Land and Environment Court New South Wales Medium Neutral Citation: Al Maha Pty Ltd v Strathfield Municipal Council [2017] NSWLEC 1649 Hearing dates: 31 October 2017, conditions 14 November 2017 Date of orders: 18 December 2017 Decision date: 20 November 2017 Jurisdiction: Class 1 Before: Brown C Decision: (1) The appeal is upheld. (2) DA2017/021 for the demolition of existing site structures and construction of a part two storey and part three storey town house development at 12 - 26 Telopea Avenue, Homebush West is approved subject to the conditions in Annexure A. (3) The exhibits are returned with the exception of exhibits 1, B and C. Catchwords: DEVELOPMENT APPLICATION: demolition of existing structures and construction of a part three storey and part two storey town house development; inadequate front setback, unit size and solar access Legislation Cited: Environmental Planning and Assessment Act 1979 Strathfield Local Environmental Plan 2012 Category: Principal judgment Parties: Al Maha Pty Ltd (Applicant) Strathfield Municipal Council (Respondent) Representation: Counsel: Mr G McKee, solicitor (Applicant) Dr J Smith, barrister (Respondent) Solicitors: McKees Legal Solutions (Applicant) Matthews Folbigg Pty Ltd.(Respondent) File Number(s): 2017/193512 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against the refusal of DA2017/021 for demolition of existing site structures and construction of a part two storey and part three storey town house development comprising of 26 town houses (21 x 3 bedroom and 5 x 2 bedroom) over one level of basement parking at 14-26 Telopea Avenue, Homebush West (the site). 2. Following the preparation of amended plans, the architectural plans (Exhibit B) identify Townhouses 1 to 28 although there are no Townhouses 6 or 14. The townhouses are generally 3 storey with the exception of the adaptable townhouses that are 2 storey (Townhouses 5, 13, 20, 27 and 28). 3. The council maintains that the development application should be refused for the following reasons: * inadequate front setback, * inadequate internal area for some townhouses, and * inadequate solar access for some townhouses. The site 1. The site consists of Lots 110, 111, 112, 113, 114, 115 and116 in DP 11427 and has an area of 4012m2. It is irregular in shape and has a frontage of 120.04m to the west, a rear boundary of 120.17m to the east, a side boundary length of 33.18m to the south, and a side boundary length of 35.5m to the north. Telopea Avenue runs the length of the site's western and southern boundaries. The site has a cross fall of 1.72 from south-west to north-east. 2. Existing development on the site consists of an industrial warehouse complex comprised of single and two storey brick buildings. Vehicular access is provided via two existing driveways from Telopea Avenue. 3. A concrete stormwater channel runs the length of the site's eastern boundary. The site is affected by 1 in 100yr ARI flooding however the applicant has provided sufficient evidence to satisfy the council in relation to flooding. 4. The immediate locality is characterised by a mixture of medium and low density residential development. Relevant planning controls 1. The site is within the R3 Medium Density zone under the Strathfield Local Environmental Plan 2012 (LEP 2012). The proposed development is permissible in this zone, with consent, as "Multi dwelling housing". Clause 2.3(2) requires that the Court "must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone". The 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 4.3(2) requires 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 maximum height is shown as 9.5m. It was agreed that the 9.5m maximum height in cl 4.3(2) was exceeded and the applicant provided a written request under cl 4.6 to show why the exceedance was acceptable in the circumstances. The council accepted that the written request provided sufficient justification for the variation to the maximum height standard and that the height was not a matter in contention between the parties. Having read the written request and with an understanding of the proposed development and also with the benefit of a site inspection, I also agree that the written request provided sufficient justification for the variation to the maximum height standard. 2. Clause 4.4(2) requires that the "maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map". The maximum floor space ratio (FSR) is shown as 0.65:1 and the proposed development satisfies this standard. 3. Strathfield Consolidated Development Control Plan 2005 (DCP 2005) applies, particularly Part C - Multiple-Unit Housing. Front setback 1. The proposed development has essentially two frontages although both frontages are to Telopea Avenue. The smaller southern frontage has a length of around 35m and the western frontage has a length of around 120m. The site was regarded as a corner site for the purposes of the front setback controls in DCP 2005. 