Land and Environment Court of New South Wales CITATION : Mirvac Homes (NSW) Pty Ltd v Blacktown City Council [2000] NSWLEC 86 APPLICANT: PARTIES : Mirvac Homes (NSW) Pty Ltd RESPONDENT: Blacktown City Council FILE NUMBER(S) : 10923 of 1999 CORAM: Lloyd J KEY ISSUES: Development :- development application - medium density housing - 73 units on 2.57 ha - merit considerations - weight to be given to draft local environmental plan LEGISLATION CITED: Environmental Planning & Assessment Act 1979, s 97 Blacktown Local Environmental Plan 1998, cl 9(3) CASES CITED: DATES OF HEARING: 03/04/00, 04/04/00 EX TEMPORE 04/04/2000 JUDGMENT DATE : APPLICANT: M H Tobias QC AND D T Miller (barrister) SOLICITORS: LEGAL REPRESENTATIVES: Coudert Brothers RESPONDENT: A E Galasso (barrister) SOLICITORS: Phillips Fox JUDGMENT: Contents Paragraph Issue 1 5 Issue 2 7 Issue 3 8 Issue 4 9 Issue 5 10 Issue 6 11 Issue 7 13 Issue 8 14 Issue 9 15 _______________IN THE LAND AND Matter No: 10923 of 1999 ENVIRONMENT COURT Coram: Lloyd J OF NEW SOUTH WALES Decision date: 4 April 2000 Mirvac Homes (NSW) Pty Ltd ACN 006 922 9998 Applicant v Blacktown City Council Respondent JUDGMENT HIS HONOUR: 1. By amended plans tendered without objection during the hearing the applicant seeks to develop land at 76 Douglas Road, Blacktown for the purpose of medium density housing and a community title subdivision. The matter comes before the Court as an appeal under section 97 of the Environmental Planning and Assessment Act 1979 against the respondent's refusal of a development application for such development. The subject site has an area of 2.771 hectares. There is at present an existing dwelling on the site fronting Douglas Road and which is to be retained on a separate allotment. The site area without the existing dwelling and its separate allotment is 2.57 hectares. 2. The proposed development comprises seventy three individual and three community lots, the latter for common open space. The proposal includes a central roadway intersecting Douglas Road and connecting with De Castella Drive on an adjoining subdivision to the west and in accordance with the council's Development Control Plan. Each of the seventy three individual lots will have a two storey dwelling with living areas on the lower floor and bedrooms on the upper floor. Each dwelling will have a single garage with one additional off street car space. Seven of the dwellings will be free standing and the remaining dwellings will be attached as pairs. There will be four different floor plans and a larger variety of elevations. In addition to the 146 car spaces on the various lots, there will be seven visitor spaces. Each of the dwellings will have a rear courtyard or private open space and a front garden. 3. The subject land is partly zoned 2(a) (Residential "A" Zone) under the Blacktown Local Environmental Plan 1998 and partly zoned number 5(a) (Special Uses Drainage). The latter zone covers a strip of land along the southern boundary. The proposed development is permissible with development consent. Clause 9(3) of the local environmental plan provides that the consent authority shall not grant consent to the carrying out of development on land to which it applies unless it is of the opinion that the carrying out of development is generally consistent with one or more of the objectives of the plan and with one or more of the objectives of the zone within which the development is proposed to be carried out. Clause 2 (sub clause (2)) of the local environmental plan sets out the objectives of the plan. The only objective of the plan which it appears to be relevant is objective (b) "to allow for a variety of life styles". The relevant objectives of the 2(a) zone are" (a) to make general provision to set aside land to be used for the purpose of housing and associated facilities; (b) to identify existing residential areas of a predominantly single dwelling character and to maintain that character by prohibiting residential flat buildings; (c) to enable sensitive infill development of other housing types; and (d) to enable redevelopment for medium density housing forms including townhouses, villas, cluster housing, semi-detached housing and the like, where such development does not interfere with the amenity of the surrounding area. 4. The council has also exhibited a draft amendment to the local environmental plan which I will discuss later in these reasons. The council has raised in this appeal a number of issues as follows. 1. whether the size of the proposed allotments are acceptable and in particular whether the proposed lot sizes are inconsistent with and out of character with conventional lot sizes in the locality; 2. whether the location of the proposed common open space is satisfactory having regard to the location of such open space adjacent to a proposed public road and as such accessible by members of the public; 3. whether the proposed development has provided sufficient car parking. The development is said to be deficient by thirteen visitor car parking spaces; 4. whether the development provides satisfactory separation between groups of buildings having regard to the provisions of the Development Control Plan; 5. whether the proposed development provides satisfactory dimensions for those courtyards which do not provide the minimum seven metre by seven metre dimensions required by the Development Control Plan; 6. Whether the external appearance of the proposed development is satisfactory and in particular whether the proposed development gives the appearance of repetitive rows of two story dual occupancies and as such out of character with streetscapes in the vicinity; 7. Whether consent should be granted having regard to the provisions of the respondent's draft local environmental plan which seeks to prohibit the carrying out of two storey medium density housing upon the subject land; 8. whether the density of the proposed development is excessive having regard to development in the vicinity and in particular to the nature of development to the immediate west of the subject property; and 9. whether the design of the proposed development has provided for sufficient retention of trees at the southern end of the site, so as to provide a buffer for the proposed development from the existing creek. The major issues identified by the council during the hearing are issues one, six and nine. Since none of the issues were abandoned, however, I should consider each of them. Issue 1. 