Land and Environment Court New South Wales Medium Neutral Citation: Abdul-Rahman v Strathfield Council [2014] NSWLEC 1237 Hearing dates: 1 September 2014 Decision date: 10 October 2014 Jurisdiction: Class 1 Before: Fakes C Decision: Appeal upheld subject to conditions see paragraph [59] Catchwords: DEVELOPMENT APPLICATION: additional storey; visual impact; affordable rental housing Legislation Cited: Environmental Planning and Assessment Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy No. 65 (Design Quality of Residential Flat Development) Strathfield Local Environmental Plan 2012 Cases Cited: Northcote Trust v Hornsby Shire Council [2012] NSWLEC 1327 Project venture Developments v Pittwater Council [2005] NSWLEC 191 Category: Principal judgment Parties: Omar Abdul-Rahman (Applicant) Strathfield Council (Respondent) Representation: Applicant: Mr P Clay SC (Barrister) Respondent: Mr A Seton (Solicitor) Applicant: Conomos Legal Respondent: Marsdens Law Group File Number(s): 10377 of 2014 Judgment 1COMMISSIONER: In December 2013 Strathfield Council granted consent to Development Application DA2013/179 for the demolition of existing structures and construction of a four storey residential flat building with a flat roof form, comprising 11 units and two levels of basement car parking at 21 Beresford Road, Strathfield (the site). Consent was granted under the 'infill affordable housing' provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). Work has not commenced under this approval. 2In February 2014, the applicant lodged Development Application DA2014/017 for the construction of an additional/ fifth storey on the approved four storey residential flat building. The additional storey proposes a flat roof and comprises two additional units - 1 x 1 bedroom unit and 1 x 2 bedroom unit. The fifth storey is set back from all sides of the lower floors. Modifications of the basement car park are required in order to provide an additional three spaces. 3In May 2014, council's Planning Committee refused the application for the additional storey. The applicant appeals that decision under s 97(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act). 4The reasons for refusal are summarised from council's Statement of Facts and Contentions as: * Incompatibility with the character of the local area and therefore non-compliance with cl. 16A SEPP (ARH); * Non-compliance with the development standard for maximum height in Strathfield Local Environmental Plan 2012 (SLEP); * Excessive bulk and scale; * Adverse impacts on the amenity of future residents because of an increase in density; * Inconsistency with the 'Design Principles' for residential flat development in State Environmental Planning Policy No. 65 (Design Quality of Residential Flat Development) (SEPP 65); * Overdevelopment of the site; * Unsuitable for the site; * Inadequate information; * Undesirable precedent; and * Not in the public interest. 5As a consequence of the joint conference between the parties' planning experts, the applicant prepared amended plans which show the additional storey principally enclosed within a pitched roof form as opposed to the flat roof form as originally proposed. The original proposal assessed by council exceeds the height limit control by 1 m. The amended plans show a non-compliance of up to 1.178m. An amended clause 4.6 exception to the height control was prepared and tendered. Six of the proposed 13 units will be designated as affordable rental housing. 6Leave was granted to rely on the amended plans and the parties agreed to an Order under s 97B(2) of the EPA Act for the payment by the applicant of the council's costs thrown away as agreed or assessed. The site and its locality 7The site is located on the northern side of Beresford Road towards its eastern end. The railway line between Strathfield and Homebush stations is approximately 250m to the east/ northeast; the site is about 600m from both stations. 8The site is zoned R3 Medium Density under SLEP 2012. A single dwelling with detached garage currently occupies the site. 9The adjoining property to the west, on the corner of Homebush Road and Beresford Road is a part two/part three storey town house complex. The adjoining property to the east is an older style part two/ part three storey residential flat building set back from the street. Apart from St Anne's Anglican Church, a heritage item of local significance under Schedule 5, SLEP, and which is diagonally opposite the site to the southwest, the nearby development in this section of Beresford Road generally comprises three storey residential flat buildings. Further to the east, on the northern side of Beresford Road and close to the railway line are a number of multi-storey residential flat buildings ranging in heights from 17m, 20m, 36m and up to 42m. 10The area to the west of Homebush Road is low density residential in character. 11Established Brush Box trees are regularly spaced along the street. The frontages of most properties on the northern side of Beresford Road are landscaped and contain mature trees. Planning controls 12State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) applies. Relevant aims in cl. 3 are: (a) to provide a consistent planning regime for the provision of affordable rental housing, (b) to facilitate the effective delivery of new affordable rental housing by providing incentives by way of expanding zoning permissibility, floor space ratio bonuses and non-discretionary development standards. 