Tannous v Kogarah MC

[2005] NSWLEC 688

Land and Environment Court

of New South Wales

CITATION:

Tannous v Kogarah MC [2005] NSWLEC 688

PARTIES:

APPLICANT
Tony Tannous

RESPONDENT
Kogarah Municipal Council

FILE NUMBER(S):

10676 of 2005

CORAM:

Murrell C

KEY ISSUES:

Development Application :- construction of 19 units and basement carparking for 33 vehicles - setback - height bulk and scale - streetscape - overshadowing - character - traffic

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Kogarah Local Environmental Plan 1998
Kogarah Development Control Plan

CASES CITED:

Goldin v The Minister for Transport NSWLEC 2002 No. 75

DATES OF HEARING:

29/09/2005 and 24/10/2005

EX TEMPORE JUDGMENT DATE:

11/14/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr S. Stevens, Litigant in person

RESPONDENT
Ms C. Schofield, solicitor
of Pike Pike and Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

14 November 2005

10676 of 2005 Tony Tannous v Kogarah Municipal Council

JUDGMENT

1 This is an appeal under section 97 of the Environmental Planning and Assessment Act against Kogarah Council’s refusal of a development application for the property known as No. 2-6 Bembridge Street, Carlton. The proposal is for 19 units with basement parking for some 33 vehicles. The proposal is one that was submitted to the Council prior to its formal adoption of the Residential Design Guidelines DCP and as such the proposal has been assessed under Council’s Better Home Design Guide, although the Court has had regard to the Residential Design Guidelines of 2005.

2 The subject site is in an area that is currently zoned 2B under the Kogarah LEP and the Kogarah LEP provides for this zone to allow for medium density development. The objectives of the zone are:

(a) to provide for areas of multi unit housing in appropriate locations;

(b) to encourage a diversity of dwelling types and;

(c) to allow non residential development which is compatible with the amenity of the area.

3 The LEP of 1998 does not contain any standards as such. The comprehensive standards or guidelines are provided in the Better Home Design Guide and there are numerous controls and guidelines that relate to the subject site.

4 The locality is known as Carlton North and the Design Guidelines include issues such as streetscape and landscape, building form and materials and traffic and parking.

5 The other specific guidelines for multi unit development are contained within the DCP and this provides that:

Multi unit developments should be designed to related to the scale and character of the street, development should be massed to reduce visual bulk. This allows for a better relationship to the street and detached housing where relevant. Large blank walls are to be avoided and flat roofs are to be avoided. Balconies and windows should not directly overlook neighbouring internal living areas and private open spaces and are designed as an extension of the living space.

6 The DCP for of building envelope under performance measures provides for 3-storey development and 4-stories is permitted only where 4-storey buildings adjoin the site to a maximum height of 12 m. The 3-storey development is to a maximum height of 10.5 m and under the guidelines it states that maximum heights help create a more uniform streetscape and offer protection from overshadowing. Council may, at its discretion, approve attic or rooftop development with a residential flat building that is adjacent to an existing 4-storey development and it states that such development shall have no more than 4 levels or stories of habitable space and must fit within the building envelope of the 12 m. The DCP requires the development to be setback 2.5 m from the edge of the envelope and the controls are also depicted in the form of a diagram.

7 The Council provided a statement of issues to the proceedings. Issue 1 is whether the proposed development will have an unacceptable impact on the streetscape of Bembridge Street and is out of character with the locality as a result of the fourth storey. Council also provided particulars.

8 Issue 2 concerns precedent in that the approval of the proposed development may result in further development in Bembridge Street of 4-storey residential development and thus transform Bembridge Street into a street characterised by 4-storey residential flat buildings.

9 The issues of setback and carparking have been dealt with amendments to the plans. Originally the setback of the proposal exceeded what Council saw as an appropriate setback for Bembridge Street and on the advice of the Court appointed expert the setback has been reduced to accord with Council’s vision for setbacks in the street.

10 Many other issues were raised by objectors and Council considered the Court should take these into consideration. In particular the residents raised a number of concerns in that the development is out of character with the streetscape and the existing character of Bembridge Street. The residents are concerned about the domino affect of further 4-storey developments being approved within Bembridge Street. They are also concerned about the increase in traffic and parking and the amenity impacts including privacy, overshadowing and noise.

