Land and Environment Court New South Wales Medium Neutral Citation: Joukhador v Canterbury City Council [2015] NSWLEC 1027 Hearing dates: 9 February 2015 Decision date: 16 February 2015 Jurisdiction: Class 1 Before: Brown C Decision: Directions for amended plans and conditions Catchwords: DEVELOPMENT APPLICATION: demolition of all improvements and the construction of an attached dual occupancy - non-compliance with the minimum 15m lot width, minimum 7.5 m subdivision width and 50% garage door width Legislation Cited: Canterbury Local Environmental Plan 2012 Land and Environment Court Act 1979 Environmental Planning and Assessment Act 1979 Cases Cited: Goldin v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75; 121 LGERA 101 Category: Principal judgment Parties: Jason Joukhador (Applicant) Canterbury City Council (Respondent) Representation: Counsel: Jason Joukhador (Applicant) Canterbury City Council (Respondent) Solicitors: Jaku Legal (Applicant) Marsdens Law Group (Respondent) File Number(s): 10942 of 2014 Publication restriction: No Judgment 1. COMMISSIONER: This appeal relates to Development Application 400/2013 for the demolition of all improvements and the construction of an attached dual occupancy at 9 Byron Street Campsie (the site). 2. The appeal was subject to mandatory conciliation and arbitration on 9 February 2015 under s 34AA of the Land and Environment Court Act 1979 (the Court Act). As no agreement was reached, the conciliation conference was terminated pursuant to s 34AA(2)(b), and the proceedings dealt with forthwith pursuant to s 34AA(2) b)(i). 3. While the conciliation conference was terminated, matters relating to the location of rubbish bins, the location of the water tanks and pumps and the size of a car parking space were addressed and there was agreement that with the submission of amended plans these were not matters that would warrant the refusal of the application. 4. The outstanding matters following the conciliation conference were: 5. non-compliance with the minimum 15m lot width, 6. non-compliance with the minimum 7.5m subdivision width for a dual occupancy, and 7. non-compliance with the maximum 50% garage door width of building facade. Relevant planning controls 1. The site is within Zone R3 Medium Density Residential under Canterbury Local Environmental Plan 2012 (LEP 2012). Dual occupancy developments are permissible with consent, in this zone. 2. Clause 2.3(2) states: (2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone 1. The R3 zone objectives are: * • To provide for the housing needs of the community within a medium density residential environment. * • To provide a variety of housing types within a medium density residential environment. * • To enable other land uses that provide facilities or services to meet the day to day needs of residents. 1. Clause 4.1A provides minimum lot sizes for the R3 zone where the lot must be at least 600 sq m (cl 4.1A(3). The proposal satisfies this requirement having an area of 711.5 sq m. Clause 4.1B provides minimum lot sizes for dual occupancies where the lot must be at least 300 sq m (cl 4.1B(3)(a). The proposal satisfies this with requirement with proposed Lot A having an area of 350.65 sq m and proposed Lot B having an area of 360.85 sq m. 2. Clause 4.3(2) provides that 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". The Height of Buildings Map identifies a height of 8.5 m and the proposed development satisfies this requirement. 3. Clause 4.4(2) provides that "the maximum FSR for a building on any land is not to exceed the FSR shown for the land on the Floor Space Ratio Map". The Floor Space Ratio Map identifies an FSR of 0.5:1 and the proposed development satisfies this requirement. 4. Canterbury Development Control Plan 2012 (DCP 2012) applies. Clause 2.1.2 iv provides for a minimum street boundary width of 15 m for dual occupancy development and a minimum width of 7.5 m for each completed dual occupancy whereas the site has a street boundary width of 12.19 m and 6.095 m for each completed dual occupancy measured at the street frontage. Clause 2.1.11 provides that dual occupancy developments must not have more than 50% combined garage door width compared to the overall width of any façade. The two garage doors occupy around 62% of the total building façade. 5. The non-compliance with cll 2.1.2 iv and 2.1.11 of the DCP were the central issues in the appeal. The minimum frontage The evidence 1. Mr Steven Layman provided town planning evidence for the council and Mr Matthew Benson provided town planning evidence for the applicant. They agree that the neighbourhood within which the site is located, for the purposes of characterising the compatibility of the proposed development with the surrounding streetscape, includes both sides of Byron Street and that part of Shelley Street that extends south of its intersection with Byron Street until that part of Shelley Street is terminated. 2. Mr Benson states that the streetscape of the neighbourhood is characterised by single storey detached cottages many of which have, during the past 20 years or so, been demolished and replaced either with attached dual occupancies in a side by side configuration; detached dual occupancies in a front to rear configuration; townhouse developments of a two storey scale on consolidated sites; or substantial detached dwelling houses. Redevelopment of the neighbourhood is likely to continue. The redevelopment of former single storey cottages in the locality has been generally characterised by relatively low amounts of soft landscaping within their front setback areas, including existing dual occupancies and new dwellings. 