Westminster Projects Pty Ltd v Blacktown City Council

[2020] NSWLEC 1471

Land and Environment Court

New South Wales

Medium Neutral Citation:

Westminster Projects Pty Ltd v Blacktown City Council [2020] NSWLEC 1471

Hearing dates:

28-29 September 2020

Date of orders:

7 October 2020

Decision date:

07 October 2020

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders that:

(1) The appeal is dismissed.

(2) Development Application 19-00496 which seeks construction of 12 x 2 storey townhouses on Lot C in DP 100797, also known as 54 Westminster Street, Schofields, is refused.

(3) The exhibits are returned, except Exhibits 1, 6, A, B and C which are retained.

Catchwords:

DEVELOPMENT APPLICATION – multi-dwelling development – solar access – amenity

Legislation Cited:

COVID-19 Legislation Amendment (Emergency Measures) Act 2020

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

State Environmental Planning Policy No 55—Remediation of Land

State Environmental Planning Policy (Sydney Region Growth Centres) 2006

Texts Cited:

Australian Standard AS/NZS 2890.1:2004 Parking facilities Part 1: Off-street car parking

Blacktown City Council Growth Centre Precincts Development Control Plan 2010

Commonwealth Department of Housing and Regional Development, Australian Model Code for Residential Development AMCORD—A National Resource Document for Residential Development (1995, Australian Government Publishing Service)

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (March 2020)

Category:

Principal judgment

Parties:

Westminster Projects Pty Ltd (Applicant)
Blacktown City Council (Respondent)

Representation:

Counsel:
H Irish (Applicant)
D Loether (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
Bartier Petty (Respondent)

File Number(s):

2019/164886

Publication restriction:

No

Judgment

1. COMMISIONER: This is an appeal against deemed refusal of Development Application (DA) 19-00496 by Blacktown City Council (hereafter the Council) which seeks construction of 12 x 2 storey townhouses on Lot C in DP 100797, also known as 54 Westminster Street, Schofields (hereafter the site).

Background and proposed development

2. The DA was lodged with Council on 17 April 2019, and after notification, two resident submissions in objection were received. The resident submissions raised issues relating to relationship to adjoining property, potential for overlooking and existing stormwater sufficiency.

3. The applicant appealed against the deemed refusal of the DA, pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

4. In response, the Land and Environment Court (the Court) ordered a conciliation between the parties, pursuant to s 34(1)(a) of the Land and Environment Court Act 1979 (the Court Act), which commenced before a different commissioner with a site view on 4 February 2020. After an adjournment, as the parties were unable to reach an agreement, pursuant to s 34(4)(a) of the Court Act, the conciliation was terminated.

5. The parties agreed to proceed by Microsoft Teams in Court, in the hearing of the appeal. This approach to the hearing procedure is consistent with the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 and the Court’s COVID-19 Pandemic Arrangements Policy, which commenced on 23 March 2020. No objectors spoke at the conciliation.

6. Prior to the hearing of the appeal, the applicant sought amendments to the plans and documents that support the DA, for which the Court (Registrar) granted leave to rely on, and which the respondent did not oppose.

7. Further to the plan amendments, revised documentation, together with the draft conditions and evidence of the experts, the Council states that the contentions as specified in the Amended Statement of Facts and Contentions (SoFC tendered as Exhibit 1) for the Court’s consideration in this hearing relate to the potential for amenity impacts to future residents of the site, specifically from insufficient solar access to principal private open spaces (PPOS) for dwellings proposed on the site.

8. All other contentions, that included parking (size of spaces) and insufficient information were resolved prior to the hearing, which the parties agree did not require the Court’s consideration.

9. The respondent filed with the Court on 28 and 29 September 2020, amended written submissions and conditions of consent, respectively. The applicant relies on the respondent’s amended conditions, as well as their conditions and amended written submissions filed with the Court on 28 September 2020.

