Land and Environment Court of New South Wales CITATION : Boctorani v Bankstown City Council [2007] NSWLEC 11 APPLICANT Tony and Vilma Boctorani PARTIES : RESPONDENT Bankstown City Council FILE NUMBER(S) : 10311 of 2006 CORAM: Bly C KEY ISSUES: Development Application :- Dwelling house, foreshore building line, floor space ratio, building height, amenity impacts Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Bankstown Local Environmental Plan 2001 Bankstown Development Control Plan 2005 DATES OF HEARING: 08-09/11/2006 DATE OF JUDGMENT: 12 January 2007 APPLICANT Mr T Boctorani, self represented LEGAL REPRESENTATIVES: RESPONDENT Mr A Seton, solicitor SOLICITORS Marsdens Law Group JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 12 January 2007 10311 of 2006 Tony and Vilma Boctorani v Bankstown City Council JUDGMENT Introduction 1 This appeal relates to Development Application No. DA 836/2005, which is for the construction of a three level detached dwelling house at 1A Valley Road, Padstow Heights. The vacant essentially rectangular shaped site comprises Lot 29 DP 615552 and has an area of 1548 sq m. Having no street frontage it is accessed via a right of carriageway over two adjoining lots from Valley Road. It has a frontage to and views over Salt Pan Creek, a tributary of the Georges River. 2 The site is located in an area predominantly developed with detached dwelling houses although it adjoins to the east a development comprising seven villa homes. 3 Expert town planning evidence was provided on behalf of the respondent council by Ms N Magurren. No expert evidence was provided on behalf of the self represented applicant. Planning controls 4 The site is zoned 2(a) Residential under Bankstown Local Environmental Plan 2001 ("the LEP") in which zone the proposal is permissible with development consent. The general objectives of the LEP relate to the regulation of new development such that new buildings are of good design, have appropriate public and private safety and are energy and resource efficient. In addition new development in residential areas should be compatible with the prevailing suburban character and amenity of the locality. 5 The relevantly applicable objectives of the 2(a) zone require that new development should complement the existing single dwelling suburban character especially in relation to height and scale, and to ensure that sites are of a sufficient size to provide for buildings, access and landscaping. 6 Clause 11 of the LEP requires that consent may only be granted if regard has been had to the general objectives of the plan and the objectives of the zone and as well as other applicable provisions of the plan. Other applicable provisions of the LEP in relation to residential development in the 2(a) zone require that attention be given to the character and amenity of existing buildings on adjoining land particularly in terms of scale, bulk, design, height, citing, landscaping and overshadowing. Clause 19 requires that consideration be given to ecologically sustainable development. 7 Clause 21 of the LEP deals with development adjacent to water bodies and prohibits development between a foreshore building line and the adjacent water body. Development that is permissible includes marinas, boat sheds, swimming pools and the like but does not include dwelling houses. This clause enables the council to determine a foreshore building line. 8 Clause 30 of the LEP by reference to a floor space ratio map sets a maximum floor space ratio of 0.5:1 for sites having an area up to 700 sq m and any site area in excess of 700 sq m is subject to a maximum floor space ratio of 0.2:1. The relevant objective of the floor space ratio development standard is to regulate the scale and bulk of development consistently with the capacity and character of the area of the development site. 9 Also applicable to the site is the Bankstown Development Control Plan 2005 ("the DCP"), which has objectives including the need to develop a high-quality urban environment and built form character in the city. It seeks to promote good urban design and to ensure that new buildings make a positive contribution to nearby waterways. The site is also included in a foreshore protection area. 10 The DCP sets a maximum storey limit for a dwelling house at two storeys. Because the site is in a foreshore protection area under the DCP a maximum wall height of 6 m and a maximum building height of 9 m are applicable. The objectives of these standards are to ensure that the height of buildings complement the streetscape and waterway character and to ensure the protection of the amenity of neighbouring properties particularly in relation to visual bulk, solar access, privacy and views. Performance criteria require that buildings should have a height similar to those in the streetscape but higher buildings should be appropriately sited to minimise impacts on neighbouring properties. 11 The DCP also requires that where a building has a wall height greater than 6 m the minimum setback to a side boundary is 1.5 m for the whole building wall and 1 m for eaves and gutters. The objectives of this standard involve the protection of the amenity of neighbouring properties and compatible siting of the building as well as the provision of spatial relief between buildings. They also involve the provision of adequate space to provide for landscaping, open space, privacy and solar access. Dealing particularly with access to sunlight the DCP requires that overshadowing of neighbouring properties be minimised and that the windows to at least one living area in an adjoining dwelling receives at least three hours of sunlight between 9 a.m. and 5 p.m. on 21 June. 12 Of relevance to cl 21 of the LEP, s 5.1 of the DCP indicates a 30 m foreshore building line from mean high watermark and the relevant objective provides for the preservation of the unique ecology of foreshore land. Advertising and council's decision 13 The application was advertised and four objections were received. Matters of concern to those objectors include: excessive height bulk and scale; unsatisfactory drainage arrangements; loss of amenity resulting from overlooking and overshadowing of adjoining properties; inappropriate architectural form for this locality; potential damage to the right of carriageway; and removal of mature trees. The subsequently amended proposal was readvertised resulting in further objections similar to those referred to above. 