height at the street alignment of 9 m, unlike any other building that is readily seen from Byron Street. The building opposite has a parapet height of 6 m. That building is a fairly old building and in my opinion it is not the sort of building that would necessarily be approved today.
24. Further to the east from the subject land and having a frontage to Parramatta Road are single-storey shops which mostly have a level of dwellings above them with a high-pitched roof. That cluster of shops in Parramatta Road would appear to present an acceptable appearance to Parramatta Road. The subject site is located in what is a residential street immediately to the south. It was said on behalf of the applicant that the proposed building provided a transition between the 3(c) zone and the residential 2(a) zone immediately to the south. It may provide a transition in the type of uses that are proposed, but in built form I do not consider the proposed building to be a transition between the built form on the property immediately to the north and the residential property immediately to the south.
25. The eastern elevation comprises a blank wall rising at the boundary to a three-storey height. At the lower two levels this wall extends from the northern boundary to the right of way. Mr Jones suggested that the eastern elevation was acceptable as it has been designed to cater for redevelopment of the adjoining properties. However, having regard to the zoning of the adjoining properties that have a frontage to Parramatta Road, it seems to me that those properties are unlikely to be developed or at least not developed with a three-storey element or even a two storey element adjoining the subject site.
26. Evidence from the local residents was critical of the character of the proposed development in having three storeys at the street alignment, and the first reason given by the council for refusal of the application was that the proposal is out of character with the residential and domestic scale of dwellings in Dalmar and Byron Streets.
27. As regards to the amenity of future occupants of the proposed development, there are a number of matters that were raised by the council. In respect of privacy for the occupants using the courtyards or living and family rooms at the first floor level, it was the opinion of Mr Moody that there would be unacceptable privacy impacts by reason of persons using the common walkway to the units. Depending on the height of the internal balustrade separating the common walkway from each of units 1 and 2, there could be an adverse impact on privacy for those courtyards. The first-floor plan shows that the walkway outside unit 2 is at RL 13.46, and the courtyard of that unit is RL 13.8, so that the common walkway outside unit 2 is only 34 mm below the courtyard of that unit. A solid balustrade having a height of only 1.2 m would still enable persons of average height or taller to look over the balustrade into the courtyard of unit 2 and into the family and living rooms which are only 2 m from the courtyard itself. The courtyard is immediately adjoining the common walkway, separated only by a balustrade. It would be possible for the balustrade to be increased in height but then in midwinter there would be overshadowing of the courtyard which has an internal depth of only 2 m. Similar comments could be made in respect of unit 1: persons walking from units 2 and 3 towards unit 1 and standing at the top of the landing outside unit 1 would be able to look over a balustrade having a height of only 1.2 m, as the landing is only 35 mm below the courtyard level of unit 1 as indicated by the RLs on the first-floor plan. Again, privacy could be improved for occupants of unit 1 by increasing the height of the solid balustrade separating the courtyard from the walkway.
28. The outlook from the proposed bedrooms towards the north would be over an unattractive roof of the adjoining building immediately to the north, but there would be attractive views out towards trees in Rosebank College. There would in effect be no views, other than of views of sky and perhaps of some treetops from within the living and family rooms of each of the units, either because of the height of the internal balustrade wall adjoining the common walkway or because of the height of the external wall on the northern boundary.
29. The council was critical of there being no deep soil landscaping. There are perhaps two benefits to be obtained by landscaping. First, if a building is said to be bulky or out of keeping with the character of the area, and if there is room for landscaping, such a building might nevertheless be appropriate because of the screening provided by landscaping. This cannot occur on the subject site. A second benefit of landscaping is that a pleasant amenity can be provided for the occupants of the proposed development.
30. There is only token landscaping provided in a planter box for each unit located below the bathroom window of each unit at about the floor level of the uppermost floor. This landscaping would be difficult to maintain because it would be difficult to have access to it. It might improve the appearance of the northern façade, which was not really the subject of adverse criticism by the council other than perhaps a comment by Mr Moody about the proposed fire shutters. The occupants would not readily see this landscaping. The occupants would have to rely on the provision of pot plants or other moveable small landscaping that might be able to be provided in the small courtyards of each unit.
31. The future amenity of the occupants would not be good. It is not as if the subject land is located opposite a park where children, for example, could play. By themselves however the matters relating to the amenity of the future occupants would not be a reason in my opinion for refusal of the application, but some of the less desirable aspects of the amenity have to be taken into account with other aspects of the proposed development which I find are not good. I have already referred to various criticisms relating to the bulk, scale and design of the proposed development.
32. In relation to carparking there is no development control plan that applies to the subject land. The applicant's consultant town planner was of the opinion that the proposed number of carparking spaces was adequate. The evidence of Mr Moody, however, and of the local residents who gave evidence was that the number of car parking spaces was inadequate. Applying the RTA guidelines, it seems that six spaces should be provided for the residential component of the proposed development whereas only five are provided. In addition, only one space is provided for commercial use. If a staff member had a car occupying that space, no visitors to the site or other employees would be able to park on the site. The stretch of Byron Street between Parramatta Road and Dalmar Street is often fully parked out, although admittedly at times some spaces would be available. The evidence of Mrs Caponas was that because of the car-repair businesses, cars are sometimes parked around the corner of her property in Dalmar Street because there are no spaces available in Byron Street. If the proposed development were smaller, there could be a smaller demand for carparking generated by a less intense development, and adequate parking spaces could be provided on the subject site. I do not consider the fact that there is a bus service on Parramatta Road to be a sufficient reason to vary the suggested parking spaces that were suggested by the RTA guidelines.
33. In my opinion the location of the proposed development does not outweigh the disadvantages or certain unsatisfactory aspects of the proposed development that I have referred to.
34. It is unnecessary for me to express an opinion as to whether it would be possible to adapt one of the units for disabled persons in the future. I have proceeded to deal with the application on the basis that the proposed development at the present time could be used without restriction by any person and that the proposed double garage would be able to accommodate two car spaces. The plan exhibit E made certain amendments and as I mentioned I do not have to consider whether those amendments would be satisfactory.
35. Overall, considering the matter under s 79C of the Act I am of the opinion that the proposed development has a number of unsatisfactory aspects that I have referred to which, taken together, lead me to the view that the proposed development should be refused.
36. Accordingly, the orders of the Court are:
1. The appeal is dismissed.
3. The exhibits, other than exhibits A and E, may be returned.2. Development consent is refused for a mixed development at 31 Byron Street, Croydon.
______________
A J Nott
Commissioner of the Court
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