Akinci & Anor v Wollondilly SC

[2006] NSWLEC 724

Land and Environment Court

of New South Wales

CITATION:

Akinci & Anor v Wollondilly SC [2006] NSWLEC 724

PARTIES:

APPLICANT
Huriye Akinci and Erhan Akinci

RESPONDENT
Wollondilly Shire Council

FILE NUMBER(S):

10606 of 2006

CORAM:

Hussey C

KEY ISSUES:

Development Application :- multi unit housing, character of area, overdevelopment, setbacks, impacts on neighbours.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Wollondilly Local Environmental Plan 1991
Wollondilly Development Control Plan

DATES OF HEARING:

11/11/2006

EX TEMPORE JUDGMENT DATE:

11/11/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr P. Meehan, solicitor
of Meehans Solicitor Corporation

RESPONDENT
Mr A. Seton, solicitor
of Marsdens Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

Date 11 November 2006

10606 of 2006 Huriye Akinci and Erhan Akinci v Wollondilly Shire Council

JUDGMENT

Background.

1 This appeal was lodged against council's refusal of a development application for the construction of a 2-storey, attached multi unit dwelling at 2 Abelia Street, Tahmoor. The full details of the site, proposal and planning controls are contained in the Statement of Basic Facts, on which I rely.

2 In refusing the application a number of issues were identified and the parties agreed to the appointment of Mr M Brown as the Court appointed expert for planning and he prepared an initial assessment , which resulted in significant amendments to the proposal, including the reduction to single storey.

3 After further consideration of the amended proposal, Mr Brown undertook a detailed assessment and now supports its conditional approval. This outcome is not challenged by Council, subject to consideration and determination of the objections.

4 In this regard, Mr G. Clarke (neighbour from 16 Tahmoor Road) gave oral evidence in support of his written objections.

The site.

5 This site is situated on the corner of Abelia Street and Tahmoor Road and it is described as Lot 51 in DP 1047550. It has a total area of 791 sq m.

6 The surrounding area is dominated by residential uses, particularly single storey detached dwellings, dual occupancy development and medium density development. The adjoining dwellings facing Tahmoor Road, to the east of the Abelia Street intersection are set back at least 14m from the road, whereas the predominant setback in the area is approximately 6 – 8m.

The proposal .

7 This proposal involves the construction of single storey additions to the existing dwelling house, being classified as a mixed unit development. The additions comprise 3 bedrooms, lounge/family/dining kitchen, bathroom and single garage. A courtyard faces Abelia Street (north facing). The southern elevation has as setback of 3m to No 16 Tahmoor Road.

Planning controls.

8 Wollondilly Local Environmental Plan 1991. Under this LEP, this site is zoned 2 (a) Residential and the proposal is permissible with consent. Clause 10 (3) provides:

"Except as otherwise provided in this plan, the council shall not grant consent to the carrying out of development on land to which this plan applies unless the council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out."

9 Clause 10 of Wollondilly Local Environmental Plan sets out the zone objectives for the 2(a) Residential zone as follows:

“The objectives of this zone are to provide an environment priority for detached housing to ensure that the range of other development permitted in a residential area is compatible with the residential environment.”

Sydney Regional Environmental Plan No. 20 - Hawkesbury Nepean River

The subject site is within the hydrological catchment of the Nepean River. Sydney Regional Environmental Plan No. 20 - Hawkesbury Nepean River applies to the site.
The relevant provisions of the Sydney Regional Environmental Plan No.20 are outlined below:

Clause 3 states the aim of the Plan, which is ": ..to protect the environment of the Hawkesbury Nepean River system by ensuring that the impacts of future land uses are considered in a regional context"

Clause 4 outlines the application of general planning policies, specific planning policies and recommended strategies.

Clause 5 provides the general planning considerations relevant for this Part.

There is no relevant specific planning policy and recommended strategy for the proposed development, as identified in Clause 6 of the Plan.

Clause 12 outlines the relationship of the Plan to other Environmental Planning Instruments, being:
(1) This plan:
(a) repeals Sydney Regional Environmental Plan No 20-Hawkesbury-Nepean River, and
(b) does not apply to land to which Sydney Regional Environmental Plan No 9 9­Penrith Lakes Scheme applies, and
(c) amends the following environmental planning instruments as set out in Schedule 3.
State Environmental Planning Policy No 4-Development Without Consent,
State Environmental Planning Policy No 46-Protection and Management of Native Vegetation,
Sydney Regional Environmental Plan No 9-Extractive Industry (No 2)…


(
2.3 Wollondilly Development Control Plan No. 50 (Residential Development DCP)

Development Control Plan No.50 - Residential Development (DCP 50) applies to the subject land. The relevant sections of the DCP as they relate to the development, are discussed below.