3. Mr Benson notes that DCP 2012 does not require a minimum amount of soft landscaping for a dual occupancy development in the front setback area. The clearest indication of the expected provision of soft landscaping for an attached dual occupancy development is shown in Figure 2.7B. This figure illustrates the setback requirements and garage access arrangements for an attached dual occupancy and shows approximately 39% soft landscaping in the front setback area with the remainder hard surfaces that provide access to the garages. 4. Mr Benson further states to effectively prevent dual occupancy development on a 12.19 m wide site, and similarly sized sites in the locality, would be incompatible with the strategic intent of Council's town planning controls. In particular, it would be incompatible with the objectives of the R3 zone. 5. The proposed amount of soft landscaping is therefore adequate and the proposed development would be compatible with the established and changing streetscape. 6. Mr Layman disagrees with Mr Benson and states that the character of the Byron Street and the surrounding neighbourhood can be described as being dominated by single dwellings mixed with occasional dual occupancy and villa/townhouse development. Lot widths are typically less than 15m although there are two examples that are greater than 15 m wide. 7. The character of the streetscape of Byron Street is heavily influenced by dwellings that address the street, where the street is overlooked by front verandas, doors and living room windows. Driveways and garage doors typically represent less than 50% of the building width in new development. Mr Layman relies on par 2.1.2 Site Requirements that has the following objectives: Subdivision controls apply to single dwelling sites and to dual occupancy, to ensure there is adequate garden area around dwellings and adequate vehicle access and parking. Sites have sufficient dimensions for adequate garden areas around dwellings and adequate vehicle access and parking. 1. The control for dual occupancy is for "minimum 15m width measured at the street boundary". Other provisions require that "detached dual occupancy is only acceptable where each dwelling can face and have frontage to the street, such as a comer site" and semi-detached dwellings are the preferred form for dual occupancy". The minimum lot width for a dwelling-house is also 15m. The minimum lot width for attached dwellings, multi dwelling housing and residential flat buildings (up to 3 storeys) is 27m, reflecting a need for larger wider sites as development scale increases. The lot widths for dual occupancy on non-corner sites reflect a notion of what is "adequate garden area around buildings". In the front setback Mr Layman suggests that the minimum acceptable relationship of driveway to landscaped area of 2.4m/5.1m, i.e. about 1/3 hard paved to 2/3 soft landscaped area. Findings 1. In balancing the different views of Mr Benson and Mr Layman, and with the benefit of a site inspection, I agree with the conclusions of Mr Benson for a number of reasons. First, I accept that the street frontage satisfies the objectives in cl 2.1.2 Site Requirement, notwithstanding the variation to the numerical requirement in this clause. The objectives are: O1. Subdivision controls apply to single dwelling sites and to dual occupancy, to ensure there is adequate garden area around dwellings and adequate vehicle access and parking. O2. Sites have sufficient dimensions for adequate garden areas around dwellings and adequate vehicle access and parking. 1. There was no disagreement that the development has "adequate vehicle access and parking" so the remaining issue is whether the development has "adequate garden area around dwellings". The objectives include the words "around dwellings" so this must be a reference to all sides of the dwelling. As I understand, there was no issue with the side setbacks that satisfied the minimum dimension of 1.2 m (cl 2.1.7 xxi of the DCP), the front setback at 6 m (cl 2.1.7 xx of the DCP) and the rear setback of 6 m (cl 2.1.7 xx of the DCP). Mr Benson correctly identifies that the DCP does not specify specific landscaped area requirements for the front setback area although Figure 2.7B of the DCP provides some understanding of the relationship between landscaped area and driveways in the front setback area anticipated by the DCP. Even without dimensions, Figure 2.7B is clearly more supportive of the approach of Mr Benson rather than Mr Layman. Given that there is limited area for landscaping in the front setback and this area is partly obscured by a fence with a maximum height of 1.2m, I accept that some emphasis should be placed on the landscape design and plantings. This would ensure that the "residential streets and yards are green and leafy, with substantial tree cover" to their maximum possible extent (Objective O2, cl 2.1 of the DCP). I assume the landscape plan adequately addresses this objective as no issue was taken by the council to the contents of the landscape plan (Exhibit C). 2. I agree with Mr Benson that the area does not have a high level of landscaping in the front setback areas of the existing buildings, with some setbacks completely paved, but there is no reason why the proposed development should not maximise its landscaped presence in the streetscape. 