2. The proposed development provides for a setback of around 6m to the western frontage with variations to 4m, 4.5m, 7m and 8.5m although 6m is the predominant setback. The southern setback has a setback between 4m and 4.5m. 3. Clause 2.2, Part C of DCP 2005 states: Front Setbacks: 1. Front boundary setbacks are intended to achieve a reasonably consistent arrangement and alignment of buildings to the street where there is a particular feature of the streetscape, provide areas for landscape planting in front of buildings, and to achieve adequate sight distances for vehicular safety, particularly at intersections. Developments are required to comply with the following front setback controls: (i) Subject to exceptions set out below, a minimum setback to the street alignment of 9m is required for all new buildings. (ii) For sites with frontage to two or more streets, the total sum of the two setback areas must be equal to or greater than 12 metres and each setback must be a minimum of 3 metres. (iii) All car parking structures are to be located behind the front building alignment. On corner sites in particular, such structures should be designed and suitably landscaped or screened to ensure the character and visual amenity of the streetscape is maintained and not compromised. Generally, all parking areas are to be located behind the front building line. Council may permit surface visitor parking within the building setback, provided the finished surface complements the landscaping and allows surface water to permeate and a substantial landscaping buffer is provided to screen the spaces from the street. 2. Notwithstanding requirement 1, developments may be setback less than 9 metres where the predominant setback in the street block is less than 9 metres or the setback would not conflict with the existing streetscape. The evidence 1. Expert town planning evidence was provided by Mr Robert Chambers for the applicant and Ms Prity KC for the council. 2. Ms KC states that the proposed front setback is incompatible with the desired built form character of the local area as established through Pact C of DCP 2005. The proposed setback will result in an undesirable precedent for future non-compliant developments in the immediate locality and is the result of over development of the site. 3. Mr Chambers states that given the existing setbacks along Telopea Avenue and along Cooralie Avenue; the proposed front setbacks are entirely suitable in the context of the existing setbacks and the proposed setbacks are consistent with the advice given by council officers prior to the submission of the development application. 4. In any event, the proposed front setbacks are acceptable and the resultant streetscape outcome will be far better than is the case with the front setbacks of the recently completed development opposite at 23-39 Telopea Avenue. The front setback area for this development is raised around 1.5m above ground level with a solid wall of around 0.5m height on the street alignment to provide a basement carpark. Above this, and setback of around 0.8m is a solid wall of around 1.0m in height and above this is a standard 1.8m high timber paling fence above resulting in a poor quality streetscape appearance. 5. With a predominant setback of 6.0m to the north-south section of Telopea Avenue and 4.5m to the east-west section of the street, Mr Chambers states that the proposed front setbacks provide ample scope for front garden plantings which will complement the streetscape. 6. In his opinion, the proposal complies with the requirement in Part C of DCP 2005 where a site has frontage to two streets as the setback from the secondary frontage, which in this case is the east-west section of Telopea Avenue, is to be a minimum of 3.0m. The predominant setback from this section of the street is 4.5m. 7. Mr Chambers states that the proposed front setback achieves the intent of the controls in Part C of DCP 2005 as set out under Item 1 under the heading "Front Setbacks" in Section 2.2 of DCP 2005 which states:- "1. Front boundary setbacks are intended to achieve a reasonably consistent arrangement and alignment of building to the street where there is a particular feature of the streetscape, provide areas for landscape planting in front of buildings, and to achieve adequate sight distances for vehicular safety, particularly at intersections." Findings 1. The front setback control in DCP 2005, for corner sites, requires a 9m setback but provides the opportunity to vary this setback where "the total sum of the two setback areas must be equal to or greater than 12 metres and each setback must be a minimum of 3 metres". Rather than the specified 12m, the experts accepted that the sum of the two setback area was 10.5m (6m + 4.5m) and as such the proposed development did not comply with the 12 m requirement. Even if the 12m requirement was achieved, the second part of the front setback control provides that a development that seeks a front setback less than 9 m is only acceptable where the predominant setback in the street block is less than 9 m or the setback would not conflict with the existing streetscape. Effectively, a setback less than 9m is only acceptable where the predominant setback in the street block is less than 9 m or the setback would not conflict with the existing streetscape. 