Land and Environment Court of New South Wales CITATION : Bitsikas v Canterbury Council [2004] NSWLEC 601 APPLICANT Parry Bitsikas PARTIES : RESPONDENT Canterbury City Council FILE NUMBER(S) : 10574 of 2004 CORAM: Brown C Development Application :- categorisation of use streetscape KEY ISSUES: solar access overlooking view loss LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Canterbury Planning Scheme Ordinance CASES CITED: Segal & Anor v Waverley Council [2004] NSWLEC 363 DATES OF HEARING: 10/09/04, 19/10/04 DATE OF JUDGMENT: 11/03/2004 APPLICANT Dr S Berveling, barrister SOLICITORS Norman Waterhouse LEGAL REPRESENTATIVES: RESPONDENT Mr A Seton, solicitor SOLICITORS Marsdens JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Commissioner G T Brown 3 November 2004 10574 of 2004 Parry Bitsikas v Canterbury City Council JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Canterbury City Council (the council) of Development Application No 1175/03 for the demolition of an existing dwelling and the construction of three attached dwellings at 18, 18A and 18B Stone Street, Earlwood (the subject site). The subject site 2 The subject site consists of three separate lots being lots 19, 20 and 21 in Section 4 of DP 32036. Each lot is 6.095 m wide and 28.65 m long, giving an area of 174.6 sq m. The three lots have a total area of 523.8 sq m. The subject site slopes approximately 4 m from the south eastern corner of 18 Stone Street to the north western corner of the same property. A single storey brick cottage with a tiled roof and a detached brick fibro garage is constructed over the three lots. 3 The locality is residential in nature with a range of older style cottages generally constructed over two lots but in some locations constructed over three lots. Recent residential developments generally consist of attached dwellings constructed over two lots with parking at grade or partially below ground level. The proposal 4 The proposal seeks the demolition of the existing improvements on the subject site and erection of 3 attached dwelling houses, one on each of the existing lots. The dwellings would be attached by common walls running along the boundary of the three existing lots. Each dwelling has two car parking spaces in a tandem configuration at a similar level to Stone Street. The dwellings have two levels above the garages when viewed from Stone Street. The rear elevation presents as two levels due to the topography of the subject site that rises from the street frontage. Relevant planning controls 5 The subject site is zoned Residential 2(b) under the Canterbury Planning Scheme Ordinance (the Ordinance). The classification of the proposed use was an issue between the parties and depending on the classification, the proposed use could be permissible with council consent or prohibited within this zoning. The Ordnance contains no relevant controls for the proposed development. 6 The subject site was subject to the provisions of draft Canterbury Local Environmental Plan 204 (the draft LEP) however by letter dated 25 August 2004, the Minister Assisting the Minister for Infrastructure and Planning (Planning Administration) indicated that she has decided not to make the draft plan. On this basis, no weight can be given to its contents. 7 Draft Amended Single Unit Dwelling House Code (the Code) applies to the proposed development. The relevant parts are objectives (cl 2.0), front building line (cl 4.0), height of buildings (cl 5.0), floor space ratio (cl 6.0), and car parking (cl 7.0). It was agreed that the proposed development satisfies the numerical requirements for height of buildings, floor space ratio and car parking. 8 Energy Smart Homes Policy- Development Control Plan No 37 (DCP 37) also applies to the proposed development. The relevant part is solar access to neighbouring properties (cl 7.9). The issues 9 The council filed a Statement of Issues containing seven individual issues and particulars for each issue. The draft LEP (Issue 1) was not a relevant issue following the determination by the Minister. The remaining issues can be grouped into the following main areas: 1) whether the proposed development is incompatible with the existing character of the area (Issues 3, 4 and 5) and, 2) whether the proposed development creates unacceptable amenity impacts in terms of solar access, view loss and privacy (Issues 2, 6 and 7). 10 Immediately prior to the hearing, the council raised a further issue over the classification of the proposed use and whether it was prohibited. Following the site view and the evidence on the planning issues, the proceedings were adjourned for the parties to consider this matter. It was agreed that submissions on the classification of the use would be made at the same time as the submissions on the outstanding planning issues. Categorisation of proposed use The submissions 11 Clause 22 of the Ordinance provides the zoning tables. Relevantly, Column I provides the appropriate zone. Column II provides for purposes for which buildings or works may be erected or carried out or used without the consent of the responsible authority. Column IV provides purposes for which buildings or works may be erected or carried out or used only with the consent of the responsible authority and Column V provides purposes for which buildings all works may not be erected or carried out or used. 12 Clause 4(1) of the Ordinance provides the following relevant definitions: " Dwelling," means a room or number of rooms occupied or used, or constructed is or adapted as to be capable of being occupied or used, as a separate residence. "Dwelling-house" means a building designed, constructed or adapted for use as a dwelling for a single family but does not include a flat. "Flat" means a room or suite of rooms occupied or used or so designed, constructed