The site

10. The site is a regular, rectangular shape, fronting 30.44m to Westminster Street, which forms the northern boundary. The lot depth is 76.38m. The total area of the site 2327m^².

11. The site has a general fall towards the south and west of the site. The site is within close proximity to major infrastructure and services, including Schofields Railway Station, Rouse Hill Town Centre and Windsor Road.

12. Currently, the site has an existing single storey dwelling with detached garage and driveway access to Westminster Street.

Relevant planning controls

13. The requirements of s 4.15(1) of the EPA Act are relevant for the Court’s consideration, which must be satisfied for the grant of the DA under appeal.

14. The supporting documents to the amended DA include a Stage 1 contamination site investigation report, which is provided consistent with the requirements of cl 7 of the State Environmental Planning Policy No 55—Remediation of Land (SEPP 55). The Stage 1 assessment identifies that further contamination assessment is required, although the site can be made suitable for the proposed development, pursuant to cl 7(1)(b). The parties agree that there is no jurisdictional issue for the Court to consider, as the requirement for further assessment is addressed appropriately in a deferred commencement condition. This requirement was not raised as a contention.

15. The site is located within the R2 Low Density Residential zone, as described in Annexure 4 (Alex Avenue and Riverstone Precinct Plan 2010) of the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (SEPP Growth). Pursuant to cl 6.2 and Schedule 1 Additional Permitted Uses, of the SEPP Growth, the proposed development is permissible with consent. The parties agree that the amended design of the proposed development satisfies the relevant requirements of the SEPP Growth.

16. The Blacktown City Council Growth Centre Precincts Development Control Plan 2010 (BDCP) is relevant for the Court’s consideration of this appeal, and the parties draw the Court’s attention specifically to the following clauses: 1.3, including Table 1-3 (multi-dwelling housing); 1.7.2 (variations to controls); 4.2, including Tables 4-1 and 4-5 (controls for specific lot and dwelling types); 4.2.7 (private open space); and 4.3.4, including Table 4-9 (additional controls for multi-dwelling housing). Schedule 2 for the Riverstone Precinct relates to the site, in the BDCP.

17. The site must attain an easement across an adjoining property to drain water from the site, which is addressed by deferred commencement conditions and shown in the stormwater plans in Exhibit B. The parties agree this approach addresses any jurisdictional and merit issues. This issue was not raised as a contention by Council, although was raised by a resident objector. The parties agree that this issue has been addressed to satisfy the residents’ concerns as raised.

18. The Australian Standard AS/NZS 2890.1:2004 Parking facilities Part 1: Off-street car parking is relevant, and the parties agree that the amended plans resolve this contention, which relates to size of car parking spaces.

19. The applicant refers to Commonwealth Department of Housing and Regional Development, Australian Model Code for Residential Development AMCORD—A National Resource Document for Residential Development (1995, Australian Government Publishing Service) (hereafter AMCORD) to address solar access compliance.

Evidence

20. The Court was provided written and oral evidence from the respondent’s and applicant’s planning experts, Ms Adiba Kashfi and Mr Tim Stewart, respectively.

Does the proposed development provide sufficient amenity to future residents of the site?

21. The Council contends that the proposed design of the development results in adverse solar impacts to future residents of several townhouses (dwellings), specifically to the PPOS’s.

22. The parties agree that the proposed multi-dwelling development on the site, must be assessed pursuant to the controls described in Table 1-3 of clause 1.3 of the BDCP, which requires consideration of clauses 4.1, 4.2. 4.3 and 4.4. The parties also agree that the controls established in clause 4.2 of the BDCP relate to lots >15m with front access, as relevant to this site and which are described in Table 4-5.

23. According to the experts, there is no concern that the proposed development results in unacceptable amenity impacts to adjoining properties or to the living areas of the proposed townhouses, with regards to sufficiency of solar access.

24. During the hearing, Ms Kashfi conceded that the SEPP Growth does not provide any relevant provisions that relate to solar access. The relevant controls for solar access are agreed by the experts to be described in Part 4 of the BDCP. The experts do not agree whether there is a requirement for quantification of solar access to the PPOS to assess compliance as it relates to this (multi-dwelling housing) development.

