Taouk v The Hills Shire Council

[2015] NSWLEC 1512

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Taouk v The Hills Shire Council [2015] NSWLEC 1512
Hearing dates:	1 December 2015
Date of orders:	09 December 2015
Decision date:	09 December 2015
Jurisdiction:	Class 1
Before:	Brown ASC
Decision:	1. The appeal is upheld; 2. The Application to modify Development Consent No 497/2015/HB for the demolition of all existing buildings and construction of 16 units for housing for seniors or people with a disability at 157A-159 Old Northern Road, Castle Hill is determined by approving the modifications sought. 3. As a consequence of order (2), Development Consent Development Consent No 497/2015/HB is now subject to the consolidated, modified conditions of development consent set out in Annexure A; 4. The exhibits, other than Exhibits 4, A and B, are returned.
Catchwords:	MODIFICATION: modification of the approved housing for seniors or people with a disability development by the addition of one additional unit and two additional car spaces – whether there is an unacceptable impact on the character and streetscape – whether the floor space ratio is acceptable – whether the proposal has inconsistent height and bulk compared to adjoining properties.
Legislation Cited:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 The Hills Local Environmental Plan 2012
Cases Cited:	Project Venture Developments v Pittwater Council [2005] NSWLEC 191 Taouk & Ors v The Hills Shire Council [2015] NSWLEC 1097
Category:	Principal judgment
Parties:	Andrew Taouk (Applicant) The Hills Shire Council (Respondent)
Representation:	Counsel: Mr G McKee, solicitor (Applicant) Mr A Seton, solicitor (Respondent)   Solicitors: McKees Legal Solutions (Applicant) Marsdens Law Group (Respondent)
File Number(s):	10764 of 2015
Publication restriction:	No

Judgment

1. ACTING SENIOR COMMISSIONER: This is an appeal under s 96(8) of the Environmental Planning and Assessment Act 1979 (the EPA Act) to modify the consent of DA No. 497/2015/HB by way of a Section 34 Agreement on 13 April 2015 (Taouk & Ors v The Hills Shire Council [2015] NSWLEC 1097). This approval granted consent for the demolition of all existing buildings and construction of 16 units for housing for seniors or people with a disability at 157A-159 Old Northern Road, Castle Hill (the site).

2. This modification application seeks approval for the modification of the approved development by the addition of one further unit and two additional car spaces. The additional unit is to be located above an approved unit in the south-west corner of the site at the Old Northern Road frontage. The additional two car spaces are to be provided by extending the area of the basement carpark.

3. The council maintains that the modification application should be refused because it will result in:

1. an unacceptable impact on the character and streetscape of the area,

2. an unacceptable floor space ratio (FSR), and

3. inconsistent height and bulk compared to adjoining properties.

Relevant planning controls

4. The site is within Zone R2 Low Density Residential under The Hills Local Environmental Plan 2012 (LEP 2012). The proposed use would be defined as “residential accommodation” and is a prohibited use in this zone. The proposed development gains its permissibility through State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP Seniors) and this planning document was the principle assessment document for the Section 34 Agreement on 13 April 2015. SEPP Seniors provides requirements for any development under this instrument and the relevant requirements are set out in the following paragraphs.

Character/streetscape

The evidence

5. Mr James McBride provided evidence for the council and Mr Andrew Minto provided evidence for the applicant. Both are town planners. While the council identified three specific contentions, they are linked in that the unacceptable FSR, height and bulk results in an unacceptable impact on the character and streetscape of the area and the adjoining properties.

6. Mr Minto states that as a result the additional building element, the proposal will present to Old Northern Road as a two storey built form which is consistent with both the remainder of the existing approved development sited to the north of the proposal and other development within the vicinity of the site.

7. The proposal is to be provided with setbacks which are compliant with the requirements of the council. The proposed front setback is to be a minimum of 10m measured to the front corner of the balcony whilst the bulk of the proposal will be provided with an average setback of approximately 12m. The setback from the southern side setback will be 8.2m. As a result of the generous 8.2m side boundary setback, Mr Minto states that that the proposal satisfies the intent of cl 40(4)(b) which seeks to limit development to a maximum of 2 storeys adjacent to a boundary. While the proposal is technically a 3 storey building, the 3 storey component is setback sufficiently from the side boundary so as to not be directly adjacent to the side boundary. The 3 storey classification of the proposal relates to a maximum 319mm projection of only part of the basement above the 1m permissible projection above ground level. Such an occurrence is typical of development with a sloping site

8. Mr Minto notes that the proposal complies with the 8m height control in SEPP Seniors and an overall height less than the 9m height control of the council for the area.

9. In relation to FSR, Mr Minto states that the impact of the floor space is addressed in the preceding paragraphs and was found to be acceptable in terms of streetscape and character. Additionally, the building (and its floor space) provides no overshadowing, overlooking and a high quality design which includes significant articulation and modulation including varied materials and finishes and which will provide for a positive outlook when viewed from the adjoining property.

