Tamer v Blacktown City Council

[2012] NSWLEC 1292

Land and Environment Court

New South Wales

Medium Neutral Citation:

Tamer v Blacktown City Council [2012] NSWLEC 1292

Hearing dates:

11 October 2012

Decision date:

19 October 2012

Jurisdiction:

Class 1

Before:

Hussey C

Decision:

(1)The appeal is dismissed.

(2)Development consent for DA - 11 - 566 for the demolition of the existing dwelling and construction of an eight - unit affordable housing development at 91 Paull Street, Mount Druitt is refused.

(3)The exhibits may be returned except for 2, 8 and A.

Catchwords:

DEVELOPMENT APPLICATION - Affordable Rental Housing, compatibility with character of the area, drainage, affordable housing provider

Legislation Cited:

Environmental Planning and Assessment Act 1979
State Environmental Planning Policy (Affordable Rental Housing) 2009
Blacktown Local Environmental Plan 1988
Blacktown DCP 2006

Cases Cited:

McKees Project Management Pty Ltd v Manly Council [2011] NSWLEC 1226
Project Venture Development v Pittwater Council [2005] NSWLEC 191

Category:

Principal judgment

Parties:

George and Gloria Tamer (Applicants)

Blacktown City Council (Respondents)

Representation:

Mr R Notley (Applicants)

Mr A Seton (Respondent)
Mahony Taren Lawyers (Applicant)

Marsdens Law Group (Respondent)

File Number(s):

10332 of 2012

Judgment

Background

1. This appeal was lodged against council's refusal of a development application for the demolition of an existing dwelling and construction of an eight (8) unit, two-storey, "infill affordable housing development", located at 91 Paull St, Mt Druitt.

1. The application initially proposed the construction of ten (10) units. However after consideration of the issues raised by council, it was amended to eight (8) units. Consequently, the contentions raised by council concern:

• Whether the proposal is compatible with the character of the area.
• Stormwater drainage disposal.
• Affordable housing provider.
• Precedent.
• Public interest.

The site

1. The site is described as Lot 2 in DP2042. It is situated on the northern side of Paull Street and has a frontage of 20.115 m and a total area of 1012 sq m.

1. There is an existing single storey dwelling on the site, which falls away from the street to a small depression near the rear boundary. The neighbourhood is predominantly comprised of single dwellings, with a mix of single and double storeys of brick and fibro construction. To the east of the subject site in George Street is Dr Charles McKay bushland reserve and St John the Beloved Church.

The proposal

1. The current proposal comprises:

• The demolition of the existing single storey dwelling and structures on the land
• The construction of:
• 5 x 2 bedroom, 2 - storey dwellings
• 2 x 3 bedroom, 2 - storey dwellings
• 1 x 1 bedroom, 1 - storey dwelling.
• Basement garage for eight (8) vehicles, plus eight (8) storage units.

1. The overall development has a variable setback of 5.9 m to Paull Street and it extends along the block some 36 m (eastern boundary) leaving an 8 m setback to the rear boundary. This setback area is to contain an area of private open space and communal open space.

Planning controls

1. The following planning controls are relevant with the overriding control being State Environmental Planning Policy (Affordable Rental Housing) 2009. Clause 8 deals with any inconsistencies with other planning instruments and relevantly cl 16 requires:

16A Character of local area

A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area.

1. Also relevant in this matter is cl 54A, which deals with the circumstances that the original application was lodged on 25 March 2011 and the SEPP was amended in May 2011. The subject application has the benefit of the following savings clause enabling it to be assessed under the original SEPP:

54A Savings and transitional provisions-2011 amendment

(1) Division 1 of Part 2, as in force before its amendment by State Environmental Planning Policy Amendment (Affordable Rental Housing) 2011 (the amending SEPP), continues to apply to development, if:

(a) the land on which the development is situated is owned by the Land and Housing Corporation and was owned by that Corporation immediately before the amendment, and

(b) the development is commenced not later than 2 years after the amendment.

(2) If a development application (an existing application) has been made before the commencement of the amending SEPP in relation to development to which this SEPP applied before that commencement, the application may be determined as if the amending SEPP had not been made.

