Thursday, 5 March 2015

Proposal To Convert Garage To Bedroom Knocked Back - Parking Issues Strike Again!

The Land and Environment Court has rejected a development proposal to convert a garage located on one side of a dual occupancy building in Bondi (located at 34 Imperial Avenue as depicted above on "Google Earth") into a bedroom. The primary problem that was fatal to this appeal was the impact that the proposal would have had on car parking arrangements for the building - namely, that the parking for the dwelling would have been moved from the garage to a location "forward of the building line". The Court, per Commissioner Fakes, concluded that this design outcome would be "a retrograde step" and contrary to the principles specified in Waverley Council's Development Control Plan.  

Commissioner Fakes's decision in this case, Alco Electrics Pty Ltd v Waverley Municipal Council, (2015) NSWLEC 1034 (3 March 2015) can be reviewed at the following link:

As recounted in the Commissioner's written judgement, the Council's DCP provisions relating to car parking call for a descending hierarchy, with the most preferred alternative being to situate the parking area to the rear of a site with access also being from the rear; the second option being to locate the parking to the side of the dwelling and behind the building alignment, and the least desired solution involving locating parking space on a hardstand area forward of the front building line. Furthermore, the design principles stated in the DCP specify that car parking is to be sympathetically integrated into the design of residences.

The Commissioner accepted the evidence of the council's planning expert that converting the garage into a bedroom would result in an off-street parking outcome that would be less desirable from a planning perspective than the present configuration (where the parking for the dwelling is internal and thus avoids the need for a vehicle to be parked at the front of the property).  The Commissioner also concurred with the council's planner that the proposal to install "highlight" windows in a wall to be built where the present garage door is located would provide a poor level of amenity to occupants of the proposed additional bedroom (in other words, poor solar access and limited outlooks) and determined that the proposal was unacceptable for that reason as well.

The result in this case again instructs that land use proposals that involve diminishing streetscape appearance in order to accommodate vehicles are likely to receive an unsympathetic reception both from council planners and from the Court.

Monday, 3 November 2014

"There's No Place to Park the Car" - But Application to Create Space Fails Nonetheless

The lack of easily accessible on-street car parking is a common source of frustration to residents of inner-city neighbourhoods, not just in Sydney but the world over (as the writer knows first-hand from his own experience driving (endlessly) around in circles looking for a spot in Brooklyn New York, thankfully now many years ago!). Unfortunately for city-dwellers in Sydney, the attempt to solve this problem by creating "off street" parking space on one's own property may conflict with a local council's planning controls.

This is exactly what happened in a case that was handed down on 4 November 2014 by Commissioner O'Neill of the Land and Environment Court, in the fortuitously mis-named case of Double Happiness Company Pty Limited  v Waverley Council (2014) NSWLEC 1225 (as the outcome in the case was not one that would possibly have resulted in "happiness", double or otherwise, for the applicant, how lost the case!). Here's a link to the Commissioner's decision:

The background of this case was that the property that was the subject of the development application was located in an area of North Bondi that was characterised by what the council described as "extreme parking stress" due to their being a number of other properties also without off-street parking and a nearby shopping village which created further demand for parking. The Commissioner's judgement notes that the owner of the property expressed frustration during the "on-site" phase of the hearing concerning his inability to regularly find parking in the vicinity of his home.

To attempt to resolve the parking problem, the owner advanced a development application which proposed the creation of a car parking spot at the front of the house. The application called for the demolition of the masonry balustrade, footing and floor of the front verandah of the dwelling (leaving only the piers of the verandah, the stairs to the verandah and the verandah roof in place), the removal of a section of the front fence, and the paving of the area below the verandah.  There was evidence that a number of other properties in the locality also had car spaces at the front with either remodelled front facades or verandahs.

The development application, however, was in direct conflict with a provision of Waverley Council's Development Control Plan which specifies that the design, location and size of off-street car parking areas should not unreasonably detract from the appearance and quality of the dwelling house or streetscape. In this particular case, the Commissioner concluded that the proposed demolition of the elements of the verandah would "unreasonably erode the integrity" of the existing dwelling house and detract from its appearance. 

Several valuable lessons can be taken from the result in this case. The first is that the judgement confirms venerable old maxim of NSW planning law that "two wrongs don't make a right". In other words a previous historical pattern of similar inappropriate development in the locality (as was the circumstance in this case with the fabric of other houses having been altered in order to make room for off-street parking) does not imply that the same poor planning outcomes should be repeated, especially when contemporary planning controls seek to avoid these poor outcomes. 