25. The key (amenity) issue between the experts is whether the proposed development is required to attain sufficient (by quantification) solar access to the PPOS, as established in clause 4.2.1, Table 4-5 of the BDCP. The relevant control for solar access to PPOS in dispute between the parties as described in Table 4-5 is as follows:

“50% of the area of the required principal private open space (of both the proposed development and adjoining properties) should receive at least 3 hours of sunlight between 9 am and 3 pm at the winter solstice (21 June).”

26. The experts agree that amendments made to the architectural plans now relied on by the applicant increase the external solar access to the total area of POS of two townhouses (T1 and T12), due to the provision of additional POS in the front of these dwellings. The experts disagree whether this provision of the area in the front of the dwellings should be included in calculations with respect to assessing solar access to a PPOS.

27. The experts agree that all proposed townhouses receive sufficient solar access to living areas and that townhouses 1, 5, 6, 11 and 12 receive in excess of three (3) hours solar access to 50% of the area of proposed POS (equivalent to 42% of proposed townhouses).

28. In addition, they accept that the BDCP provides different minimum areal requirements for a PPOS, depending on the type of development. It is agreed by the experts that Table 4-5 in clause 4.2.1 of the BDCP, describes a requirement for solar access to a PPOS. Whereas, Table 4-9 in clause 4.3.4.2, provides additional controls specifically for multi-dwelling developments, which relevant to this contention, provides no benchmark for solar access compliance, although establishes a minimum PPOS area of 16m², with minimum dimension of 3m.

29. The experts agree to accept the areal dimension of the PPOS described in clause 4.3.4.2 (16m²) of the BDCP, as this is applicable to a multi-dwelling development. The proposed development complies with this control for area of a PPOS in each dwelling.

30. The experts agree that if applied, the proposed development does not achieve the solar access requirement to a PPOS (for a number of dwellings) as calculated in Table 4-5 of clause 4.2.1 of the BDCP.

31. The experts also agree that the proposed development complies with the other relevant controls provided in Table 4-5 of clause 4.2.1, which are applicable to the site, because the site has a lot frontage in excess of 15m and the site is front accessed. They agree that the proposed development is not for detached dwellings as defined in the BDCP, however accept that the controls in Table 4-5, except solar access and PPOS area, apply to the proposed development.

32. Ms Kashfi considers that as there is no solar access requirement described in Table 4-9 of clause 4.3.4.2 of the BDCP, it is appropriate to revert back to the solar access requirement established in Table 4-5 to assess solar access sufficiency to the PPOS.

33. Mr Stewart considers that Table 4-9 in clause 4.3.4.2 replaces Table 4-5 in clause 4.2.1 of the BDCP, as it relates to a PPOS for a multi-dwelling development, and therefore there is no solar access requirement to PPOS’s for multi-dwelling housing as proposed on the site.

34. The question for the Court to consider is whether the requirements for solar access to the PPOS’s of each dwelling, as described in Table 4-5 of clause 4.2.1 of the BDCP are relevant for consideration of this development. Further to this, if relevant, as the experts agree that the proposed development is not compliant with the solar access control in Table 4-5, whether a variation in the relevant control is appropriate, as provided for in clause 1.7.2.

35. I do not accept the applicant’s interpretation of the importance of Table 4-9 in clause 4.3.4.2 of the BDCP as it relates to the solar access of a PPOS. I do not consider that this table/clause supersedes the controls established in clause 4.2.1, because: the experts agree that other controls in Table 4-5 are relevant for consideration of the proposed development; and more importantly, the controls described in clause 4.2.1 are ‘key controls’ whereby “key controls should be read in conjunction with the controls in the clauses that follow”. Table 4-9 in clause 4.3.4 provides ‘additional’ controls specifically for multi-dwelling housing developments which augment rather than replace the (key) controls in Table 4-5. Therefore, Table 4-9 in clause 4.3.4.2 does not negate the requirement for consideration of the solar access compliance requirement established in Table 4-5 of clause 4.2.1.

