Land and Environment Court of New South Wales CITATION : Gallanos v Canterbury City Council [2007] NSWLEC 162 APPLICANT Jim and Elizabeth Gallanos PARTIES : RESPONDENT Canterbury City Council FILE NUMBER(S) : 10252 of 2006 CORAM: Tuor C KEY ISSUES: Development Application :- demolish all existing structures and construct a two-storey attached dual occupancy with basement car park bulk and number of storeys, impact on streetscape Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Canterbury Planning Scheme Ordinance Development Control Plan 14 DATES OF HEARING: 18/10/06 and 2/03/07 EX TEMPORE JUDGMENT DATE : 2 March 2007 APPLICANT Mr S Kondilios, solicitor SOLICITORS Maddocks LEGAL REPRESENTATIVES: RESPONDENT Mr A Seton, solicitor SOLICITORS Marsdens Law Group JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 2 March 2007 10252 of 2006 Jim and Elizabeth Gallanos v Canterbury City Council JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Canterbury City Council (the Council) of a development application (1072 of 2004) to demolish all existing structures and construct a two-storey attached dual occupancy with basement garages at No 1 Bobadah Street Kingsgrove (the site). The site, its context, the history of the application and the statutory controls are in the Statement of Basic Facts. 2 The development application was lodged on 15 December 2004 and refused by council on 7 April 2005. The site 3 The site is on a corner with a frontage to Bobadah Street of 13.1 m, excluding the splay, and a frontage to Lundy Avenue of 32.6 m and an overall area of 526 sq m. The site slopes from the rear (south) to Bobadah Street (north) about 2.7 m (1 in 12). 4 The site is developed with a single storey brick house with a detached laundry and garage accessed off Lundy Avenue. Adjoining development at 3 Bobadah Street and 1A Lundy Avenue are two-storey brick houses. The surrounding area is characterised by one and two-storey detached houses. There are examples of recent dual occupancy developments in the area. Planning controls 5 The site is zoned Residential 2(a) under Canterbury Planning Scheme Ordinance (CPSO). The proposal is permissible with consent. Clause 32(d) of CPSO requires a consideration of the dual occupancy code. 6 Development Control Plan 14 - Dual Occupancy Code (DCP 14) applies through cl 32(d). Amendment 8 of DCP 14 was effective from 1 November 2005. Clause 5.1 specifies a minimum allotment size for dual occupancy development of 600 sq m with a minimum site width of 15 m. However the note to cl 5 states: Amendment 8 to this DCP changed the minimum site area for dual occupancy development from 460 sq m to 600 sq m. This amendment does not apply to development applications that were lodged but not determined before 1 November 2005. 7 As the application was lodged prior to this amendment, the parties agreed that the minimum allotment of 600 sq m does not apply. 8 DCP 14 includes provisions relating to floor space ratio (FSR) (cl 5.4), setback (cl 5.6) and open space (cl 5.8). It was agreed that the proposal complies with the numerical requirements of these controls. Other relevant controls are building height (cl 5.5), external design (cl 5.7) and car parking (cl 5.9). The issues 9 The key dispute between the parties was whether the proposal resulted in a development that is too bulky and appears as a three-storey development in the streetscape. The evidence 10 The appeal was initially heard on 18 October 2006. The Court undertook a view of the site and heard expert evidence from Mr D Crane, planner for the applicant and Ms M Kocak, planner for the council. A joint report of Mr McLaren, traffic engineer for the applicant and Mr J Senior, traffic engineer for council, was also provided. The traffic experts gave evidence on site but were not required for cross-examination. 11 During the hearing, it was proposed that the development application be amended to raise the garage to reduce the three-storey appearance of the development. Ms Kocak also suggested other changes to reduce the bulk of the proposal. 12 Prior to submissions, Mr Kondilios for the applicant, sought an indication from the Court as to whether the proposal was acceptable and whether the suggested changes were necessary. At the time, I expressed concern about the proposal in its current form, particularly its bulk and three-storey appearance. I accepted that the proposed changes would improve the proposal but stated that the ability to reduce the bulk of the overall development should be investigated beyond that suggested by Ms Kocak. I noted that although the proposal complied with the numerical FSR control in DCP 14, it included design features, such as the large void over the garage and the garage circulation area and floor to ceiling height on the ground floor of 3.8 m that contributed unnecessarily to its overall bulk. With the agreement of the parties, I issued directions for amended plans to be prepared. The amended plans 13 A further joint report was prepared by the traffic engineers on the amended plans. This states that while it would be feasible to raise the garage a further 50 mm, this would be visually imperceptible and also difficult to achieve. I accept this opinion. 