> Land and Environment Court of New South Wales CITATION : Amflo Architects Pty Ltd v Campbelltown City Council [2003] NSWLEC 286 Applicant: Amflo Architects Pty Ltd PARTIES : Respondent: Campbelltown City Council FILE NUMBER(S) : 10634 of 2003 CORAM: Bly C KEY ISSUES: Development Application :- townhouses - refusal Streetscape and character LEGISLATION CITED: Environmental Planning and Assessment Act 1979 CASES CITED: DATES OF HEARING: 08/10/03 - 9/10/03 EX TEMPORE JUDGMENT DATE : 10/09/2003 Applicant: M. Sahade LEGAL REPRESENTATIVES: Respondent: A. Seton instructed by Marsdens JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10634 of 2003 Bly C 9 October 2003 Amflo Architects Pty Ltd Applicant v Campbelltown City Council Respondent Judgment 1 This appeal relates to a Development Application No. 658/02 for the construction of a multi-dwelling housing development containing eleven mainly two-storey townhouses on lots 39 and 40 in Strata Plan 66209 being numbers 17-21 Poplar Crescent, Bradbury. 2 The D-shaped site has an area of 3195 sq m and has a slope of about 4 m from east to west. It is largely devoid of vegetation with some tree growth on the western boundary which adjoins Appin Road. 3 Existing built form in the surrounding area is characterised by a mixture of detached dwelling houses of one- and two-storey construction. The remaining lots in the Strata Plan which are situated generally to the east on the opposite side of Poplar Crescent are occupied with two-storey attached and detached dwelling houses. 4 The site is zoned Residential 2(b) under Campbelltown (Urban Area) Local Environmental Plan 2002 ("the LEP"), in which zone multi-dwelling housing is permissible with development consent. Clause 9 of the LEP requires that consent must not be granted for development on land within the 2(b) zone unless the consent authority is of the opinion that carrying out of the proposed development would be consistent with one or more of the objectives of the zone. 5 The first two objectives of the zone deal with the provision of land for housing and associated purposes, and the development of a range of housing types. The proposal would appear to meet these objectives. The third objective is to encourage a variety of forms of housing that are higher in density than traditional dwelling houses and the proposal clearly meets this objective. 6 The relevant elements of the fourth objective provide for development which is compatible with residential use and is capable of visual integration with the surrounding buildings. It may well be that this objective is dealing with non-residential uses which are permissible within the zone, requiring that such uses be compatible with nearby dwellings. However, if it does apply to new residential development, the residential nature of this proposal would appear to be compatible with residential use as required by the objective. As for the question of visual integration, I will deal with this later. 7 Also applicable to the site is Campbelltown Development Control Plan No. 79, Residential Development Policy ("the DCP"). This DCP contains controls relating to site area, lot width, building height, setbacks, landscaping and car parking, which requirements are met by the proposal. The DCP also contains floor space ratio and density standards which are arguably not met by the proposal. I shall return to these matters later. 8 The application was advertised in various forms, the most recent advertising resulting in there being ten objections lodged with the council. These objections express concerns relating to insufficient on site parking, traffic generation and associated impacts on Poplar Crescent, lack of open space, loss of views and loss of privacy, and overdevelopment of the site generally. 9 The Court's attention was directed to the council officer's report which in effect concluded that the residents' concerns did not warrant refusal, and that on its merits the proposal was satisfactory and the application should be approved. Despite this, the council resolved that the application should be refused for the following reasons. 1. Approval of the proposal in its current form would result in an overdevelopment of the site. 2. The proposal will generate unacceptable traffic impacts on the surrounding local road system. 3. The proposal is considered to have an unacceptable impact on the amenity of adjoining residents including overshadowing and privacy impacts. 4. The proposal is unable to provide access from Appin Road, resulting in unacceptable traffic and amenity impacts on adjoining and nearby residents. 10 A notice of determination to the same effect was issued on 27 May 2003. 11 No expert evidence was provided in support of the council's case. However, two resident objectors gave oral evidence in support of their written objections. Their concerns relate to the additional traffic likely to be generated by this proposal, which would utilise that part of Poplar Crescent where they live. Other concerns expressed by them include the inadequacy of public open space in the locality, the site having in the past been used for this purpose. On behalf of the applicant, expert evidence was given by Mr R Tillott, a town planner. 12 The applicant and the Court were provided with a statement of issues containing eight issues. The issues in that statement relating to traffic and car parking were withdrawn, these matters having been resolved as a result of discussions between the traffic experts. The remaining issues involved matters of overdevelopment of the site in terms of density, bulk and scale, amenity impacts on adjoining development in terms of loss of views and loss of privacy, and the visual impact of the proposal when viewed from Appin Road and in terms of character generally. 13 Taking into account the council officer's report and the evidence of Mr Tillott, I am satisfied that the requirements of the DCP have been met with the exception of density and floor space ratio. In relation to floor space ratio, I accept that for the purposes of calculating this, the relevant site area is the land upon which it is proposed to locate this development being the D-shaped lot comprising Strata lots 39 and 40. I thus agree that the floor space ratio is about 0.6 to 1, which exceeds the maximum floor space ratio in the DCP of 0.4 to 1. 14 It was not in dispute that the density requirement of 330 sq m of site area for each large dwelling was not met. According to Mr Tillott, the deficiency represents a 13% departure from the standard. In this context, I accept that the site is only large enough to theoretically accommodate 9.7 large dwellings compared to the eleven large dwellings proposed. 