36. The intent of the design of a POS is established in clause 4.2.7 of the BDCP, which is described in the objectives. This POS clause has a relevant control(1) which explicitly states that “Each dwelling is to be provided with an area of Principal Private Open Space (PPOS) consistent with the requirements of the relevant Table 4-2 to Table 4-6.” I find that only the minimum areal dimension of the PPOS is appropriately changed for the proposed development, pursuant to Table 4-9.

37. The requirements for assessment of sufficient solar access relevant to the proposed development are therefore described in Table 4-5 in clause 4.2.1 of the BDCP, and require quantification to show compliance.

38. I agree with the respondent that the POS provided in the front of TH1 and TH12 should not be considered as PPOS for the purpose of calculating solar access compliance, consistent with the control(4) set out in clause 4.2.7.2 of the BDCP, which states “Open space at the front of the dwelling can only be defined as PPOS where this is the only means of achieving the solar access requirements of control 1 above.” Therefore, I find that only three dwellings (out of 12) comply with the provision of sufficient solar access (>3 hours over 50% area) to the PPOS, consistent with Table 4-5 formulae.

39. I am not required, as suggested by Mr Stewart to consider the guidelines in the AMCORD document, provided in Exhibit 2. This document has no jurisdictional requirement nor statutory bearing, and does not bear any weight in a merit assessment. I find that the relevant controls and objectives for solar access provided in the BDCP are adequately described, applicable and do not require augmentation by this document. I therefore do not accept that the requirement for solar access should be assessed by different requirements than those established in the BDCP. The area and time over which compliance is assessed cannot be arbitrarily modified to get a better result. I find there is no ambiguity in the intent of the BDCP, which seeks to measure compliance against an established period of measurement to provide sufficient amenity to residents.

40. Therefore, to be satisfied that s 4.15(1)(a)(iii) of the EPA Act is adequately addressed, a variation of the (solar access) control established in clause 4.2.1 of the BDCP is considered, as provided for in clause 1.7.2 of the BDCP. To vary a control in the BDCP, clause 1.7.2 provides that “Where a variation is sought it must be justified in writing indicating how the development is meeting the intention of the objectives of the relevant control.”

41. The relevant objectives of the BDCP that relate to a POS, for any type of development, including multi-dwelling housing, are established in clause 4.2.7.1 of the BDCP, below:

“a. To provide a high level of residential amenity with opportunities for outdoor recreation and relaxation.

b. To enhance the spatial quality, outlook, and usability of private open space.

c. To facilitate solar access to the living areas and private open spaces of the dwelling.”

42. To consider a variation of the control relevant to solar access to the PPOS for this DA, Mr Stewart has provided in Annexure A of Exhibit 6 an explanation for the Court’s consideration, whih he considers addresses the requirements of clause 1.7.2 of the BDCP.

43. When asked by the Court of the intent of POS in each dwelling, the experts explained that it was to provide residential amenity including health, wellbeing and relaxation. Mr Stewart also considers the POS must connect with the living spaces.

44. Variation must be assessed against the intent of the controls of the BDCP when seeking to achieve the objectives. Based on the evidence before me, I consider that the intent and objectives of clause 4.2.1 of the BDCP, as it relates to solar access to a PPOS, is not satisfied to vary the control. The applicant’s explanation provided in Annexure A of the supplementary joint planners report, in Exhibit 6 and oral submission do not to justify variation to this control as established in Table 4-5.

45. I accept that the applicant stands by their proposed design, as is their right and has not sought to modify their design to address any solar access compliance to the dwellings throughout the appeal process, as pressed by Council.

46. Mr Stewart explains in oral evidence that the issues that relate to non-compliance of solar access to the POS are a direct function of the constrained dimensions of the site, although I note this was not well articulated in the written submission to vary the control in Exhibit 6.