14 When the hearing began on-site, those concerns were particularised by the following residents: o Mrs W Brown – 6/17-21 Villiers Road o Mr J & Mrs S Narbeshuber – 23 Villiers Road o Mr T & Mrs P Boyle – 1 Valley Road 15 Following its consideration of a council officer's report recommending refusal the council decided that the application should be refused for reasons relating to non-compliance with the floor space ratio and foreshore building line requirements in the LEP; and non-compliance with various requirements of the DCP including solar access and building height. The issues 16 In his final submissions, Mr Seton summarised of the issues essentially as follows: 1. Whether the application for the proposed dwelling house should be refused as a result of its failure to comply with the applicable planning controls comprising: floor space ratio; foreshore building line; number of storeys control; wall height controls; and side setbacks. 2. Whether the overshadowing of Villa No. 6 at 17-21 Villiers Road is excessive. 3. Whether the appearance of the proposed dwelling house in terms of its height, bulk, scale and massing would be unsatisfactory, especially in relation to its presentation to Salt Pan Creek. Compliance with planning controls Floor space ratio 17 In relation to floor space ratio development standard I accept that the proposal exceeds the development standard by 92 sq m. An SEPP 1 objection has been provided dealing with this non-compliance. That objection notes that the objective of the floor space ratio development standard involves the regulation of the scale and bulk of development consistent with the capacity and character of the development site. It argues that the bulk and scale of the proposal is similar to that of existing development in the vicinity of the site in terms of site configuration, topography and built form. The site also benefits from it being largely obscured from public view apart from some views from the waterway. The objection also argues that the size of the building is necessary to accommodate a large family however in my opinion this argument can attract little weight. 18 In relation to the inclusion of the floor area of two of the four car parking spaces in the garage in the gross floor area for the purposes of calculating the floor space ratio I accept that the approach taken by the council is correct. I also accept that a proportion of the building's bulk is contained within a partial basement that has the effect of reducing apparent bulk although the converse applies when considering the southern elevation of the building where the lower floor is in excess of 1.5 m above ground level. 19 The objectives of the floor space ratio development standard are to generally regulate the scale and bulk of development so as to be consistent with the capacity and character of the area within which the site is situated. In this context the applicant provided the Court with some details of other existing large dwellings in the locality which appear to be larger than that proposed. A number of these dwellings are situated on similarly steep sloping sites and present as three storeys. Whilst these dwellings are not immediately adjacent they are part of the character of the area and should be taken into account. In these circumstances I accept that the bulk and scale of the proposed dwelling would not be excessive. Also, for reasons of overshadowing I have decided (see below) that the eastern side setback is to be increased to 2.5 m and this will effectively reduce the floor space ratio and building bulk. Building height 20 In relation to height an examination of the proposed building in the light of the contour plan revealed that there is no exceedence of the 9 m height limit in the DCP. Similarly the southern wall of the eastern half of the building where it presents to the waterway exhibits an exceedence of the 6 m maximum wall height of about 300 - 500 mm although this exceedence becomes a compliance when wall height is measured a short distance to the north. The southern wall of the western half of the building which steps back about 9 m exhibits a similar non-compliance. Given the slope of the site these exceedences are not of concern. Storeys limit 21 In relation to the two storey height limit, this is exceeded in the middle of the building where it steps down the hill, being three-storeys over a distance of about 2 or 3 metres. Again, given the slope of the site this exceedence his not of great concern. Setbacks 22 As referred to above cl 5.10 of the DCP requires that for walls having a height greater than 6 m above natural ground level the side setback must be at least 1.5 m. This requirement is met by the eastern walls of the building (and as mentioned above) for reasons of overshadowing this is to be increased to 2.5 m) but not for the western elevation. The extent of the western wall that is setback 900 mm from the boundary that exceeds 6 m above natural ground level is relatively small and I am satisfied that the non compliance here is of no concern. Overshadowing 23 The DCP requires that the windows of at least one living area in an adjoining dwelling must receive at least three hours of sunlight in midwinter. If this standard cannot be met the proposed development must not cause any additional shadowing on affected private open space. 24 The adjoining south facing villa No. 6 will be significantly affected by afternoon overshadowing at the winter solstice and the equinox. At the winter solstice the dwelling itself will be progressively affected from about 12:30 p.m. to 1:30 p.m. when its west facing wall will be overshadowed. Its courtyard will be similarly progressively affected from 12:30 p.m. onwards. Solar access to its south facing balcony is already the subject of self shadowing by the dwelling itself. 