Secondly, the case illustrates that (at least where planning regimes similar to Waverley Council's are in place) that "buildings will beat cars" and that a higher value will be placed by the Court on preserving the integrity and appearance of streetscapes than on "shoehorning" car spaces at the front of houses, especially when the creation of the car parking space will result in changes to the fabric of the building that will worsen its appearance. 

There is also a cautionary note for those choosing to purchase homes in congested neighbourhoods where space for parking is in short supply. It may not always be possible, due to limitations imposed by planning controls, to create new spots for parking cars on one's own property to compensate for the unavailability of convenient on-street parking. Potential home buyers would be wise to keep this in mind!

Thursday, 30 October 2014

When a "Studio" Is Not a Studio - A Rose By Any Other Names Does Not Smell As Sweet!

An accredited certifier can run into huge legal difficulties by issuing a Complying Development Certificate ("CDC") for development that does not qualify as "complying" within the meaning of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (the SEPP).  In circumstances where a CDC is not properly issued, it can be challenged by a council in the Land and Environment Court. If a finding is made that the CDC is invalid, the certifier can be ordered to pay the council's legal costs (which can be a very expensive proposition, especially when weighed against the relatively small fees that would ordinarily be charged by a certifier for issuing the CDC).

Exactly this "nightmare scenario" unfolded in a case that was decided by Justice Craig on 20 October 2014, Hornsby Shire Council v Trives (2014) NSWLEC 171.  In that case, the Council challenged CDCs that were issued in relation to three separate properties in the Council's local government area, all by the same certifier. 

The circumstances with respect to each of the properties involved in this case were very similar.  All of the sites were located in parts of the council that were designated as "R2 Low Density Residential" under the council's Local Environmental Plan. All of the properties contained existing dwelling houses. All of the CDCs issued by the certifier authorised new buildings that were identified as "detached studios". And all of the floor plans for the so-called "detached studios" provided for the construction of buildings much larger than what might conventionally be considered to be a "studio", each with several bedrooms, a bathroom, a living and dining area, and a kitchen (albeit ones with "hot plates" instead of ovens and stove tops). Very tellingly concerning the actual nature of the buildings authorised by the CDCs was that each was described in the BASIX certificate (stamped and signed by the certifier) as a "separate dwelling house".  

Interestingly, the SEPP does not describe the number of bedrooms, or the nature of the other accommodation, that may be provided in a "detached studio". The only guidance that the SEPP provides about the type of structure that can qualify as a "detached studio" is that it must be ancillary development that is habitable and is:established in conjunction with a dwelling house; on the same lot of land as the dwelling house, and separate from the dwelling house.

Justice Craig determined that there were three "fatal flaws" that doomed the CDCs. 

First, he found that the proposed buildings were not in fact "ancillary" to the existing dwelling houses, in the sense of being "subservient" forms of development, but were instead themselves most fairly characterised as separate dwelling houses (and thus not eligible for approval through a CDC as "detached studios"). 

Secondly, Justice Craig concluded that the proposed buildings could not qualify as "complying development" under the SEPP because clause 1.18 of the SEPP provides that development can only be "complying" if it is permissible under the provisions of a local environmental plan. In this case, because Justice Craig had found that the proposed new buildings were most accurately characterised as separate dwellings, he held that the form of development proposed by the CDCs was for either "dual occupancies" or "secondary dwellings". As both of these forms of development are prohibited in Hornsby Council's R2 Low Density Residential Zone, the proposed new buildings could not be lawfully approved as "complying development". 

Thirdly, Justice Craig ruled that the CDCs had run afoul of clause 3.8 of the SEPP (relating to lot requirements), which provides that development is not permissible under the provisions of the SEPP when it results in there being more than one dwelling house on a single lot.

The guidance that can be taken from this case is that certifiers should exercise caution and prudence when considering whether to grant a CDC, and should refrain from doing so in doubtful cases.  On the face of the situation, given the size of the proposed new dwellings, the nature of the rooms they were planned to accommodate, and their description in the BASIX certificates as "separate dwelling houses", that it was not well-considered for the certifier to approve those grant CDCs for those structures under the appellation of "detached studios". Doing so proved in the event to be "a recipe for trouble".

