Land and Environment Court New South Wales Medium Neutral Citation: Agnihotri v Penrith City Council [2017] NSWLEC 1298 Hearing dates: 1 June 2017 Date of orders: 08 June 2017 Decision date: 08 June 2017 Jurisdiction: Class 1 Before: Martin SC Decision: (1) Leave is granted to the Applicant to rely on amended plan drawing 2A dated 31 March 2017. (2) The appeal is dismissed. (3) DA 15/1250.01 for the retention of an existing dwelling and the construction of a three bedroom, two storey detached dual occupancy dwelling at 15 O'Connell Street, Kingswood, is determined by refusal. (4) The Exhibits are returned, other than Exhibit C. Catchwords: DEVELOPMENT APPEAL – residential development - dual occupancy - setback – building design Legislation Cited: Environmental Planning and Assessment Act 1979 ss 79C(1); 82A; 97B(1) and (2) Land and Environment Court Act 1979 s 34AA Land and Environment Court Rules 2007 r 7.7 Penrith Local Environmental Plan 2010 Penrith Development Control Plan 2014 Cases Cited: Zhang v Canterbury City Council [2001] NSWCA 167 (2001) 115 LGERA 373 at [75] Category: Principal judgment Parties: Satya Agnihotri (Applicant) Penrith City Council (Respondent) Representation: Mr Obradovik (Agent for Applicant) Mr Drury (Solicitor) (Respondent) Solicitors: Self-represented (Applicant) Sparke Helmore (Respondent) File Number(s): 2017/35401 Publication restriction: No Judgment 1. Mr Agnihotri owns a property at 15 O'Connell Street in Kingswood, opposite the Western Sydney Nepean College of TAFE. Three building permits relating to the property were issued in the 1970s: the first to build a single-storey dwelling house, which remains on the site (as do the other improvements); the second, to construct a single garage; and the third, to construct a detached timber and fibro workshop. 2. The present development application (DA) the subject of this appeal is for the retention of the existing dwelling, removal of existing vegetation and construction of a three bedroom, two storey detached dual occupancy dwelling, with associated landscaping, fencing and stormwater. 3. This case is essentially about two issues: residential character and residential amenity. Council has consistently opposed the development on the basis that it does not comply with the requisite front setback requirements. It is also not satisfied that the development would result in a design and outcome which would be compatible with the rest of the street. 4. After visiting the site, reviewing the evidence and hearing the arguments, I find that the proposal does not comply with the requisite front setback, nor does it satisfy other requirements which include enhancement of the essential character of the established residential area and visual amenity. Accordingly, the appeal fails. The Development Application 1. This proposed development has had something of a lengthy history. On 20 October 2015 the Applicant lodged a DA for a dual occupancy with the Penrith City Council (the Council). 2. On 28 April 2016, after having flagged its intention to the Applicant to do so, Council refused the DA. On 15 June 2016 the Applicants sought and were granted an internal review by the Council pursuant to s 82A of the Environmental Planning and Assessment Act 1979 (EPA Act). Advice from the Council at that time was that the proposal was not supportable due to residential character, amenity and overbearing impacts, and it accordingly advised the Applicant to withdraw the application. The Applicant did not, and the review confirmed the original decision under delegated authority on 12 August 2016. Thus the development was refused a second time. It is from this decision that the Applicant has brought his appeal. The Site and the Surrounding Locality 1. The Site, legally described as Lot 4 in DP 242174, is located on the western side of O'Connell Street, close to the intersection with Algie Crescent in Kingswood. 2. As noted above, improvements on the site are a single storey, older style brick dwelling with tiled roof, detached garage, storage shed and ancillary structures. A driveway is located along the northern boundary leading to the detached single garage. The site does not contain significant vegetation. The existing dwelling is setback 8.7 m from the boundary, while the adjoining property at 17 O'Connell Street is setback 8.3 m. 3. The Site has an overall area of 651.3 sqm and is an irregular shape. It has a street frontage to O'Connell Street of 28.04 m m and varying depth of 17.525 m to the southern boundary and 28.335 m to the northern boundary. It is within these constraints that any proposed development must be sited. The proposed development is shown in the plan below. 1. The surrounding locality comprises largely single storey dwellings with deep landscaped front setbacks and ancillary structures such as pools, pergolas, detached garages and sheds. There is a two storey building at 11 O'Connell Street. On the site's southern boundary is 17 O'Connell Street, and its rear western boundary abuts 3 and 5 Algie Crescent. 