Land and Environment Court of New South Wales CITATION : Huntington & MacGillivray v Sutherland Shire Council [2005] NSWLEC 62 APPLICANT Huntington & MacGillivray PARTIES : RESPONDENT Sutherland Shire Council FILE NUMBER(S) : 10472 of 2004 CORAM: Tuor C. Development Application :- Residential Flat Building KEY ISSUES: SEPP 1 objection site size and dimensions State Environmental Planning Policy No 1 LEGISLATION CITED: State Environmental Planning Policy No 65 Sutherland Local Environmental Plan 2000 DATES OF HEARING: 23/11/2004, 24/11/2004 DATE OF JUDGMENT: 02/18/2005 APPLICANT Mr M Ball LEGAL REPRESENTATIVES: RESPONDENT Mr O'Gorman Hughes Sutherland Shire Council JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 18 February 2005 10472 of 2004 Huntington & MacGillivray v Sutherland Shire Council JUDGMENT 1 COMMISSIONER: This is an appeal against the deemed refusal by Sutherland Shire Council (the council) of a development application (03/2206) to demolish the existing buildings and construct a residential flat building at lot 140 DP 8483, known as 103 Elouera Road, Cronulla (the site). 2 For the reasons set out in this judgment I have concluded that the appeal should be dismissed and development consent refused. The site and its context 3 The site is generally flat and rectangular in shape with an area of 597.1sqm. It is located at the north west corner of Elouera Road and Marlow Road, with a frontage of 14.2m to Elouera Road and 42.035m to Marlo Road. 4 The site is developed with a two storey red brick residential flat building with a pitched tile roof. Towards the rear of the site, off Marlo Road, is a detached brick garage for two cars and a hard stand parking area for three cars. There are no significant trees on the site and the landscaping is mainly grassed areas. 5 Adjoining sites to the north are similar sized allotments that are developed with two or three storey residential flat buildings of similar style and form to the existing building on the site. A recent residential flat building is located on a similar sized allotment on the corner of Bando Road and Elouera Road. 6 The adjoining development to the west is a recent three storey residential flat building developed over two allotments. There is a drainage reserve, which runs along the eastern boundary of this site that provides a degree of separation between it and the proposal. 7 Development on the eastern side of Elouera Road is recent three storey residential flat buildings each developed over two allotments. 8 The locality is characterised by a regular subdivision pattern with allotments of similar size to the subject site. These are developed with either one or two storey detached houses or older style two and three storey residential flat buildings. Some allotments have been amalgamated and developed with more recent residential flat buildings. The proposal and its history 9 The application was lodged on 19 December 2003 and was notified to adjoining and nearby residents. Council received an objection from the North Cronulla Residents Precinct Committee. The Architectural Review Advisory Panel considered the application on 29 January 2003 and did not support the proposal. The application was amended a number of times and at the time of the hearing had not been determined by council. 10 The proposal is to demolish an existing two storey residential flat building containing 4x2 bedroom units and to construct a three storey residential flat building with 6x2 bedroom units and basement parking for six cars accessed off Marlo Road. Planning Framework 11 The site is zoned 2(c) Residential under Sutherland Shire Local Environmental Plan 2000 (LEP 2000). 12 The objectives of the 2(c) zone are: A higher density residential environment: (a) in close proximity to the major shopping centres and railway stations, and (b) with co-ordinated, efficient and economical development of residential flat buildings of high quality design, and (c) where non-residential uses provide necessary services to the local neighbourhood without adversely affecting the residential community. 13 LEP 2000 contains development standards that are relevant to this proposal including: cl 35 Floor Space Ratio (FSR); cl 36 Landscaped area; cl 37 Minimum allotment size; cl 38 Minimum allotment dimensions and cl 39 Residential flat buildings not complying with minimum allotment size requirements. 14 A Development Control Plan for Residential Flat Buildings in 2 (c) Residential and 9(a) Mixed Residential/Business Zones (DCP) is also relevant. It includes requirements for setbacks, drying areas, car parking and accessible units. 15 Draft Sutherland Local Environmental Plan 2004 (draft LEP 2004) amends the definition of gross floor area and landscape area. For the reasons given in Menai Lands Pty Ltd v Sutherland Shire Council [2004] NSWLEC 683, this plan is neither imminent nor certain and I have given it little weight. 16 The application does not comply with the minimum allotment size, FSR and landscape area standards in LEP 2000 and the applicant has submitted applications under State Environmental Planning Policy No 1 (SEPP1). 