or adapted of being capable of being occupied or used as a separate domicile and includes a group dwelling but does not include a dwelling house. "Group dwelling" means a building designed, constructed or adapted for use as a dwelling for a single family which forms part of a group of two or more dwellings such as are commonly known as group houses, villa homes, townhouses, semi-detached or terrace buildings and the like. "Multiple unit housing" means a group of 3 or more dwellings (whether or not attached), but does not include multiple dwellings comprising townhouses or villa homes. "Town house" means a dwelling that is one of a group of 3 or more dwellings (whether or not attached), where each dwelling is two storeys in height and has its own private entrance and landscaped area with direct access from the dwelling. "Villa home" means a dwelling that is one of a group of 3 or more dwellings (whether or not attached) where each dwelling is one storey in height and has its own private entrance and landscaped area with direct access from dwelling. 13 Dr Berveling for the applicant, submits that the proposed use is appropriately defined as a "group dwelling". As this use does not fall within Column V (i.e., the prohibited uses) it must be an innominate use and fall within Column IV and be a permissible use as a purpose other than those permitted by Column II or prohibited by Column V. 14 He submits that the proposed development might fall within both the definition of "multiple unit housing" and "group dwelling" as it is three buildings each designed, constructed or adapted for use as a dwelling for a single family and which form part of a group of two or more dwellings. The question that needs to be answered is whether the proposed development is prohibited. 15 Dr Berveling identifies three specific criteria from the definition of "group dwelling". These are: - a building designed, constructed or adapted for use as a dwelling for a single family; - the buildings forming part of a group of two or more dwellings; and - the dwellings be of a type commonly known as group houses, villa homes, townhouses, semi-detached or terrace buildings and the like 16 He submits that there can be no dispute that the proposal satisfies the first two criteria. In considering the third criteria, Dr Berveling submits that the forms of dwellings identified are general descriptions and do not necessarily relate to the specific definitions found in cl 4(1) of the Ordinance. This conclusion is reinforced by the use of the words "and the like". He submits that the proposed development does not need to sit squarely into any of these examples for the development to be categorised as "group dwellings". 17 Mr Seton for the council, submits that the question to be answered is whether the proposed development is categorised as "multiple unit housing". Even if the Court accepts Dr Berveling's submissions, the proposed use is also defined as "multiple unit housing". This use is prohibited within the Residential 2(b) zone. If the Court ultimately finds that the proposed development is defined as both "multiple unit housing" and "group dwellings", then the Court must find that the use is prohibited. Findings 18 As a preliminary point, I accept that submissions of Dr Berveling that the proposed use can be classified as a "group dwelling". I accept that the different forms of housing identified in the definition expresses a general form of housing and do not necessarily require strict compliance with the definitions in cl 4(1) of the Ordinance. The definition contains forms of housing, such as semi-detached or terrace buildings, that are not defined within the Ordinance. Additionally, the words "and the like" suggest that other forms of residential development, not specifically mentioned in the definition, could also fall within the definition of a "group dwelling". In my view, the definition of a "group dwelling" is sufficiently broad to allow the inclusion of the proposed development. 19 This leads to a situation where the proposed development is categorised as both "multiple unit housing" and a "group dwelling". I did not understand the submissions of Dr Berveling to reject the proposition that the proposed use also fell within the definition of "multiple unit housing". 20 In this situation, I accept the submissions of Mr Seton. To do otherwise would be for the Court to consider a development application for a use that is prohibited, even though it is a permissible use if defined in a different way. If the submission of Dr Berveling is adopted, it is theoretically possible for the Court to approve a use that is prohibited by the zoning. Clearly this is not an acceptable outcome. 21 For the above reasons, the proposed use is not permissible within the zone and as such the appeal must fail. 22 For completeness I will briefly deal with the other issues. Character of the area The evidence 23 Mr Geoff Goodyer, a town planner provided evidence for the applicant and Mr Mark Brown a town planner employed by the council provided evidence for the council. 24 Mr Goodyer relies on compliance with standards in the Code for floor space ratio and height for his opinion that the bulk and scale of the proposal is commensurate with what would be reasonably expected given council's adopted controls. 25 He further states that while the proposal does not satisfy the numerical requirements of the front setback, the provisions in cl 4.1 allow for a variation on individual merits. In his opinion, and considering the setbacks of neighbouring buildings, the building provides an appropriate front setback and consequently complies with cl 4.1 of the Code. Also, the non-compliance with the side setback only occurs where the buildings adjoin. This is consistent with other developments in the area approved both by the Court and by the council. 