2. The proposed development has a front setback of 5.5m to the front, measured to the façade of the building. There is no issue with either side setbacks or the rear setback, save for some amenity issues which fall away due to the decision reached by the Court. Planning Controls 1. Under the Penrith Local Environmental Plan 2010 (PLEP) the site is zoned R3 Medium Density Residential. The objectives of that zone 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. * To provide for a concentration of housing with access to services and facilities. * To enhance the essential character and identity of established residential areas. * To ensure that a high level of residential amenity is achieved and maintained. * To ensure that development reflects the desired future character and dwelling densities of the area. 1. Dual occupancies are permitted with consent in the zone, as are dwelling houses and multi-dwelling housing. Residential flat buildings are not permitted. The minimum lot size required for a dual occupancy is 650 sqm: cl 4.1A PLEP. The maximum permissible height is 8.5 m: cl 4.3, and no floor space ratio controls apply. 2. A dual occupancy is defined in the PLEP as being either attached or detached. 3. Under the Penrith Development Control Plan 2014 (PDCP) the relevant controls are found in Part C – City-wide Controls and Part D – Land Use Controls, D2 Residential Development. 4. Part 2.2 of the PDCP deals with Dual Occupancies, extracts of which are set out below. 2.2.1 Residential Character A. Background The residential character of any neighbourhood is determined by: 1) Location and density of development: a) proximity to busy centres or major roads; b) residential density and mix of housing types; c) proximity to heritage precincts; d) frontage to public parks. 2) The local landscape and its configuration: a) flat or sloping; b) well-vegetated or cleared; c) frontages to streams or the Nepean River. 3) Predominant patterns of planning and design, displayed by: a) local buildings and their gardens; b) setbacks and building separation; c) height, scale and bulk; d) garaging; e) articulated forms and varied plantings. 2.2.2 Preferred Configuration for Dual Occupancy Development A. Objectives 1) Dual occupancies should adopt key features of established suburban design. 2) Two dwellings fronting the street, with their entrances, the windows to principal living rooms and private gardens facing the street or rear boundary, as seen in figure D2.2. B. Controls 1) New development should incorporate the traditional configuration of the cottages and cottage gardens that define the character of Penrith's established neighbourhoods, because: a) traditional development demonstrates social and urban design benefits, particularly the orientation of dwellings and their private open spaces towards the street rather than overlooking neighbouring dwellings and gardens; b) patterns of buildings and private gardens in established neighbourhoods have visual and symbolic richness that are valued by their community; c) the use of traditional features softens the popular perception that redevelopment is changing the traditional character of Penrith City. 2) There are several possible types of dual occupancy development: a) attached: as semi-detached pairs fronting the street, or one dwelling set behind another; b) detached: either two dwellings fronting the street, or one dwelling set behind another. 3) In order to reflect patterns of traditional development, the preferred configuration for dual occupancies involves a "green corridor" of trees and shrubs along rear boundaries: a) conserving remnant vegetation; b) providing new shelter and habitat; c) contributing to streetscape; and d) providing a green outlook for dwellings Part 2.2.4 sets the objectives and controls for urban form in the following way Objective New buildings should show characteristics of traditional suburban development: dwellings oriented to face the street, building forms stepped or articulated, and integrated with the shape of surrounding garden areas. Controls 4) "Articulate" all building forms and facades by design measures that cast deep shadows across every elevation: a) external walls should not be longer than 5m between distinct corners; b) use a variety of roof forms and pitches; c) provide windows in every elevation; d) use a variety of shady verandas, awnings and car-ports. Part 2.2.5 Front and Rear Setbacks The rear setback for a two storey building is 6 m (2.2.5 B 1)b)) and adopting an average 6m rear setback on irregular shaped allotments: (2.2.5 B1)c)). As for front setbacks, the control requires the adoption of a front setback that "matches the neighbourhood character": (2.2.5 B 1)d)). The DCP goes on to provide the following detail with respect to front setbacks: 3) Determine an appropriate front setback: a) either average the setbacks of b) the immediate neighbours; or c) adopt a 5.5m minimum whichever is the greater dimension; d) and provide extensive landscaping within the front setback area. With respect to Building Design, Part 2.2.12 sets out the objective as follows: New developments should appear as individual dwellings surrounded by gardens, with facades that incorporate a variety of materials and shading structures. 1. The Controls at 2.2.12 C2) include the requirement for development to demonstrate a variety of architectural features for a variety of reasons, including (at 2.2.12 C 2)d)): to accentuate articulation of building forms incorporate a variety of windows and doors in all visible walls, use a range of projecting roofs, awnings and verandas and provide a combination of building materials: painted and face brickwork, and light-weight cladding. The Appeal 1. This appeal was lodged with the Court on 3 February 2017. A conciliation conference held on 1 June 2017, commencing with a site visit, was unable to resolve the matters in dispute, and the matter then proceeded forthwith to a hearing as the legislation requires. The matters seen and heard at that site inspection have been taken into account in this decision. 