Concept Plus v Auburn Council [2002] NSWLEC 12

Land and Environment Court of New South Wales

CITATION : Concept Plus v Auburn Council [2002] NSWLEC 12 APPLICANT: Concept Plus PARTIES : RESPONDENT: Auburn Council

FILE NUMBER(S) : 10518 of 2001 CORAM: Lloyd J KEY ISSUES: Development Application :- residential flat building - overshadowing

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 97 Auburn Local Environmental Plan 2000 CASES CITED: DATES OF HEARING: 29/10/2001 and 30/10/2001 EX TEMPORE JUDGMENT DATE : 10/30/2001

APPLICANT: Ms K M Gerathy SOLICITORS: Abbot Tout LEGAL REPRESENTATIVES: RESPONDENT: Mr A J Houston SOLICITORS: Houston Dearn O'Connor

JUDGMENT:

6 IN THE LAND AND Matter No.: 10518 of 2001 ENVIRONMENT COURT Coram: Lloyd J OF NEW SOUTH WALES Decision date: 30 October 2001 Concept Plus Applicant v Auburn Council Respondent

EXTEMPORE JUDGMENT 1. HIS HONOUR: This is an appeal under s 97 of Environmental Planning and Assessment Act 1979 against the refusal of a development application for a residential flat building at No. 46 Northumberland Road, Auburn. The proposed development is a part two-storey and part three-storey building containing ten residential units over a basement level of car parking. 2. The property is zoned residential 2(c) under Auburn Local Environmental Plan 2000. The proposed development is permissible within that zone with development consent. The development is also subject to two relevant development control plans, the Residential Flat Building Development Control Plan 2000 and the Car Parking and Loading Development Control Plan 2000. 3. The issues raised by the appeal are as follows: 1. Non compliance with the Residential Flat Building Development Control Plan in the following respects: (a) The lot size for the subject property of 766 square metres is below the minimum lot size of 1200 square metres in the development control plan. (b) The proposed basement excavation to the northern and southern side boundaries fails to meet the minimum setback requirements of 2 metres from those boundaries. (c) The setback of the eaves and guttering on the uppermost storey does not comply with the minimum 3-metre setback from those side boundaries. (d) The separation between the windows in the proposed development and the windows in the adjoining buildings to the north and south is inadequate. (e) The areas of the proposed residential units are below the minimum areas of 85 square metres required for two-bedroom units and 115 square metres required for three bedroom units. (f) The proposed building will overshadow the windows of habitable rooms of the ground-floor flats in the adjoining building to the south, so that they will not receive a minimum of three hours of sunlight between 9am and 3pm on 21 June. 2. The building is out of character with development in the immediate locality, which is generally said to be two-storey residential flat buildings. 3. The proposed private courtyards for the four ground-floor units is inequitable having regard to the open space needs of the other six units. 4. The proposed development is an overdevelopment of the site. 4. Two other issues which had been initially raised were resolved before the commencement of the hearing, namely the inadequacy of car parking and the adequacy of storage space for each unit. 5. Expert evidence was given for the applicant by Mr G Mossemenear, consultant town planner, and for the respondent by Mr J Crawford, town planner. I record the fact that I also had the benefit of a view taken with representatives of the parties. 6. I should consider each issue seriatim. 7. Issue 1(a). The area of the site is admittedly only 766 square metres, whereas the development control plan requires an area of 1200 square metres. The present site is however isolated between existing residential flat buildings. The proposal is correctly described as infill development. Development in the locality is dominated by residential flat buildings. It would in effect result in a sterilisation of the land if no development in the form of a residential flat building were allowed. The report of Mr Crawford concedes that a residential flat building is an acceptable development on this site, albeit not necessarily to level of the development proposed here. I do not therefore regard this issue as a sufficient ground upon which to refuse the application. 8. Issue 1(b). Mr Crawford explained that the reason for the requirement of the development control plan that excavation associated with basements be set back not less than two metres from the boundary is, firstly, to avoid any subsidence to the adjacent property and, secondly, to obtain a full soil depth adjacent to the property boundaries for landscaping. In the present case, however, the driveway ramp and access for the basement car park is shown as being along the northern boundary, the roof of which is to contain the private courtyards for the four ground-floor units, so that this requirement of the development control plan could not be met. Moreover, the report on the development application which was prepared for the council states that the landscaping plan as proposed could be approved. In view of the acceptability of the landscaping plan, the reason for the setback in this case is no longer valid. I thus do not regard this ground as a basis for refusing the appeal. 9. Issue 1(c). Part of the eaves and guttering along the northern side of the building do not meet the setback requirements in the development control plan. This infringement of the development control plan applies only to the three-storey section of the building. It is conceded by the council that any insistence on compliance may result in an amended design with no eave or guttering, which would be an undesirable design feature. It is also conceded by the council that this issue alone would not justify a refusal of the application. The proposed building otherwise complies with the height control, the floor space ratio control, the site coverage control and the building height plane. This suggests that the building is otherwise generally satisfactory and I would not be inclined to refuse the application on this ground. 