13Clause 14 lists the development standards that cannot be used to refuse consent; these are (within specified limits) - site and solar access requirements; site area; landscaped area; deep soil zones; solar access; parking; and dwelling size. 14Clause 16 states that nothing in SEPP ARH affects the application of State Environmental Planning Policy No. 65 (Design Quality of Residential Flat Development) (SEPP 65). 15The council presses cl. 16A Character of local area in SEPP ARH. This states: A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area. 16The following Design Quality Principles in State Environmental Planning Policy No. 65 (Design Quality of Residential Flat Development) (SEPP 65) are contended: * Context: Good design responds and contributes to its context. Context can be defined as the key natural and built features of an area. Responding to the context involves identifying the desirable elements of a location's current character, or in the case of precincts undergoing a transition, the desired future character as stated in planning and design policies... * Scale: Good design provides an appropriate scale in terms of the bulk and height that suits the scale of the street and the surrounding buildings. Establishing an appropriate scale requires a considered response to the scale of existing development. In precincts undergoing a transition, proposed bulk and height needs to achieve the scale identified for the desired future character of the area. * Built form: Good design achieves an appropriate built form for a site and the building's purpose, in terms of building alignments, proportions, building type and the manipulation of building elements. Appropriate built form defines the public domain, contributes to the character of streetscapes and parks, including their views and vistas, and provides internal amenity and outlook * Density: Good design has a density appropriate for a site and its context, in terms of floor space yields (or number of units or residents). Appropriate densities are sustainable and consistent with the existing density in an area or, in precincts undergoing a transition, are consistent with the stated desired future density. Sustainable densities respond to the regional context, availability of infrastructure, public transport, community facilities and environmental quality. * Amenity: Good design provides amenity through the physical, spatial and environmental quality of a development. Optimising amenity requires appropriate room dimensions and shapes, access to sunlight, natural ventilation, visual and acoustic privacy, storage, indoor and outdoor space, efficient layouts and service areas, outlook and ease of access for all age groups and degrees of mobility. 17The site is zoned Zone R3 Medium Density Residential in Strathfield Local Environmental Plan 2012 (SLEP). The relevant zone objectives are: * To provide for the housing needs of the community with a medium density residential environment. * To provide a variety of housing types within a medium density residential environment. 18Of importance is cl. 4.3 - Height of Buildings SLEP, which provides: (1) The objectives of this clause are as follows: (a) to ensure that development is of a height that is generally compatible with or which improves the appearance of the existing area; (b) to encourage a consolidation pattern that leads to the optimum sustainable capacity height for the area; (c) to achieve a diversity of small and large development options. (2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map. 19The maximum permissible height for the site is 14m. 20Clause 4.6 SLEP provides a mechanism for providing an appropriate degree of flexibility in applying certain development standards. Clause 4.6(3) requires consideration of a written request from an applicant demonstrating that compliance with a development standard is unreasonable or unnecessary in the circumstances and there are sufficient environmental planning grounds to justify the contravention of the standard. 21Clause 2.2 Density, Bulk and Scale in Part C - Strathfield Consolidated Development Control Plan 2005 - Multi-Unit Housing (SDCP) applies. The maximum storeys permissible are 4 storeys. In the absence of SEPP ARH, other controls, in particular landscaping, floor space ratio and parking controls, would ordinarily apply. Issues and evidence 22The main issues in contention are the exceedence of the height controls, the additional bulk the fifth storey will create, and the impact on the character of the area. 23The hearing commenced on site. The Court heard an objection on behalf of residents of the adjoining property to the west. The objection principally relates to the impacts of the approved development, particularly on sunlight to a number of the units, however the objector maintains that any additional height would exacerbate those impacts. 24Planning evidence was provided by Mr Stuart Harding for the applicant and Mr Steven Layman for the council. The experts prepared a joint report and assisted the Court on site. 25In preparing their report, the planners visited the site in order to understand the character of the area. They agreed that a pitched roof, rather than the proposed flat roof, would be more consistent with the established character as pitched roofs are prevalent. As a consequence of this discussion, Mr Harding organised new drawings to be produced to demonstrate how a pitched roof could be provided (the amended plans). 