2. At that conference, in addition to viewing the site of the proposed development, the Court viewed the neighbouring properties along the western side of O'Connell Street, from Algie Street to the corner of the highway, as well as being taken to developments at 62 and 92 on the Great Western Highway. Much reliance was placed by the Applicant on the form and presentation of these latter two properties, as is discussed further below. The Role of Agent 1. The Applicant was represented by his agent, Mr Obradovic. Prior to the commencement of the hearing, having satisfied the Court that the proper authority had been given to him by the Applicant under Part 7 rule 7.7 of the Land and Environment Court Rules 2007, Mr Obradovic was reminded by the Court that his role was limited to presenting the Applicant's case and not to seek to provide expert evidence as a witness, either on town planning matters, or in respect of the design of the proposed development, which he had prepared. This was due to the incompatibility of the roles of advocate on the one hand, and expert witness on the other. The Council did not oppose the granting of such leave, provided those boundaries were adhered to. 2. I note that in the course of the proceedings, the Council sought to assist Mr Obradovic with procedural matters, as did the Court. 3. At the hearing Mr Obradovic made an application to substitute amended plans. This application was allowed. Although during the hearing I indicated a preliminary view to the Council that the amendments were not minor (as that term is used in s 97B (1) of the EPA Act), upon further reflection I have concluded that they were, with the result that there is no order required to be made with respect to costs as would otherwise be required under s 97 B(2). 4. The extent of the changes of the amended plans [Ex C] were to delete the shower from the ground floor; add a highlight window and a shading device to the second bedroom; and add a pergola to the garage façade. It was these amended plans that formed the basis of the opinion of the Applicant's expert town planner, Mr Lloyd, who was involved in the preparation of the Joint Expert Report (referred to below). Council's Contentions 1. The Council's contentions – which have remained consistent throughout its involvement with the proposed development - concern residential character, and residential amenity. 2. Its first contention – Residential Character provides The proposed development does not satisfy the objectives and primary controls which relate to enhancing the essential character and identity of established residential areas, and ensuring that development reflects the desired future character of the area within the R3 Medium Density Residential zone under the LEP and the DCP. 1. Contention two – Residential Amenity The proposed development does not comply with the primary objectives and controls for residential development, which aim to ensure that a high level of residential amenity is achieved and maintained under the LEP and the DCP. 1. In the broad, the contentions with respect to residential amenity concern solar planning, visual and acoustic privacy and outlook. However, given the decision I have reached, it is not necessary for me to consider these, nor the conditions contained in the draft conditions of consent with respect to amendments which could be made to improve residential amenity. For the purposes of this appeal, these contentions effectively fall away. Evidence 1. A Joint Expert Report was tendered into evidence, being authored by town planners Mr Lloyd for the Applicant, and Mr Craig for the Council: Ex 3. Mr Craig was present at the site inspection and also gave evidence in the hearing. As Mr Lloyd was unavailable the Applicant relied upon the written opinions of Mr Lloyd in the report. 2. In his oral evidence, Mr Craig was invited to respond to the amendments made to the plans, to test whether these amendments had resulted in resolution of the contentions between the parties, as was submitted by the Applicant (through his agent). 3. Mr Craig's opinion was that while the addition of the pergola was a welcome design feature, it (and the other amendments) did not overcome the Council's fundamental objections to the proposal. In particular, the future character objectives would not be met by the proposed development. One reason this is so, says Mr Craig, is because future infill development will also need to respond to the setback control. 4. With respect to the amendments that sought to address the Council's concerns with articulation, Mr Craig was of the opinion that they did nothing to alleviate the northern and southern facades of the building. Their scale would result in adverse visual impacts, and would be incompatible with the streetscape. While these two walls would not address the street, to the extent that portions extend beyond the established setback they would be visible. 