Trek Consulting Services Pty Ltd v Campbelltown City Council

[2004] NSWLEC 627

Land and Environment Court

of New South Wales

CITATION:	Trek Consulting Services Pty Ltd v Campbelltown City Council [2004] NSWLEC 627
PARTIES:	APPLICANT Trek Consulting Services Pty Ltd RESPONDENT Campbelltown City Council
FILE NUMBER(S):	11624 of 2003
CORAM:	Tuor C.
KEY ISSUES:	Development Application :- Residential development Consistency with existing and future character Impact on residential amenity
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No 65 Campbelltown Local Environmental Plan 2002
CASES CITED:	Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 ; Zhang v Canterbury City Council (2001) 115 LGERA 373
DATES OF HEARING:	14 and 15/09/04
DATE OF JUDGMENT:	11/10/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr J Robson SC Solicitors Mulally Mylott RESPONDENT Mr A Seton Solicitors Marsdens Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

10 November 2004

11624 of 2003 Trek Consulting Services Pty Ltd v Campbelltown City Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Campbelltown City Council (the council) of a development application (F686/2003) to demolish the existing houses and construct a residential development at lot 1 DP 910270, and lots 8, 9 and 10 DP 911247, known as 145 Dumaresq Street and 186-190 Lindesay Street, Campbelltown (the site).

2 For the reasons set out in this judgment I have concluded that the appeal should be dismissed and development consent refused.

The site and its context

3 The site is located on the southern corner of the intersection of Lindesay Street and Dumaresq Street. It consists of four blocks of land each with a single storey detached timber dwelling. The site is rectangular in shape and has an area of 2,764.52sqm, with a north eastern frontage to Dumaresq Street of 57.22m and a north western frontage to Lindesay Street of 48.16m. It has a slope of about two metres from south to north with no significant vegetation.

4 Adjoining development to the south east is a single storey house and to the south west is a three storey residential flat building.

5 The area is a mixture of residential development including single storey detached houses, town houses and residential flat buildings. The existing character is discussed further under the issues.

The proposal and its history

6 The application was lodged on 15 July 2003 and was notified to adjoining and nearby residents. Council received three objections to the proposal. Council refused the application on 27 April 2004.

7 The application was amended and renotified. One further submission was received. The amended application is the subject of this appeal. This proposes 29 dwellings and basement parking for 44 cars (29 resident and 15 visitor). The development has a maximum height of three storeys and a floor space ratio (FSR) of 0.91:1 based on the applicant’s calculations and 1.02:1 based on council’s calculations. The applicant indicated during the hearing further amendments to the proposal to change the setback on Lindsay Street, increase the width of balconies and delete Unit 31. Council did not oppose these changes but they did not resolve the issues between the parties.

Planning Framework

8 The site is zoned 2(b) – Residential B under Campbelltown (Urban Area) Local Environmental Plan 2002 (LEP 2002). Residential uses are permissible if they are not expressly prohibited. Residential flat buildings are prohibited within this zone. A residential flat building is defined as:

Residential flat building means a building containing two or more dwellings which achieve access from shared foyers, halls and stairways.

9 The parties did not agree whether the proposal should be classified as a residential flat building. I determined this as a preliminary matter and, for the reasons that I articulated during the hearing, I found that the proposal was not a residential flat building as defined under LEP 2002 and was therefore a permissible use within the zone.

10 While I accept Mr Robson’s submission, for the applicant, that in determining that the proposal is not a residential flat building for the purposes of LEP 2002, it is not then necessary to characterise the use to decide its permissibility. However, under LEP 2002 Multi dwelling housing is defined as:

Multi dwelling housing means development involving the erection of three or more dwellings on a site, each with separate access from the ground floor.

11 The proposal is consistent with this definition and this use is permissible within the zone with development consent.

12 The objectives of the 2(b) Residential B Zone relevantly include:

(a) to make general provision for land to be used for housing and associated purposes, and
(b) to permit the development of a range of housing types, and
(c) to encourage the variety of forms of housing that are higher in density than traditional dwelling houses, including accommodation for older people and people with disabilities, in locations which are accessible to public transport, employment, retail, commercial and service facilities,

Except as otherwise provided by this plan, consent must not be granted for development on land within this zone unless the consent authority is of the opinion that carrying out the proposed development would be consistent with one or more of the objectives of this zone.

13 LEP 2002 does not contain development standards that are relevant to this proposal.

14 The parties agreed that for the purposes of State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development (SEPP 65) the building was categorised as a residential flat building and the provisions of this instrument apply. Under SEPP 65, the Residential Flat Design Code (the Code) must be considered.

15 Development Control Plan No 79 – Residential Development Policy (DCP 79) provides criteria for the assessment of “all forms of residential development in residential zones”. However, the form of development proposed does not meet the definitions for the types of residential development in DCP 79.