26 Mr Brown describes the streetscape as predominantly single/two-storey dwellings that straddle two or more lots. The proposal is three storeys and covers almost the entire street frontage. Combined with its elevated position, a staggered front building line at the ground level between 5.5 m and 6 m and nil setbacks between dwellings, the proposal presents an unacceptable level of massing and bulk at the street. In his opinion, the proposed development is inconsistent with the predominant streetscape character of Stone Street. Findings 27 On the question of streetscape, the Ordinance provides no guidance. It has no overall objectives and no objectives for the different zones. The Code provides some help but does not specifically address streetscape. Mr Seton submits that while the objectives in cl 2.0 do not specifically mention the word streetscape, it can be inferred that streetscape is a relevant consideration as it forms part of the objectives seeking "to encourage a good design" (cl 2.1) and to have "regard to the existing and future amenity"" (cl 2.2). 28 There is some merit in Mr Seton's submission although it would be preferable if the Code was more specific. I am also mindful that s 79C of the Environmental Planning and Assessment Act 1979 provides a general power to consider "the likely impacts of a development, including environmental impacts on both the natural and built environments….. in the locality". I see no reason why a consideration of streetscape could not fall within the general powers of this section. 29 In considering the issue of streetscape, the Court had the benefit of a view of the Stone Street area as well as a wider area that includes similar lot layouts and housing forms. This view highlighted the predominance of existing older style dwellings built largely over two lots and sometimes three lots. More recent developments in the area consist of residential development in the form of attached dwellings with each occupying an existing single lot. The more recent form of developments generally provide for a garage on the ground level with a further level for residential accommodation above. Mr Goodyer's evidence contains a helpful plan showing the location of recent approvals. The majority of these sites were inspected on the site view. 30 On the question of whether the proposed development has an adverse impact on the streetscape - I am inclined to accept the conclusions of Mr Brown for a number of reasons. 31 Even though the proposed development satisfies the height and floor space ratio requirements in the Code there are number of other matters that impact on its presence in Stone Street and the area in general. Importantly, the subject site is one of few sites in the general area where a dwelling is erected over three lots. On the site view, the Court was shown the recent redevelopment of the property at 7 Stone Street, to the north and on the opposite side of Stone Street to the subject site. This redevelopment provides for three dwellings and also spans three lots. It provides setbacks only to the side boundaries. The applicant argued that this approval by the council supported its proposition that a development over three lots can be acceptable in the streetscape. 32 As a general principle, I would agree with the applicant's submission however this takes a particularly narrow view of streetscape assessment. While each site contains three lots and proposes or contains three dwellings, this does not represent the only matter that needs to be considered in an assessment of the streetscape. 33 The subject site is located on the high side of the street and consequently a more prominent position when compared to the development at 7 Stone Street. The three levels of the proposed development can be viewed readily from Stone Street as the garage level has a similar in level to the street. The dwellings at 7 Stone Street present only a two-storey elevation to the street with the remaining part of the buildings falling away from the street with the natural slope of the land. In my view, the proposed development will have uncharacteristic bulk and massing compared to other new developments in Stone Street, including 7 Stone Street and the area in general. 34 This conclusion is exacerbated by a number of specific design features of the proposed development. 35 The Code provides for a minimum front building line of 7.5 m however this can be decreased having regard to specific site circumstances (cl 4.1(a)). The proposed development provides for setbacks ranging from 5.5 m to 6 m for the garage level with the area above used as a balcony for the first residential level. I note that the building form on the upper levels satisfies the 7.5 m setback. I acknowledge that the proposed setback seeks to provide some relationship with the adjoining properties by generally following a line drawn from points closest to the subject site on the adjoining dwellings. While the proposed setback could be acceptable for the majority of developments witnessed on the site view (i.e., two levels), I do not accept that the setback satisfactorily addresses the bulk and massing of the proposed development. In my view, a consideration of the "specific site circumstances" would suggest a minimum 7.5 metres setback at the ground level with increased setbacks at the upper levels. 