Bonim Stanmore v Marrickville Council [2004] NSWLEC 671

Land and Environment Court of New South Wales

CITATION : Bonim Stanmore v Marrickville Council [2004] NSWLEC 671 APPLICANT: Bonim Stanmore Pty Ltd and PARTIES : Cavendish & Holt Pty Ltd

RESPONDENT: Marrickville Council FILE NUMBER(S) : 10954 of 2004 CORAM: Roseth SC KEY ISSUES: Development Application - Existing Use Rights :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 25/11/2004 and 26/11/2004 DATE OF JUDGMENT: 12/07/2004

Ms S Duggan, barrister instructed by Mr G Green of Pike Pike & Fenwick LEGAL REPRESENTATIVES: Mr A Galasso, barrister instructed by Mr G Christmas of Marrickville Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Roseth SC

7 December 2004

10954 of 2004 Bonim Stanmore Pty Ltd and Cavendish & Holt Pty Ltd v Marrickville Council

JUDGMENT 1 Senior Commissioner: This is an appeal against the refusal by Marrickville Council (the council) of a development application to demolish the existing buildings and construct a residential complex consisting of 49 dwellings on lot A DP 109269, lot 1 DP 49, lot B DP 330028 and lot 1 DP 526319, known as 221-235 Stanmore Road Stanmore.

The site 2 The site is on the north side of Stanmore Road between Holt and Merton Streets. The primary 65m-frontage is to Stanmore Road, but there is access also from Cavendish Street. The site's area is 2,900m2. A three-storey building stands on it. The building is now vacant but was previously used as the Concordia Club. The Floor Space Ratio (FSR) of the existing building is 1.66:1. The building covers most of the site and the unbuilt-on area is paved and used as car parking. Vehicular access is from both Stanmore Road and Cavendish Street. The larger part of the north boundary is common with the rear boundaries of houses along Cavendish Street. 3 The site is in a residential area, zoned 2(A), a zone in which dwelling houses and townhouses up to two storeys and a FSR of 0.7:1 are permissible, while residential flat buildings and clubs are prohibited. Along Stanmore Road most of the buildings are two-storey houses mixed with two-storey blocks of flats. Opposite the site is Newington College, which appears from the street like a park. Along Cavendish Street most of the houses adjoining the site are single-storey on small allotments.

The proposal and its history 4 The applicant proposes to erect a housing complex consisting of a four-storey building containing 40 dwellings facing Stanmore Road and a building containing nine townhouses near the north boundary. Vehicular access is from both Cavendish Street and Stanmore Road. A communal courtyard separates the two buildings. 5 The applicant lodged the development application in October 2003. Following notification, the council received 26 submissions and a petition against the proposal. In May 2004 the council considered a report from its planning staff recommending approval. The council first deferred its decision, but subsequently rejected the recommendation and refused the application on 4 October 2004. The applicant filed the appeal against deemed refusal in September 2004.

Relevant planning instruments 6 The Marrickville Local Environmental Plan 2001 zones the site and the surrounding area Residential 2(A). As the site enjoys existing use rights, the only significance of the zoning is that it indicates the nature of future development around the site. 7 All planning experts who had reported on this application applied the design principles of State Environmental Planning Policy 65 – Design Quality of Residential Flat Development (SEPP 65) to the proposal. The applicant's advocate, Ms S Duggan, submitted that SEPP 65 did not apply to an application under existing use rights because it might derogate from the provisions of s108 of the Environmental Planning and Assessment Act 1979 (the Act). Does a design principle, such as "Good design responds and contributes to its context" (Design Principle 1 of SEPP 65) derogate from the provisions of s108? I do not think so. However, while I do not accept Ms Duggan's submission, for the sake of abundant caution, the only statutory provision I have relied on is s79(C) of the Act.

The issues 8 The council submitted a Statement of Issues containing six issues. During the hearing the following emerged as the major issues: · Are the objectors' concerns valid? The two major concerns were the vehicular entrance from Cavendish Street and the impact on them of the townhouses that they considered to be too near to their rear boundary. · Is the FSR of the proposal acceptable? · Is the bulk and scale of the proposal in the context of Stanmore Road acceptable?