11 By way of background the Court met the residents on site when an extensive site inspection was undertaken of not only the subject site but the surrounding streets. The Court heard from a number of resident objectors which are as summarised in Council’s bundle. The main issue at the end of the day relates to whether a 4-storey building should be erected in Bembridge Street. First of all I will describe the area. The area, as I stated, is in transition in terms of redevelopment of generally single storey dwelling houses built in the inter war period and being redeveloped for residential flat buildings. Clearly this is Council’s desired future character of the area in identifying it as potential for medium density residential flat buildings within the 2B zone. The subject site is, as I stated, No. 2-6 Bembridge Street, further to the north-east of the site there are a number of single storey dwelling houses. There was previously an application submitted for the adjoining properties that is No. 8-10 Bembridge Street, however, the applicant has advised today, which is also shown in a letter that this development application has been withdrawn. The street, as I said, is one that is undergoing change. Many of the residents concerns are in some respects related to the zoning of the area for residential flat buildings and it is noted that Council approved a residential flat building for some 5 units with 8 carparking spaces on the corner of Bembridge and the Laneway. It is also noted that Council resolved that the laneway be one-way in the direction from Shaftesbury Street into Bembridge Street.

12 The residents are concerned about parking and traffic in the area. The proposed development is one that complies with Council’s carparking requirements. Indeed the Council’s traffic engineer has provided advice stating:

“using the RTA publication Guide to Traffic Generating Developments the net increase in vehicle movements (that is the difference between the traffic movements being generated by the development compared to that generated by the existing 3 dwellings on the subject sites) is some 68 vehicles per day over a 24 hour period and some 5 vehicles per hour in the AM and PM peak periods. It is considered the above increase in traffic movements will have minimum impact on Bembridge Street in regard to traffic flow and residential amenity and minimal impact in regard to the immediate and nearby road network and intersection operation...”

13 Having regard to the above the council raises no objections to the proposal on traffic or parking grounds and as I state the proposed development provides for appropriate gradients into the 33 space basement parking area and the Court can see no reason as to why the development application should fail in respect of traffic and parking issues.

14 There was concern expressed that Bembridge Street is of a different character to surrounding streets such as Garfield Street where there are many 4-storey residential flat buildings. An exercise was carried out on the day of the site inspection and the road reservation of Garfield and Rutland Streets is 21 m where as for Bembridge Street it is 20 m. I do agree with Council that in many respects the Bembridge Street character is enhanced by the wider verges and street trees but the dimension or the difference in the dimension of the streets is minimal. The vegetated nature of the verges and canopy trees does provide for a street that has special character in the area.

15 The Court had the benefit of expert evidence from Mr Rohan Dickson, Council’s Consultant Urban Designer and Ms Gabrielle Morrish, the Court appointed expert Urban Designer. The proposal is one that was considered by the Council officers and approval was recommended for the proposed development. It is also noted that the proposal was assessed by Council’s design review panel and the design review panel considered that subject to a number of changes that it supported the proposal.

16 The Council officer’s report describes the context of the area as “the site is located within an area with a mix of detached dwellings and residential flat buildings. To the east is a 4-storey residential flat building with ground floor garages whilst to the south are 3-storey residential flat buildings. The area is in transition from detached dwelling houses, has a predominance of pitched and tile roofs, substantial street trees are located in the public domain frontage to the property, which provides scale and maturity to the setting.”

17 The Council officer’s report also expressed a number of concerns with the architectural detailing or design or execution of the proposal and where there was overlooking to the adjoining cottages to the north-east and the need for improved design to increase the solar access to certain units was also identified and the Court appointed expert also noted this in her report. It is noted that the design issues raised by the panel had been discussed with the applicant and the applicant’s architect and there were amended plans submitted to the Council.

18 By way of background the matter originally went to the Council on 14 March with a recommendation for a ‘deferred commencement’ subject to amended plans. The Council then considered the proposal on 26 April 2005 and decided that the development application should be refused. Following that the applicant appealed to the Court, a Court appointed expert provided advice and a statement of evidence was also furnished to the Court. The Court appointed expert considered that the top floor, that is the fourth level of the building which is the seminal issue in these proceedings should be reduced in size such that the fourth storey be located relate to the residential flat building on the corner which is four stories and that the north-eastern portion where the subject site adjoins the cottages should then appear or present as a 3 storey component.