17 State Environmental Planning Policy No.65 – Design Quality of Residential Flat Buildings (SEPP 65) establishes ten design principles for residential flat development. Under SEPP 65, the Residential Flat Design Code (the Code) must be considered. The evidence 18 Mr P Brooker, environmental assessment officer – architecture, for the council and Mr W Long, town planner, for the applicant, provided planning evidence. 19 Mr Anderson, development assessment officer – engineering, for the council and Mr C McLaren, traffic consultant, for the applicant provided Statements of Evidence and a Joint Statement on traffic issues but were not required for cross examination. The issues 20 The Statement of Issues before the Court contained 10 issues. A number of issues were resolved by the submission of further information, expert evidence or conditions. The key remaining issue can be categorised as: i) Whether the proposal is too large for its site and consequently does not fit into the existing and future context of the area. 21 In answering this question the proposal must be considered against the existing context while recognising that the area is in transition and that the desired future character of the area is articulated in the planning controls. The experts provided no examples of developments that have occurred under the current planning controls in the locality. 22 The proposal does not comply with cls 37, 38 and 39 (a) and (b) of LEP 2000. Mr Long provided SEPP 1 objections to each of these standards. 23 The objectives of the minimum allotment size requirements in cl 37 are: (a) to achieve efficient use of land, having regard to the existing allotment sizes across each zone, the expectations of the community and the environmental capacity of the various zones, and (b) within the 2(b) Residential and 2(c) Residential zones, to reduce the instances of isolated parcels being left with reduced development potential, and (d) to complement the floor space ratio requirements to ensure an appropriate number of dwellings per site having regard to the characteristics of the zone. 24 Clause 37(2) specifies that the minimum allotment size for residential flat buildings in the 2(c) Residential zone as 1,800sqm. The site has an area of 597.1sqm. 25 The objectives for the minimum allotment dimensions in cl 38 are: (a) to require sufficient allotments width and depth to enable some variations in design for development, and (c) to ensure sites have adequate widths and depth for the arrangement of sufficient side boundary setbacks, efficient driveways, sufficient landscaped areas and satisfactory building form that takes into account the uses made of adjoining properties. 26 Clause 38(2) specifies that the minimum allotment width for residential flat buildings in the 2(c) Residential zone as 30m. The site has a width of 14.2m to Elouera Road. 27 The SEPP 1 objection prepared by Mr Long states that the development meets the objectives of cl 37 and cl 38 for reasons which can be summarised as follows: · The site is typical of the allotment sizes and widths in the zone. · The site is developed with a residential flat building · The proposal will not result in any isolated parcels being left with reduced development potential. The site itself is isolated as it adjoins residential flat buildings which are unlikely to be redeveloped. · The site has adequate width and depth to provide sufficient side setbacks, driveway access, landscaped area and built form · The minimum allotment size and width are threshold requirements except that cl 39 includes provisions for allotments that are below the minimum. 28 Mr Brooker considered that the applicant has not demonstrated that amalgamation is not feasible but agreed that the allotment size and width should not preclude redevelopment of the site for a residential flat building. He stated that if amalgamation with adjoining properties was unlikely in the short term, the size of the proposed development is excessive given the inadequate allotment size in that having established a reasonable standard for development allotment size of residential flat buildings, then building bulk should be adjusted proportionally to the available site area of allotments that are under the standard. He considered the proposal to be too big for its site in that it did not provide sufficient side setbacks or landscape area in relation to its built form. 29 Cl 39 allows consent to be granted for a residential flat building in the 2(c) Residential Zone on a site that is less than the minimum allotment size if it complies with: (a) the maximum floorspace ratio is (site area in square metres x 0.0005) + 0.1:1 (but is not greater than 1:1 and not less than 0.7:1), and (b) the site has a minimum landscaped area of 65%. 30 Under the above calculation a FSR of 0.39:1 could be achieved but the control permits a minimum of 0.7:1. The proposal has a FSR of 1.55:1 (including the car manoeuvring areas) and 0.956:1 (excluding the car manoeuvring area) and a landscaped area of about 251sqm or 42% of the site with an area of deep soil planting of about 140sqm or 36% of the site. 31 The objectives of cl 39 are not stated in LEP 2000 but Mr Brooker and Mr Long held similar opinions that the purpose of the standard was to enable development to occur on undersized allotments provided the objectives of the minimum allotment size (cl 37) and width (cl 38), the FSR standard (cl 35) and landscaped area (cl 36) are met. They held different opinions as to whether these objectives were achieved. 