3. Second, and while it is not necessarily determinative, the proposed development satisfies all significant numerical design parameters such as lot area, height, FSR, setbacks as well as not creating unacceptable external amenity impacts such as loss of privacy and overshadowing. The proposed development also has no unacceptable internal amenity impacts. 4. Mr Layman's arguments would have had greater force if the non-compliance with the minimum street frontage requirement had resulted in other unacceptable impacts or breaches of other numerical requirements. 5. Third, and contrary to the evidence of Mr Layman, I do not accept that the proposed is inconsistent with the relevant zone objectives. While the majority of development consists of single dwelling, both relevant zone objectives make no reference to dwelling houses but refer to "a medium density residential environment". It could reasonably be argued that the longer term purpose of the R3 zone is to promote medium density housing, such as that proposed in this application. It cannot be reasonably argued that the proposed development does not "provide for the housing needs of the community within a medium density residential environment" and "provide a variety of housing types within a medium density residential environment". Consequently, the zone objectives create no barrier to the approval of the application, pursuant to cl 2.3(2). 6. Fourth, I am satisfied that the proposed development, notwithstanding the non-compliance with the minimum street frontage requirement, has no readily perceivable impact on the streetscape. I accept the area identified by Mr Benson and Mr Layman is appropriate for assessing the impact of the proposed development on the streetscape and character. The ddevelopments at 13/13a and 15/15a Byron Street are dual occupancy developments on blocks with a width of 12.19 m however I accept that these developments were approved around 10 years ago and under a different planning regime. It could not be reasonably argued that these developments provide support for the proposal however these developments still make up the streetscape qualities and character of the neighbourhood. 7. The development in the neighbourhood is varied with a greater number of single dwellings but even this form of development is varied and includes relatively intact original cottages, modified original cottages, original cottages with substantial alterations and additions and contemporary dwellings. The dwellings are of different ages, materials and design. The neighbourhood also contains more recent examples of attached dual occupancies, detached dual occupancies and multi-unit housing. 8. I have little trouble in concluding that the proposed development will sit comfortably in the varied character of the neighbourhood given the compliance with the general parameters of height, FSR and setbacks. The design also seeks to minimise the prominence of the garages by making them part of the building, as distinct from 13/13a and 15/15a Byron Street where the garages sit forward of the dwellings and are more prominent in the streetscape. 9. Fifth, the numerical control for the minimum street frontage is a DCP control and even if it was a development standard within an environmental planning instrument, it could be varied with proper justification. The justification has been provided, in my view, in the preceding paragraphs even without the recent added flexibility provided by s 74BA and s 79C(3A)(b) of the EPA Act. 10. For the reasons set out in the preceding paragraphs, the non-compliance with the minimum street frontage requirement of 15 m and subdivision width of 7.5 m in cl 2.1.2 iv of the DCP is not a reason to refuse the development application. Garage width The evidence 1. Clause 2.1.11 of the DCP provides that dual occupancy developments must not have more than 50% combined garage door width compared to the overall width of any façade. It was agreed by Mr Benson and Mr Layman that the two garage doors occupy around 62% of the total building façade. 2. Mr Benson states that the proposed garage doors would occupy a total width of 6 m across the 12.19 m wide site. That results in the same outcome as would be permitted for a single dwelling on the site in terms of the width of garages under cl 3.27 of the General Housing Code in State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (SEPP Codes). 3. The proposed development provides for the garages to be set behind the front building line of the proposed dwellings and separated by dwelling entries, which reduces their visual dominance. The garage doors will take up around 62%of the total facade width, but only 31%t of the total facade area due to the proposed upper level of the facade, which is forward of the street setback of the garage doors. This also reduces the prominence of the garage doors. 4. Further, the impacts of the proposed development in relation to the width of garage doors as a percentage of the facade should be balanced against reasonable expectations that a dual occupancy development may be constructed on the site based on the objectives of the R3 zone. 5. In these circumstances, it is not reasonable to characterise the proposed garage doors as dominating the facade or the streetscape. 