Land and Environment Court of New South Wales CITATION : Mezinec v Bankstown CC [2006] NSWLEC 568 APPLICANT Richard Mezinec PARTIES : RESPONDENT Bankstown City Council FILE NUMBER(S) : 10417 of 2006 CORAM: Bly C KEY ISSUES: Development Application :- attached dual occupancy, solar access, floor space ratio, character and streetscape. Environmental Planning and Assessment Act 1979 LEGISLATION CITED: State Environmental Planning Policy No 1 - Development Standards Bankstown Local Environmental Plan 2001 Bankstown Development Control Plan 2005 CASES CITED: Seika Pty Ltd v Randwick City Council [1994] NSWLEC 124; Winton Property v North Sydney Council [2001] NSWLEC 46 DATES OF HEARING: 06/09/2006 DATE OF JUDGMENT: 09/12/2006 APPLICANT Richard Mezinec, litigant in person LEGAL REPRESENTATIVES: RESPONDENT Mr A. Seton, solicitor of Marsdens Law Group JUDGMENT: -- THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 12 September 2006 10417 of 2006 Richard Mezinec -v- Bankstown City Council JUDGMENT Introduction 1 This appeal relates to development application No 348/2006 which is for the demolition of an existing dwelling house and the construction of a 2-storey attached dual occupancy development designed for adaptable housing at No. 117 Campbell Hill Road, Sefton. The proposed building is to be constructed using tilt-up concrete panels and a low pitch metal deck roof. Each of the dwellings will have a single car garage projecting from the front of the predominant part of the building, with balconies above. 2 The site comprises Lot 26 DP 14763 and as a frontage of 15.24 m and depth of 38.17 m and an area of 581.7 sq m. It has a gentle fall from north to south. 3 Existing development in the locality of the site predominantly comprises single and 2-storey detached dwellings. A short distance to the south and west is a local shopping centre comprising shops, service stations and 3-storey walk-up apartments. Statutory provisions 4 The site is zoned 2(a) Residential A under Bankstown Local Environmental Plan 2001 ("the LEP") and in this zone dwelling houses and dual occupancies are permissible with development consent. The relevant objectives of the LEP require that new buildings should be of good urban design and that new development in residential areas should be compatible with the prevailing suburban character and amenity of the locality in which the site is situated. The applicable objectives of the residential zone in effect require that new development should be appropriately landscaped and complement the existing single dwelling character of the locality and ensure that it is of a height and scale which complements existing buildings and streetscapes. 5 Relevantly applicable requirements of the LEP include a maximum floor space ratio (FSR) of 0.5:1. The relevant objective of this development standard involves the regulation of the scale and bulk of development such that it is consistent with the capacity and character of the area of the development site. Also, the LEP includes minimum site area and building-line width, which requirements are met by the site. 6 The LEP also contains general restrictions on development that require that development be compatible with the character and amenity of existing and likely future buildings on adjoining land in terms of scale, bulk, design, height, siting and landscaping. 7 Also applicable to the site is the Bankstown Development Control Plan 2005 ("the DCP") which has the relevantly applicable objectives of achieving a high-quality urban environment and built form character in the city of Bankstown. The DCP reasserts the FSR development standard in the LEP and provides additional objectives requiring that new development should have a bulk that is proportional to the allotment size. The bulk and scale of new buildings should complement the streetscape as well as protecting amenity of neighbouring properties and providing adequate open space and landscaping on the site itself. Associated performance criteria require that new buildings should avoid dominating the allotment and the streetscape. 8 The DCP contains a number of urban design objectives and performance criteria requiring good urban design and positive contributions to the streetscape by use of articulation and modulation of external facades and a roof pitch that complements the predominant roof pitch in a residential area. New development must use architectural elements to articulate facades and minimise large expanses of blank walls by using techniques involving: the use of different colours and materials; horizontal or vertical banding; and by using roof forms to create an interesting skyline. It contains particular facade design requirements for dual occupancies, two of which are of particular relevance to this application. The design of a dual occupancy must ensure a street facade that adopts an asymmetrical design to provide each dwelling with an individual identity when viewed from the street. Alternatively the design can incorporate architectural elements to complement the asymmetrical appearance of neighbouring dwelling houses. 