(3) If an existing application relates to development to which Division 1 or 3 of Part 2 applied, the consent authority must not consent to the development unless it has taken into consideration whether the design of the development is compatible with the character of the local area.

(4) Despite subclause (2), clause 13 (2) (as in force before the amendments made by the amending SEPP) does not apply to development the subject of an existing application and any such application is to be determined by applying instead clause 13 (2) and (3) as inserted by the amending SEPP.

1. Clause 14 contains the development standards that cannot be used to refuse consent and cl 15 refers to design requirements on the following basis:

15Design requirements

(1)A consent authority must not consent to development to which this Division applies unless it has taken into consideration the provisions of the Seniors Living Policy: Urban Design Guidelines for Infill Development published by the Department of Infrastructure, Planning and Natural Resources in March 2004, to the extent that those provisions are consistent with this Policy.

(2)This clause does not apply to development for the purposes of a residential flat building if State Environmental Planning Policy No 65-Design Quality of Residential Flat Development applies to the development.

1. Associated controls are within the Blacktown LEP 2008 (BLEP), under which the site is zoned Residential 2(a) and medium density development is permissible with consent. The zone objectives are:

(a) to make general provision to set aside land to be used for the purpose of housing and associated facilities,

(b) to identify existing residential areas of a predominantly single dwelling character, and to maintain that character by prohibiting residential flat buildings,

(c) to enable sensitive infill development of other housing types if the infill development is of a bulk, scale and appearance that does not adversely impact on adjoining development or the amenity of the locality,

(d) to enable development for a variety of housing forms, including townhouses, villas, integrated housing, dual occupancies and the like, if such development does not interfere with the amenity of surrounding residential areas by way of overshadowing, overlooking, or loss of privacy.

1. Relevantly cl 48 provides:

48 Development of land in Zones Nos 2 (a), 2 (b) and 2 (c)

(1) This clause applies to land within the City of Blacktown within Zone No 2 (a), 2 (b) or 2 (c).

(2) On land shown edged heavy black and marked "Clause 48":

(a) on Sheets 1-6 of the map marked "Blacktown Local Environmental Plan 1988 (Amendment No 142)," and

(b) on the map marked "Blacktown Local Environmental Plan 1988 (Amendment No 179)", and

(c) on the map marked "Blacktown Local Environmental Plan 1988 (Amendment No 226)",

development for the purpose of dual occupancies, integrated housing and medium density housing may be carried out, with the consent of the Council, but only if the development is limited to two storeys in height.

(3) On land subject to this clause but not subject to subclause (2), development for the purpose of dual occupancies, integrated housing and medium density housing may be carried out, with the consent of the Council, but only if the development is limited to one storey in height.

(4) Notwithstanding subclause (3), development for the purpose of dual occupancies, integrated housing and medium density housing may be carried out, with the consent of the Council, to a height of two storeys, on land subject to subclause (3), but only where the proposed dwelling immediately adjoins an existing public road...

1. More detailed development controls are contained in the Blacktown DCP 2006 (BDCP), which contains in Part C s 6 detailed controls for medium density housing. Some of the relevant controls are:

6.3The minimum width, when measured at the building setback line to the street frontage, of any site on which medium density housing is proposed must be no less than 26m. The width is, in Council's opinion, the minimum across which a development can be designed to fulfil the requirements outlined in this Part of the DCP regarding setbacks, accessway dimensions, private court dimensions and the like. This width is also the minimum width within which Council considers acceptable medium density housing development can occur on land in the City of Blacktown.

6.7Clause 48 in Blacktown LEP 1988 deals with the height of medium density housing. Clause 48 identifies areas where medium density housing can be built to a height of two storeys. Outside these identified areas, medium density housing can be no more than single storey, except on the street frontage, where a two storey dwelling is permissible or where the development consists of one hectare or more of developable land.

The evidence

1. Dr D Martens, the applicant's consulting engineer, prepared a detailed stormwater drainage report. A detailed joint planning report was undertaken by:

• Mr G Apps;Council's town planner
• Mr K Nash;Applicant's consulting planner.

1. It is apparent that the threshold issue concerns the compatibility of the proposed development with the character of the local area. In this case, the planners agreed that this requires consideration of cl 48 of the BLEP, which limits two-storey developments to the street frontage.