5. The council's expert witness, Miss V Hartley, has stated that if the development were to be considered as integrated housing then under the development control plan the allotments would need to have a minimum area of 230 square metres, a requirement with which many of the allotments do not comply. There is no minimum lot size, however, for medium density development. The council permits attached dual occupancies on lots of 400 square metres. I agree with the observation of Mr G W Smith, the consultant town planner who gave evidence for the applicant, that this suggests that the idea that dwellings must be on lots of 230 square metres, has little objective basis. 6. There is already a similar development to that which is proposed, on land at the corner of Douglas Road and Walter Road which, in my opinion, demonstrates that attached dwellings of the kind proposed can be successfully developed on such small sized lots. The local environmental plan clearly permits the kind of development proposed within zone number 2(a). I accept the opinion of Mr Smith that this issue does not justify a refusal of the application. Each of the proposed dwellings has a sufficient curtilage, in his opinion, to accommodate motor vehicles while providing space for gardening and household activities including a children's play area. Issue 2 7. I t is I think fair to say that this issue was not seriously pressed by the council. The proposed development has a central roadway with development on each side of it. It is difficult to see where else the communal open space could be put unless it is at the southern end of the site which would lead in turn to the preservation of more trees than is proposed at present. One of the three areas of communal open space is already shown as being located at the southern end of the site. I am not convinced however, that communal open space is more likely to be conveniently utilised by the occupiers of the development if it is all located at one end of the site. I do not see this issue as a sufficient reason to refuse the application. Issue 3 8. The adequacy of the carparking was addressed in a report by Mr M B Colston, a traffic engineer, who has said in his report that the bulk of the dwellings front on to the extension to De Castella Drive. Whilst they are treated as medium density housing, the dwellings are in practical terms similar to normal housing being located on their own lots with individual access off the street. It is his opinion that it is perfectly reasonable for this type of dwelling to rely on street parking for their visitors as would normal detached dwellings. De Castella Drive is proposed to be 8 metres wide between kerbs, wide enough to permit kerbside parking. In Mr Colston's opinion the street can comfortably cater for some twenty five parked cars and can accommodate up to fifty parked cars if parked on both sides of the street and over its whole length, which he observes is unlikely in practice. The thirteen visitor car spaces required to satisfy the council's requirement can, in Mr Colston's opinion, be comfortably accommodated along De Castella Drive. In his opinion the Development Control Plan requirement was designed for self contained developments and not a development subdivided by a substantial public road. Issue 4 9. A gain this is not suggested by the council as being a major issue. According to Miss Hartley, the lack of a reasonable setback between buildings increases the density of the development, facilitates overlooking and increases the effect of overshadowing. As pointed out by the expert witness called by the applicant, Mr G W Smith, if these dwellings were simply two storeyed dwellings on conventional lots or attached dual occupancies, or two storeyed integrated housing, they could be built to 900 millimetres from the boundaries of each site. Moreover there are no windows or doors in any of the side walls of the dwellings which face similar dwellings in the proposed development. There will be no loss of privacy, no increase in overlooking and, according to the shadow diagrams, no adverse implications for overshadowing. This issue does not in my opinion justify a refusal of the application. Issue 5 10. The amended plans tendered during the hearing appear to largely meet this issue, which was not seriously pressed. In any event I accept the observations of Mr Smith, namely that the development control plan imposes minimum dimensions of seven metres by seven metres for medium density housing, but in relation to dual occupancies and integrated housing, it specifies an area with minimum dimensions of four metres by six metres. It is thus difficult to see why the occupiers of medium density housing need a space of larger dimensions than those in other forms of housing permissible within this zone. Issue 6 11. The major criticism of the proposed development by the council is that it is said to be entirely out of character with other development in the vicinity, presenting as repetitive rows of buildings without relief. In particular the council points to the existing development on the adjoining land to the west and to the north, which is conventional single storey houses on single allotments of land. The question must be asked whether this development will have any adverse impact on the amenity of the residential area as required by objective (d) of the objectives of the 2(a) zone. Miss Hartley conceded that the development would have no impact on the amenity of the adjoining residential area in terms of privacy, overlooking or overshadowing. It will, however, appear different, as Mr Smith said in his evidence. Different does not, however, mean adverse. The impact would be similar if it was a conventional residential subdivision with two storey houses upon it. To the west of the adjoining subdivision to which I have referred is a new