9 In addition the design must ensure the garage, driveway, and front fence do not dominate the front of the building and front yard. In relation to offstreet parking the DCP requires that this should be provided in a way that minimises visual impact on the streetscape. The associated performance criteria require that the design of any car parking structure must not dominate the front of each dwelling and landscaped areas when viewed from the street. To this end car parking spaces are to be located behind the front building line. Because the development comprises garaging with more than two car parking spaces facing the street (which is permitted in a building of at least 2-storeys in height), consideration of the architectural merit of the development is required. In particular the garage must be architecturally integrated with the upper storey by not projecting more than 3 m forward of the upper storey street facade and having a covered balcony, rooms or other architectural features at the upper storey extending over the garage roof. This requirement is not met by the proposal. 10 The DCP requires that the minimum roof pitch should be 25 degrees and maximum roof pitch should be 35 degrees. Despite this the roof pitch can be lowered to 5 degrees or less were council considers that a low pitch or curved roof is integral to the building design. A further requirement that the front porch of each dwelling should face the street is met by the proposal. 11 The DCP also requires that a living room in each of the proposed dwellings receive at least three hours of sunlight between 9 a.m. and 5 p.m. on 21 June. advertising and Council's decision. Advertising and Council's decision 12 The application was advertised and one objection was received from the owners of the neighbouring property to the south. Those neighbours Mr and Mrs A Nesci gave evidence on site to elaborate on their principal concerns being that the proposed building would not be consistent with existing residential dwellings in the locality and that it would not like a factory unit in a residential area. They were also concerned that they proposed building would overshadow much of their property. 13 The appeal was lodged on the basis of Council's deemed refusal of the development application. The issues 14 The amended statement of issues identifies issues essentially comprising: non-compliance with the floor space ratio in the LEP; inappropriate urban design being inconsistent with the residential character of the area; inadequate solar access to Dwelling B; insufficient information in relation to external finishes; the proposed development for which consent the sought is inconsistent with the submitted BASIX certificate; and the proposal would not be in the public interest having regard to the inconsistency of the development with the prevailing residential character of the locality and the non-compliances with the LEP and the DCP. 15 In my opinion the issues for the determination of the Court are as follows: 1) Whether solar access to the south facing Dwelling B is satisfactory 2) Whether the proposal exceeds the maximum FSR of 0.5:1 and if so whether the submitted objection under State Environmental Planning Policy No 1 - Development Standards ("the SEPP 1 objection") should be upheld. 3) Whether the proposal would be appropriate in the streetscape taking into account the character of the surrounding area and the requirements of the LEP and the DCP. 16 The issue in relation to adequacy of information in relation to external finishes was resolved by the applicant providing additional information during the hearing. Whilst I agree that the BASIX certificate and the development application plans are inconsistent with one another I accept that if consent is to be granted this could be readily rectified. Expert evidence 17 On behalf of the respondent Council expert evidence was provided by Mr S Kaphle, a council development assessment officer and town planner. No expert town planning evidence was provided on behalf of the applicant. Solar access 18 In relation to solar access the shadow diagrams provided by the applicant are unsatisfactory to the extent that they do not facilitate a determination of the extent to which the solar access requirement of the DCP is met by this requirement. Mr Kaphle was nevertheless able to establish that the above-mentioned three-hour winter solstice requirement was not met. Despite this and subject to a confirmation that the two east and west facing living rooms in Dwelling B would together have three hours of solar access over the majority of their windows, I would not have refused the application on this basis. Floor space ratio 19 In relation to floor space ratio I note and accept Mr Kaphle's calculations that, leaving aside the garage the FSR would be 0.516:1. This calculation includes certain floor areas shown on the plans as "storage area" and whilst the applicant suggested that these are plant rooms associated with a small fish pond I have decided that they should be treated as storage and, consistent with the decision of Bannon J in Seika Pty Ltd v Randwick City Council [1994] NSWLEC 124, should be included in the gross floor area calculation. (I propose not to comment on the fact that the floor area of the garages are in excess of the minimum dimensions required by the council and the suggestion that the excess area should be included in the calculation although I acknowledge that if it were included this could have been part of an argument supporting an SEPP 1 objection). 