6. Mr Layman states that the street presentation of the proposal is visually dominated by car parking spaces and garage doors. What landscaping there is within the front setback will be constrained by circulation around a parked vehicle, by space required abutting the car space to allow door opening outside the nominal 2.4m width of the car space and by access for cleaning, etc. This will detract from the appearance of a green streetscape and residential street. 7. Dual occupancy development is not development specified for the Codes SEPP. The proposal is not a dwelling house and therefore comparison with the provisions of SEPP Codes for dwelling houses has limited relevance for this proposal. Findings 1. As a starting point, I am satisfied that it is not necessary to go beyond the DCP to determine whether the width of the garages is acceptable, even though Mr Benson and Mr Layman refer to the SEPP Codes. 2. The relevant objective in cl 2.1.1 is: O3. Parking structures do not detract from the appearance of green streetscapes and residential streets 1. From cl 2.1.1 of the DCP, it is acceptable to have a dwelling on a 12.5 m wide lot with a 6 m wide garage (cl 2.1.1 x), a semi-detached dwelling on a 12.5 m wide lot with a 6 m wide garage (cl 2.1.1 x) and a dual occupancy on a 15 m wide lot with a 6 m garage (cl 2.1.2 iv), subject to an appropriate design. I assume that compliance with the numerical controls would satisfy Objective O3, in most, if not all cases. I note that cl 2.1.1 addresses both façade width and lot width although the relevant test in this case compares the garage door width to building façade. 2. The practical question to be answered is whether a total of 6 m of garage door over a façade width of 9.8 m (and a 12.19 m frontage) offends Objective O3 to such an extent, from what is allowable under the DCP that the application should be refused for this reason. I am satisfied that the answer should be no. I do not accept that "the proposal is visually dominated by car parking spaces and garage doors" as suggested by Mr Layman. While the garage doors will occupy more than 50% of the building façade, the two storey elevation to the street, the staggered position of the garages, the separation of the garages and their inclusion within the building form minimise any impact caused by the width of the lot. In terms of general streetscape impact, the difference between a complying site width of 15 m and a site width of 12.19 m is marginal, at best, and likely only discernible to those who have a specific knowledge of the non-compliance. It is not a matter of such severity that it would warrant the refusal of the application. 3. I am satisfied that the non- compliance with 50% ratio will not have any impact on "the appearance of green streetscapes and residential streets" and as such there is no conflict with Objective O3. Precedent 1. It is accepted that every planning decision must be considered on its own merits, and no decision in relation to one application binds a consent authority in relation to any future development application. 2. In Goldin v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75; 121 LGERA 101, Lloyd J identified that the criteria which give rise to a valid consideration of precedent are [at 29]: the present proposals were not "unobjectionable" in themselves and there was a sufficient probability for further applications of undistinguishable developments of the same class and in the same locality. 1. In Goldin, Lloyd J applied the above test and determined that precedent was a legitimate issue in the particular circumstances of that case. However, precedent would not be a valid reason for refusal if a development is not in itself objectionable, and does not create a precedent which would make it difficult to refuse approval of similar, future development applications in the locality. If the proposed development is unobjectionable on its own merits, then precedent ought not be used as a reason for refusal. Also, the mere chance or possibility of a later application seeking to rely on this application as a precedent ought also not be used as a reason for refusal. 2. In this case, I have found that the development is not in itself objectionable, and therefore does not create a precedent. The suitability of any application on a similar sized in the future will depend on the characteristics of the lot and the specific design. Directions 1. Based on these findings, there are no reasons why development consent should not be granted however amended plans and amended conditions will need to be prepared prior to final orders being made. An appropriate timetable will be discussed with the parties when the findings are handed down. A number of matters were agreed by Mr Benson and Mr Layman as requiring amendment. These matters include, but are not limited to: * the relocation of rubbish bins, * the relocation of the water tanks and pumps, and * the minor relocation of one dwelling to accommodate a compliant car parking space. 1. On submission of agreed plan and conditions that address the outstanding matters in the preceding paragraph, the following orders will be made in chambers: 1. The appeal is upheld. 2. Development Application 400/2013 for the demolition of all improvements and the construction of an attached dual occupancy at 9 Byron Street Campsie is approved subject to the conditions in Annexure A. 3. The exhibits, with the exception of exhibits 1, A and G 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. Decision last updated: 26 February 2015