Land and Environment Court of New South Wales CITATION : Katerinis and ors v Canterbury City Council [2007] NSWLEC 555 APPLICANT John Katerinis and others PARTIES : RESPONDENT Canterbury City Council FILE NUMBER(S) : 10236 of 2007 CORAM: Brown C KEY ISSUES: Development Application :- demolition of three existing dwellings and the construction of 15 townhouses - density - height/number of storeys - landscaped open space - private open space - solar access LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Canterbury Planning Scheme Ordinance DATES OF HEARING: 31/07/07 DATE OF JUDGMENT: 1 August 2007 APPLICANT Ms S Duggan, barrister SOLICITORS Maddocks LEGAL REPRESENTATIVES: RESPONDENT Mr A Seton, solicitor SOLICITORS Marsdens Law Group JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 1 August 2007 10236 of 2007 John Katerinis and others v Canterbury City Council JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal of Development Application No. 985/2005 by Canterbury City Council (the council) for the demolition of three existing dwellings and the construction of 15 townhouses with basement car parking and the strata subdivision into 15 allotments at 47-51 Chapel Street, Roselands (the site). The site has a frontage of 37.48 m to Chapel Street and an area of 2650.7 sq m. The proposal 2 The proposal is two-storey along the front and rear part of the site. The two storey dwellings along the southern half of the site include rooms that are partially within the roof form of the building. The townhouses are in the form of 9 dwellings across the northern section of the site and 6 dwellings along the southern section of the site. The rear of the southern section is allocated as an open space communal recreational area. The basement level is accessed via a central driveway with security gates off Chapel Street and contains a double garage for each dwelling in stack formation with storage areas. Direct access to each unit is provided through the car spaces. 3 Immediately adjoining the site to the north is a four storey residential flat building at 43 Chapel Street and adjoining the site to the south is a part single and part two storey brick dwelling with a tile roof at 53 Chapel Street. Adjoining the site to the rear is a detached two storey brick dwelling at 2B Phillip Street. Single storey dwellings typically occupy sites on the opposite side of Chapel Street. Relevant planning controls 4 The site is zoned residential 2(a) under Canterbury Planning Scheme Ordinance. The proposed development is permissible with council consent. 5 Development Control Plan 12 - Townhouse and Villa Code (DCP 12), Development Control Plan 20 - Car Parking Code (DCP 20), and Development Control Plan 29 - Crime Prevention Through Environmental Design Code also apply. The issues 6 The council filed an Amended Statement of Issues containing eight issues and a number of sub issues. These can be grouped into the following main areas: (1) whether the non compliance with the density standard is appropriate. (2) whether the height of part of the southern group of townhouses is appropriate. (3) whether sufficient landscaped open space and private open space is provided. (4) whether adequate surveillance is provided. (5) whether common car parking spaces should be provided. The evidence 7 Evidence on the issues was provided by Mr Simon Bennett for the applicant and Ms Rita Nakhle for the council. Both are town planners. Density 8 A fundamental component of assessing the density is the classification of the dwellings. Clause 4.2 of DCP 12 provides that for a medium dwelling (60 to 90 sq m of floor area) one dwelling can be provided for each 250 sq m of site area. For a large dwelling (greater than 90 sq m of floor area) one dwelling can be provided for each 300 sq m of site area. 9 There was dispute between Mr Bennett and Ms Nakhle on the classification of the size of the dwellings. Mr Bennett considered that the proposal provided for ten medium and five large dwellings. This would require a site area of 4000 sq m. When compared to the site area of 2650.7 sq m. the proposal represents an increased density of 33 % over the density required by cl 4.2 of DCP 12. 10 Ms Nakhle however categorises the development as providing 15 large dwellings. Her conclusion is based on the definition of floor space in cl 2 of DCP 12. The definition of floor space excludes "car parking needed to meet any requirements of the council and any internal designated vehicular or pedestrian access thereto". The corollary being the additional area of the car parking spaces above that required by cl 10 is defined as floor space. This has the effect of increasing the floor area of the medium units beyond 90 sq m. If accepted, this would require a site area of 4500 sq m and represents a 41% increase in density over the requirements in cl 4.2 of DCP 12. 11 The consideration of this issue is complicated by the provisions of DCP 20. This document requires car parking to be provided on a different basis to that of DCP 12, being 1.2 spaces per 2 bedrooms with 0.2 spaces remaining as common property. Three bedroom units are to provide 2 spaces per unit. Fortunately, the medium sized dwelling requires the same number of basis as the 2 bedroom unit and the large dwelling requires the same number of spaces as the 3 bedroom unit for the purposes of assessing car parking. 