Land and Environment Court New South Wales Medium Neutral Citation: O Abdul-Rahman & G Al Ali t/a Stancross Joint Venture Partnership v Bankstown City Council [2015] NSWLEC 1429 Hearing dates: 1 October 2015 Date of orders: 02 October 2015 Decision date: 02 October 2015 Jurisdiction: Class 1 Before: Brown ASC Decision: 1. The appeal is dismissed. 2. Development Application No. 12/2015 for the demolition all improvements and the construction of an 8 storey boarding house at 15 Stanley Street Bankstown is refused. 3. The exhibits are returned with the exception of exhibits 4 and A. Catchwords: DEVELOPMENT APPLICATION: demolition of all existing structures and the construction of an eight - storey boarding house - impact on the future redevelopment of the adjoining two properties - character of the local area Legislation Cited: Bankstown Local Environmental Plan 2001 Bankstown Local Environmental Plan 2015 Environmental planning and Assessment Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 Cases Cited: Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191 Category: Principal judgment Parties: O Abdul-Rahman & G Al Ali t/a Stancross Joint Venture Partnership (Applicant) Bankstown City Council (Respondent) Representation: Counsel: Mr P Clay SC (Applicant) Mr C Zoppo, Solicitor(Respondent) Solicitors: Landerer & Company (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 10168 of 2015 Publication restriction: No Judgment 1. ACTING SENIOR COMMISSIONER: This is an appeal against the refusal of DA12/2015 by Bankstown City Council for the demolition of all existing structures and the construction of an eight-storey boarding house, comprising 39 boarding rooms, one manager boarding room, two communal rooms, outdoor common areas, and two-level basement car parking, utilising the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP Affordable Housing). 2. The site is Lot B in DP438656, also known as 15 Stanley Street, Bankstown. It has an area of 501.7 square metres, with a frontage of 18.29 metres to Stanley Street, and a depth of 27.43 metres. The site is currently occupied by a single-storey weatherboard-and-brick residence with tile roof. The adjoining site to the west contains a three-storey residential flat building, comprising 30 residential units. Sites immediately to the north and east are occupied by single-storey single dwellings. The locality immediately to the north is characterised by higher density commercial and residential development, while to the south the locality is characterised by medium and lower density residential development. 3. The site is currently within Zone B4 Mixed Use under Bankstown Local Environmental Plan 2015 (LEP 2015). As the development application was not determined prior to the coming into effect of LEP 2015, cl 1.8A applies and requires that the development application be determined as if LEP 2015 "had not commenced." The environmental planning instrument that was in force prior to the coming into effect of LEP 2015 was Bankstown Local Environmental Plan 2001(LEP 2001). Bankstown Development Control Plan 2005 applied at the time of LEP 2001. However, the principal planning instrument for the application was SEPP Affordable Housing. 4. The matters raised by the council were reconsidered prior to the hearing from those set out in the Statement of Facts and Contentions and with the submission of further plans the remaining issues in contention related to: 1. the impact on the future redevelopment of the adjoining two properties; and 2. whether the proposed developments satisfied the requirement in cl 30A of SEPP Affordable Housing in relation to the character of the local area. 1. Evidence for the council was provided by Mr Nicholas Aley, a town planner, and for the applicant by Mr Stuart Harding, also a town planner. To understand their evidence, it is necessary to have an understanding of relationship of the site with the two adjoining properties at 4 Cross Street and 13 Stanley Street. All three properties are currently developed with single-storey dwellings. The areas of each property are 501.7 square metres, 556.4 square metres, and 467.9 square metres respectively. Given the same B4 Mixed Use zoning and the development anticipated by this zone, the three sites are clearly awaiting redevelopment. Collectively, they form a trapezoidal shape at the corner of Cross Street and Stanley Street. 2. The dispute between Mr Harding and Mr Aley is whether the site can be developed in isolation or is best developed collectively with the other two adjoining properties. 3. There are no LEP or DCP controls that require site amalgamation and no minimum lot size requirements for development. Mr Aley's position is that the development of the site will likely have unacceptable impacts on the development of the two undeveloped, adjoining sites and also the existing residential flat building at 17 Stanley Street. In his opinion, and adopting the required building separation distances as set out in the Residential Flat Design Code, the development of 4 Cross Street will be significantly limited or even made unviable. This was also a conclusion made by the owner of the property on the site inspection. Further, any development on 4 Cross Street has the potential to impact on solar access to the south-facing balconies of 17 Stanley Street. It was noted that the development of 6 to 12 Cross Street, at nine storeys in height, also impacts on solar access to this property. 