Land and Environment Court New South Wales Medium Neutral Citation: Condor Design Pty Limited v Bankstown City Council [2016] NSWLEC 1009 Hearing dates: 5 November 2015 Date of orders: 08 January 2016 Decision date: 08 January 2016 Jurisdiction: Class 1 Before: Tuor C Decision: 1. The appeal is dismissed. 2. Development application (1385/2014) for the construction of a dual occupancy and Torrens title subdivision at 4 Compton Street, Bass Hill, is refused. 3. The exhibits, except Exhibit 1, are returned. Catchwords: DEVELOPMENT APPLICATION: Dual occupancy. Whether development permissible, adequacy of open space and solar access. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Bankstown Local Environmental Plan 2001 Bankstown Local Environmental Plan 2015 Cases Cited: Archiworks Architects Pty Limited v Ryde City Council [1995] NSWLEC 210 Blackmore Design Group Pty Limited v North Sydney Council 2001 NSWLEC Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC Terrace Tower Holdings Pty Limited v Sutherland Shire Council 2003 NSWCA Willis v City of Ryde Council [2009] NSWLEC 1103 Category: Principal judgment Parties: Condor Design Pty Limited (Applicant) Bankstown City Council (Respondent) Representation: Counsel: Ms J Walker (Applicant) Solicitors: Ms M Mijatovic of Jordan's law Practice (Applicant) Mr A Seton of Marsdens Law Group (Respondent) File Number(s): 10679 of 2015 Judgment 1. Condor Design Pty Limited (applicant) has appealed, pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act), against the refusal by Bankstown City Council (council) of a development application (1385/2014) for the construction of a dual occupancy and Torrens title subdivision at 4 Compton Street, Bass Hill (site). 2. The key issues that remain in dispute between the parties are whether: 1. the development is permissible; 2. the private open space is adequate; and 3. the private open space receives sufficient solar access. Site and locality 1. The site is located on the western side of Compton Street. It is rectangular in shape with a frontage of 15.24m, a depth of 40.235 and an area of 613.2sqm. A 1.83m wide drainage easement runs along the southern boundary. The site is developed with a single storey fibro dwelling with an attached metal carport. 2. The adjoining development to the north (No. 2) is a two storey detached dwelling and to the south (No. 6) is a single storey detached dwelling. The locality is a low density residential area characterised by one and two storey dwellings, dual occupancy and villa developments. Proposal 1. The development application is described in the Statement of Environmental Effects as being for "the demolition of all existing structures and construction of a two storey dual occupancy with Torrens title subdivision" where "two dwellings will form an attached dual occupancy". Proposed Lot 1, at the front of the site, would have a site area of 317.6sqm and be developed with a two storey dwelling with four bedrooms which faces the street (Unit 1). Proposed Lot 2, at the rear of the site, would have a site area of 295.6sqm and be developed with a two storey dwelling with four bedrooms and a study (Unit 2). The dwellings are "attached" at the boundary between the lots where part of the wall of the laundry and BBQ of Unit 1 adjoins part of the wall of the garage of Unit 2. 2. A 1.37m wide easement is proposed for access and services which would adjoin the existing 1.83m wide stormwater easement along the southern boundary of the site. Vehicular and pedestrian access to Unit 2 would be from a driveway that runs over the combined easements. Planning controls 1. When the development application was lodged, the site was zoned 2(a) Residential under Bankstown Local Environmental Plan 2001 (LEP). Clause 11 of the LEP provides: 11 Development that is allowed or prohibited within a zone (1) Unless otherwise provided by this plan (such as by the exempt development provisions in clause 9), the Table to this clause specifies for each zone the development that may be carried out only with consent, where "✓" is shown corresponding to that development. (2) Subject to other provisions of this plan (and clause 12 in particular), development referred to in the Table to this clause is prohibited in a zone if "✓" is not shown corresponding to that development. (3) The consent authority may grant consent to development only if it has had regard to: (a) the general objectives of this plan, and (b) the objectives of the zone in which it is proposed to be carried out, and (c) the other provisions of this plan. 1. Under the Table, "Dual occupancies" are permissible in the 2(a) Residential Zone. Clause 44 provides objectives for the 2(a) Residential Zone which include: (a) to complement the single dwelling suburban character of the residential areas of Bankstown City, and (b) to enable dual occupancy, rowhouse and villa development that is otherwise consistent with the objectives of the zone, and (c) to ensure that sites are of sufficient size to provide for buildings, vehicular and pedestrian access, landscaping and retention of natural topographical features, and (d) to ensure that development is of a height and scale which complements existing buildings and streetscapes (noting that 2 storey dwellings may occur throughout residential areas), and …… (f) to encourage energy efficiency and resource conservation measures in the design, construction and occupation of residential buildings, and other buildings permitted in this zone, and (g) to ensure adequate public and private open space is available to residents, and (h) to require satisfactory drainage, and (i) to require landscaping of development sites. 