Land and Environment Court of New South Wales CITATION : Deller Homes v Sutherland [2004] NSWLEC 66 Deller Homes Pty Ltd Applicant PARTIES : Sutherland Shire Council Respondent FILE NUMBER(S) : 11359 of 2003 CORAM: Roseth SC KEY ISSUES: Development Application :- medium density housing adaptable housing LEGISLATION CITED: CASES CITED: DATES OF HEARING: 04/03/2004 to 05/03/2004 EX TEMPORE 03/05/2004 JUDGMENT DATE : Mr S Kondilios, solicitor Maddock Lawyers LEGAL REPRESENTATIVES: Mr R O'Gorman-Hughes, solicitor Sutherland Shire Council JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 11359 of2003 Roseth SC 5 March 2004 Deller Homes Pty Ltd Applicant v Sutherland Shire Council Respondent Judgment Introduction 1 This is an appeal against the refusal by Sutherland Shire Council (the council) of a development application to demolish the existing four dwellings and erect and subdivide under Strata title a development consisting of twelve townhouses on lots 2, 3, 4 and 5 DP 24110, known as 39-45 Manchester Road, North Gymea. The site 2 The site is on the southwest corner of Manchester Road and Wolstenholme Avenue. It encompasses four allotments, each of which now supports a detached house. The surrounding area is a mixture of detached and medium density housing. The two adjoining properties to the south are medium density, while the adjoining property to the west is a detached house. The proposal and its history 3 The applicant proposes to demolish the existing houses on the site and to construct a medium density development comprising twelve two-storey townhouses in four buildings over basement parking. The buildings are sited parallel to Manchester Road in an east-west direction. Between the two rows of buildings is a pedestrian access corridor. Vehicular entry to the basement carpark is from Wolstenholme Avenue. Pedestrian entry is from Manchester Road. 4 The applicant lodged the development application in July 2002. Following notification, the council received seven objections. The council's Architect advised the assessment planner that "the architectural issues have now been sufficiently addressed". In October 2003 the council's planning staff reported on the application to the Independent Hearing and Assessment Panel and recommended approval. The Panel did not endorse the recommendation and recommended refusal. The council accepted the Panel's recommendation and refused the application in November 2003. The applicant lodged the appeal in November 2003. Relevant legislation, planning instruments and policies 5 Local Environmental Plan 2000 (the LEP) zones the site Residential 2(b), a zone in which townhouses and villa houses are permissible to the maximum Floor Space Ratio (FSR) of 0.7:1. A draft Local Environmental Plan, referred to as the People's LEP, has been submitted to the Department of Infrastructure, Planning and Natural Resources. The Townhouses and Villa Houses in 2(b) and 2(c) Zones Development Control Plan (the DCP) establishes detailed controls. The issues 6 The council submitted a Statement of Issues detailing concerns under four main headings: · Are the design of the proposal in the streetscape, its orientation and its internal amenity acceptable? · Is the impact on the privacy of the western adjoining property, 2 Wolstenholme Avenue acceptable? · Are the bulk and scale acceptable and is the additional floor space justified? · Is the adaptable housing satisfactory? Streetscape, orientation and internal amenity 7 The Statement of Issues identifies the small size of bedrooms as the reason for lack of internal amenity. This aspect was not discussed in the joint expert report and was not the subject of oral evidence. I have therefore assumed that it is not a major issue. 8 Mr K Nash, a planning consultant, gave evidence in the council's case. The applicant's planning expert was Mr D Crane, also a planning consultant. Mr Nash criticised the proposal on the basis that it presented too much building to Manchester Road. He pointed out that 80% of the frontage was buildings. He did not like the east-west orientation of the project and would have preferred three rows facing north, each containing four dwellings. 9 In Mr Crane's opinion, the proposal's appearance in the streetscape is what can be expected, given the council's controls for 2(b) zones. As concerns the alternative layout of three rows facing north, he pointed out that the two rear buildings and their north-facing courtyards would be in shadow in mid-winter. 10 On what planning principle does one assess a proposal's impact on the streetscape in a street that has been zoned for redevelopment? I have adopted the principle that in a street that the council has identified for transformation, the scale of the existing development is of secondary importance. The appropriate scale of development is largely dictated by the controls applying to the area's redevelopment. In the present case there is already medium density development to the south of the site. The proposal is of a lower scale than the townhouses at the corner of Manchester Road and Lancashire Place. It complies with the height required by the DCP. In my opinion it is appropriate in the streetscape. 11 I turn to the question of orientation. It is a widely accepted planning principle that the optimum orientation for buildings and open space is to the north. This does not mean, however, that on every site north-south orientation of buildings is practicable or desirable. There is little point in orienting buildings to the north if they are in the shadow of another buildings. If twelve townhouses were oriented to the north on this site, it is likely that the courtyards of eight of them would be in shadow in mid-winter. The rear windows of the dwellings to the north would look straight into the courtyards of the dwellings behind. I do not think that the east-west orientation of this project is a reason for refusal. Impact on western neighbour 12 The Court heard the evidence of Mr K and Mrs J Gates of 2 Wolstenholme Avenue, adjoining the site to the west. Their main concern was that the proposal would overlook their property. Mr Gates perceived the development with 21 windows looking towards him. In effect, the total number of bedrooms facing to the west is ten. Half of these rooms will face the very deep front garden of No 2, which is already open to the public gaze. All windows have a fixed lower pane of obscure glass. While there will be an impact to the Gates' property from a wall of buildings 4m from the common boundary, overlooking will not occur. 