10. Mr McBride states that the proposed modification would result in a building that is essentially 3 storeys in form and consequently of a scale that is not commensurate with the existing and desired future character of the area. The site and the area bounded by Old Northern Road, Edward Street, Ambleside Drive and Excelsior Avenue are currently zoned R2 Low Density Residential under LEP 2012. There are no current or future plans to consider a higher density zoning for the site and immediate surrounds. Existing development within the R2 zone comprises predominately of a mixture of single and two storey dwellings. The proposed modification would result in the development being inconsistent with the objectives of the R2 zone which seek to maintain the existing low density residential character of the area.

11. With regard to the desired future character, the highest yielding built form currently permitted under LEP 2012 for the R2 zone are dual occupancy developments. The proposed modification will give the effect of the development appearing as a residential flat building which is inconsistent with the desired future character of the area and will detract from the quality of the streetscape.

12. The proposed modification will exacerbate the bulk and scale of the development when viewed from the street, particularly adjacent to the driveway. The resulting scale and massing of the proposed modification is considered to be excessive and contrary to cl 40(4)(a) of SEPP Seniors which limits buildings to a maximum of 2 storeys to any boundary of the site. The proposed modification will result in the development exceeding 2 storeys to a property boundary which will exacerbate the perceived bulk and scale of the development to adjoining low density residential properties.

13. The modification will exacerbate the perceived bulk and scale of the development from downstream properties located to the east along Ambleside Drive. The combined effect of the building elements when viewed upslope towards Old Northern Road will effectively result in an outlook of 4 storeys which Mr McBride states will dominate the surrounding low density residential dwellings.

14. In relation to the FSR, Mr McBride states that the modification will increase the gross floor area of the development from an approved FSR of 0.58:1 to 0.61:1. The proposed modification exceeds the non-discretionary development standard for FSR of 0.5:1 as prescribed by SEPP Seniors and is inconsistent with the intent of SEPP Seniors in terms of the acceptable density and scale of a building when expressed as a maximum FSR.

15. The proposed modification will result in a development that is not of a scale that is sympathetic to, in keeping with, and does not contribute to the existing and future desired low density character of the locality.

Findings

16. There are a number of areas in SEPP Seniors that relate to streetscape and character. As a starting point, cl 3 defines streetscape as:

streetscape means the character of a locality (whether it is a street or precinct) defined by the spatial arrangement and visual appearance of built and landscape features when viewed from the street.

17. Clause 29(2) requires the Court to take consideration certain compatibility criteria in cl 25(5)(b)(i),(iii) and (v). The relevant criteria are:

(i) the natural environment,( including known significant environmental values, resources, and hazards)and the existing uses and approved uses of land in the vicinity of the proposed development.

.

(v) without limiting any other criteria, the impact that the bulk-scale and built form and character of the proposed development is likely to have on the existing uses, approved uses, and future uses of land in the vicinity of the development.

18. Clause 31 requires that the Court must take into consideration the provisions of the document Seniors Living Policy: Urban Design Guidelines for Infill Development (the Guidelines). Relevantly, under the heading of “1. Responding to Context “ the Guidelines state (at p4), in part, that:

New development should contribute to the overall character of an area, or, in other words, have a good “neighbourhood fit”. A good “neighbourhood fit” is an appreciation of the defining characteristics of the neighbourhood that new development could retain or reinforce.

19. Clause 32 requires the Court to be satisfied that regard has been certain principles in cl 33, namely:

(a) recognise the desirable elements of the location's current character or, in the case of precincts undergoing a transition, where described in local planning controls, the desired future character, so that new buildings contribute to the quality and identity of the area;

.

.

(c) maintain reasonable neighbourhood amenity and appropriate residential character by:

(i) providing building setbacks to reduce bulk and overshadowing;

(ii) using building form and siting that relates to the site's land form;

(iii) adopting building heights at the street frontage that are compatible in scale with adjacent development, and;

(iv) considering where buildings are located on the boundary, the impact of boundary walls on neighbours;

(d) be designed so that the front building of the development is set back in sympathy with but not necessarily the same as the existing building line;

20. Clause 40 provides development standards for minimum sizes and building heights. The clause provides that consent must not be granted unless the standards are complied with. The development satisfies the standards for site size (cl 40(2)), site frontage (cl 40(3)), and height (cl 40(4)(a)). The parties agreed that the proposal was 3 storeys and was not in compliance with cl 40(4)(b) which states:

(b) a building that is adjacent to a boundary of the site (being the site, not only of that particular development, but also of any other associated development to which this Policy applies) must be not more than 2 storeys in height, and

Note. The purpose of this paragraph is to avoid an abrupt change in the scale of development in the streetscape.