1. "Dual occupancy" is defined in Schedule 1 – Dictionary of the LEP as: Dual occupancy means two attached dwellings (with a single common wall) or two detached dwellings on a single allotment where both dwellings face the street. 1. The parties disagree on whether the development is "dual occupancy" as defined under the LEP and therefore whether it is permissible and consequently whether consent can be granted to the development. This matter is determinative of the application and therefore must be determined prior to a consideration of the application on its merits. 2. Clause 12 of the LEP provides: 12 Additional discretion to grant consent (1) Despite clause 11, but otherwise subject to this plan, the consent authority may grant consent to development that: (a) is not included in the Table to clause 11, or (b) would be prohibited by the Table to clause 11 in the absence of this clause. (2) The consent authority may grant consent pursuant to this clause only where it is satisfied that the proposed development: (a) is of a nature (whether by reason of its design, scale, manner of operation or otherwise) that would, in the absence of this clause, justify an amendment to this plan in order to permit the particular development, and (b) is not inconsistent with the objectives of the zone in which the development site is situated, and (c) is not inconsistent with the provisions of any other environmental planning instrument, and (d) will not have an adverse effect on other land in the vicinity. (3) Development under this clause is advertised development within the meaning of the Act. 1. The applicant did not submit that cl 12 of the LEP applies to the development or that consent should be granted under this clause. 2. Clause 46 of the LEP provides core residential development standards which include: (1) The objectives of the standards in this clause are: …… (b) to ensure that allotments are of sufficient size to accommodate proposed dwellings, setbacks to adjoining residential land, private open space and courtyards, driveways, vehicle manoeuvring areas and the like, and ...... (d) to limit the potential for villa, rowhouse, terrace house and dual occupancy development in Zone 2 (a), and (e) to ensure that dual occupancy, rowhouse or villa development in Zone 2 (a) retains the general low-density scale and character of existing single dwelling development. ……. (4) The consent authority is not to grant consent to development for the purpose of a detached dual occupancy on an allotment of land within Zone 2 (a) or 2 (b) if the allotment has an area less than 700 square metres or a width of less than 20 metres at the front building line. (5) The consent authority is not to grant consent to development for the purpose of an attached dual occupancy on an allotment of land within Zone 2 (a) or 2 (b) if the allotment has an area less than 500 square metres or a width of less than 15 metres at the front building line. ….. 1. Part D2 of Bankstown Development Control Plan 2005 (DCP 2005) applies to residential development, including dual occupancies, in the 2(a), and other residential zones, in the LEP. The Desired Character for the Residential zones includes: (a) To have a low density residential environment in Zone 2(a) where the typical features are dwelling houses, dual occupancies and villas within a generous landscaped setting. The site cover and building form of development must be compatible with the prevailing suburban character and amenity of this zone. This zone is also the most restrictive in terms of other permitted uses that are considered suitable. These are generally restricted to facilities and services that meet the day–to–day needs of residents. 1. Section 5 of Part D2 provides objectives and controls for dual occupancy development including subdivision, private open space and access to sunlight that are relevant to the contentions. 2. Bankstown Local Environmental Plan 2015 (Draft LEP) commenced on 5 March 2015, after the development application was made. Clause 1.8A provides: 1.8A Savings provision relating to development applications If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced. 1. The parties agree that as the Draft LEP has commenced it is "imminent and certain" and that the Draft LEP and its savings clause must be given weight (see Blackmore Design Group Pty Limited v North Sydney Council 2001 NSWLEC, Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC, Terrace Tower Holdings Pty Limited v Sutherland Shire Council 2003 NSWCA). 2. Under the Draft LEP the site is within Zone R2 Low Density Residential and "dual occupancies" are permissible with consent. 3. The Dictionary in the Draft LEP includes the following definitions: dual occupancy means a dual occupancy (attached) or a dual occupancy (detached). Note. Dual occupancies are a type of residential accommodation—see the definition of that term in this Dictionary. dual occupancy (attached) means 2 dwellings on one lot of land that are attached to each other, but does not include a secondary dwelling. Note. Dual occupancies (attached) are a type of dual occupancy—see the definition of that term in this Dictionary. dual occupancy (detached) means 2 detached dwellings on one lot of land, but does not include a secondary dwelling. Note. Dual occupancies (detached) are a type of dual occupancy—see the definition of that term in this Dictionary. 