32 The other control which is important to consider in assessing whether cl 39 is met is the setback controls in the DCP. These specify a minimum front setbacks of 7.5m and minimum rear and side setbacks of 4m. The proposal has the following setbacks: Setback Proposed Front 8.3m to wall and 6.2m to balcony Rear 7.7m to wall and 5.6m to balcony North side 3.4m and 4.0m to wall and 2.9m to blade walls South side 3.0m and 3.65m to wall and 2.5m to blade walls 33 The objectives of the FSR standard are: (a) To provide a degree of consistency for existing residents as to the size and bulk of potential buildings in their neighbourhood. (b) to allow building of sufficient scale to satisfy the needs of residents while preventing development of sites beyond community expectations and the environmental capacity of the zone. 34 The maximum FSR specified for the 2(c) Residential zone is 1:1. 35 The objectives for the landscaped area standard are: (a) to ensure opportunities for tree retention and tree planting to preserve and enhance the tree canopy of Sutherland Shire, and (b) to ensure that unbuilt upon areas balance the built form, and (c) to contain urban runoff flows by minimising the impervious areas on residential development sites. 36 Clause 36(2) requires a minimum of 65% of the allotment as landscaped area. 37 In the SEPP 1 objection, Mr Long stated that the proposal met the objectives of the FSR standard thereby meeting the objectives of cl 39 (a) He concluded that: The size and bulk of the building is acceptable and consistent with the three storey height and density of residential flat building development in this locality. A variation in the FSR standard to allow the additional floor area proposed will not result in a development that is excessive in size and density to the extent that it would be discernibly different to the surrounding residential flat development in this locality. The proposal will not result in any adverse impacts on the streetscape or the present amenity of surrounding residents in terms of privacy, views and solar access. 38 In relation to the variation to cl 39(b), Mr Long also concluded that the objectives of the landscape area standard would be met for the following reasons: The design and siting of the proposed residential flat building and by the provision of additional landscaping on the site that will enhance the landscape setting of the site compared with the existing situation. The proposed landscape area of 284 sqm or 47.5% (the experts agreed that this figure was 42%) of the site area is considered to be adequate for containing urban runoff flows and the provision of absorptive landscaped areas and site infiltration of stormwater. The proposed development will achieve an acceptable balance between the unbuilt upon areas of the site and the built form considering the siting of the building and the substantial areas available for open space and landscaping around the building. 39 Mr Brooker held the contrary opinion that the development was too big for its site. Implicit in the controls for minimum lot size and width was the assumption that smaller sites cannot accommodate the same level of development as larger sites and achieve a satisfactory urban outcome. In Mr Brooker's opinion the proposal was an overdevelopment of the site with insufficient setbacks, inadequate private open space and poor amenity for the units. He stated that the need to protect privacy of the existing residential flat building to the north (No.101) and the setback from this boundary meant that the units did not avail themselves of their northern outlook and provided poor solar access. Although he agreed with Mr Long that all the units, except unit 2, would receive at least three hours sun in mid winter, albeit not northern sun. 40 In Mr Brooker's opinion the setback to the north also provided insufficient setback from the existing building at No 101. This together with the three storey height created a canyon effect when viewed from Eloura Rd and would place constraints on any future development of this site. In Mr Brooker's opinion the landscaped area not only did not comply with the control but reduced the existing amount of landscaped area. The landscape area in the setback area to the north and south was over the basement carpark and was insufficient to provide a landscape setting to the building. The blade walls also intruded into the setback area and added to the bulk of the building and the setback of the front of the building was insufficient and had a negative impact on the streetscape. Findings 41 In assessing the SEPP 1 objections the key question before the Court is whether the proposal is too big for its site and whether it fits into the existing and future context. In answering these questions I accept that the underlying purpose of the above controls can be summarised as being to ensure sites are adequate in size to accommodate the built form. The controls, including the setback controls, seek to provide sufficient separation between the built form for the provision of driveways, utilities areas etc within a landscaped setting. This separation between built form enables privacy, outlook and solar access to existing and future developments to be maintained. The balance between built form and open space also provides for a streetscape of buildings in landscaped settings. 