16 Under DCP 79 multi dwelling housing is defined as:

“Multi dwelling housing” development means development involving the erection of three or more dwellings on a site in the form of villas or town houses or a combination of villas and town houses, where:

a) the minimum lot size is 700sqm.
b) the minimum width is 22.5m
c) the maximum floor space ratio is 0.4:1
d) the maximum density is:

……….

1 medium dwelling for each 250sqm of site area where medium dwelling means a dwelling having a floor area between 55 and 85sqm

1 large dwelling for each 330sqm of site area where large dwelling means a dwelling having a floor area of greater than 85sqm.

17 While the proposal can be categorised as multi dwelling housing for the purposes of LEP 2002, it is not a combination of villas and town houses, and therefore does not meet the definition in DCP 79. However, I find that DCP 79 is the relevant planning framework to determine the desired future character for the area and it is against this framework that the development must be assessed.

18 While DCP 79 is made before LEP 2002, I do not accept Mr Robson’s submission that the DCP is at odds with the LEP as it does not contemplate a form of development that is permissible within the LEP. The use is permissible under the LEP definition and the DCP applies to all residential development. The form of development on the site should conform to the future character anticipated by the DCP.

19 Development Control Plan 52 – Off Street Car parking Policy (DCP 52) also applies to the site and specifies the number of car parking spaces (44) to be provided for multi dwelling developments. DCP 79 also specifies the number of car spaces (58) to be provided for multi dwelling developments. Non-compliance with the requirements of DCP 72 was initially raised as an issue by council but was not pressed on the basis of the traffic evidence provided on behalf of the applicant.

The issues

20 The Statement of Issues before the Court contained 22 issues. As stated above, Issue 1, relating to permissibility was dealt with during the hearing. A number of other issues were resolved by the submission of further information, expert evidence or conditions. The remaining issues can be categorised into the following key issues:

i) Whether the proposal is an appropriate response to the existing and future character of the area.
ii) Whether the proposal has an acceptable impact on the amenity of adjoining development.

The evidence

21 The following experts gave evidence:

· For the council

Mr W Stimson, town planner
Mr N Dickson, architect and urban designer

· For the applicant

Mr A Smith, town planner
Mr J Toon, architect and planner

22 Mr J Coady, traffic consultant, provided a Statement of Evidence on behalf of the applicant but he was not required for cross examination.

23 The Court also had the advantage of a site visit and heard evidence from the following residents on site:

Mr N Glumac, 147 Dumaresq Street.
Mrs Trzoska, 28 Allman Street.

Existing and future character of the area

24 The key difference between the experts in relation to the existing character was the extent to which exiting residential flat buildings and other larger buildings, such as the private hospital, defined the character of the area. In particular, the experts held different opinions about the number and influence of three storey flat buildings in the area.

25 Mr Toon’s opinion was that the environs were dominated by two and three storey buildings. The streetscape of the south western side of Dumaresq Street is predominantly single storey detached houses. Whereas the other side is two storey, which in Mr Toon’s opinion presents as three storeys. There is a three storey building adjoining to the south and another three storey, which presents as four storeys, further along Lindsay Street. Mr Toon concluded that the proposed three storey building was an appropriate response to this context.

26 Mr Dickson held the contrary opinion that the area was characterised by single and two storey buildings with some three and one four storey building. He stated that the area would have been originally developed with single storey houses. Scattered redevelopment has occurred, including residential flat buildings under an earlier planning regime and town houses. He was not aware of any recent development of similar height or density to the proposal. He considered that while three storey buildings should be considered as part of the context they were not a justification for further examples and that the development was not an appropriate response to this existing context.

27 Mr Dickson and Mr Toon agreed that the area was undergoing change and the site was suitable for medium density development but disagreed on the form such development should take.

28 Mr Dickson stated that the desired future character of the area was understood from the planning controls, particularly the form of development envisaged by DCP 79 and that the proposal was not consistent with this desired future character as it exceeds the DCP controls.

29 The parties agreed that the DCP controls and the proposal were as follows:

· the height control of two storeys plus an attic. The proposal is three storeys

· the FSR control of 0.4:1, the proposal is 0.91:1 based on the applicant’s calculations and 1.02:1 based on council’s calculations

· density control which would require a site area of 9,570sqm for the number and size of units proposed. The site area is 2,764.52sqm

30 The setbacks do not comply with the DCP requirements particularly on Dumaresq Street. Mr Dickson’s evidence was that there are no other developments within the locality with similar setbacks to those proposed. The setbacks to the adjoining residential properties also do not comply, although the setback of the upper two storeys to 28 Allman Street was increased during the hearing.

31 The development is permissible under the definition in LEP 2002 as it does not provide shared access. In Mr Dickson’s opinion the number of access stairs were a negative feature of the development. Mr Toon agreed that the number of stairs could be reduced but stated this requirement was not determinative of the application.

32 Mr Toon considered that the proposal was consistent with the desired future character as it met the objectives in LEP 2002, particularly objective (c) to provide higher density housing in close proximity to shops and transport. The site, in his opinion is close to the Campbelltown commercial centre and railway station and is therefore ideally situated for development of this density and form.

