Aitchison v Marrickville Council
[2004] NSWLEC 63
•01/22/2004
Land and Environment Court
of New South Wales
CITATION: Aitchison v Marrickville Council [2004] NSWLEC 63 PARTIES: APPLICANT
RESPONDENT
Andrew Aitchison
Marrickville CouncilFILE NUMBER(S): 11224 of 2003 CORAM: Nott C KEY ISSUES: Development Application :- subdivision of one parcel into three lots - demolition of the existing house and the erection of a double-storey house on each new lot - width of proposed lots 6.41 m or less - not consistent with "pattern" of subdivision required by the DCP - appearance in the streetscape
LEGISLATION CITED: Marrickville Local Environmental Plan 2001
Development Control Plan No. 35, Urban Housing Volume 1CASES CITED: DATES OF HEARING: 22/01/2004 EX TEMPORE
JUDGMENT DATE :01/22/2004 LEGAL REPRESENTATIVES: APPLICANT
RESPONDENT
Mr M Ball, agent
Mr G Christman, solicitor
JUDGMENT:
11224 of 2003
Nott C
22 January 2004
Andrew Aitchison
Applicant
v
Marrickville Council
Respondent
Reasons for Judgment
1. This is an appeal against the council’s deemed refusal of a development application to demolish the existing buildings at 1 and 3 Station Street, Tempe, to subdivide the property into three lots, and to erect a double-storey dwelling on each of the three lots.
2. The proposed house on the corner will have a single garage with access from a secondary street, namely South Street. Each of the two other proposed houses will have a single carparking space, partially enclosed, located more or less at the street alignment and extending back towards the front of the proposed house and partly underneath the house. The three proposed dwellings can be seen in the architectural plans, exhibit A.
3. As regards the subdivision itself, the plan exhibit B shows that it is intended to create lot 1 on the corner of Station Street and South Street, having an area of 193 sq m and a width at the Station Street frontage of 6.41 m. The central proposed lot, namely lot 2, has an area of 193 sq m and a frontage of 6.4 m approximately. Lot 3 is the westernmost lot and the smallest of them, having an area of 180 sq m and a frontage of 5.73 m.
4. At the hearing, the main issues related to the character and pattern of subdivision in the street, the impact of the proposed buildings from a visual point of view on the streetscape, and, related to that, whether there should be carports in front of the proposed two westernmost dwellings. A final issue related to sulphate soil assessment.
5. Evidence for the applicant was given by consultant town planner Mr W Long. There was also evidence from Mr T Nathan of Environmental Investigation Services. For the council, the council town planner, Ms N Harras, gave evidence. There was no evidence of objections from local residents.
6. The subject land is zoned in part Residential 2(a) and in part Arterial Road and Arterial Road Widening 9(c) under the Marrickville Local Environmental Plan 2001. The proposed development is permissible with development consent. There are no development standards in the LEP that apply to the proposed development. However, the proposed development has to be considered in the light of Development Control Plan No. 35, Urban Housing Volume 1.
7. The more relevant provisions of this DCP are contained in Pt 2 in the section relating to streetscape and general appearance, in Pt 3A subdivision and Pt 3B garages, carports and driveways.
8. While not ignoring the other provisions of Pt 3A relating to subdivision, I incorporate the objectives and the first control in my judgment:
C1 Proposed subdivision or amalgamation is similar to the prevailing subdivision and building character in terms of block width, site dimensions and layout, and is consistent with the streetscape of the subject development.01 To retain the prevailing subdivision and building character of the street.
03 To ensure subdivision or amalgamation of sites reflects and reinforces the predominant subdivision pattern of the street. …NB: 1. Council generally considers " streetscape " to apply to those adjoining and adjacent properties on either side of the subject site, fronting the same street, and the corresponding range of properties opposite. In most instances, it is appropriate to consider up to ten allotments on either side of the subject site.
2. Properties located in the surrounding streets do not usually form part of the streetscape context, and are therefore not taken into account.
9. Looking at the subject site and locality in more detail, the subject site is a roughly rectangular block, having a frontage of 18.53 m to Station Street and a secondary frontage of 30.29 m to South Street. It has an area of 567.2 sq m. The property is elevated above its neighbours on Station Street. The landform is relatively flat and is retained by a 1 m high masonry wall at the street frontage. There is a single-storey masonry house with a tiled roof located in about the centre of the subject site and there are outbuildings to the rear.