26While Mr Layman accepts that a pitched roof is preferable to the original proposal he maintains that the fifth level would only be acceptable if it were designed as an attic space for the fourth storey apartments within a hipped roof. He notes that the pitched element sits on a half wall above the fourth level parapet and the roughly 45° pitch is atypical of nearby buildings which, he considers are generally pitched at 22.5° to 30°. In his opinion, the building will still read as a five-storey building, which is not in harmony with the surrounding development. In Mr Layman's opinion, the non-complying height exacerbates the approved non-compliances (approved as a consequence of SEPP ARH) and results in a development not compatible with the character of the area. 27Mr Harding is of the opinion that the recessed nature of the upper level, and the provision of a pitched roof form, reduces its bulk and visibility from the public domain. He considers the pitched roof is a better design solution, in terms of character, than the approved roof form and is not inconsistent with the roof forms that surround the site. In his opinion, the height difference does not result in a building that is incompatible with the character of the area. 28Under cross-examination Mr Harding agreed that the roof and perhaps a small portion of the half wall would be seen but the non-compliant height would be challenging for anyone to read. In his opinion the visual catchment is eclectic rather than having a particular rhythm and, rather than being limited to adjoining properties, includes the buildings behind and beyond the site. 29In regards to council's contention on amenity, the planners agree that the balcony width of Unit 401 can be amended by a condition of consent to be compliant. However, Mr Layman maintains that given the approved landscaping is non-compliant with the provisions of SEPP ARH, the proposal increases the site population and there will be more demand for the limited communal open space. In his opinion the imbalance between landscaping and building bulk is inappropriate and out of character with the locality. 30Mr Harding is of the view that the rooftop dwellings will provide high levels of amenity and any increased demand on communal facilities is likely to be insignificant. He is also unaware of any planning provisions that create a relationship between the number of occupants and the provision of landscaping. 31The planners disagreed on whether the site was suitable for the proposed development, the precedent it was likely to set and in whether there are any public interest issues that would warrant the rejection of the application. Submissions 32Mr Seton for the council maintains that the 4-storey development as approved is tolerable but the addition of a fifth storey and the accompanying exceedence of the height control results in an unacceptable impact on the character of the area and a building that will break the visual rhythm of the streetscape. He submits that the height and density zone maps in council's controls show a distinct stepping down in height and storeys from east to west along that section of Beresford Street. Mr Seton argues that exceeding the height limit in that part of the 14m zone will create an anomaly. 33In support of this position, Mr Seton cites Northcote Trust v Hornsby Shire Council [2012] NSWLEC 1327 at [33] as an approach to answering the question as to whether a proposed development is compatible with the local character. In particular: ...Second, land that is within a different zone that may contemplate a different form of development or the same development but of a different density or scale, even though it may be close to the site, should not be given significant weight in the determination of compatibility.... 34Mr Seton contends that the applicant has not established sufficient planning grounds to justify why non-compliance with the development standard for height is unreasonable or unnecessary. The additional roof form will be visible from the public domain and the extra height is out of scale and contextually incompatible as there are no other buildings that exceed 14m in the particular height zone. As there is nothing comparable, approval of the proposal will create an undesirable precedent and for this and the other reasons pressed by council, Mr Seton maintains the proposal should be refused. 35Mr Clay for the applicant contends that character, and not the breach of the height control in itself, is the key issue. He maintains that the relevant visual catchment is from Elva Street to Homebush Road with the associated range of height zones within that area, which are not simply lines on a map but part of a dynamic landscape. Mr Clay asserts that the visual backdrop is of large buildings. He submits that the major physical change is west of Homebush Road and the lower density residential development in that area. 36Mr Clay contends that the planners agree that a pitched roof is a better outcome. He maintains that this is in character, is not visually jarring, and is compatible with surrounding development. 37In regards to council's height controls, Mr Clay presses the wording in the objective in cl. 4.3(1)(a) that development should be of a height that is "generally compatible". In his view, the control anticipates some variation. He cites Northcote Trust at [36] in that the objectives of SEPP ARH override the LEP, and the test in cl. 16A SEPP ARH is compatibility not replication. Mr Clay maintains that the non-compliant height will be difficult to discern. Findings 38The findings in Northcote Trust at [36] provide a useful summary of the issues in this matter. 