12 Helpfully, cl 1.4 of DCP 20 states that in the event of any inconsistency between the provisions of any other development control plan, the provisions of DCP 20 shall prevail. Clause 3.4.3 of DCP 20 also provides some discretion in deciding whether car parking spaces above those required by DCP 20 should be included as floor space. The discretion is to be used "depending on circumstances". Unfortunately there are no specific details in DCP 20 of the appropriate circumstances in which cl 3.4.3 can be invoked. 13 For the purpose of this appeal I am prepared to use the provisions of cl 3.4.3 to find that the additional car parking spaces should not be included as floor space for assessing density. The additional spaces are located in the basement and within the envelope of the proposed building and do not add to the bulk and scale of the building. The provision of additional parking on site would also appear to be beneficial considering the lack of on street parking at the time of the site view. 14 Based on these findings the difference between Ms Nakhle's position and Mr Bennett's position is not overly significant with the departure from the DCP 12 density standard now 33% instead of 41%. 15 Clause 4 of DCP 12 provides requirements for density. Clause 4.1 provides objectives that state: To provide density controls which allow: i Development which has sufficient site area for space between the buildings onsite and adjoining, private courtyards and car access; ii A satisfactory balance of dwellings to site area; iii Building forms which will achieve the desired character of the residential environment; iv Council to plan and determine levels of services required for an area; 16 Clause 4.2 provides standards based on small, medium and large dwellings based on site area per dwellings as mentioned previously. Mr Bennett considers the proposal is acceptable as it satisfies the objectives in cl 4.1 and the proposal has the same footprint and envelope as a development previously approved on the site by the council. 17 Ms Nakhle states that the proposal is an overdevelopment and any reliance on the previous approval that has since lapsed must be rejected as the development provided for only 8 townhouses and 2 villas, with an departure from the density standard of only 1.8%. The greater density in this application will have a significant adverse amenity impact on the immediate locality. Further, the breach has also led to the inadequate provision of landscaped open space and private open space within the development. 18 On the issue of density I agree with the conclusions of Ms Nakhle. Mr Bennett approached his assessment by relying solely on a consideration of the development against the density objectives. He stated that he gave no consideration to the standards in cl 4.2. This is clearly an incorrect approach as the objectives and the development standards both need be considered. 19 Clause 1.2 of DCP 12 under the heading of "What is the Purpose of the Code?" states: The purpose of this Code is to set standards for townhouse and villa home developments. These standards have been formulated so that: * the amenity of residential areas are enhanced and protected;. * townhouses and villa homes are developed in a way that is compatible with other forms of residential development;. * there is a choice in housing for residents. 20 Clause 1.5 provides the opportunity to vary the standards based on further information to show how the desired results can be achieved or identify circumstances where it is not relevant to comply with a particular provision. Put simply, DCP 12 provides that the standards are the starting point for assessment and if there is some valid reason to vary the standard then DCP 12 provides that opportunity, subject to the provision of additional information to support that reason. In my view this is a sensible and sound approach. 21 Even if Mr Bennett's approach is adopted I am not satisfied that the objectives of the density standard have been satisfied, particularly objectives iii and iv. Objective iii raises the question of character of the residential environment. The character anticipated by DCP 12 is based in part on the density provisions in cl 4.2. The proposal is clearly largely than that anticipated than DCP 12. The previous approval relied upon by Mr Bennett is consistent with the character anticipated by the DCP 12, even though it occupies a similar footprint to the proposed development. The buildings are smaller and consequently have reduced bulk, height and scale compared to the proposed development. The issue of character extends beyond the appearance from the street. In my view the proposal is clearly inconsistent with building forms which will achieve the desired character of the residential environment, as anticipated by DCP 12. 22 Objective iv relates to the level of services required for an area. Mr Bennett's evidence is that this is adequately addressed through the payment of a s 94 contribution. In my view, this is an overly simplistic interpretation of this objective. While it could be readily argued that the proposal, in isolation, is not likely to unacceptably increase demands for services, the same conclusion cannot be reached if considered on a broader scale. The site has no special characteristics that would distinguish itself from the adoption of a higher density on other development sites in the area if this application were approved. This could potentially impact on the level of services required for that area. 23 I am satisfied that the variation sought to the density standard is so significant that the application should be rejected for this reason alone. However, for completeness I will briefly deal with the other issues. Height 24 This issue raises the question of whether part of the proposal satisfies the storey requirements in cl 6. The difference between Mr Bennett and Ms Nakhle relates to that part of the southern group of townhouses and the interpretation of cl 6 of DCP 12. Mr Bennett relies on the diagram shown as Figure 6 within this clause that shows the area defined as "Rear of site" as the area behind the rear alignment of the building shown on the diagram and also the use of rooms within the roof or attics. On this basis Mr Bennett concludes that the building form is acceptable and in accord with the objectives of cl 6. 