For those who wish to peruse the Court's judgement, it can be found at the following link:

Tuesday, 21 October 2014

Protection of Blue Gum High Forest Leads to Rejection of Development Application for a House

The Land and Environment Court has dismissed an appeal against the refusal of a development application for a new house that would have placed an area containing Blue Gum High Forest at risk of destruction.  The case, Johnson v Hornsby Shire Council (2014) NSWLEC 1215 (decided 21 October 2014) is of particular interest because it illustrates how the recently (1 August 2014) enacted Rural Fires Amendment (Vegetation Clearing) Act 2014 (NSW) can influence the determination of planning decisions. The case also demonstrates that if thoughtful, ecologically conscious design choices are made, new development can be carried out in proximity to environmentally sensitive remnant bushland. The Court's decision, handed down by Commissioner O'Neill, can be referenced at the following link:

The background to the case was that the proposed development site, located in the suburb of Beecroft, had been the subject of a previous subdivision approval that had been granted by the council which had required the preservation of Blue Gum High Forest located at the rear of the property. This type of forest is listed as a "critically endangered ecological community" under the NSW Threatened Species Conservation Act 1995 and is thus protected. The subdivision approval included a condition which required that a restriction be placed on the use of the part of the land where the Blue Gum High Forest is situated under the Conveyancing Act to require retention of significant trees and to prohibit building works which could adversely impact on the forest area.  

Notwithstanding the restriction that was provided for by the subdivision proposal, the remnant Blue Gum Forest was placed at risk due to the operation of the Rural Fires Amendment Act.  The Act provided for the addition of a new section 100R to the Rural Fires Act  which allows for the removal of any trees located within 10 meters of an external wall of a house in any area that is designated as a "10/50 vegetation clearing entitlement area" and dispenses with the requirement that approval for such tree removal be obtained under the Environmental Planning and Assessment Act, the Native Vegetation Act, or any other legislative regime.  As the property that was the subject of the development proposal is in a "10/50 vegetation clearing entitlement area", the grant of consent would have had the effect of allowing the removal of more than half the remnant Blue Gum High Forest on the property (as trees characteristic of such forest would have been located within 10 metres of the building envelope of the proposed new house.

Commissioner O'Neill concluded that the grant of a development consent that would subject such a large part of the Blue Gum Forest to likely removal was unacceptable. She found that a more "economical layout" of the site than was suggested in the development application would have provided for a greater setback between the proposed new house and the area of remnant Blue Gum Forest, thus keeping the significant trees in the forested area more than 10 metres from the house and protecting them from possible removal under the "10/50" provisions of section 100R of the Rural Fires Act.

The outcome in this case shows that the "10/50" rules can actually be an impediment to a development proposal, and that in circumstances where ecologically significant trees are growing within 10 metres of a planned new house or other residential building, the interest in protection of those trees may outweigh the interest of the proponent of the development application, and can result in the failure of the application.

Consequently, the message to be "taken away" from this case is that following ecologically careful design principles, by providing a sufficient buffer area between proposed new residential buildings and environmentally important trees, is also a conservative approach which will enhance the likelihood that a development application will gain approval.      

Addendum 3 November 2014:  Coverage of this case has appeared in today's on-line edition of The Daily Telegraph, but Concordia Pacific & The Daily Planet had the scoop first!!!! The link to the Daily Telegraph's story is at                                            

Tuesday, 14 October 2014

Court Confirms That Apartment Units Must Be "Above" Commercial Premises in "Shop-Top" Developments

In a decision dated 14 October 2014, Justice Biscoe of the Land and Environment Court has ruled that a development proposal that called for the placement of apartment units on the ground floor level of a building could not properly be characterised as "shop-top" housing. See Blackmore Design Group Pty Limited v Manly Council, (2014) NSWLEC 164. The decision follows a similar holding made by Justice Sheehan in Hrsto v Canterbury City Council (No. 2) (2014) NSWLEC 121, discussed previously in this blog. In that case, Justice Sheehan ruled that in order for a development to be classified as "shop top housing" the apartments must be physically "above" the commercial premises, a concept which of course seems to follow logically from the use of the term "top" in the phrase describing this type of development.

The Blackmore Design case arose from a development application which proposed a building with a retail area and three apartments on the ground floor, with five further levels of apartments above. The site for the proposed development was located in an area designated as "B2 Local Centre" under Manly Council's Local Environmental Plan 2013. Although "shop top" housing is a permissible land use in this zone, "residential flat buildings" are prohibited. Interestingly, the development application did not describe the proposal as one for "shop top housing" but rather as one for a "mixed use development".  It is somewhat surprising that the development was so characterised in the application, because under Manly's LEP mixed use developments also appear to be a prohibited in the B2 Local Centre Zone (such developments are not included in the list of permissible uses in the land use table for the zone).