36. On the important question of whether the design of the proposed development is compatible with the character of the local area, it must be accepted that development lodged under SEPP ARH should not slavishly follow the form of development anticipated for Residential A (Low Density) Zone. The test in cl 16A is compatibility and not replication. SEPP ARH is a statewide planning policy and clearly allows for a form of development that may not necessarily reflect the exact form anticipated by local planning controls. This is highlighted by cl 8 that gives primacy to the SEPP ARH over any environmental planning instrument (but only so far as any development is compatible with the character of [the] local area). The words in Project Venture about compatible developments being "capable of existing together in harmony" and "generally accepted that buildings could exist together in harmony without having the same density, scale or appearance" are important considerations in assessing the character of the local area. 39As mentioned above, the Planning Principle on compatibility in the urban environment, published in Project venture Developments v Pittwater Council [2005] NSWLEC 191 is relevant, in particular: 22 There are many dictionary definitions of compatible. The most apposite meaning in an urban design context is capable of existing in harmony. Compatibility is this different from sameness. It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve. 24 Where compatibility between a building and its surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked. - Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites. - Is the proposal's appearance in harmony with the buildings around it and the character of the street? 27 Buildings do not have to be the same height to be compatible. Where there are significant differences in height, it is easier to achieve compatibility when the change is gradual rather than abrupt. The extent to which height differences are acceptable depends also on the consistency of height in the existing streetscape. 31 It should be remembered that most people are not trained planners or urban designers and experience the urban environment without applying the kind of analysis described above. As people move through the city, they respond intuitively to what they see around them. A photomontage of a proposed development in its context provides the opportunity to test the above analysis by viewing the proposal in the same way that a member of the public would. 40The key issue is satisfaction of the character test in cl. 16A in SEPP ARH. 41In considering the first question posed in Project Venture at [24], the council and the planners did not identify any additional physical impacts on surrounding development as a consequence of the proposed additional storey. Noting the objections from the occupants of the adjoining property to the west of the site, there is no additional overshadowing of that property arising from the additional storey. 42The only potential impact that could be considered in this category is the issue raised by Mr Layman and the council of the possible adverse impact on the amenity of future occupants of the development because of the shortfall in the landscape requirements as a result of the application of SEPP ARH. In this regard I prefer the opinion of Mr Harding at [30]. I also note the agreement between the planners that the balcony width of unit 401 should be increased to achieve compliance. 43Therefore, I am not satisfied there are any physical impacts of the proposed additional storey that render it incompatible with the character of the local area. 44The second question in Project Venture at [24], essentially considers visual impact. 45Although there was no photomontage of the additional storey with a pitched roof, it was not especially difficult when on site, and with the assistance of the experts, to visualise the impact from the public domain. While it is inevitable that some part of it will be seen from the street, the view is filtered through the established Brush Box street trees that line the street. The retention of the Brush Box as an element which ties together the various architectural periods in the street is noted in the report to the Planning Committee (exhibit 5) as being of importance. 46The planners agree that a pitched roof is a better design outcome than the original proposed flat roof extension, as it is more in keeping with the surrounding development. Mr Harding goes further and considers the pitched roof form to be an improvement over the roof form of the approved development. Using a protractor, I measured the pitch of the proposed roof to be about 42 degrees. I agree with Mr Layman that the pitch is steeper than nearby development, however, in considering the observation in Project Venture at [31], I don't think passing pedestrians will find it particularly out of place. 47I have to agree with Mr Harding and Mr Clay that the visual catchment in the vicinity of the site is dominated by multi-storey development. The backdrop in the north-eastern quadrant will remain as high-rise development. 