2. On the matter of the front setback, I agree with the conclusions of Mr Chambers for a number of reasons. First, I accept that the existing "predominant" setback in the street block is less than 9 m. If an assessment is made of the existing buildings in the block that are predominantly older style cottages, then Annexure C to the town planners joint report confirms that the general setback is around 5m to around 5.9m. In practical terms, any comparison with existing dwellings is not overly helpful for new developments given the age and condition of the existing cottages and importantly, their real likelihood of redevelopment, sometime in the future, because of their similar R3 zoning as the site 3. Second, if an assessment is made against development anticipated by the R3 zone then I am also satisfied that the front setback proposed in this application is acceptable. The only multi-unit housing development is located at 23-39 Telopea Avenue and consists of two separate buildings; one located on the bend in Telopea Avenue (33-39 Telopea Avenue) and the other directly opposite the site on the longer frontage of Telopea Avenue (23-29 Telopea Avenue). The council report that recommended approval for the buildings describe the setback as being "generally over nine metres" however the basement car park extends above ground at the street boundary so that a setback that "provide(s) areas for landscape planting in front of buildings" is not likely to be achieved in any meaningful way. Even if the council is successful in removing the 1.8m high timber paling fence (having served an Intention to Serve an Order for its removal), the 1.5m wall above ground level with a solid wall of around 0.5m height at the street frontage still provides a poor presentation to Telopea Avenue. Even though 23-39 Telopea Avenue is the only recent development, it is not an example that should be followed. In my view, the proposed setback and proposed landscaping is consistent with that contemplated by DCP 2005. 4. Third, I am satisfied that the proposed setbacks will "provide areas for landscape planting in front of buildings, and to achieve adequate sight distances for vehicular safety". The council raises no particular concern with landscape plan provided by the applicant and the adequacy of any landscaping in the setback area was not raised as a contention in the proceedings. 5. Fourth, and while Ms KC expressed greater concern over the 4m to 4.5m setback on the shorter southern boundary rather than the longer 6m setback on the western boundary; this setback is considerably larger than the minimum 3m setback specified in DCP 2005. 6. Fifth, and on the matter of "conflict with the existing streetscape", I maintain similar views to that expressed above on the matter of setback. There seems little utility in assessing the proposed development against the streetscape created by older style cottages when the R3 zone clearly anticipates their ultimate removal and redevelopment with a form of medium density development. If compared to the only other form of medium density development nearby (23-39 Telopea Avenue) I have little trouble in concluding that the proposed development would "not conflict with the existing streetscape" or the streetscape anticipated by the R3 zone and DCP2005. Unit size The evidence 1. Ms KC states that all the proposed townhouses do not comply with the minimum area of 100sqm for 2 bedrooms and 110sqm for 3 bedrooms in DCP 2005. The undersized townhouses would provide poor amenity for the future residents of the site. Also, the furniture layouts for the townhouses are not appropriate for the proposed townhouses as the location and layout of the furniture would not provide sufficient circulation space for the future residents. 2. Ms KC disagrees with the approach adopted by Mr Chambers as townhouses should not be compared with the requirements of the Apartment Design Guidelines (ADG) as these requirements are for apartments not townhouses. Furthermore, the ADG unit size requirements are set out in conjunction with other requirements within the ADG, i.e. maximum habitable room depths, minimum widths and dimensions etc. In her opinion, controls should not be mixed and matched to fit this form of development. 