36 Mr Brown argued that the proposed development did not provide internal setbacks between the dwellings. The Court was shown a number of examples, approved by both the council and the Court, of recent developments that provided no internal setbacks between dwellings. I note that the three dwellings at 7 Stone Street also have no internal setbacks. With the benefit of the site view, I am not convinced that is necessary for internal setbacks to be provided except in circumstances where there is a need to break up the bulk and mass of a building. The examples shown to the Court were generally two dwellings over two levels. Even the three dwellings at 7 Stone Street present as two storeys. In my view, the newer form of development sits comfortably amongst the majority of the older style dwellings. The same cannot be said for the proposed development. 37 Dr Berveling argued that the Court is required to take a consistent approach in decision-making (Segal & Anor v Waverley Council [2004] NSWLEC 363). With the approval, by the council, of the three dwellings at 7 Stone Street Dr Berveling maintains that the approval of the proposed three dwellings would be consistent with this decision. 38 I, however disagree. In my opinion, the proposed dwellings can be clearly distinguished from the proposed development for the reasons set out in the preceding paragraphs. The Court was not taken to any development that was configured in the manner of the subject building. The proposed building clearly provides a more dominant presence in the streetscape brought about by the bulk and massing at the street frontage than the dwellings at 7 Stone Street and other more recent developments in general area. 39 While not raised as a significant issue in proceedings, the design provides for splayed blade walls between each of the front balconies. These extend to just above the maximum height of the roof of the dwellings and increase in size with increased height. They are significant features in the street elevation and will be clearly visible when approaching from either direction along Stone Street. Even accepting that the blade walls add some interest to the street elevation, they unnecessarily promote the prominence of the building in the streetscape. 40 Overall, I agree with Mr Brown that the proposed development will have an unacceptable impact on the streetscape. The impact is largely the result of the design and even though the proposed development complies with the floor space ratio and building height controls of the Code, the form is clearly inconsistent with the existing older style housing and also the more recent residential dwellings constructed in the area. In my view, the impact is so significant that it warrants the refusal of the development application for this reason. Amenity impacts Solar access 41 Clause 7.9 of DCP 37 provides that "at least one living room window must also receive a minimum of 2 hours sunlight between 9.00 am and 3.00 pm on June 21." The impact of overshadowing was restricted to the property at 20 Stone Street. The shadow diagrams indicated that the two windows to the living room and kitchen/dining room in the northern elevation of 20 Stone Street were affected by the proposed development although Mr Goodyer maintained that the western window to the living room was unaffected by the proposed development thereby satisfying DCP 37. 42 Mr Brown originally maintained that the applicant had not provided sufficient detail to show that the requirements of cl 7.9 had been satisfied although the applicant submitted further plans after the adjournment. These plans confirmed the western window to the living room was unaffected by overshadowing from the proposed development. 43 As I understand Mr Brown's evidence, he generally agreed with the conclusions of Mr Goodyer although he had not seen any plans that supported his conclusions. With this submission of further plans, I accept that the requirements of cl 7.9 are satisfied. Privacy impacts 44 Privacy impacts are not specifically addressed in DCP 37 although Objective 2.2 requires a development application to have "regard to the existing and future amenity". Mr Brown maintains that the proposed development creates unacceptable privacy impacts on the properties at 16 and 20 Stone Street from upstairs side windows and first-floor balconies. He suggests that high sill windows and privacy screens would largely overcome his concerns. Mr Goodyer states that these measures are unnecessary as the upstairs windows relate to bedrooms or are laundry and toilet windows with a opaque glazing or are screened by boundary fencing. 45 On this issue will, I agree with Mr Goodyer. Any overlooking from the balcony area at the rear is not significant because of a reasonable separation distance to the adjoining properties and the screening created by the adjoining dwellings. The balconies at the front of the proposed buildings have views only to the street and the front yards of the adjoining properties and consequently do not overly impact on privacy. 46 I accept that the proposed development adequately addresses the question of visual privacy. View loss 47 View loss is also not specifically addressed in DCP 37 and the council relies on the broad requirements in Objective 2.2. The issue of the loss was raised on the site view when the property at 25 Richmond Street was inspected. The losses were identified as the district views currently available over the subject site from the rear balcony of the dwelling. 48 With an estimate of the height of the proposed building it was established that a large portion of the district views currently available would be lost. Even so, I am not convinced that this would support the refusal of the development application for this reason, as the proposed development satisfies the numerical standard for building height. Orders 49 For the foregoing reasons, the Orders of the Court are: 1) The appeal is dismissed. 2) Development Application No 1175/03 for the demolition of an existing dwelling and the construction of three attached dwellings at 18, 18A and 18B Stone Street, Earlwood is refused. 3) The exhibits are returned. _____________ G T Brown 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.