47. I do not accept the rationale that the site is so constrained that a well-designed development could not address the issue of solar compliance to the PPOS of each dwelling. I consider that the design as proposed does not work with the site to achieve solar access compliance. The potential for the proposed dwellings to be redesigned, re-oriented, reduced in number to increase the POS area, among other design approaches, has not been adequately explained to the Court as unlikely to resolve the issue.

48. I consider that the site is of sufficient width, frontage and depth to accommodate an appropriately designed multi-dwelling development, such that all relevant provisions of the SEPP Growth and most of the relevant controls in the BDCP, except solar access to a PPOS, have been complied with. Site dimension is therefore not a constraint that should provide a foundation to vary the solar access to PPOS control established in Table 4-5 of clause 4.2.1.

49. I accept that strict mathematical formulae is not the only measure to assess solar related amenity. However, the benefits of solar amenity to residents provide health, wellbeing and additional space to reside, and should not be forsaken for greater density and inappropriate design.

50. I disagree with Mr Stewart that the proposed design of the development is the best achievable for the site and that no better solar amenity could be achieved.

42. I accept that the proposed PPOS’s are of an acceptable size, however it is the orientation of these POS’s, the relationship of the POS to the built form of the dwellings and the number of dwellings proposed on the site that cumulatively results in the PPOS’s for the majority of dwellings being overshadowed for the majority of the day, providing insufficient solar access. The objectives for private open spaces, in clause 4.2.7 are therefore not achieved because: the usability of the outdoor space is not enhanced; solar access is not facilitated to the POS’s; and the POS’s, as designed, do not provide sufficiently for a high quality of amenity to facilitate relaxation (in a sunlight environment). The specific reference to solar access in the objectives for POS (clause 4.2.7.1) suggests to the Court that weight should be given to its sufficient provision.

43. Further to this, objective (b) for multi-dwelling housing in clause 4.3.4 is also not achieved by the proposed development. The proposed design does not contribute to the amenity of residents.

44. I find that the solar access requirements of Table 4-5 in clause 4.2.1 of the BDCP should be given weight in this assessment. The objectives of clauses 4.2.7 and 4.3.4 enforce the intent of the controls relating to private open space and multi-dwelling housing. I am not satisfied by the evidence before me to vary the solar access requirement to the PPOS for each dwelling, as established in clause 4.2.1, Table 4-5.

45. A variation in the controls relating to solar access of the BDCP is not justified for the proposed development on the site, as it does not achieve the objectives of the relevant control, pursuant to clause 1.7.2 of the BDCP.

46. Based on the evidence before me regarding amenity, I find that the proposed development is not consistent with the requirements of s 4.15(1)(a)(iii) of the EPA Act.

Conclusion

56. The proposed development has been assessed by the Court, based on the evidence provided, including the DA’s (amended) supporting plans and documents, expert reports and written submissions.

57. I have considered the relevant statutory provisions in my assessment of this appeal. Whilst I accept that the proposed development complies with the provisions of the SEPP Growth, I am required to consider consistency with the relevant controls of the BDCP, which pursuant to s 3.42(1)(a) of the EPA Act give effect to the aims of the environmental planning instrument.

58. In my assessment, I am not satisfied that the proposed development is consistent with the relevant provisions of the EPA Act to grant consent to the DA under appeal, and specifically s 4.15(1)(a)(iii).

59. The appeal that relates to DA 19-00496 is refused, pursuant to s 4.16(1)(b) of the EPA Act.

Orders

60. Consequently, the orders of the Court are as follows:

1. The appeal is dismissed.

2. Development Application 19-00496 which seeks construction of 12 x 2 storey townhouses on Lot C in DP 100797, also known as 54 Westminster Street, Schofields, is refused.

3. The exhibits are returned, except Exhibits 1, 6, A, B and C which are retained.

…………………….

Sarah Bish

Commissioner of the Court

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Decision last updated: 07 October 2020