15 Mr Tillott explained that if six of the townhouses were reduced in area to eighty-five square metres then the development would fully comply. He did not advocate this because the dwellings would only be reduced by a relatively small floor area and that such a reduction in area would most probably not be identifiable from outside the development. 16 However, I do not accept this explanation because the floor areas of the dwellings range between 142 sq m and about 200 sq m with an average area of about 173 sq m. To reduce six dwellings from 173 sq m to 85 sq m on average would involve reducing the building in size by about 500 sq m. This would certainly be noticeable. 17 The non-compliances with the floor space ratio and the density standard however are not by themselves determinative, nor indeed are the compliances with the other requirements of the DCP. Instead, it is appropriate to consider the consequences of the non-compliances and, if known, the purpose of these standards. Unfortunately in this context the DCP is silent in terms of aims and objectives. There was no evidence to suggest that the density of this proposal in terms of the number of people likely to occupy the site was inappropriate. Instead, the issue appears to be whether the proposed building would have an excessive bulk and scale, and would be out of character in terms of its appearance from Appin Road and its relationship to the existing dwellings to the east. 18 Regarding the latter, I agree with Mr Tillott that despite the length of the building, its single storey, low scale presentation in the street together with its articulation, setbacks and landscaping results in a reasonable and certainly not an offensive relationship involving excessive bulk and scale. The fact that it comprises a single building, unlike the detached buildings opposite, means that it will look different, but I have not been persuaded that this difference means that the building will be unacceptable or that an appropriate level of visual integration has not been achieved. 19 As for the appearance of the building from Appin Road, Mr Tillott acknowledged that this development would be quite different by comparison with other forms of residential development which might be observed by someone travelling along this road. Indeed, an inspection of development which has frontages to Appin Road in the locality generally reveals a range of characters, including some sites which are protected from view by mounding and by landscaping. This proposal will appear as a long, two-storey building behind a fence and landscape screen. 20 Despite its difference, I accept Mr Tillott's evidence that even though it will be quite different, it will nevertheless be acceptable. He said the building, given its architectural character and articulation, would be interesting, especially when seen behind the proposed landscape setting. Moreover, I have no reason to dispute the opinion expressed in the council officer's report that this design has high architectural merit containing many elements of visual interest and other architectural features. 21 In the circumstances, I have not been persuaded that the non-compliances with the two numerical requirements of the DCP, as significant as these non-compliance are, are sufficient reason to conclude that the proposal is an overdevelopment of the site. 22 A number of residents expressed concern that they would lose views over this site to the west, and there is no doubt that this is correct. This issue was dealt with in the council officer's report, who explained that the present views are available because of the height of the existing dwellings from which the views are taken and because the subject site is currently vacant. Development of this site is to be expected and the impact resulting from the proposal is not significant enough to warrant refusal of the application. 23 Mr Tillott explained that the proposal complies with the height controls in the DCP and, being only single storey, it would be unreasonable to require alteration of the building to maintain existing outlooks. In these circumstances I accept that the loss of views from the affected adjoining properties would not be such as to warrant refusal of the application. 24 Concern was expressed by the residents that the additional traffic which would utilise Poplar Crescent would have adverse consequences in terms not only of vehicular safety but also in terms of the safety of children who from time to time play in the street. Whilst there is no doubt that there will be additional traffic utilising the street as a result of this proposal, I cannot accept that this is a reason for refusal. I heard no traffic evidence to suggest that vehicular safety would be a problem and I cannot rely on the evidence of non-experts in this regard. As for the safety of children who play in the street, again that is not a matter which I can accept as a reason for rejecting this application. 25 Finally, concern was expressed in relation to the amenity of some of the west facing courtyards regarding solar access. Whilst he had not carried out a full shadow analysis, Mr Tillott was of the opinion that the worst case courtyards would get two or three hours of sunshine in midwinter and that this was satisfactory. Given that these courtyards have areas ranging between 52 sq m and 110 sq m, and have an appropriate relationship with the living areas of the townhouses, I accept that they will have an appropriate amenity and I agree with Mr Tillott that solar access is not a reason for refusal. 26 In all of the circumstances, I have not been persuaded that this proposal for multi-unit dwellings, a form of development anticipated by the LEP, would constitute an overdevelopment of the site and this, together with my conclusions that any amenity impacts which might arise, are not sufficient to warrant refusal, results in my decision that the appeal should be upheld. 27 The orders of the Court will therefore be: 1. The appeal is upheld. 2. Development application number 658/02 for a multi-dwelling housing development containing eleven townhouses at numbers 17-21 Poplar Crescent, Bradbury, being lots 39 and 40 in Strata Plan 66209 is determined by the granting of development consent subject to the conditions in exhibit 8, which were unopposed by the applicant and which will become annexure A. 3. Exhibits 8 and A are retained on the Court's file. ____________________ T A Bly Commissioner of the Court 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.