10. Issue 1(d). The separation between the proposed buildings and the residential flat building to the south is between 7.0 and 7.5 metres. There is a similar separation between the proposed building and the residential flat building to the north. It would be almost impossible on an infill site such as this to achieve a 9-metre separation between buildings as required by the development control plan. I accept that any overlooking would be no worse than any of the other residential flat buildings in the street. It is not uncommon for reliance to be placed on effective landscaping in such situations to ameliorate such impacts. In the special circumstances of this case, being an infill site, I would not be inclined to refuse the application on this ground. 11. Issue 1(e). The area of each residential unit is below the minimum area of 85 square metres for two-bedroom units and the minimum area of 115 square metres for three-bedroom units as required by the development control plan. The stated objective of this minimum area in the development control plan is: To provide internal dwelling sizes suitable for a range of household types. 12. According to the oral evidence of Mr Crawford, however, this objective is met by the present proposal. Moreover, according to the report of Mr Mossemenear, the plans show that all the units are of a reasonable size and of an appropriate layout. In view of these factors I would not in this case be prepared to refuse the application on this ground. 13. Issue 1(f). It is an undisputed fact that the proposal will overshadow the windows of two ground floor flats in the adjoining building to the south. It is accepted by Mr Crawford that this is one of his principal concerns. The development control plan provides: North facing windows to living areas of neighbouring dwellings should not have sunlight reduced to less than three hours between 9.00 am and 3.00 pm on 21 June over a portion of their surface. 14. In the present case it appears from the shadow diagrams that this requirement will not be met. One living-area window to one ground floor unit and three living area windows to another ground floor unit in the adjoining property to the south, it seems, will be overshadowed for all but a little over one hour between 9.00 am and 3.00 pm in the mid-winter. In my view, this is an unacceptable impact on the two affected residential units in the building to the south. I accept the difficulty in meeting this requirement of the development control plan, on an infill site. The major factor which contributes to the overshadowing is the third or uppermost storey of the proposed development, which comprises two three-bedroom units. The problem would be overcome if these third-floor units were removed. This would reduce the proposed building to a two-storey building. Such a building would be consistent with many of the other residential flat buildings in the street and in the surrounding streets. I accept the fact that there are many residential flat buildings in the area which are three storeys or more in height above basement car parking as is proposed here, but these are generally on larger allotments with adequate separation between buildings. For this reason, this development application must fail. 15. Issue 2. It is next said that the proposed part three- and part two-storey building located between two two-storey residential flat buildings will be out of character with the streetscape. This is the other major issue raised by Mr Crawford. An inspection of the site and of the locality in the presence of representatives of the parties does not convince me that this is so. There are many three-storey residential flat buildings in the vicinity which adjoin two-storey residential flat buildings. The streetscape presents as a mix of two-storey and three-storey buildings. Moreover, the three-storey nature of the proposed building would not be readily apparent from the street, since it is only the rear portion which is three storeys. I have referred already to compliance by the proposed development with the height control, the floor space ratio control, the height plane control, the site coverage control and the landscaped area control. This does not suggest a development which is out of character with the streetscape. I would not have been inclined to refuse the application on this ground. 16. Issue 3. The proposal shows four private courtyards to the four ground floor units. According to Mr Crawford, this is undesirable and inequitable, having regard to the open space needs of the other units. Mr Crawford conceded in his oral evidence, however, that the space at the rear of the building was satisfactory and was otherwise of reasonable size for the remaining units. Moreover, the development control plan, in describing the standards for open space and landscaping, states: Private open space shall be provided for each dwelling in the form of a balcony, roof terrace or courtyard for dwellings on the ground floor. Private open space shall have convenient access from the main living area and a minimum area of 8 square metres and a minimum dimension of 2 square metres. 17. In the present case, each of the four courtyards satisfies these criteria. In the light of the evidence, I would not have been prepared to refuse the application on this ground. 18. Issue 4. Finally, it is said that the proposal constitutes an overdevelopment of the site. The considerations to which I have referred suggest that it is only an overdevelopment to the extent of the impact by overshadowing of the third-floor units. If it were not for this factor, the proposal would not be regarded as an overdevelopment. 19. For these reasons, the formal orders are: 1. The appeal is dismissed. 2. The exhibits may be returned.