33 Mr Toon also considered the site to be appropriate as it is a corner site fronting wide streets with an expansive visual catchment. He recognised that the development exceeded the DCP controls but considered it to be “superior” as it provides parking underground thereby freeing up open space. The arrangement of buildings around a courtyard achieves a high level of amenity. The form is consistent with other buildings in the area, which are generally walk up style buildings.

34 I find that the proposal is consistent with one or more of the objectives of the zone. This test is not a particularly onerous one given the broad nature of the objectives and the requirement to satisfy only one objective. The key question before the Court is the consideration to be given to DCP 79 and the future character it envisages.

35 The role of a DCP is set out in some detail by the Chief Judge in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 at pars 83 to 92 and includes a review of recent judgements on this issue. Relevantly, at par 87, His Honour states:

A development control plan is a detailed planning document which reflects a council's expectation for parts of its area, which may be a larger area or confined to an individual site. The provision of a development control plan must be consistent with the provisions of any relevant local environmental planning. However, a development control plan may operate to confine the intensity of development otherwise permitted by a local environmental planning.

36 His Honour further states, at par 87, matters relevant to consideration of development control plans. These include the matters raised in the preceding paragraph and a number of specific matters that determine the weight to given to a development control plan. These are the level of consultation with interested persons, including the effected community, any inconsistency in which the development control plan has been applied by a council, the consistency with other policy outcomes adopted at a State, regional or local level and the consistency of decision-making.

37 The emphasis to be given to a DCP is also addressed in Zhang v Canterbury City Council (2001) 115 LGERA 373. Spigelman CJ, at par 75, raises three important propositions. First, and although the Court has a wide-ranging discretion, the discretion is not unfettered. Secondly the provisions of a DCP are to be considered as a fundamental element in, or a focal point to, the decision-making process particularly, if there are no issues relating to compliance with a local environmental plan. Thirdly, a provision of the DCP directly pertinent to the application is entitled to significant weight in the decision-making process but it is not in itself determinative.

38 The form of development, while not defined as such under the LEP, is of the nature of a residential flat building and is clearly not envisaged by the DCP. The controls in the DCP are a clear indication of the expectations for the area. The proposal does not conform to these expectations. While it may be well designed and provide appropriate amenity it is clearly not the form of development that is envisaged by the DCP.

39 The principles in SEPP 65 relating to context, scale and density require a consideration of the existing area and in the case of precincts undergoing transition, the desired future character as stated in planning and design policies. In the absence of any other plan or policy, DCP 79 is the relevant document, which establishes the desired future character of the area. The proposal is not consistent with this character and therefore does not meet these design principles in SEPP 65.

40 The existing character of the area is varied. It is not a context where the proposal would fit into a consistent streetscape of three storey walk up residential buildings. While there are examples of this form of development in the area, particularly the adjoining buildings on Lindesay Street, these are not sufficient to justify further development of a form that does not reflect the intent of the planning controls.

41 The characteristics and location of the site make it suitable for medium density development. The zoning and DCP controls reflect this intent, and envisage a form of development of greater density than the existing low density detached houses, generally in the form of villas and town houses as has recently occurred in Allman Street. I do not accept the proposal to be of a density, height or FSR that is envisaged for this site. The proposal is therefore inconsistent with the DCP and there is no justification for this inconsistency.

Impact on residential amenity

42 The proposal was amended to increase the setback and reduce the height of the development to 28 Allman Street. This property is already impacted upon by the adjoining three storey residential flat building and to a lesser extent by the adjoining town houses. The proposed amendments will reduce the impact of bulk and overshadowing but in the absence of amended plans it is not clear whether this change would result in an acceptable impact.

43 The proposal is setback between 3.0m and 5.3m from the boundary with 147 Dumaresq Street. The development does not result in adverse privacy impacts as primary living areas do not face this property. Access to the upper level apartments is off the path which adjoins this property but this is screened and the number of people using the path will not result in an unacceptable impact. The proposal will increase overshadowing to this property. Mr Toon considered this overshadowing to be acceptable as it was over a paved area which is used as a driveway and hardstand area. From the information provided to the Court it is not clear whether the extent of overshadowing would be acceptable or comply with a relevant standard. However, it is greater than would result from a two storey building.

44 The impact of the development on the adjoining residential flat building was not assessed, although it has balconies about 4.0m from the common boundary of the site, which directly overlook the courtyard area. Landscaping is provided along the boundary but the total reliance on landscaping to achieve privacy is not an appropriate planning principle.

Orders

45 For the above reasons the Orders of the Court are:

1. The appeal is dismissed.
2. The development application (F686/2003) to demolish the existing buildings and to construct a residential development at lot 1 DP 910270, and lots 8, 9 and 10 DP 911247, known as 145 Dumaresq Street and 186-190 Lindesay Street, Campbelltown is determined by refusal.
3. The exhibits may be returned.

__________________
Annelise Tuor
Commissioner of Court