1. The assessment of the proposal firstly involves a determination of the "local area". The planners agreed that the "local area" should be limited to:

• Fuller Street to the north
• Emily Street to the south
• Dr Charles McKay Reserve to the east, and
• Coates Street to the west.

1. Consequently, they describe the character of this local area as one containing predominantly single dwellings of single-storey construction, with an emerging number of two-storey dwellings. According to Mr Apps, the characteristics of this area are:

• Low density development
• Predominantly single dwelling development
• Separation between buildings
• Rear yards comprising open space and outbuildings such as sheds and garages.

1. The planners agree that the compatibility assessment relates to both the existing and future character of the area. Accordingly, Mr Nash refers to the Residential 2(a) zoning controls in the BLEP and says that other forms of residential development such as villas, integrated housing and townhouses are permissible. The development controls for these forms of development are contained in the BDCP and include height, lot width and setback controls, to which the proposal generally complies, except the rear height controls, which I deal with later.

1. The planners say that it is reasonable to envisage other forms of development from the current situation in the foreseeable future, that reflect the above controls. As such, these forms of dwellings will occupy a much larger area of the lot than the existing dwellings and this will contribute to the changing character of the area.

1. However, Mr Apps qualifies this on the basis that there are no existing twostorey forms in the back yards at this time and that any future development will be subject to merit consideration, including the provisions of cl 48 of BLEP. He does not support the application because he considers the rear, two-storey component is of excessive length and height and incompatible with the future character. He says that the likely future character will include larger two-storey houses fronting the street with possible secondary buildings such as garages/sheds in the large back yard area, together with some medium density development.

Conclusion

1. Having considered the evidence, the submissions and undertaken a view, I do not consider this application merits consent for the following reasons. Firstly, I note that the planners have followed the assessment approach outlined by Brown ASC in McKees Project Management Pty Ltd v Manly Council [2011] NSWLEC 1226 that the character test requires consideration of the following matters:

1)what is the "local area"?

2)what is the character of the "local area"?

3)is the design of the proposed development compatible with the character of the "local area"?

1. Consequently, I accept the agreed position of the planners on the definition of the "local area" responding to the first question. With regard to the second question, both planners agree that the relatively large lots (1000 sq m approx.) in the local area have redevelopment potential and that the future character will likely include more intensive medium density units. Insofar as the BLEP permits these medium density forms, nevertheless, it does not allow two-storey elements that do not front a public road, according to Mr Apps.

1. Therefore, Mr Apps considers that the any redevelopment of the area is unlikely to include two-storey building elements extending down the side boundaries to within close proximity of the rear boundary, as proposed in the subject application.

1. Against this, Mr Nash says that it is possible that large dwellings could be built on these relatively large lots, which have two-storey elements towards the rear boundary, thereby introducing similar bulk and visual appearance as the proposal. Such large dwellings could be of a 'pavilion style', which includes an internal courtyard. Accordingly, this would introduce a similar two-storey element adjacent to the rear boundary, thereby maintaining compatibility with the proposal.

1. However after considering the evidence on this suggestion, I am satisfied that it is quite speculative and there is no evidence to support the claim that this is a likely form of redevelopment. Instead, there have been several new dwellings built in this "local area" and they are of a large twostorey form with standard type front setback to the street and ancillary structures in the large, open rear yards. I therefore give more weight to Mr App's opinion on the likely future character of this local area.

1. A crucial issue for the applicant concerns the interpretation and weighting of cl 48(4) of the BLEP. In this regard, I have considered the submissions made on the construction of the cl 48 provisions in the BLEP. Mr Notley submits that the construction of cl 48(4) relies on the word "dwelling" at the end of cl 48(4) being read as a plural rather than in the singular. The submission is that this construction does not reflect the natural and ordinary meaning of the words in cl 48(4). The "development" at the beginning of cl 48(4) is specifically identified as one of only three types:

1)"dual occupancies";

2)"integrated housing"; and

3)"medium density housing".