48While I agree in principle with the rationale in Northcote Trust at [33] that land that is within a different zone that may contemplate a different form of development or the same development but of a different density or scale and may ordinarily be given less weight in determining compatibility with character, I consider the circumstances of this particular site to be unusual. 49The site is situated in a triangular pocket bounded by Beresford Road, Homebush Road and the railway line in which five different height limits apply under SLEP 2012. This is unusual. As stated elsewhere, the site is zoned R3 - Medium Density with a height limit of 14m under SLEP with a storey limit of 3-4 storeys under SDCP 2005. The parties agree that there are no buildings in the 14m height limit area that exceed 14m however, no evidence was adduced that any nearby buildings attain the permitted height. Within 50 metres of the site the height limit is 17m and within 100 metres of the site the height limit increases to 42m. Within 200m, the height limits are 20m and 35m. The density zone map 4 in SDCP 2005 does not reflect the height controls in SLEP 2012. 50While I agree with Mr Seton that the general intent of the height controls is to cascade down in height from east to west, the unique circumstances of the immediate vicinity do not, in my opinion, warrant rigid adherence to the height limit. In this regard I find Mr Harding's comments at [28] describing the visual catchment as eclectic rather than having a particular rhythm and rather than being limited to adjoining properties, including the buildings behind and beyond the site, to be apposite. 51While the proposed height exceeds the control, I consider the non-compliance to be relatively minor. The roof form and the setback of the additional storey diminish the bulk and visual impact from the street. While there will be a quite noticeable difference in height between the site and the older style development to the east, and to a lesser extent the existing development to the west, those properties are considerably below the currently permitted height limits. The height controls in SLEP 2012 would seem to indicate an intent to increase the density of that particular precinct. 52I am satisfied to the extent required by cl. 4.6(4) SLEP that the exception sought to the development standard for height is unnecessary in the circumstances and, for the reasons considered above, there are sufficient planning grounds to justify its contravention in the particular circumstances. I am satisfied that the proposal meets Height of Buildings objective (a) in cl. 3.3 SLEP in that the development is of a height that is generally compatible with the existing area. Given the application of SEPP ARH I consider the proposal is also consistent with objective (b). 53With respect to SEPP ARH, the development, when considered in its entirety, achieves the aims of the SEPP by providing an overall supply of six affordable rental units. 54In regards to council's contentions in relation to the design quality principles in SEPP No. 65, I find that the proposal: responds to the context of the area; provides an appropriate scale and density within the street; with the amended roof form is of an appropriate built form; and subject to a condition requiring an increase in size of the balcony off unit 401, achieves an appropriate level of amenity. 55While I accept that council considered the merits and trade-offs of the concessions available under SEPP ARH when it approved the original proposal, as articulated in the report to the Planning Committee Meeting 17 December 2013, for the reasons given above, I find that the proposed additional storey contained largely within a pitched roof form, is acceptable in the circumstances of this section of Beresford Road and can be approved subject to conditions. Conditions 56During the hearing there was some discussion of conditions that should be imposed should the development be approved. The following list is indicative of the matters to be addressed by way of condition or supplementary information: * Identification of the affordable rental units; * Clarification of the levels; * Balcony width unit 401; * Numbering of plans * Limits to any height of the lift over-run; * Any repeat conditions from the original approval; * Dilapidation reports; * Updated BASIX certificate; * Modification of original consent (S 80A(10(b)) EPA Act); and * Tree protection measures, in particular fencing that is consistent with the measures in AS4970 - 2009 Protection of Trees on Development Sites. 57On 10 October 2014, the Court directed the applicant to amend the relevant architectural plans to show the changes identified above and provide an updated BASIX certificate. The council was directed to prepare conditions of consent reflecting the findings in this judgment. 58As directed, the parties filed the amended plans, Conditions of Consent and other relevant material. I am satisfied that the documents reflect the findings made on 10 October 2014 and address the issues raised. Orders 59The Orders of the Court are: (1)The appeal is upheld. (2)Development Application DA2014/017 for the construction of an additional/ fifth storey on the approved four storey residential flat building at 21 Beresford Road, Strathfield is approved subject to the Conditions of Consent in Annexure A. (3)All exhibits except B and 2 are returned. ____________________ Judy Fakes Commissioner of the Court Annexure A 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. Decision last updated: 17 November 2014