1. The parties agree that the proposal is for dual occupancy development as defined under the Draft LEP. However, they disagree on whether the dual occupancy is attached or detached and whether it would satisfy the requirement of cl 4.1A of the draft LEP which provides: 4.1A Minimum lot sizes and special provisions for dual occupancies (1) The objectives of this clause are as follows: (a) to ensure that the area of a lot is able to accommodate development that is consistent with the objectives and planning provisions for dual occupancies, (b) to minimise any likely adverse impact of development on the amenity of the area. (2) Development consent must not be granted to development for the following purposes: (a) a dual occupancy (attached) on a lot in Zone R2 Low Density Residential unless the lot has an area of at least 500 square metres and is at least 15 metres wide at the front building line, (b) a dual occupancy (detached) on a lot in Zone R2 Low Density Residential unless the lot has an area of at least 700 square metres and is at least 20 metres wide at the front building line, (c) a dual occupancy on a lot being land identified as "Area 2" on the Special Provisions Map. (3) Despite subclause (2), development consent must not be granted to development for the purpose of a dual occupancy unless the consent authority is satisfied that each dwelling will have a frontage to a road. (4) The consent authority may grant development consent for the subdivision of: (a) a dual occupancy (attached), if the size of each lot to be created will be at least 250 square metres, or (b) a dual occupancy (detached), if the size of each lot to be created will be at least 350 square metres. 1. Clause 2.3(2) of the Draft LEP requires that the consent authority must have regard to the objectives of the zone in determining the development application. The objectives of the R2 zone relevantly include: • To provide for the housing needs of the community within a low density residential environment. …… • To allow for the development of low density housing that has regard to local amenity. • To require landscape as a key characteristic in the low density residential environment. 1. Bankstown Development Control Plan 2015 (DCP 2015) supplements the Draft LEP. Section 4 of Part B1 provides objectives and controls for dual occupancies. Evidence 1. The Court visited the site and surrounding area and heard planning evidence from Mr M Romic, for the applicant, and Mr N Aley, for the Council. Is the proposal permissible? 1. The parties disagree on whether the development is "dual occupancy" as defined under the LEP and therefore whether it is permissible and consequently whether consent can be granted to the development. This disagreement centred on whether: 1. both attached and detached dwellings are required to face the street under the definition in the LEP; 2. Unit 1 and Unit 2 are attached or detached dwellings; and 3. Unit 2 faces the street. 1. Mr Romic considers that the dwellings are attached as there is a wall that is common to Units 1 and 2 which are adjoining buildings. The proposed common wall would meet the requirements of the Building Code of Australia (BCA) for a separating wall. He acknowledged that Units 1 and 2 each have an external wall adjoining the common boundary but within each lot and that the dwellings could be built independently. Mr Romic also considered that Unit 2 faces the street as it is connected to the street by the driveway. 2. Mr Aley considers that the Units 1 and 2 are located next to each other but do not share a single common wall and are not attached. In his opinion, Unit 2 does not face the street as it is behind Unit 1 and does not have a direct relationship with the street as it has no doors or windows that face or can be seen from the street. Applicant's submission 1. Ms Walker's, for the applicant, primary submission is that the "or" in the definition of dual occupancy under the LEP is "disjunctive" and that a dual occupancy can be either "two attached dwellings (with a common wall)" or "two detached dwellings on a single allotment where both dwellings face the street". The requirement for both dwellings to face the street only applies to "detached dwellings" and as the proposal is an "attached dwelling" there is no requirement that it face the street and it is therefore permissible. Units 1 and 2 are attached as they are joined by a single common wall. 2. Requiring both dwellings to face the street would unreasonably constrain development. The definition of other permissible uses in the 2(a) zone such as villa houses, which permit three or more dwellings, are not required to face the street to be permissible. 