5. Mr Craig pointed to the requirements in the DCP at Part 2.2.12 dealing with building design, in particular, the control requiring the demonstration of a variety of architectural features, including the provision of "a combination of building materials, painted and face brickwork, and light-weight cladding". These features are not evident in the proposed building. (Indeed, in submissions, the Applicant expressly noted that he wished to employ brick veneer throughout the building from the ground floor to under the eaves for ease of maintenance.) The importance of setting back the first storey element was also emphasised. Mr Craig concluded that the absence of articulation would result in adverse visual impacts and emphasise the building's incompatibility with the streetscape. 6. With respect to the front setback, the Council's position is that the proposal is required to respond to the existing dwelling setback, as well as the setback of the property at number 17. 7. When cross-examined about developments at 62 and 92 Great Western Highway, Mr Craig expressed the view that the Council had had little input into the development at number 62 Great Western Highway, as it had proceeded under Part 5 of the EPA Act, with the result that the Council could not impose its DCP controls. Notwithstanding this, the surrounding existing single cottages displayed irregular front setbacks, in contrast to the more uniform setbacks in O'Connell Street. 8. As for 92 Great Western Highway, in Mr Craig's opinion, that development responds to its own context, is also sited on the main road and is not close to consistent established setbacks. The PDCP requires that the setback of adjacent properties and character of the street are relevant considerations in determining the setback. 9. In cross-examination regarding the character of the street including other two storey developments, Mr Craig referred to the fact that those developments had appropriate setbacks and articulation, unlike the proposed development. He also conceded that in appropriate circumstances, he had approved a 5.5 m setback in the Penrith area. 10. The Applicant adopted Mr Lloyd's position as the basis of his case, and also asserted that the proposal was consistent with future development and was not out of character with existing development. 11. Mr Lloyd's written evidence in the Joint Report can be summarised as follows: he opines that the front setback is compliant with what he describes as the "minimum 5.5 m setback requirements" in D2.2.5 – Front and Rear Setbacks in the DCP. The open soft landscaping proposed in the front setback will enhance the established residential character and streetscape, consistent with the R3 zone objectives and D2.2.1 – Residential character of the DCP. Mr Lloyd also relies upon the setbacks for corner properties (such as at 17 O'Connell Street) to support the proposition that upon redevelopment of 17 O'Connell Street, the front setback of 5.5 m of the proposed development would be consistent with the average setback requirements of D2.2.5. 12. Mr Lloyd placed considerable reliance upon the approval given to developments at 62 and 92 Great Western Highway to support the 5.5 m setback proposed by the development. He also relied upon Jones Street, Kingswood, as demonstrating similar setbacks having been approved by the Council. 13. I accept the Council's submission that to the extent that Mr Lloyd relied upon developments located in Jones Street Kingswood, these are in a different locality and are not relevant to the current proceeding. Findings The Emphasis to be given to the PDCP 1. This question was the subject of consideration in the case of Zhang v Canterbury City Council [2001] NSWCA 167 (2001) 115 LGERA 373 which dealt with, amongst other matters, the issue of consideration of relevant provisions of a DCP in determining whether or not to grant development consent. From what was said in Zhang by Spigelman CJ at [75], three propositions emerge. Firstly, although the Court has a wide-ranging discretion, the discretion is not at large and is not unfettered. Secondly, the provisions of a DCP are to be considered as a fundamental element in, or a focal point to, the decision-making process particularly if there are no issues relating to compliance with the Local Environmental Plan. Thirdly, a provision of the DCP directly pertinent to the application is entitled to significant weight in the decision-making process but is not in itself determinative. 2. In this case, I have given significant weight to the PDCD in determining the outcome of the appeal, notwithstanding that it is not a statutory instrument. I have concluded that due to the lack of satisfaction of several of the controls within the DCP as set out in this judgment, it is not in the public interest for consent to be granted to the development. 3. Moreover, it is not only want of compliance with the PDCP that has led to my decision: I accept the Council's submission that the PLEP zone objectives are not satisfied insofar as they relate to the enhancement of the essential character and identity of established residential areas, and ensuring a high level of residential amenity. The Appropriate Front Setback in this case is not 5.5 m 1. The Applicant has consistently argued that the setback which ought to be applied in this case is 5.5 m, and not the measurement of 8.5 m which Council contends for and which is the average of the existing development at 15 O'Connell Street and 17 O'Connell Street. 