20 The submitted SEPP 1 objection simply argues that the council's calculation of gross floor area and FSR wrongly includes areas associated with the garage and the storage areas and should be omitted. 21 Applying the tests outlined by Lloyd J. in Winton Property v North Sydney Council [2001] NSWLEC 46 at 26, especially in relation to the question of whether the underlying objective or purpose of the standard has been met and whether the non-compliance with the development standard is unreasonable or unnecessary in the circumstances of the case I conclude that the SEPP 1 objection is unsatisfactory. Consequently, and notwithstanding that the non-compliance is relatively minor, development consent as sought cannot be granted. Urban design 22 In relation to the urban design question as described above, the LEP and the DCP have objectives that seek to ensure that new development should complement and be compatible with the existing single dwelling character of the locality in which the site is located. I have not been persuaded that this has been achieved. 23 Development is required to make a positive contribution to the streetscape by ensuring that facades are articulated and modulated so as to minimise large expanses of blank walls. Whilst the front of the proposed building exhibits a degree of articulation and modulation, I agree with that objector's concern regarding the side elevations of the building that are almost 15.5 m long without any articulation or modulation. 24 The DCP requires that garages be architecturally integrated with the upper storey of the building and must not dominate the front of the building and front yard so as to minimise visual impacts on the streetscape. The garages adjoin one another with a combined width of a little more than 8 m and project significantly (more than 3 m) from the main facade of the building. As a result and notwithstanding the proposed planter boxes above the garages, they will dominate the front of the building in a manner not seen in the relevant locality. This is a fundamental flaw in the design. 25 Roof pitches are required to compliment the predominant pitch of surrounding existing development and in this regard it is to be noted that apart from the nearby local shops all of the dwellings in the relevant vicinity have pitched tile roofs. The proposal is plainly inconsistent with this requirement. Despite this I note that the DCP allows a low roof pitch where this is integral to the building design. Whilst such a design would have a different character and could be seen to be contrary to the requirement that new development should have a roof form that compliments the predominant roof-pitch of surrounding existing development it is nevertheless clear that different roof forms can be acceptable. Hence, on the basis of this particular provision of the DCP, on the assumption that the low pitch roof is integral to the building design, then subject to compliance with other requirements this proposal, could have been acceptable. 26 Finally, in relation to the particular dual occupancy development requirements of the DCP, street facades should adopt an asymmetrical design so as to provide each dwelling with an individual identity. Despite one of the dwellings being stepped back behind the other a distance of one metre and being mirror reversed they are plainly identical and symmetrical. They certainly do not provide each dwelling with an individual identity. In this context the proposal is fundamentally flawed. 27 Mr Kahple examined these matters in detail and concluded that the proposal does not provide a good urban design because it does not compliment the prevailing character of the surrounding residential area. He was especially concerned with the symmetrical design and the absence of a pitched roof and the dominance of the garages such that it would not be compatible with the existing character of the locality. Whilst I agree with him that the proposal should not be approved, the absence of a pitched roof cannot, given the flexibility provided in cl 6.10 of the DCP, by itself be determinative. Orders The orders of the Court are therefore: 1. The appeal is dismissed. 2. Development application No 348/2006 for the demolition of an existing dwelling house and the construction of a 2-storey attached dual occupancy development designed for adaptable housing at No. 117 Campbell Hill Road, Sefton is determined by the refusal of consent. 3. Exhibit A is retained. ___________________ T Bly Commissioner of the Court as 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.