19 I should also state that in terms of the Residential Design Guide of 2005 in that document the consideration of the building envelopes has also been considered. The controls within this document are generally similar to the ‘Better Home Design Guide’.

20 I also note that the Council resolved to amend the DCP by excluding the subject site and the subject street from allowing the discretionary 4-storey element in Bembridge Street. It is also noted this amendment has progressed to the stage where it is proposed a report be submitted to the Council meeting this evening and that following the exhibition of the amendment that Council formally adopt an amendment to the DCP to provide for site amalgamations in certain instances for residential flat buildings and that four storey buildings will not be permitted in Bembridge Street. The current control allows for four storey buildings to be considered at the discretion of the Council. I must have regard to Council’s proposed amendment, it is a relevant matter for consideration in my assessment to reduce or not to allow a fourth storey element within the streetscape.

21 The planning controls, the LEP and the DCP provide a framework for assessment of the development application and mere compliance does not necessarily mean that a development application should be approved. The Court must also ensure that a merits assessment is undertaken in terms of the impacts of proposed development in its context.

22 The Court appointed expert and Mr Atkin while they considered that 3-stories should be the appropriate height for the subject site, at the same time it appears that their major concern is in respect of the precedential effect that a four storey development would create in the streetscape of Bembridge Street. As I stated Bembridge Street is characterised by single storey dwellings that are awaiting redevelopment in terms of Council’s zoning controls and 3-storey residential flat buildings. The residents were concerned about 4-storeys and the impact on the streetscape. The Court has carried out a detailed assessment with the assistance of the sight lines provided for the fourth storey element of the building.

23 At the end of the day the experts, whilst the experts preference was for no fourth storey from Mr Dickson and Ms Morrish, was of the opinion that the fourth storey should be concentrated towards the fourth storey development on the corner. The task of drawing sight lines was carried out such that one could have an understanding as to the visibility of the proposed development in the streetscape. On all the evidence to the Court, including an extensive site inspection, including sight lines that have been drawn I am satisfied that the fourth storey element in the proposed development which is now setback some 9 m from the street boundary and approximately 12.5 m from the eastern boundary, diagonally measured from the corner of the site, that it will not impact on the streetscape of Bembridge Street.

24 The other critical issue for the Court is the one of precedent. In terms of precedent I am satisfied the proposal considered on its merits would not be a precedent furthermore I am satisfied the proposed development will not be antipathetic or out of character with the future streetscape of Bembridge Street if and when it is developed to the three stories as now envisaged in Council’s amended Development Control Plan.

25 Precedent is a very important matter. During the brief adjournment this morning, the report that is going to the Council meeting tonight was provided and whilst the Court cannot pre-empt Council’s decision at the same time it is clear that its intentions are that the DCP be amended on the evidence available to the Court today and I am satisfied that the precedential matter is not one that would warrant refusal of the development application.

26 In saying that I refer to judgment of Goldin v The Minister for Transport NSW LEC 2002 judgment No. 75 by His Honour Lloyd J. His Honour provides a very comprehensive review of case law in terms of precedent. Precedent is a matter that is a relevant consideration for councils in their administration and decision making and also for the Court in its decisions on appeal for development applications. Precedent in itself may at time warrant refusal of applications even if the particular proposal is not objectionable in itself. However, I am satisfied that this particular development will not create a precedent even if such amendments to the DCP are not approved. I am satisfied that approval of the amended application before the Court would not lead to a further 4-storey development and that each application would have to be assess on its merits.