The objectors' concerns 9 The Court heard the evidence of four objectors, three of whom live near the north boundary of the site. Ms Sandra Marshall, who lives at 168 Cavendish Street, said that she was concerned about additional traffic and the impact on her street and her rear yard. Ms Lara Jocelyne of 166 Cavendish Street, and Ms Helen Gerakios of 162 Cavendish Street, had similar concerns. Ms Fran Larkin, the principal of Stanmore Public School, was concerned about additional traffic in the area. All the objectors wanted vehicular access to be only from Stanmore Road. 10 Mr Graham Pindar, the traffic expert appointed by the Court, said that the additional traffic due to this proposal was negligible and would not make a significant impact on Cavendish Street. In his opinion, the proposal struck the right balance between access from Stanmore Road and Cavendish Street. I find Mr Pindar's evidence consistent, logical and persuasive. I conclude that the residents do not have a valid reason to be concerned about the traffic impact of the proposal. Consequently there is no reason to restrict vehicular access to Stanmore Road. 11 The privacy concerns of the three residents who live in Cavendish Street arise from the fact that the proposed row of townhouses comes very close to the common boundary, which is the boundary of their rear yards. The distance varies. The closest first floor is about 2.5m from the common boundary, while a more usual dimension is about 3m. The proposal includes a privacy screen mounted outside the floor to ceiling windows that would stop direct overlooking of the rear yards. 12 The two Court-appointed experts were Mr Robert Chambers, a town planner, and Mr Martin Bryant, an architect and urban designer. In addition, the council retained its own planning expert, Mr Kerry Nash. None of the experts supported the residents' concern or considered that there was anything wrong with the distance between the townhouses and the Cavendish Street dwellings. Their opinion appeared to be based on three grounds. First, the existing building is closer to the common boundary than the proposed townhouses. Second, if this site did not have existing use rights, the council's controls would allow a 4m setback for townhouses. Third, the privacy screens would prevent direct overlooking. 13 I do not find the above reasons persuasive. With the exception of two windows, the existing building has a solid wall towards the Cavendish Street residences. Consequently the residents of Cavendish Street experience little disturbance from the club building, even though the solid wall is high and close to them. (There is no shadow impact, since the wall is to their south.) The proposal would replace the solid wall with nine living rooms, nine dining rooms, eighteen bedrooms and nine courtyards used by nine families. 14 As regards the 4m-setback control, if it does not apply to this application, why refer to it? Why take controls into account when they assist the application, and disregard them when they do not? In any case, the buildings come much closer than 4m to the common boundary. Finally, while the privacy screens reduce overlooking, they do not justify an unreasonably small setback. They should be used in addition to rather than instead of, an acceptable setback. 15 It is generally accepted that it is desirable to keep habitable rooms of different dwellings at least 9m apart. On that basis the main living rooms of the townhouses in this proposal should be at least 4.5m from the common boundary with the Cavendish Street residences. In my opinion, the impact of the townhouses in this proposal (being as close as 2.5m to the common boundary) is unacceptable, notwithstanding the existing club building and the proposed privacy screen.

Density 16 The proposal's FSR is 1.61:1. The FSR of the existing building is slightly higher at 1.66:1. The council's planner, who recommended approval, as well as the two Court-appointed experts, concluded that the proposal's FSR was appropriate on the grounds that it was less than that of the existing building. 17 In my opinion, where a site has existing use rights, the question whether or not a particular FSR is appropriate is meaningless. Planning controls, including maximum permissible FSR, do not apply. To reach a conclusion on the appropriateness of the FSR of such a proposal, one must consider its impact on the natural and built environments under s79(C)(b) of the Act. If the impacts are acceptable, so is the FSR. If they are not, and they arise out of the FSR, the FSR is not acceptable. 18 I note that the experts, with the exception of Mr Nash, were heavily influenced by the existing FSR of the building. They considered anything less than the existing FSR to be an improvement and therefore appropriate. I agree that the existing FSR is a factor that should be taken into account. It is a factor, however, not a determinant. To assume that, on a site with existing use rights, the applicant has a right to reproduce the existing FSR is just as erroneous as to assume that the proposed FSR should not exceed the existing. Mr Nash's comment expresses this idea well: In my view, given that the site has existing use rights, such an assumption (of maintaining FSR) is not a relevant or reasonable planning consideration.