42 The controls do not emulate the existing pattern of development, which is largely two and three storey residential flat building on approximately 600sqm sites separated by side driveways with ground level parking and landscaping. Rather the controls envisage larger sites with greater separation between buildings with landscaping. 43 The controls also seek to ensure that the built form is compatible with surrounding development. The proposal is of a similar height, size and front setback to other buildings in the area, both new and old. The relationship of the built form to its open space is also similar to older developments in the area and redevelopments of single allotments. These developments were approved under previous planning controls and, particularly the earlier flat development, are not what the planning controls are seeking to achieve as they provide for a built form and hard surfaces which dominate their sites. 44 Of the more recent development, there are no examples of sites where three lots have been amalgamated. I recognise that it may be difficult to achieve this amalgamation pattern given the density of development that already exists in the area and the lack of incentive to redevelop existing flat buildings with new flat buildings of a similar yield. However, there are a number of examples where two sites have been amalgamated and developed under the previous controls. This site size and frontage provides sufficient space for driveways etc, separation between buildings and landscape areas. Although, the overall bulk of these developments is not what the current controls are seeking to achieve. 45 It may not be feasible to amalgamate this site in the short term. The planning controls recognise this but also that smaller sites cannot accommodate the same level of development as larger sites and achieve a satisfactory outcome. For example, while the provision of underground parking is a positive feature of this development, the area occupied by the driveway to provide access to this basement would be the same whether on a larger site or a smaller site. The extent to which the driveway dominates the site, restricts opportunities for landscaping and can be screened are different between larger and smaller sites. On this site due to the constraints of relocating the Telstra pit, the driveway has been placed off Marlo Road. Due to the narrow width of the site, the driveway is largely outside the footprint of the building and leaves little open space between the building and its western and northern boundary. 46 The narrow width of the site means that the side setbacks are less than those required in the DCP. This reduces the opportunity for landscaping and separation from the adjoining building. To prevent privacy impacts the northern façade has few windows and is within the shadow of the adjoining building and therefore the units do not take advantage of their northern aspect. The front setback of the building is consistent with the adjoining building and provides sufficient space for landscaping, however, the height and proximity of the two buildings will create a canyon effect. The sites corner location and the adjoining drainage reserve to the west compensate to some extent for its size and width by providing space and borrowed amenity but not to the extent that it is of sufficient size to accommodate a development of the size proposed. 47 The existing building on the site is smaller in footprint and height than what is proposed. Although its open space is poorly landscaped and occupied with large areas of hardstand it does provide space between it and other buildings in the street and an appropriate balance between the built form and open space. 48 A larger building than the existing could be accommodated on this site, but I find that the proposal is too big for its site and while it fits into the existing context of early flat buildings, this context is not what the planning controls seek to achieve and is not an appropriate model for redevelopment of single allotments, particularly those not on corner sites. I therefore find that the applicant has not shown why the variation to the development standards cls 37, 38 and 39(a) and (b) is reasonable in this instance and consequently the SEPP 1 objections are not well founded and the appeal must fail. Orders 49 For the above reasons the Orders of the Court are: 1. The appeal is dismissed. 2. The development application (03/2206) to demolish the existing buildings and construct a residential flat building at lot 140 DP 8483, known as 103 Elouera Road, Cronulla, is determined by refusal. 3. The exhibits may be returned. 4. No order as to costs __________________ Annelise Tuor 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. 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