1. Clause 6 of the LEP then defines each of the above as follows:

1)"dual occupancies" - 2 dwellings on a single allotment of land;

2)"integrated housing" - subdivision of land into 5 or more allotments and the erection of a single dwelling-house on each of the allotments; and

3)"medium density housing" - 3 or more dwellings on the same parcel of land where each dwelling has an individual entrance and direct private access to private open space at natural ground level for the exclusive use of the occupants of the dwelling.

1. Therefore, each of the three types of "development" in cl 48(4) must have more than one dwelling. Accordingly, the submission is that the use of the singular "dwelling" in cl 48(4) is intended to be a reference to the whole of the "development". Further, the word "adjoin" is defined by the Oxford dictionary to mean "be next to and joined with". Therefore, the eight (8) units in the proposed development here do all "immediately adjoin an existing public road'. The terms of the cl 48(4) do not require that all the dwellings in the development have street frontage to the "existing public road".

1. Consequently, on this reasoning, the applicant submits that cl 48(4) does not prohibit units 5, 6, 7 and 8 of the proposed development being twostorey simply because they do not immediately adjoin an existing public road. The clause simply requires that the development, of which those dwellings are a component, immediately adjoin an existing public road. As the proposed development does adjoin an existing public road it is not prohibited by cl 48(4).

1. It is further submitted that even if cl 48(4) did prohibit two-storey development at the rear of the site, cl 14(1)(a) of the SEPP (as in force when the development application was made) provides that a consent authority must not refuse consent to the development on the grounds of density and scale if the density and scale of the buildings are not more than a FSR of 0.75:1. The FSR of the proposed development is 0.643:1.

1. The Applicants submit that to refuse the proposed development on the grounds that three (3) of the units at the rear are two-storey and therefore it is not compatible with the character of the local area, is to refuse it on the grounds of density and scale, which is prohibited by the SEPP (which, pursuant to cl 8 of the SEPP, prevails over the LEP to the extent of any inconsistency).

1. Further, even if cl 48(4) did prohibit two-storey development at the rear of the site and the Court held that it was not prevented by cl 14(1)(a) of the SEPP from refusing consent on that basis, the Applicant submits that simply because the two-storey component at the rear of the proposed development was prohibited by cl 48(4) does not mean that the proposed development is not compatible with the character of the local area.

1. Against this, Mr Seton refers to the evidence of Mr Apps, who said that there is no ambiguity with cl 48(4) because it is to be interpreted as if there are two (2) dwellings, they can be two-storey, if they front the street.

1. Having considered these disparate submissions, it seems to me that the practical interpretation of this clause is that of Mr Apps. Insofar as cl 48(4) refers to a range of medium density forms, it is the usual case that not all new units in these types of developments front the public road. Depending on the size and shape of the lot, some units will probably be behind the front dwelling(s) and rely on a separate driveway to access the public road. This distinguishes them from the 'front' dwellings immediately adjoining an existing public road.

1. Therefore, in my assessment, it is not appropriate to interpret cl 48(4) as meaning this total development comprising separate eight (8) units extending some 36 m along the lot to all be two-storey, as satisfying the requirement for "the proposed dwelling immediately adjoins an existing public road." Although the reference to "dwelling" could be plural where there is more than one dwelling unit fronting a public road, and this would be dependent on the width of the lot.

1. I also consider there is support for this interpretation by reference to cl 15 of the SEPP. In certain circumstances it requires consideration of the provisions of the Seniors Living Policy: Urban Guidelines for Infill Development. According to this policy, the objectives of site planning and design include "to minimise the impact of new development on neighbourhood character".

1. The associated design principles are:

Design principles and better practice

General:

° Site design should be driven by the need to optimise internal amenity and minimise impacts on neighbours. These requirements should dictate the maximum development yield.

- Cater for the broad range of needs from potential residents by providing a mix of dwelling sizes and dwellings both with and without assigned car parking. This can also provide variety in massing and scale of built form within the development.

Built form:

° Locate the bulk of development towards the front of the site to maximise the number of dwellings with frontage to a public street.

° Parts of the development towards the rear of the site should be more modest in scale to limit the impacts on adjoining properties....

1. Whilst I accept that the building form for the affordable housing can be somewhat different to the existing dwellings, nevertheless the objective is to achieve a good design outcome, which minimises impacts on the neighbourhood. The above "built form" principles indicate this can be achieved by reducing the bulk of the buildings in the rear area and this is consistent with Mr App's interpretation of cl 48(4), which I consider is reliable.