27 Clearly the proposed development with the amalgamation of 3 sites is in my opinion distinguished from the development that Council approved on the single site opposite on the corner of the Laneway and No. 1 Bembridge Street. Furthermore the proportions and the setbacks to all boundaries are clearly quite different and the proposed development is one that will sit comfortably in the streetscape, it will sit comfortably within its own site in terms of its curtilage and the landscaping that is proposed. Importantly the proposal allows for setbacks which will accommodate canopy trees and indeed canopy trees are proposed in the amended landscape plan between 8 and 14 m which will provide for and reinforce the vegetated setting of Bembridge Street itself, that is its street trees and this is a most important characteristic of Bembridge Street which does distinguish it form other streets within the locality. I am also satisfied the proposed development will make a commensurate contribution to that landscaping setting. And the fourth floor element is one that is setback such that it will not impact on the streetscape. One may be able to view the fourth floor from other units within the street and perhaps get glimpses of the fourth floor from the street but there will be limited viewing from the street level although they will be visible form the other units on the upper floors of development opposite, in particular 7 to 9 however this would not warrant refusal of the application.

28 The application has gone through a number of amendments and as with many matters that come before the Court development applications are often put under a microscope or scrutinised more in terms of the design of the development.

29 The Court notes that the garbage store area has now been provided such that it is not sitting proudly in the front setback area, which is an undesirable characteristic of garbage receptacles in many residential flat buildings. It is also noted that the Court enquired as to whether Council has a policy of collection of garbage from basement carparking which would appear to be the most practical way to provide for garbage or waste removal from residential flat buildings that are over a certain size, say 6 units or thereabouts but, that is not a requirement in this Council area. However, the garbage receptacles have now been relocated to the side boundary setback and are to be appropriately designed with a roof over to ensure that people do not get clear view of this area from the upper units. The units have also been amended in terms of ensuring that the dwelling house to the north-east will not be significantly adversely impacted in terms of overlooking. Solar access has also been considered for each of the units, which is an important requirement in terms of State Environmental Planning Policy No. 65. The Court is also satisfied in terms of the ten design principles articulated in that policy that the proposed development is one that is satisfactory. The proposal is also satisfactory in terms of the number of units receiving appropriate solar access and it also has been designed such as floor to ceiling heights are in accordance with SEPP 65. Overall in terms of an assessment under SEPP 65 I am satisfied that the proposed development warrants approval.

30 In my assessment of the proposed development, I must have regard to the fact that Council is well advanced in terms of an amendment to its DCP to limit development in the street to 3-storeys and, as I stated, I consider the proposed development will be compatible in the streetscape even with a reduced number of storeys for future development. Also in terms of precedent it will not create an undesirable precedent in terms of the amalgamated size of this development block and amalgamations, I noticed, are now part of an amendment to the DCP which would appear to be an appropriate initiative of the Council because clearly we saw on the view that the units that were on narrower allotments, say 2 allotments with 4-storeys, proportionally did not fit comfortably in the streetscape compared to those that were on wider allotments with three lots contained within the development site.

31 As I stated I have also considered the concerns of the residents and in terms of traffic I am satisfied with the assessment of Council’s experts that whilst there will be an increase in traffic and the Court does not deny that the proposed development will not increase traffic but at the same time the increase in the traffic is one that can be accommodated in the environmental sense and in terms of the capacity of the road network. There is also adequate provision for parking with visitor spaces also provided in the basement. Clearly from time to time or even more frequently visitors may park on the street as may the residents that reside in the proposal but I am of the opinion that the proposed development makes the adequate provision for parking and this would not warrant refusal of the application.

32 Increased densities may also result in a higher ambient noise/background level but once again the area is one that has been designated for redevelopment in terms of Council’s 2B zone.

33 Therefore on the basis of my assessment I am satisfied that the proposed development as amended warrants approval. There have been a number of amendments to improve the proposal, and mere compliance does not mean that a development proposal is approved. Clearly Council’s controls are to provide for certainty for applicants when preparing in development applications, on all occasions that will not necessarily lead to an approval but I am satisfied that the proposal before me is one that is satisfactory and should be approved.

34 On the basis of my assessment, above having regard to the provisions of section 79C of the Act and Council’s controls and DCP amendments I am satisfied the development warrants approval and the formal orders of the Court are:

1 The appeal in respect of the property known as No. 2-6 Bembridge Street, Carlton is upheld.
2 The development application submitted to Kogarah Council and as amended and shown in the amended plans is approved subject to the conditions contained in Annexure ‘A’
3 The exhibits are returned with the exception of 1, 2, 21, K, L and M.

___________________

J S Murrell
Commissioner of the Court
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