4. A number of development scenarios for 4 Cross Street and 13 Stanley Street were discussed in their oral evidence, and Mr Aley accepted that the relocation of floor area to 13 Stanley Street from 4 Cross Street could potentially address the building separation and solar access. Although, without detailed drawings, Mr Aley could not be certain that this would be achieved, as the separation would depend on the type of development and the specific rooms adjoining the development on the site. Mr Aley accepted that the zero setback to the east was acceptable and would allow any development on 13 Stanley Street to have a similar setback and consequently provide a streetscape that has the appearance of a single building over the two properties. 5. Mr Harding considered the application to be acceptable in the form before the Court. He considered that the setback of 6 metres to the north was appropriate. Mr Harding noted that, in relation to the combined development of all three sites that, in his experience, it was more difficult to achieve a building that complied with the cross ventilation and solar access requirements in the Residential Flat Design Code. He also stated that the council raised no concern in relation to internal or external amenity impacts with the proposed development. 6. In considering the opposing positions of Mr Aley and Mr Harding, I agree with the conclusions of Mr Aley for a number of reasons. First, I do not accept that it is likely that any reasonable redevelopment of 4 Cross Street can be undertaken under the existing planning controls and with the building separation requirements in the Residential Flat Design Code, given the setback to the north of the proposed development. Second, the total loss of solar access to the south-facing balconies of 17 Stanley Street is unacceptable, given the location of the indicative building platform on 4 Cross Street shown on the development application plans. With the redevelopment of 6 to 10 Cross Street, solar access to these balconies has already been significantly reduced. Third, and while some agreement was reached in principal between Mr Aley and Mr Harding on possible development scenarios for the redevelopment of 4 Cross Street and 13 Stanley Street, a development that needs to sensitively consider the impacts on 17 Stanley Street and which requires the transfer of floor space between the sites to minimise any impacts, including streetscape impacts, need to be identified in detail before any thought is given to the independent development of the site. Fourth, I am not satisfied that the opportunities for the redevelopment of the three sites has been adequately explored, given that the current sale of 4 Cross Street and 13 Stanley Street as a combined development site appeared to surprise the applicant during the hearing. 7. I agree with Mr Aley that the combined development of the three sites clearly represents a more orderly and economic development of the land. In the event that no agreement is reached on the combined development of all three sites then details of any negotiations should be available to the council to ensure that ant negotiations have been conducted reasonably and in good faith... If necessary then individual development applications may need to be considered, but carefully considered taking into account the potential redevelopment of the remaining sites. In my view, the reasons above are sufficient to warrant the refusal of the application. The other issue related to the impact on the character of the area and specifically cl 30A of the state policy. The clause states: 30A. 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. 1. Mr Aley provided a description of the local area as consisting of older style, three and four-storey walk-up residential flat buildings, with more recent nine-storey residential and mixed-use development occurring under the newer planning controls. Development has occurred and is occurring on consolidated lots greater than 1500 square metres. 2. If considered in this context, I am satisfied that the proposed development would be compatible in the local area. In coming to this conclusion, I have adopted the meaning of compatibility as "capable of existing together in harmony" as identified in Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191. In my view, any concerns about amalgamated sites are largely addressed through the zero setback to 13 Stanley Street and the expectation that the redevelopment of this site would provide a similar zero setback. While a redevelopment at 4 Cross Street could be a stand-alone building, although this is not certain, I do not accept that this eventuality would be sufficient to find that it would be incompatible with the local area. 3. For the reasons set out in the judgment, the orders of the Court are: 1. The appeal is dismissed. 2. Development Application No. 12/2015 for the demolition all improvements and the construction of an 8 storey boarding house at 15 Stanley Street Bankstown is refused. 3. The exhibits are returned with the exception of exhibits 4 and A. ____________ G T Brown Acting Senior Commissioner ********** 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: 27 October 2015