3. Mr Chambers states that the ADG is used for comparative observation only, each proposed two and three bedroom townhouse respectively has a size greater than 70m2 and 90m2; these being the sizes identified in the ADG for, two or three bedroom apartments respectively in a residential flat building which, if met, cannot be a ground for refusal. However, unlike most apartments in a residential flat building, the proposed townhouses have ground level access to private outdoor areas at both front and rear, with front and rear gardens. In each case, the outdoor area to the rear contains a paved area at ground level which functions as an extension of the living space, and each paved area is connected to the rear garden. 4. Mr Chambers provides a table identifying each townhouse and the respective floor area for that townhouse (Appendix H, Exhibit 4). The table shows: * 15 of the 3 bedroom townhouses have an area greater than 100sqm and 6 of the 3 bedroom townhouses have an area of 94sqm. * the 5 two bedroom townhouses have sizes of 72sqm (Townhouse 1), 74sqm (Townhouse 2, 3 and 4) and 77sqm (Townhouse 5). 1. While considerably smaller than 100sqm, Mr Chambers states that Townhouses 1 to 5 are capable of providing future residents who will live in them with a more affordable but still entirely adequate new home choice. Also, the variability in product availability in the housing market is generally seen as a virtue and there is no valid planning reason why the council should want to insist on a minimum size of 100m2 for a two bedroom townhouse as that will primarily have the effect of pricing out some potential purchasers. Mr Chambers is of the view that there are no adverse social, environmental or economic impacts associated with the townhouse sizes which are proposed. Findings 1. Clause 2.3(14) provides that the minimum area for a 2-bedroom townhouse is 100sqm and a 3-bedroom townhouse is 110sqm. 2. The application plans provided typical floor plans for each of the dwelling types in the development, including potential furniture placement .The table identifying each townhouse and the respective floor area for that townhouse shows that none of the townhouses satisfy the minimum floor area requirement in DCP 2005 although the council focused on the 5 x 2 bedroom townhouses where the variation to the minimum requirement of 100sqm was greatest. These five townhouses are grouped in a block that faces the short southern boundary of Telopea Avenue. 3. On this matter, I accept the evidence of Ms KC that Townhouses 1 to 5 are unacceptable because of their inadequate floor area. The discussion on this issue included a comparison with the ADG and also the exhibited, but not adopted document published by the Department of Planning and Environment titled Draft Medium Density Design Guide (the Draft Guide). While Mr Chambers sought some guidance from the ADG where a minimum floor area 70sqm is required for a 2 bedroom apartment, I agree with Ms KC that this standard relates to residential flat buildings, as distinct from townhouse development, and is not a true indicator of minimum floor area in this case. Similarly, the Draft Guide can provide some guidance as it relates to townhouse type developments but is only a draft document that has been exhibited but not adopted. The Draft Guide provides a minimum floor area 90sqm for a 2 bedroom apartment. 4. Given that Townhouses 1 to 5 form a succinct part of the application I am prepared to allow the applicant to provide amendments to this part of the development that provides for a minimum floor area of 90sqm for a 2 bedroom apartment. Townhouses 1 to 5 have a combined internal floor area of around 371 sqm so 4 x 2 bedroom townhouses can be located in the same footprint and building envelope. Solar access The evidence 1. Ms KC states that the shadow diagrams indicates that Townhouses 2, 3, 4, 19, 20 and 21 do not receive the minimum three hours of solar access between 9am and 3pm on June 22 to 50% of the principle area of private open space of each dwelling. Townhouses 19, 20 and 21 have a smaller private open space areas compared to the other townhouses along the western elevation. and do not receive 3 hours of solar access to 50% of the open space. These townhouses would receive limited solar access and would result in poor amenity for the future residents of the townhouses on site. 2. Mr Chambers states that Townhouses 19, 20 and 21 will receive solar access to their rear gardens between 9:00 am and 12:00 pm in midwinter. The rear gardens of townhouses 19 and 20 will also still receive solar access up until after 1:00 pm. The configuration of the townhouse development as a whole is appropriate, and because of the site's orientation; inevitably results in afternoon overshadowing of the rear yards in midwinter, and the varying depth of the rear yards also results in the extent of affectation. 