13 I have noted Mr and Mrs Gates' concern that the proposal will adversely affect the development potential of their property, which is also zoned 2(b). I do not think that this fear is justified. To achieve redevelopment potential, No 2 will need to be amalgamated with adjoining properties to the west. The amalgamated site will have a north orientation. For such a site north-south oriented buildings will be the logical outcome and the wall of buildings along the east boundary is unlikely to be a serious constraint. 14 I note that the joint expert report of Mr Nash and Mr Crane states: "Agreed that installation of obscure glass in units 9-11 as shown on the western elevation of Drawings 49.5D is satisfactory for addressing overlooking of 2 Wolstenholme Avenue." As a result of the conditions of approval, all the windows (rather than only those of units 9-11) will be in obscure glass. Bulk, scale and FSR 15 The height of the proposal complies with the council's controls. It is similar to the townhouse development to the south and of a scale expected of a townhouse development. Of course, the scale is larger than if the proposal were villa homes, but the zoning permits townhouses. 16 The issue of the FSR is complicated. The LEP permits a maximum FSR of 0.7:1. The definition of gross floor area excludes 20m2 per car space required by the council. The proposal does not provide parking in excess of the council's requirements. An area of 20m2 allows for a parking space but does not allow for the area needed to access that space. Applying the council's definition, the proposal's FSR is 0.98:1. If all of the basement parking is excluded, the FSR is 0.68:1. Because of the LEP's definition of gross floor space the parking aisle in the basement is included in the floor space calculations. The applicant has submitted an Objection under State Environmental Planning Policy 1 (SEPP 1). One basis of the Objection is that the additional floor space is the access aisle to the basement parking. Being underground, the additional floor space does not add to the bulk. 17 I can see no planning purpose in the LEP's definition of gross floor space, since it discourages underground parking, which everyone acknowledges is desirable. Mr Nash did not think that it was a reasonable way of calculating floor space. The council itself has exhibited a draft amendment to the LEP and a new draft LEP, both of which change the definition so as to exclude from floor space calculations "internal access to parking". The council's planning report refers to the current definition of gross floor space as an "anomaly" that is "in the process of being rectified in conjunction with draft Sutherland Shire Local Environmental Plan". 18 I am required to assume that the provisions of a planning instrument have a planning purpose and, if I can discern the purpose, to determine matters in sympathy with that purpose. In this case, however, neither of the planning experts could think of a valid planning purpose for the LEP's definition. The council itself has prepared two draft instruments changing the definition. The council's planner has referred to the definition as an anomaly in the process of being rectified. In the circumstances I accept the applicant's SEPP 1 Objection as well founded. In these extraordinary circumstances I conclude that the calculation of the floor space based on the LEP's definition is unreasonable and therefore the strict application of the FSR standard is also unreasonable. The FSR of the proposal is not a reason for refusal. Adaptable housing 19 The DCP requires two adaptable dwellings in this project. Adaptable dwellings must be easily adaptable to wheelchair users. The proposal includes two adaptable dwellings provided with a lift shaft. According to Mr M Relf, an access consultant for the applicant, the addition of a lift would cost about $40,000 and $800 annually to maintain. In the council's submission this is too expensive and does not comply with the requirement that the dwelling should be easily adaptable. The cost of installing a stair lift for one flight of stairs is about $20,000. 20 I accept that, if the adaptable dwellings were on one level, the cost of installing a stair lift from the carpark would be only half as much as a lift serving three levels. However, I accept Mr Relf's evidence that the lift serving three levels would be more convenient. I cannot come to a conclusion about whether the cost of $40,000 complies with the requirement of easy conversion. For someone who can spare $40,000, the conversion would be easy. If the council wishes to keep adaptable dwellings to one level, it will need to include this requirement in the DCP. In my opinion, the two adaptable dwellings are satisfactory. Orders 1. The appeal is upheld. 2. Development application to demolish the existing four dwellings and erect and subdivide under Strata title a development consisting of twelve townhouses on lots 2, 3, 4 and 5 DP 24110, known as 39-45 Manchester Road, North Gymea is determined by the granting of consent subject to the conditions in Annexure A. 3. The exhibits are returned except Exhibits 10, A, B, G and J. _________________ Dr John Roseth Senior Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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