3. The objective of the Plan (cl 2(a)(v)) for development in residential areas to be compatible with the prevailing suburban character and amenity is not offended by a dwelling at the rear of the site and the objectives of the 2(a) zone are better met by one dwelling at the front than by two dwelling side by side. 4. Alternatively, Ms Walker submits that Unit 2 faces the street, if it is interpreted that both attached and detached dwellings are required under the definition to face the street to be permissible. The dwelling does not need to be visible from the street to face it. To support this submission, Ms Walker referred to Archiworks Architects Pty Limited v Ryde City Council [1995] NSWLEC 210 and Willis v City of Ryde Council [2009] NSWLEC 1103. In Archiworks, Stein J considered whether a development falls within the definition of a "Duplex building" which required at subpara (b) that it address the street. His Honour states: But subpara (b) is in dispute. The question is, are each of the dwellings designed so that their front addresses the street which services the allotment, the street being Rutledge Street? There is no doubt that dwelling 2, at the rear, addresses the street save for one argument that the council puts, which I will come to in a moment. In my opinion, dwelling 1 addresses the street. Its ground floor contains a garage and entrance. Its first floor has, at the street frontage, a bedroom with windows. It seems to me clear that the dwelling situated closest to the street addresses Rutledge Street. Nevertheless, Mr Ayling submits that the dwelling closest to the street obscures the dwelling at the rear. Therefore, the front of the dwelling at the rear does not address the street as required by para (b). I only have the plans, including the elevations, to consider in relation to this aspect. However, it appears from an examination of the plans that, although part of dwelling 1 obscures part of dwelling 2, there is still at the front elevation from Rutledge Street a not inconsiderable portion of dwelling 2 which is designed so as its front addresses the street, notwithstanding the hatchet shape of the allotment. 1. In Willis, Brown C considered whether a development falls within the definition of "Duplex building" which required in subcl(b) that each dwelling is designed so that its front door faces the street. Brown C at [9] to [11] states: 9. Mr Strati, for the council, submits that the proposed development is more appropriately categorised as a "residential flat building". This is a use that is prohibited in the zone. The proposed development cannot be categorised as a duplex building as both dwellings do not have a front door that faces the street. While Dwelling 1 satisfies this requirement, Dwelling 2 has a door that faces the rear of Dwelling 1. Further, it could not be said that Dwelling 2 has been "designed so that its front door faces the street". The proposed development is the conversion of an existing dwelling. 10. Mr Williams, for the applicant, submits that the words in the definition are clear and that the front door of Dwelling 2 faces the street although only part of the door is visible from the front boundary. 11. On the categorisation issue, I accept the submissions of Mr Williams. There is no doubt that the front door of Dwelling 2 faces the street. It is largely inconsequential whether it was specifically designed to achieve such a purpose or it occurred by chance. The fact that the door faces the street, notwithstanding most of the view from the street is largely blocked by Dwelling 1, is enough to satisfy the definition of "duplex building". On this basis, the proposed use is permissible with consent. 1. Ms Walker submits that the findings in Archiworks and Willis support her submission that a dwelling faces a street if it is orientated towards the street and does not need to be visible from the street. 2. Ms Walker notes the requirement in the Draft LEP that each dwelling in a dual occupancy development will have a frontage to a road (cl 4.1A(3). She submits that this is not reasonable on this site due to the constraints of the easement, which reduces the effective width of the site and would result in two narrow dwellings the would not be consistent with the character of the area. Council's submission 1. Mr Seton firstly submits that the correct interpretation of the definition of "Dual occupancy" in the LEP is that two dwellings, whether attached or detached must be on a single allotment where both dwellings face the street. It is clear from cl 46(4) and (5) of the LEP that both attached and detached dual occupancy is to be on an allotment of land. Consequently the term "on a single allotment" in the definition of "Dual occupancy" in the LEP must also apply to both attached and detached dwellings and if this applies then so does the term "where both dwellings face the street". The "or" in the definition is to be read conjunctively to connect the two parts of the definition. 2. Secondly, the dwellings are not attached as they do not have a "single common wall". Each dwelling would have a wall which is within its own lot and each dwelling could be constructed independently of the other. 3. Thirdly, Unit 2 does not face the street as it faces the rear of Unit 1 and is not visible from the street. In both Archiworks and Willis part of the building or front door were visible or faced the street. 4. The proposal is therefore not for the purpose of a dual occupancy or other nominated use in the 2(a) zone and is therefore prohibited and must be refused. 5. Furthermore, Mr Seton submits that the Draft LEP reinforces the approach in the LEP as it includes the requirement for a dual occupancy development that each dwelling will have a frontage to a road (cl 4.1A(3). Although, the driveway of Lot 2 may have a frontage to the road, Unit 2 does not. Approval of the development application would undermine the planning approach in the Draft LEP. Findings 1. I accept Mr Seton's submissions. To be catagorised as a dual occupancy under the definition in the LEP, two dwellings, whether attached or detached, must be on a single allotment and both dwellings must face the street. 