25 Ms Nakhle relies on the wording of cl 6.2(a) that states: The maximum number of storeys is limited to two at the street frontage and one at the rear of the site. Any dwellings of two storey construction must face or address the street. 26 On her interpretation, the 2 storey townhouses 11 to 15 must be single storey. She states that the use of rooms in the roof or attics still do not satisfy the height of the single storey building as set out in cl 6.2(b). 27 In accepting that the meaning of cl 6 is not overly clear because of the conflict between Figure 6 and cl 6.2, I am satisfied that preference should be given to the written provisions in cl 6.2 over Figure 6 because the words provide a clearer and more precise indication of what is being sought by the clause. The words are unambiguous in their meaning, whereas Figure 6 is diagrammatic only. 28 I also accept Ms Nakhle's evidence that the use of rooms in the roof or attics does not satisfy the standards in cl 6.2(b) and will still have the appearance of a two storey building because of the dormer windows and the fact that the rooms are not fully contained within the roof space. Ms Nakhle's interpretation also supports the previous findings that the density is excessive and her evidence that the proposed development is an overdevelopment. Landscaped open space 29 Landscaped open space is addressed in cl 7.1 of DCP 12. Based on 10 medium and 5 large dwellings, 1795 sq m of landscaped open space is required. 30 Mr Bennett maintains that 1917 sq m is provided, thereby satisfying cl 7.1. Ms Nakhle states that only 1745 sq m is provided. The significant difference between Mr Bennett and Ms Nakhle centres on the inclusion or exclusion of the central walkway with an area of around 300 sq m as landscaped open space. This area is tiled and used largely for access to the townhouses. 31 Landscaped open space is defined in DCP 12 as: Landscaped open space means that part of the site not occupied by any building or buildings except for swimming pools or open air recreation facilities which is predominantly landscaped by the way of planting of gardens, lawns, shrubs or trees and is available for use and enjoyment by the occupants of the building erected on the site, but does not include that part of the site as is used for driveways and parking area. 32 Based on this definition I do not accept that the central walkway falls within the definition as it is not "predominantly landscaped by way of planting of gardens, lawns shrubs or trees and is available for use and enjoyment by occupants". In my view, it is a purely functional area to provide access to the townhouses rather than a recreational area and as such should be excluded from the calculations of landscaped open space. 33 The proposed development is consequently deficient in landscaped open space and this supports Ms Nakhle's conclusion that the proposal is an overdevelopment. Private open space 34 This issue of private open space centres on the inclusion of the courtyards adjoining the central walkway. Mr Bennett maintains that the use of timber baton screening provides a suitable balance between privacy and solar access. Ms Nakhle states that the area does not provide adequate outdoor living space as an extension of the dwellings and the non compliance with the minimum 5 m dimension requirement limits the recreational use by occupants. 35 In balancing the evidence on this issue, I accept that the courtyards are not ideal for private open space purposes because of their location and size however these matters are compensated to some extent by the large area of communal open space towards the rear of the site. Solar access 36 In terms of amenity for future residents, I am more concerned about the solar access to private open space areas and their consequent usability. DCP 12 is clearly inadequate in terms of assessing solar access as it contains no specific standards. Similarly, the impacts on solar access to the proposal are also inadequate as the shadow diagrams do not take into account the shadow cast by the four storey residential flat building directly to the north of the site, and also the effect of fencing around the courtyards. At a minimum, further details would need to be provided to address these deficiencies if development consent was to be considered. 37 The issues of surveillance and the need for common car parking areas in my view are not matters that would lead to the refusal of the application. Orders 38 The Orders of the Court are: 1. The appeal is dismissed. 2. DA985/2005 for the demolition of three dwellings and the construction of fifteen townhouses at 47-51 Chapel Street, Roselands 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.