subdivision, which is at present being developed by the erection of houses thereon, many of which are two storied. To the east of the subject site is the Croatian Catholic Church and beyond that is the Tyndale Christian School. These are all relatively large buildings which are at least as high as a two storey residential development. As I have noted, about 700 metres further east is another two storey medium density housing development which is similar to that which is proposed here. 12. The applicant called evidence from Associate Professor J Toon, who is associate professor in Urban and Regional Planning at the University of Sydney. Professor Toon accepts that the proposed development is different, but is superior and in that way it may said to be out of character with the adjoining development to the west. In his opinion this section of De Castella Drive when extended will be superior in design terms to the section to the west. It will appear to be less repetitive than the section to the west. It is true that the proposal, being two storey development, will differ from that to the west. Professor Toon, however, points to recent development at the western end of De Castella Drive, to which I have referred and which is also largely two storey development. In his opinion the development will still read as houses and, although different, it will not be incompatible. Indeed in Professor Toon's opinion the character of the adjoining development to the west is not one that would want to emulate. Moreover, it seems clear to me that the subject site is at the perimeter of the existing residential area, which adjoins the subject site to the west and to the north. To the south is open space and to the east are the church and school to which I have referred. In my opinion the mere fact that the development may look different to that which exists on adjoining land, where there is no adverse impact on amenity and which is on land which is at the perimeter of an existing residential area, is not a sufficient reason to refuse the application. Issue 7 13. No-one was called from the council to explain the present status of the draft local environmental plan. Mr Smith gave evidence that he had spoken to a council officer entrusted with the carriage of the matter and he was informed that a report will go to the council shortly recommending that the draft local environmental plan be re-exhibited. It is not known in what form the draft will take and cannot be said in my view that either its form, its content, or its making is either imminent or certain. It appears however, that when originally exhibited last year it was intended to limit medium density development on the subject site to no more than one storey in height. There seems to be a degree of inconsistency in such an approach since individual dwelling houses of two storeys in height would continue to be able to be allowed. Accordingly, I am not prepared to give any determinative weight to the draft local environmental plan. Issue 8 14. This issue relates to the density of the development, is another issue which is pressed by the council. This is said to be, according to Miss Hartley, demonstrated by the fact that there is an apparent inability to retain a large proportion of the existing trees. She also refers to poor solar access for several dwellings, inadequate common open space areas, the intrusions into side setbacks, inadequate separation between dwellings and the inadequate number of car parking spaces. Many of these issues have already been considered under some of the preceding issues. I am not persuaded that the density of the proposed development is exclusive. Issue 9 15. The final issue is issue 9, namely the retention of trees to which I now turn. There are some forty two trees on the site and fifteen are to be retained, some of which are in poor condition. It is inevitable however, that some trees must be removed whatever happens on the subject site. The respondent is insisting on the extension of De Castella Drive through the subject site in accordance with its Development Control Plan and many of the trees lie in its path. 16. The remaining trees to be removed are trees that necessarily must be removed because they are in the way of proposed dwellings. Most of the existing trees are located at the southern end of the site along a creek line and it can be fairly said are not spread throughout the site. I note that the applicant has during the course of the hearing elected to remove one of the dwellings in the vicinity of the creek and, as I previously noted, one of the allotments for common open space is shown as being in that area. In my opinion the applicant's proposal is one which is a satisfactory compromise and the application should not be refused on that ground. 17. This brings me then to the question of conditions. The parties have agreed on most conditions. The first disputed condition is proposed condition 8b requiring first floor bedroom windows in the western facades of units fourteen, thirty four, thirty five, thirty six and thirty seven, to have sill heights of at least 1.5 metres. There is some potential for overlooking of the private open space of the adjoining residences to the west, hence leading the council to ask that this condition be imposed. The first floor bedroom windows concerned are third bedrooms and in my view I think the council's concern is properly raised and that those rooms should have sill heights of at least 1.5 metres. The next disputed condition is one which requires the payment to the council of a contribution to works for the placement of the final layer of asphaltic concrete on the new road works. The applicant however, has offered to do that work itself. In my view the applicant should be permitted to do that work itself and the condition will be deleted. 18. The formal orders of the Court therefore, are: 1. The appeal is allowed. 2. Developments consent is granted subject to the conditions set out in exhibit 5 with the deletion of proposed condition 111. 3. The exhibits may be returned other than exhibits A, revision C, exhibit G and exhibit 5. oOo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.