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:  http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=174016

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