The proposal in the context of Stanmore Road 19 The council's Statement of Basic Facts describes the locality as "densely developed with residential, commercial and mixed use buildings, with a variety of building heights and appearances". I do not think that this is an accurate description. The buildings along Cavendish Street are mostly small and single-storey. The buildings along either side of Stanmore Road in the vicinity of the site are mostly two-storey flats and houses. (Contrary to the Statement of Basic Facts, the building height is not varied, apart from the odd single-storey building.) Setbacks of 7-8m predominate. The width of buildings is around 10-15m. 20 The proposal is a 60m long four-storey building that appears five–storeys and is set back 3m from Stanmore Road. (The top storey is set back a further 3m.) It is significantly longer and higher than the existing building and any of the surrounding buildings. 21 Of course, it would be wrong to consider the existing scale of the street without looking at the likely future scale. The controls that apply to sites in the area that do not have existing use rights are a maximum FSR of 0.7:1 and two storeys. A visual inspection suggests that most existing buildings have a FSR of at least 0.7:1. The existing scale is therefore not likely to increase markedly. 22 The gist of Mr Chambers' evidence was that, while the proposed building is bigger than the existing club, it would nevertheless fit into its context because of the superior architectural treatment. On page 15 of his report he writes: The proposed residential flat building has a greater length than the existing Concordia Club building (ie around 62m as opposed to around 47m) and has a greater height than the existing building. However, the combination of the front setback, and landscaping therein, coupled with proposed street tree planting, the use of face bricks in the south elevation, rendered and painted panels, a central recess, and the overall modulated and articulated form, result in a building of a high design quality and a good streetscape presentation. 23 Mr Bryant took a similar position. On page 9 of his report he wrote that the existing club building's "massing is excessively bulky" and that it relates poorly to the character of the area. Yet he came to the conclusion that the proposed building, which is much larger than the existing, does fit into its context. When asked by the Court how this can be, he responded that it was the architectural treatment of the new building, so superior to that of the existing club, that made it fit in. 24 Mr Nash's took a contrary position. The existing building is too big for its context. The proposed building is bigger. Hence the proposed building is also too big for its context. 25 In my opinion, of the three positions only Mr Nash's is supported by consistency and logic. Mr Chambers and Mr Bryant appear to have relied entirely on architectural design to justify a building that is out of scale with its surroundings. They have argued that, while it may be much larger than anything around it, it will not appear out of scale because it is well designed and has street trees and landscaping to conceal its bulk. While I agree that the architectural treatment of a building can influence the way its scale and bulk are perceived, there is a limit to the power of architectural design to make a large building appear small. Where a building is as grossly out of scale with its context as the one proposed in this application, no amount of architectural treatment of the facades can disguise the fact. 26 I am aware that in accepting Mr Nash's opinion, I am turning my back on the evidence of two experts who were appointed by the Court. I do not do this lightly. I am aware that urban design evidence is subjective. Mr Chambers and Mr Bryant came to one subjective view, and Mr Nash came to another. However, my agreement with Mr Nash's subjective view is not the only reason for my decision. In my opinion, Mr Nash's approach to assessing the proposal was more appropriate than the approach taken by the Court-appointed experts. While Mr Chambers and Mr Bryant did not explicitly state it, the general tenor of their reports suggests that they were strongly influenced by the characteristics of the existing club building and very little by the character of the surrounding development. For example, on page 12 of his report, Mr Chambers wrote: …..I have concluded that the scale of the residential flat component of the proposal, notwithstanding that it exceeds the scale of adjoining and adjacent development, must be considered in the context of the existing club building and is not excessive in the circumstances." 27 As regards Mr Bryant's evidence, it was weakened by the fact that he failed to stand by the few criticisms that he did make of the proposal. In paragraph 3.30 of his report he wrote that the proposed development would provide a positive addition to the streetscape, if his recommended amendments occurred. Among other things, he found that the car entry portal was alien to Cavendish Street and should be moved. He also suggested that the western part of the Stanmore Road elevation should be reviewed. He believed that the desired alteration would entail reorganisation of some of the internal layouts to achieve an effective simplification of articulation. The response of the applicant to this criticism can be described only as "token" and did not involve internal reorganisation. Mr Bryant's support of the proposal in his oral evidence suggests that he continued to think that the development would be a positive addition to the streetscape even without his recommended amendments being embraced. 28 I note that in the "Material requested by Court-appointed experts" the majority of information relates to comparisons between the existing club building and the proposal. There are comparisons of bulk and scale shown in sections and elevations. There are comparisons of built area and landscaped area. There is a comparison of Gross Floor Space calculations. No material appears to have been requested on the bulk, scale, built area and landscaped area of development around the site. 29 As I have stated above, the size and character of the existing building is a legitimate consideration in the assessment of this application. However, it is not the only, and not even the major consideration. If the application were approved, the existing building would be demolished, and within a few years few people would remember what it looked like. It would be the new building that they would see. They would judge it by its relationship to the Stanmore Road streetscape. 30 Even if I accepted what appears to be an implicit assumption in the evidence of the Court-appointed experts, namely that the proposal is entitled to the FSR of the existing building, I would consider the impact on the Stanmore Road streetscape unacceptable. This is because the proposal has redistributed the floor space of the existing club building, placing more floor space on the Stanmore Road street frontage and less in the rear of the site. There is no justification for worsening an impact on Stanmore Road that all experts agreed is inappropriate. 31 In my opinion, the proposal's impact on the built environment of the Stanmore Road streetscape is unacceptable. For the above reasons the appeal is dismissed.

Orders 1. The appeal is dismissed.

2. Development application to demolish the existing buildings and construct a residential complex consisting of 49 dwellings on lot A DP 109269, lot 1 DP 49, lot B DP 330028 and lot 1 DP 526319, known as 221-235 Stanmore Road Stanmore is determined by refusal.

3. The exhibits are returned.

_______________________ Dr John Roseth 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.