The Council refused the development application in part on the grounds that the proposal was prohibited.
Following an appeal against the refusal, the Council asked the Court to determine, as a "separate question", whether the proposal should properly be characterised as a form of "residential accommodation". Again, surprisingly, the applicant did not contest the Council's assertion that the "separate question" should be answered in the affirmative. In other words, the applicant effectively conceded that the development application was for a prohibited use. Indeed, Justice Biscoe found that the proposal, involving apartment units on the ground floor, could not be considered to be "shop top" housing because, as per the Hrsto decision, the apartments were not planned for a level of the building "higher than the top most part of the ground floor retail or business premises".

The viability of the appeal thus hinged on a "Notice of Motion" brought by the applicant seeking leave to rely on amended architectural plans that called for the replacement of the apartment units on the ground floor level of the building with "commercial units". The Notice of Motion was heard by Justice Biscoe simultaneously with the "separate question" as to whether the proposal was for a form of "residential accommodation".  The Council opposed the Notice of Motion on the basis that the amended proposal was in essence a "new" application (and thus one that the Court did not have jurisdiction to determine). However, Justice Biscoe concluded that the application remained one for a "mixed used" development. Further, although the Council contended that a "mixed use" development was prohibited in the zone, Justice Biscoe disagreed. His Honour's reasoning was that since the amended proposal called for two types of development that were permissible in the zone, commercial premises and shop top housing, that use was itself permissible even though a species of mixed use development.

The essential lesson to be taken from this case is that applicants who are seeking to ensure that developments that would otherwise be prohibited as "residential accommodation" can proceed as "shop top housing" must design the proposal so that the residential components are genuinely "above" the commercial or business elements of the building.

It is also our observation that the applicant adopted a risky course in this case by characterising the proposal in its application to the Council as one for "mixed use development".  There was in our view a very significant prospect that the Court could have agreed with the Council that such a development was prohibited in the zone. Of course, had the Court reached that conclusion, the appeal would have been a lost cause. We suggest that the safer and more cautious approach would have been for the applicant to define the proposal as a "shop top" development, a clearly permissible use, in the first instance in its development application. It would also have been a more conservative approach (and one less likely to have encountered opposition from the Council) if the application had not proposed apartment units for the ground floor and had confined that level of the building to commercial uses (it appears, based on the Court's account of the contents of the Statement of Environmental Effects, that the applicant did not do so due to concerns that using the space originally designated for apartments for commercial units would not be economically viable).

The Court's judgement can be read at the following link:

Thursday, 9 October 2014

The "Compatibility Test" Stirkes Again, Leading to Court's Rejection of Proposal for Villa Development

The greatest obstacle to development proposals that are made under the State Environmental Planning Policy (Affordable Rental Housing) 2009 is to get over the hurdle of showing that the design of the proposal is compatible with the character of the surrounding locality. Under the SEPP, unless the consent authority (whether it be a local council in the first instance or the Land and Environment Court on appeal following refusal of a development application) is satisfied that the compatibility test is met, the proposal cannot win approval. So it proved to be the case in a recent case in the Land and Environment Court,
Amine, Mouhamad & Anor v Bankstown City Council, (2014) NSWLEC 1188 (10 September 2014), where the Commissioners finding that the proposal would not be compatible sealed its fate.

The development proposal at issue in the case sought approval for the demolition of a dilapidated cottage and associated garage, and the construction of three new "villas" as infill affordable housing. The proposal was situated in an area where the existing built form was comprised of attached, two-storey dwellings, along with a mix of detached dwellings, dual occupancies and other villa developments. The applicant's planning expert therefore gave evidence that the proposal would be "compatible" because it was, in his view, consistent with the low and medium density character of the area.

Unfortunately for the applicant, issues relating to the design of the development caused the Commissioner who presided over the case, Commissioner O"Neill, to conclude that it was incompatible with the character of the local area. The plans for the proposal specified that one of the villas would have a high, long and steeply pitched gabled roof running along the side boundary of the site, and another of the villas would have a similarly high, long and steeply pitched gabled roof running along the rear boundary. The Commissioner found that this design would result in the villas being "read" from the rear yards of the adjoining properties as large, bulky, two-storey dwellings. In the Commissioner's view, this built form was not compatible with the locality, which she considered to be characterised by buildings with two-storey development confined to the front and with single storey development predominantly to the rear of the allotments. 