21. Clause 50 provides standards that cannot be used to refuse an application if the standard is complied with. The parties agreed that the proposed development did not satisfy the density and scale standard of 0.5:1 or less, the development, having an agreed FSR of 0.59:1 (cl 50(b)).

22. If the additional unit is considered against the range of requirements in SEPP Seniors on streetscape and character, I agree with the conclusions of Mr Minto for the following reasons:

Setback to Old Northern Road

23. The setback to Old Northern Road is acceptable. The setback of a minimum of 10m was established by the earlier agreement for the development of the site by the parties. It is consistent with the requirement in cl 33(d) in that “the front building of the development is set back in sympathy with but not necessarily the same as the existing building line”.

Building height

24. The building height at the street frontage is acceptable. The height complies with the 8m requirement in cl 40(4)(a) of SEPP Seniors and the 9m requirement in cl 4.3 of LEP 2012. Given compliance with the height requirements in both SEPP Seniors and LEP 2012, I accept that the proposal adopts ”building heights at the street frontage that are compatible in scale with adjacent development” (cl 33(c)(iii)). In coming to this conclusion, I have adopted the meaning of “compatibility” as “capable of existing together in harmony” (Project Venture Developments v Pittwater Council [2005] NSWLEC 191).

Bulk and scale

25. The additional bulk and scale is acceptable. The concerns of Mr McBride over bulk and scale focus on the definition of the building as a 3 storey building. SEPP Seniors provides that a car park that does not extend above ground level by more than 1 m is not to be counted as a storey (cl 3(2)). The additional unit results in the proposed unit and the approved unit below being a maximum 1.339m above ground.

26. Clause 40(4)(b) states that consent must not be granted unless a building that is adjacent to a boundary of the site must be not more than 2 storeys in height. The Macquarie Dictionary (Second Edition) defines “adjacent” as:

Adj. Lying near, close, or contiguous; adjoining; neighbouring:

27. In a planning context, I am satisfied that the large setback of 8.2m (including a 2m wide landscaped strip) could not be regarded as “adjacent”, in that the distance between the proposed unit and the dwelling to the south is not “Lying near, close, or contiguous” even though I accept that the relationship between buildings could be said to be “adjoining; neighbouring”. I am strengthened in this conclusion when considering the purpose of the requirement; that being to “to avoid an abrupt change in the scale of development in the streetscape”: In my view, there is no abrupt change in scale because of the large setback and the location and the relatively small breach of the storey requirement.

28. I am also satisfied that after considering where buildings are located on the boundary and the impact of boundary walls on neighbours that the relationship is acceptable (cl 33(c)(iv)).

Streetscape and character

29. The impact on the streetscape and character of the area is acceptable. The additional unit has little, or no impact on the streetscape and character of the area given that the previous agreement between the parties. In my view, the proposed unit could be regarded as a positive impact on the streetscape because it reinforces the 2-storey presentation to Old Northern Road that previously existed over only half of the site. I have little trouble in finding that the additional unit reinforces “the spatial arrangement and visual appearance of built and landscape features when viewed from the street” and has a good “neighbourhood fit”.

30. I agree with Mr Minto that the breach of the storey requirement would be unnoticeable to anyone except those with a specific understanding of the development and the SEPP Seniors requirements.

Floor space ratio

31. The FSR is acceptable. The density and scale standard of 0.5:1 is a deemed to satisfy requirement. There is no obligation for the applicant to comply with the 0.5:1 FSR only that a non-compliance generates the need for a merit assessment in relation to density and scale. The approved FSR is 0.58:1 ad the additional unit raises the FSR to 0.61:1. I am satisfied as the approved FSR already exceeds the 0.5:1, the additional FSR has no meaningful effect on streetscape, character, bulk, scale or height (see previous comments).

32. I am also mindful that the R2 zone has no specific FSR requirements in LEP 2012 however, if approval is sought for a dual occupancy, the maximum FSR is 0.5:1. If the proposed development is measured in accordance with LEP 2012 rather than SEPP Seniors, the approved FSR for the site is 0.53:1 and the FSR of the additional unit is 0.56:1.

Orders

33. The orders of the Court are:

1. The appeal is upheld;

2. The Application to modify Development Consent No 497/2015/HB for the demolition of all existing buildings and construction of 16 units for housing for seniors or people with a disability at 157A-159 Old Northern Road, Castle Hill is determined by approving the modifications sought.

3. As a consequence of order (2), Development Consent Development Consent No 497/2015/HB is now subject to the consolidated, modified conditions of development consent set out in Annexure A; and

4. The exhibits, other than Exhibits 4, A and B, are returned.

_____________________

G T Brown

Acting Senior Commissioner

10764 of 2015 Annexure A (118 KB, pdf)

Amendments

18 December 2015 - Amendment to Condition 1 of Annexure A

Decision last updated: 18 December 2015