10. I have already referred to the dimensions of the proposed lots and the size of those lots.
11. When looking at Pt 3A, it is important to take into account the width and size of lots immediately adjoining the subject site, particularly in Station Street to the west of the site. There are no lots to the east, except perhaps one to the northeast, because generally to the east there is open space land.
12. I incorporate in my judgment the coloured aerial photograph contained in Ms Harras’s statement:
13. Overlaid on that photograph is the lot-pattern in the vicinity of the subject site. The lot-pattern can also be seen in the zoning extracts referred to by both town planners. In my opinion, the word “pattern” as used in the DCP is a word that could give rise to a number of considerations, including the size and shape of lots and their width.
14. What is remarkable about Station Street is that the lots are generally 9.45 m wide and certainly that seems to be the case for all the lots in the immediate locality of the subject site. The proposed lots are considerably smaller in area and smaller in width than the existing lots in Station Street. Similarly with one or two exceptions, if one were to look at a wider locality, the lots in the wider locality are predominantly of a size similar to all the lots in Station Street of a residential nature, other than the subject site and other than another property which in effect combines two 9.45 m wide lots.
15. There was agreement between the town-planning experts that the shape of the proposed lots is consistent with the shape of other lots in the street and the locality, insofar as the lots are rectangular in shape. But a pattern of subdivision, as I indicated, involves more than merely shape. Control C1 in Pt 3A of the DCP specifically refers to block width and site dimensions. The control provides that: “The proposed subdivision or amalgamation is similar to the prevailing subdivision and building character in terms of block width, site dimensions and layout, and is consistent with the streetscape of the subject development.”
16. There is a note to control C1 to the effect that streetscape is to be generally interpreted to involve ten allotments either side of the subject site.
17. In my opinion the proposed development is not similar to the prevailing subdivision character in its lot size and width and is not consistent with the streetscape. In this regard I prefer the evidence of Ms Harras. It is clearly apparent from the aerial photograph (par 12 above) referred to that the proposed subdivision would stand out in its lot size and dimensions from all other lots seen in the photograph in Station Street.
18. On the other hand, if the existing house on the subject site were demolished, there would already be two existing lots that form the subject land, which could be developed. Each of these lots that exist are similar to other lots in the street.
19. It is not necessary therefore for me to consider in detail the other matters. Briefly, in relation to the impact of the proposed three dwellings and their parking facilities, I note that in the joint report of the town planners there was agreement that there would be no adverse amenity impacts on the adjoining properties in terms of overshadowing, daylight access, privacy and views. However, there was disagreement as to whether the two-storey form of the proposed development would detract from the streetscape appearance.
20. The proposed development is not in accordance with the provisions relating to streetscape and general appearance and in particular it does not comply with C20 at p 41 of the DCP. If there is to be a second storey, C20 indicates that there are various methods of achieving this, such as disguising any proposed upper floor within the roof form.
21. I note in favour of the proposed development that considering the three proposed dwellings together, they have a floor space ratio less than 1:1 and a site coverage of less than 66%. These figures would apply in respect of any proposed dwelling on either of the existing lots in the subject land. However, as mentioned at p 31 of the DCP, notwithstanding compliance with the floor space ratio or with the site coverage, applicants must demonstrate that the bulk and relative mass of development is acceptable in terms of impacts upon the street and adjoining dwellings, building setbacks, parking and landscape requirements.
22. Because the proposed lots are less than the common size of the lots in the locality, having a width of 9.45 m, it means that carports have to be provided as regards the two westernmost lots in front of the proposed dwellings. There has been definitely an attempt to integrate the proposed carports into the proposed houses. However, these carports are semi-enclosed and much more enclosed than the three other lightweight carports in the immediate vicinity, and to some extent they would detract from the appearance of the proposed development in the streetscape. The carports would be in a location which is contrary to that provided for in C3 at p 76 of the DCP and I do not think that they would achieve the objective of respecting and enhancing the character of the street.
23. The council may consider carports forward of the front building line where a whole series of criteria are complied with, and (as mentioned by Ms Harras) the proposed carports do not meet many of the criteria.
24. In relation to cl 57 of the LEP relating to acid sulphate soil, I do not propose in the circumstances to express an opinion as to whether consent could have been granted without there being further evidence. Uncertainty arises from the fact that in the Environmental Investigation Services report there is no express opinion as to whether the proposed development could lower the groundwater table.
25. Accordingly, the orders of the Court are:
2. The exhibits other than exhibits A, B and 2, may be returned.
1. The appeal is dismissed.
- _________
- A J Nott
Commissioner of the Court
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