The Commissioner was also critical of the overall design of the proposal. She found that the proposed building envelopes were significantly greater than was necessary to accommodate the internal floor space, resulting in what she described as "vast areas of wasted space, inefficient and poor circulation, awkward room layouts and poor connectivity".  The Commissioner observed that a better design approach would have resulted in buildings that would have accommodated the same amount of internal living space but that would have been lower and less bulky, and thus more likely to be compatible with the built form of the surrounding area.

The outcome of this case therefore contains useful lessons for proponents of development projects under the Affordable Rental Housing SEPP.  First, the exercise of evaluating whether a proposal is "compatible" with the character of the area must go further beyond an enquiry concerning "density" and must examine the actual built form. If the proposal departs too greatly from the built form (including with respect to issues such as the preservation of visual amenity from the rear yards of adjoining properties), it will court rejection. Furthermore, scrupulous attention should be paid to design issues to ensure that the bulk and scale of proposed buildings are not unnecessarily large and that the buildings will fit comfortably within the context of the locality. 

The Court's decision can be found here:

Tuesday, 23 September 2014

Developer Succeeds In Obtaining Expansion of Saturday Work Hours

A developer has successfully challenged a condition of consent which restricted the hours during which it could carry out construction works on Saturdays.  The condition imposed by the council that the developer considered to be problematic limited construction work to the hours between 8 a.m. and 12 noon. As a result of an appeal against the condition that was taken in the Land and Environment Court, the hours of permissible work were enlarged to extend from 8:00 a.m. until 4 p.m.  The Court's decision allowing the increase in working hours, Landmark Group Pty Limited v Lane Cove Council (2014) NSWLEC 1187, can be found at the following link:

The background of the case was that in March 2014, the Council had adopted a resolution which prohibited construction work on Saturdays to between 8 a.m. and noon, and thereafter, all consents for residential flat buildings in a particular district of the Council's local government area had included this limitation. According to the Court's judgement, the Council did not provide for public consultation before it passed the resolution. The area where the restriction was applied was one that had been "up-zoned" to allow buildings of greater density, and as a result, at the time of the appeal the district was composed of single family dwellings and a number of large apartment buildings under construction. The Council took the view that the restriction was necessary to give local residents a "respite" from the noise of construction works on Saturday afternoons, and thus to protect amenity.

The developer that appealed against the restriction on Saturday hours argued that it was "uneconomic" because the practical result of the restriction was that the developer was required to pay contractors for a full day's work on Saturdays when their employees would actually work only half a day.  The developer also asserted that many contractors would simply not turn up for a half day's work on Saturdays, and that if they did, they would bring only a skeleton staff, so that construction would be progressed very slowly if at all.

The particular state of the building, and the nature of the works that the developer proposed to do during the expanded hours, were pivotal to the outcome of the appeal. At the time that the condition restricting the hours of work was brought, the construction had already progressed to a point where the building was "a shell with walls".  The developer was prepared to accept a limitation on the building works to be allowed to relatively "low impact" work such as tiling, partitioning, gyp rocking, carpeting, and the like, and to refrain from heavier, noisier works such as excavation, haulage truck movement, rock picking, sawing, jack hammering and pile driving. The developer was also prepared to carry out continuous acoustical monitoring, and to appoint an on site manager to ensure that controls on the level of noise emitted by the construction works would be followed. 

The Court (per Commissioner Dixon) found that the Council resolution that had led to the uniform imposition of a restriction of working hours on all consents for residential flat buildings was only entitled to limited weight, because it had been enacted without allowing for consultation from the "developer community". Commissioner Dixon took the view that she should review the application for modification of the condition restricting working hours on its individual merits. In the event, she accepted the evidence of the acoustical expert who had been retained by the developer that the proposed limited construction works would not, in the particular circumstances, result in an unreasonable noise impact on the surrounding community. Accordingly, the Court found that it was acceptable to grant an enlargement of the hours during which the light construction work could be carried out until 4 p.m. in the afternoons on Saturdays.

The result in this case demonstrates that it is possible for a developer to obtain an increase in the hours during which construction works may take place on Saturdays. However, it appears from the decision that the prospects for obtaining such an expansion of working hours will be governed by the specific factual background of each case and that it will be easier to secure longer working hours for "light" construction works that have lesser noise and amenity impacts.  There is also a lesson that conditions of consent that are adopted pursuant to a council  resolution that has been passed without public consultation will be susceptible to challenge.