2. I understand how some confusion could initially arise from the manner in which the control relating to front setback is written (as set out at [16] above). However, sensibly, the only way this provision can be read is through modifying the punctuation so that the control provides a choice of two alternatives: the setback is to be either a minimum of 5.5m, or the average of the setbacks of the immediate neighbours, whichever is the greater (emphasis mine). It cannot be the position that it is a matter for a proponent to pick whichever of the two distances it wishes, Properly constructed, the provision requires that the setback can be no less than 5.5 m, and is required to be more, if the average of the immediate neighbours is a number greater than 5.5 m. 3. As for any future development of 17 O'Connell Street, this is speculative and is to be ignored. 4. In this case, I find that the front setback that ought be applied to any development of a dual occupancy on this site is 8.5 m, that being the average of the setbacks of the immediate neighbours. A 5.5 m front setback does not in my view have a place at 15 O'Connell Street, or at least that part of the street between numbers 1 and 17 of that street, where the average setbacks are between 7 m and 8.7 m. Moreover, the proposed front setback is not compatible with the existing dwelling on the site or with other dwellings on the western side of the street. On that basis alone, the development application warrants refusal. Other Developments with a setback of 5.5 m are not determinative in this case 1. The Applicant has relied heavily upon the setbacks which are demonstrated by the developments at 62 and 92 Great Western Highway. I accept the Council's expert evidence that these properties are contextually of a different character. They are located on a main road (as distinct from the suburban presentation of O'Connell Street) and are adjacent to commercial and industrial premises. As such, they are of limited relevance and guidance in this case. 2. The fact that a 5.5 m setback has been granted in one development or even two or more – albeit not a great distance from the Site – does not mean that the same setback applies to development on the Site. That logic is flawed. As for the design features of these properties, they had greater articulation than is proposed in the current development. 3. Likewise, I do not accept the Applicant's submission, through his expert [Ex 3 at (xi) p.7], that because a 5.5 m setback has been used in existing medium density housing development in the surrounding locality and the broader Penrith Council area (emphasis mine) that a 5.5 m setback is acceptable in these circumstances. The development does not satisfy building design requirements 1. The development does not comply with the urban form objective, which is to show characteristics of traditional suburban development, including building forms which are stepped or articulated: PDCP at [2.2.4 A]. The building design objective, which calls for new developments to include facades that incorporate a variety of materials and shading structures, is likewise not met, notwithstanding the welcome addition of the pergola in the amended plans. The bulk and scale of the development has not been minimised. 2. In addition, as noted above, I find that the proposed development does not reflect the existing and desired future character of the area. Potential future infill multi-dwelling housing developments in the locality will be expected to comply with the same front setback requirements. 3. It also fails to meet another of the objectives of the R3 zone as set out in the PLEP, which is to enhance the essential character and identity of established residential areas. The siting of the proposed development would result in a negative visual impact on the streetscape. There is inadequate articulation, and the incompatible siting and unarticulated side walls of the proposal are unable to be moderated by the proposed landscaping along the frontage of the site. Concluding Observations 1. The difficulties exposed by this application, and previous attempts, expose the hurdles lying before the Applicant if he wishes to develop some further proposal for the site. 2. The Court was urged by the Applicant to be impartial in its fresh consideration of this application, and this is what has occurred. Having considered the proposal afresh through this appeal, it is plain that the proposal the subject of the application is not suitable for this site. While it is accepted that the amended plans sought to address various matters raised as contentions by the Council, they did not address the fundamental matters which the Council contends warrants refusal of the proposal. 3. Development consent is refused. Orders The Orders of the Court are: 1. Leave is granted to the Applicant to rely on amended plan drawing 2A dated 31 March 2017. 2. The appeal is dismissed. 3. DA 15/1250.01 for the retention of an existing dwelling and the construction of a three bedroom, two storey detached dual occupancy dwelling at 15 O'Connell Street, Kingswood, is determined by refusal. 4. The Exhibits are returned, other than Exhibit C. ……………………………….. Rosemary Martin Senior Commissioner Amendments 13 June 2017 - Technical Error - Image in between paragraphs 9 & 10 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: 13 June 2017