14 A further joint report of the planners was also provided. Ms Kocak maintained her concern about the bulk of the proposal and its appearance of more than two storeys. Mr Crane considered the amendments to be an improvement and that the proposal was acceptable. Findings 15 The main concern was the basement car park and the impact this part of the proposal has on bulk and appearance in the streetscape. Clause 5.9 of DCP14 addresses car parking. The relevant objective is: b. To ensure that car parking is integrated into the design of the dwelling and does not dominate the streetscape 16 Under Cl 5.9 Design Requirement (j) "basement car parking is prohibited". However, Design Requirement (k) states: Notwithstanding (j) above, provision of basement car parking on sloping corner lots may be permitted where the site characteristics warrant such a design solution, and if the proposal achieves the following performance criteria: · the basement parking accommodates a maximum of two car spaces per dwelling; · excavated areas are minimised; · the slope of the site is utilised so that the visual impact of the garage entry on the streetscape is minimised; and · the garage contains a single entry and does not present a three-storey appearance to the street and maintains the existing streetscape character in the immediate locality. Note: Satisfactory basement parking will only be achieved where the slope of the site is such that the entry to the car parking spaces can be integrated into the design of the building and the land form. 17 Ms Kocak and Mr Crane disagreed on whether the slope of the site was sufficient to warrant basement parking. They also disagreed as to whether the proposal met the design requirements in (k), in particular the extent of excavation and whether the proposal presents a three-storey appearance to the street and maintains the existing streetscape character in the immediate locality. 18 I do not agree that the site is inherently unsuited to basement car parking, particularly as this enables greater landscaped area to be provided. Otherwise, I accept Ms Kocak's opinion that the proposed basement car parking does not meet the design requirements in (j) and (k) or the relevant objective of the car parking control. 19 The proposed basement involves considerable excavation and while the building will not appear as a full three storey building, it will appear greater than two storeys and will add to the overall bulk of the proposal from the street. 20 The proposed garage and driveway and its integration into the development is unresolved. While the narrowing of the driveway will assist in enabling screening of the garage, the entry remains a double entry and the manner in which the garage is approached, by going up the site and then down into the basement, does not minimise the visual impact of the garage entry from the street. The design of the basement with the internal entry to each garage and the unexplained light well over the area, increases the excavation and resultant bulk of the development. 21 Under DCP 14, height is measured to the underside of the topmost ceiling from ground level. Ground level is defined as either natural ground level or any artificially formed ground level, whichever is the lower. It appears that the proposal when measured from the basement ground level, would not meet the height control of 7.2 metres. However, the ridge height of the proposal is consistent with the adjoining houses and other development in the area. I therefore do not consider that the overall height of the proposal in relation to other buildings in the area to be unacceptable. Nevertheless, the basement area of the proposal contributes to the number of storeys. From Bobadah Street the proposal will appear as more than two storeys and is therefore not consistent with the existing streetscape, which the experts agree is predominantly one and two storeys. Nor is it consistent with the desired future character of the area envisaged under the planning controls. 22 I note Mr Crane's evidence of other examples of buildings in the area with basement car parks. Ms Kocak's evidence was that these examples were predominantly houses and that the controls in DCP 14 were specifically designed to not emulate these examples. Without examining the specific details of these approvals, I do not accept that these examples support the proposal. In my view, the examples demonstrate that generally basements add to the bulk and the perceived height of a building, particularly the number of storeys. There are also not a sufficient numbers to argue that they should be given weight in determining what constitutes the character of the area and are therefore not something that dual occupancy development which meets the requirements of DCP 14, should respond to. 23 Mr Crane held the opinion that the articulation of the façade, the setbacks and varied roof form break up the bulk of the building. While I accept that these measures assist in reducing the overall bulk of the building, I do not agree that these measures are sufficient to overcome the fundamental design problems. The development does not meet Objective (a) of Cl 5.4 "to ensure that dual occupancy developments maintain an appropriate residential character and visual bulk", despite its compliance with the numerical FSR control in DCP 14. 24 The objective of cl 5.7 – External Design is: To ensure that the external appearance of the dual occupancy development is of high visual quality and enhances the streetscape and surrounding development. 25 Despite the amendments, I do not accept that the proposal meets the objectives of this control. The statement of Mr N Lycenko, the architect who reviewed the proposal, is unclear and was largely unhelpful in addressing the issue of bulk. It would appear that a complete redesign of the proposal is necessary to achieve a visual quality that enhances the streetscape and surrounding area and is consistent with the requirements in DCP 14. 26 At the earlier hearing, the applicant requested the opportunity to address the concerns of council and the Court. While I accept that the specific items in the Court's direction have been addressed, this has still not resulted in a development that meets the requirements of DCP 14. Orders 27 The orders of the Court are therefore: 1. The appeal is dismissed; 2. The development application (1072/04) to demolish the existing structures and construct a two-storey attached dual occupancy with basement garages at 1 Bobadah Street Kingsgrove is refused; 3. The exhibits, except exhibits 1 and 6, may be returned. . ___________________ Annelise Tuor Commissioner of the Court ljr 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.