2. In the proposal, Unit 1 faces the street but Unit 2 does not. Unit 2 is behind Unit 1 and while there may be glimpses of the Unit 2 from the driveway it is largely obscured from view by Unit 1 and the face or address to the street is to the "common wall" between the units. This is distinguishable from the decision in Archiworks where Stein J noted that there is "a not inconsiderable portion of dwelling 2 which is designed so as its front addresses the street, notwithstanding the hatchet shape of the allotment". Similarly, it is distinguishable from Willis as the front door does not face nor is it visible from the street. 3. Given the definition, it is immaterial whether the development is for two attached dwellings or two detached dwellings. Nevertheless, I find that Units 1 and 2 do not have a "single common wall" and are therefore not two attached dwellings. While the units have adjoining walls, each wall is located within the allotment of each unit and are not "common" to both units or to both lots. Furthermore, each wall would be an exterior wall for each unit and the units could be constructed independently of each other and therefore there is not a "single common wall" required under the definition for attached dwellings. 4. The proposal is therefore not for a "dual occupancy" development as defined under the LEP or for any other nominated use in the 2(a) Residential zone. The proposed development is not permissible in the 2(a) zone and consent cannot be granted. Merit issues 1. The proposal is not permissible in the 2(a) Residential zone and therefore cannot be approved. For completeness I will briefly discuss the other issues that remain in dispute between the parties. 2. Mr Aley and Mr Romic agree that although the private open space of Unit 1 is orientated to the north, the adjoining two storey dwelling to the north (2 Compton Street) and Unit 2 would reduce the level of solar access to this area. They agree that a minimum of 50% of the private open space of Unit 1 would not receive 3 hours of sunlight between 9am and 5pm at the equinox and therefore the proposal does not comply with the requirements of s5.18 of Part D2 of the DCP. They also agree that a proposal, where both dwellings faced the street, would be able to comply with the DCP control, although as this would receive western sun, Mr Romic considered that, despite the non-compliance, the current proposal was preferable and would provide greater amenity. 3. The experts agree that the proposal does not achieve the requirement in s5.15 of Part D2 of the DCP for a minimum of 80sqm of private open space for each dwelling with a minimum dimension of 5m. 4. Despite this numerical non-compliance, Mr Romic considers that the site is constrained and that private open space would be attractive and usable for future occupants and would meet the objectives for the control. Mr Alay considers that the deficiency in private open space results from the location of the dwellings on the site and that it compromises the amenity of future occupants. In his opinion, both dwellings should face the street, as required by the definition in the LEP and cl 4.1A(3) of the Draft LEP. The private open space would then be in the rear western part of the site and would provide a more usable area with greater amenity. Findings 1. The purpose of the definition of "Dual occupancy" in the LEP is to retain the existing pattern of development with built form facing the street and open space to the rear while enabling an increase in density. This pattern of development would optimise solar access and usable private open space. It also reduces the potential for impacts such as bulk, overshadowing and privacy from a second dwelling adjoining the open space of neighbouring dwellings. The current planning approach is reinforced in the Draft LEP, which requires that each dwelling must have frontage to a road (cl 4.1A(3)). The proposal would be inconsistent with this approach. 2. The location of the proposed dwellings on the site results in non-compliance with the solar access and private open space requirements of the DCP, which reduce the amenity for future occupants. Two dwellings which front the street have the potential to better comply with these requirements and provide greater amenity. 3. The site is constrained by the existing 1.83m easement along its southern boundary as well as the two stormwater lintels on the street frontage. Furthermore, an existing stormwater pipe is located outside the easement. This reduces the effective frontage that is available for two dwelling to face the street. However, it has not been demonstrated that these constraints cannot be addressed to enable a dual occupancy development on the site in the form envisaged by the planning controls. Alternatively, due to the constraints the site may be unsuitable for dual occupancy development. Orders 1. The appeal is dismissed. 2. The development application (1385/2014) for the construction of a dual occupancy and Torrens title subdivision at 4 Compton Street, Bass Hill, is refused. 3. The exhibits, except Exhibit 1, are returned. Annelise Tuor 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: 08 January 2016