3. Mr Chambers notes that the orientation of the site is a relevant matter in the consideration of the solar access requirement in DCP 2005 and this clearly indicates that compliance may not be able to be achieved in all cases. Findings 1. The requirements for solar access at cl 2.4.2 (1)(i) provides: 1. To the extent that existing developments and site orientation allow, site layout and design shall ensure: (i) reasonable solar access to the site (ii).. 1. Solar access requirements are relevantly set out in cl 2.4.2(2)(i) of DCP 2005 and state: 2. Residential buildings are to be designed to maximise solar access to living areas and private open space. The following guidelines indicate the preferred levels of solar access for new developments, and any departures from these standards will require justification that resulting energy efficiency and solar access is acceptable: (i) the main living areas and at least 50 percent of the principal private open space of each dwelling shall have at least three hours of sunlight between the hours of 9am and 3pm on June 22 (winter solstice); and (ii) 1. For townhouses and villas, cl 2.7(4) of DCP 2005 requires that private landscaped open space must have "a minimum of at least 40sqm, a minimum width and breadth dimension of 4m…". 2. As I understand, Mr Chambers relies on the Private Open Space – Area Calculations in Exhibit B (DA-531 B) for his conclusion that the at least 40sqm of private open space are provided for each townhouse. These areas include other areas beside the rear open space areas, such as the front setback areas or balcony areas for the adaptable townhouses. These areas are addressed in Exhibit B (DA-450 B) and show that 92% (24/26) of all townhouses achieve at least 2 hours of sunlight and 88% (23/26) of all townhouses achieve 3 hours of sunlight. The three townhouses that do not achieve 3 hours of sunlight are Townhouses 2, 3 and 4. 3. In accepting that there is not full compliance with cl 2.4.2(2), DCP 2005 allows for the recognition of other factors in the consideration of solar access in cl 2.4.2 (1)(i). Clause 2.4.2 (2) also provides that strict compliance with the standards in cl 2.4.2 (1)(i) and v(ii) is not necessary but "any departures from these standards will require justification". In this case, I accept that sufficient justification is provided. 4. Ms KC and Mr Chambers agree that the proposal is appropriately configured as every townhouse is oriented towards and addresses the street. This appropriate configuration means that Townhouses 7 to 28 (there is no Townhouse 6 or 14) has a westerly oriented front garden to the north-south part of Telopea Avenue and an easterly oriented rear garden. Townhouses 1 to 5 have a southerly oriented front garden to the east-west part of Telopea Avenue and a northerly oriented rear garden but that is partially blocked by the building containing Townhouses 7 to 28 at the corner where they meet.. 5. Townhouses 2, 3 and 4 are required to be redesigned to reduce the number of townhouses to two (see pars XX). The effect of this is will be to reduce the number of townhouses that do not satisfy the requirement in cl 2.4.2(2)(i) of DCP 2005. 6. I am satisfied that the provision of solar access to the proposed development is acceptable, even though there is not strict compliance with DCP 2005. Directions 1. In accordance with the findings on Townhouses 1 to 5, time is to be given to the applicant to provide amended plans and the council to prepare amended conditions that reflect these plans. The timing of the conditions and any plans will be discussed with the parties when the interim findings are handed down. Orders 1. In accordance with the terms of directions in paragraph [48] of my judgment of 20 November 2017 the parties provided me with the agreed conditions of consent I am satisfied firstly that consent to the application should be granted, as the appeal is an appeal under s97(1) of the Environmental Planning and Assessment Act 1979, and that the conditions of consent accord with my findings. Accordingly I make orders in chambers as follows: 1. The appeal is upheld. 2. DA2017/021 for the demolition of existing site structures and construction of a part two storey and part three storey town house development at 12 - 26 Telopea Avenue, Homebush West is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 1, B and C. _____________ G Brown Commissioner of the Court Annexure A (248 KB, pdf) 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: 02 March 2018