25 The proposed dwelling house is positioned on its site and of a size very much in accordance with what might be anticipated as a result of the various applicable planning controls. It infringes the wall height control and the foreshore building line control but if those infringements were adjusted to achieve compliance the changes to the overshadowing impacts would be minimal and of no determinative significance. In order to achieve any significant solar access benefit to the villa or to ensure that it suffers from no additional overshadowing, it would be necessary to impose such severe constraints upon the development of this site, taking into account the applicable planning controls, as to be unreasonable. 26 Despite this, I have decided, taking into account the requirements of the DCP, that the impact on the villa would be unreasonable especially in relation to the north-west facing courtyard. However an increase in the side setback of the proposed dwelling house of 1 m would provide a commensurate benefit for this courtyard. The applicant said that he would be prepared to conform to any amendment that the Court would recommend; hence I have incorporated a condition into the consent that requires the setback from the eastern boundary to be increased by 1 m to 2.5 m. Having examined the floor plans I am satisfied that the necessary reduction in the width of the building by 1 m will be readily achieved by relatively minor adjustments to the widths the rooms within the building. Waterway impacts 27 Apart from compliance with the planning controls, the main public interest issue in this case involves the impact of the proposal on Salt Pan Creek particularly in the light of the site being included in a foreshore protection area. In this context the foreshore building line and floor space ratio development standards in the LEP and the building height standards in the DCP are variously relevant. 28 The adopted foreshore building line extends across the site in an arc and the positioning of the proposed building results in a partial non-compliance on the eastern side of the site and a comfortable compliance on the western side of the site. That part of the building that extends beyond the foreshore building line comprises a first floor balcony above an undercroft about 5 m high and is positioned essentially on the same alignment as the adjoining townhouse development to the east. Whilst there was some lack of clarity in this regard it is probable that the townhouse development exhibits a similar non-compliance particularly in the vicinity of its western boundary where it adjoins the subject site. 29 Clause 21 of the LEP in dealing with foreshore building lines does not identify the objectives of the standard instead requiring that certain matters be taken into consideration in dealing with applications permitted by the clause. Such matters comprise: water quality; bank stability; quantity and quality of water flows; aquatic biota; and riparian vegetation. Similarly the DCP requires the preservation of the unique ecology of foreshore land. 30 An SEPP 1 objection has been provided in relation to the non-compliance with the foreshore building line. The objection argues that the exceedence is minor and there would be little benefit achieved by strict compliance with the standard and that the encroachment would not have an adverse impact on the ecology of the existing terrestrial and aquatic environments. I heard no persuasive evidence that the proposed minor incursion beyond the foreshore building line would have any adverse consequences or would be inconsistent with the objectives of the development standard. 31 As already indicated the objective of the floor space ratio development standard involves the regulation of the scale and bulk of development so that it is consistent with the character of the area. The LEP also requires the avoidance of significant adverse impacts on watercourses. The objectives of the height and floor space ratio requirements in the DCP relevantly require that the bulk and height of buildings complement the waterway character. 32 The proposed dwelling house will present as a large two storey building and will be able to be seen from Salt Pan Creek. An examination of the floor plans and elevations in the plans reveals that the building is articulated and steps down the hill slope. These factors together with the required increase of the eastern side setback will effectively mitigate its visual impact and taking into account the other nearby large buildings that present in a similar fashion to the waterway I find the proposal to be acceptable and appropriately responsive to the requirements of the LEP and the DCP. Conclusions 33 Whilst this proposed building exceeds the applicable floor space ratio in the LEP I am satisfied that it will not be so large as to be out of character with its neighbours or have an inappropriate presentation to the waterway. Whilst it has not been established that the departures from the applicable development standards would result in a better outcome than that which could have been achieved had the standard than complied with, I have reached the conclusion that strict compliance would have little if any benefit, particularly in terms of the issues. Hence taking into account the SEPP 1 objections and the associated evidence I would uphold these objections. 34 Finally, having taken into account the relevant objectives and the applicable provisions of the planning controls and the concerns of the resident objectors I have decided that subject to the above described increase to the side setback, the appeal should be upheld and conditional development consent granted. Orders 35 The orders of the Court are therefore: 1. The appeal is upheld. 2. Development application No. DA 836/2005, is for the construction of a three level detached dwelling house at 1A Valley Road, Padstow Heights, is determined by the granting of development consent subject to the conditions in Annexure A hereto 3. Exhibits A and G are retained. ___________________ T A Bly Commissioner of the Court rjs 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.