1. The next area of contention concerns the impact of the bulk and scale of the amended proposal. The applicant's submission is that this amendment provides relief in the overall height of the building by the reduction in height to a single-storey for the intermediate unit No 4. This combined with the 8 m rear setback, which complies with the DCP controls, together with the complying FSR should then allow the application to be approved.

1. Whilst I accept that there is numerical compliance with the bulk and scale controls of FSR, nevertheless I do not consider this is the final determinant for approval of the proposal. Instead, the Court is required undertake a qualitative consideration of whether the design is compatible with the character of the local area. In my view, this involves a subjective assessment of the particular circumstances of the case.

1. In this regard, I note that reference was made to a number of other cases considered by the Court dealing with similar types of development. Whilst I have generally followed the assessment approach in those matters, I do not consider they provide any precedential value considering the different locality constraints and planning controls applying.

1. Notwithstanding this, I accept that relevant planning principles were derived in the matter of Project Venture Development v Pittwater Council [2005] NSWLEC 191 where Roseth SC said:

24 Where compatibility between a building and its surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked.

• Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites.
• Is the proposal's appearance in harmony with the buildings around it and the character of the street?

1. In applying these principles, I do not consider that the proposal's appearance will be in harmony with the existing "local area" character to merit consent because the urban context of this local area is that of a consistent low density, predominantly single dwelling character with dwellings fronting the street and with large open rear yard open space areas. The proposal would introduce a significantly different visual presentation with the predominant two-storey units appearing to extend to within 8 m of the rear boundary. This is contrary to one of the fundamental characteristics of this area.

1. Furthermore, I accept that the compatibility test also involves consideration of the likely future character of the area. Accordingly, whilst the current controls allow more intensive medium density forms of residential development, recent development has been in the form of large twostorey dwellings located within the front building area and maintaining only secondary structures within the large rear open space corridor. There are no medium density developments in this local area, despite the current zoning.

1. Notwithstanding this, any future medium density development will be constrained by cl 48 of BLEP, which will restrict new dwellings not adjacent to a public road to be single storey. This will retain a degree of openness along the rear common property boundaries as exists with both the existing and recently developed properties. Consequently, I consider that the proposal would not be compatible with this possible future development and would therefore significantly compromise the visual amenity and character of this local area.

1. I also think that the opportunities for medium density development are significantly constrained by the DCP minimum lot width control of 26 m. As most of the existing lots in this 'local area' have widths of 20 m, future medium density development would be dependent on lot consolidation. In these circumstances, I consider it is unlikely there will be large - scale medium development, which is compatible with the appearance and character of the proposal.

1. In reaching this conclusion I note that there was brief discussion about the possible reduction to a single-storey height for the three (3) northerly units towards the rear part of the lot. Submissions were made in this regard in support for a conditional consent on this basis.

1. Whilst I see some merit in this design option because it would probably represent a better balance and outcome in maintaining the rear open space corridor characteristic and compatibility with the form of surrounding development, nevertheless I consider this option would be substantially different from the subject application and any such proposal should be subject to a new application for assessment.

1. In this regard, I note that the amended SEPP contains new locational criteria relative to the proximity of the site to public transport, which may now create some challenge for compliance in the this street. Therefore, I consider any approval for this type of development should demonstrate comfortable compliance with the character test because it is now unlikely other similar developments of the proposed form would be approved in this part of the designated "local area".

1. Apart from this, I have considered the objections, which concern the compatibility of the proposal within the residential neighbourhood, traffic issues and amenity impacts. I do not address these further considering my conclusion that this application based on the aforementioned reasons should be refused on the grounds of failure to satisfy the cl 16A character considerations, in particular the bulk and appearance of the proposed units towards the rear of the site.

Court orders

1. The Court orders that:

(1)The appeal is dismissed.

(2)Development consent for DA - 11 - 566 for the demolition of the existing dwelling and construction of an eight - unit affordable housing development at 91 Paull Street, Mount Druitt is refused.

(3)The exhibits may be returned except for 2, 8 and A.

R Hussey

Commissioner of the Court

Decision last updated: 19 October 2012