Section 1.8 outlines the process for varying the provisions of the DCP.

Section 2 outlines the objectives of the DCP, which are as follows:

(a) ensure that development enhances the existing character and amenity, of the towns and villages of Wollondilly;

(b) create residential areas which support a range of well located housing types;

(c) encourage development which enhances the streetscape and which minimises the impact on the amenity of adjoining properties;

(d) encourage the principles of ecologically sustainable development and innovation in housing design;

(e) ensure that development does not have a negative effect on rivers, creeks and riparian areas;

(f) minimise the impact of development on the scenic qualities of the rural landscape;

(g) ensure that development preserves biodiversity and environmental quality by protecting significant vegetation and local indigenous wildlife populations; and

(h) to build better communities by integrating new and existing housing.

10 Of relevance in this matter, s 5.6 outlines the development controls for setbacks. Section 5.9 outlines the building height parameters, while the landscaping requirements are contained in s 5.11.

The evidence

11 As I have stated previously Mr Brown undertook a detailed assessment of the proposal. This assessment addressed the following concerns raised by Mr Clarke.

• Overdevelopment of the site,
• Loss of privacy and outlook,
• Acoustic disamentiy,
• Shadowing

12 Considering that there is no substantive challenge to Mr Browns evidence, it seems from my observations on the view, reference to the planning controls and evidence presentation, then this comprehensive assessment is reasonable for acceptance. Mr Browns’ assessment included the following relevant details in response to the objections.

"Issue 1 - Setbacks

11.1 I was provided with an aerial photograph supplied by Council. It is noted that Clause 5.6 refers to adjoining setbacks. The particulars refer to the dwelling to the southeast and not to the dwelling to the west. The dwelling to the southeast is setback approximately 16m. The dwelling to the west No 4 Abelia Street is on a lesser setback of approximately 3m and is generally in line with the subject existing dwelling. The dwelling on the northern side (corner lot) is setback approximately 6m. I note from the aerial photograph that the setbacks in the area are not generally consistent and the dwellings are generally modest in nature and therefore there is not a consistent streetscape character. The setbacks to the dwellings to the south are however, generally greater than the DCP requirements and it is suggested unusual. This issue is noted in the Council report of 17 October 2005.

11.2 It is noted that the DCP for new developments requires a 6m setback. The building has been designed to achieve this requirement of the DCP for new development. One of the objectives of this clause refers to the requirement to provide adequate space for landscaping. This has been achieved and is similar to development on the opposite side of the road and visual privacy has been achieved to adjoining property, which is the front setback area for this property at No 16 Tahmoor Road The private open space area for this property is behind the dwelling.

11.3 To remove subjectivity from the argument of character (setbacks), I have attempted to define and identify the elements contributing to character. What distinguishes this area from any other residential area? The question I have attempted to answer in defining the character of this part of Tahmoor is: What distinguishes this area from any other residential area within to Wollondilly local government area? This is consistent with the definition of character contained in the Macquarie Dictionary, which is "the aggregate of qualities that distinguishes one person or thing from others".

Secondly, will the. approval of the subject application adversely impact upon that established character? As stated above there is no consistent setback and clause 5.6 refers to adjoining. The dwelling at No 4 has lesser setback of approximately 3m and is in line with No 2 Abelia Street.

It is apparent from the aerial photograph that lot sizes vary in size and shape, with large lots and smaller lots, battle-axe lots and wedged shaped lots. Street widths are generous compared to that in 'planned estates'. Setbacks also vary considerably with a number of dwellings setback considerably from the front alignment; whilst others have setbacks from 3m at No 4 Abelia Street to 6m on the opposite side of the road (north side corner). This is generally inconsistent with the requirements of the DCP, which provide for a minimum of 6m for new development.

There is no dominant architectural style that has emerged as part of the construction of dwellings and street tree planting has occurred in a fragmented form and not consistent in tree species. Street tree planting can assist in establishing a particular character, such as that that has occurred in inner Sydney suburbs.

It is noted that for infill development, and this development is referred to as such, that flexibility is provided to enable a 10% variation. I n some respect, the variation would normally be based on the 6m setback rather than what is that adjoining at No 16 Tahmoor Road of some 16m.

The large setbacks that are on this lot and other lots in the area could be as a result of the land being more rural in nature and with these lands being subsequently subdivided; the variance in setbacks would then result. The large setbacks would not be the norm and would not be, in my opinion, consistent with the objective of setbacks to establish a scale and sense of enclosure.

It is my view therefore that this issue of setbacks embraces the much broader issue of the character and urban fabric of a residential estate.

The character of the streetscape is dictated by the existing and emerging building form that will occur over-time. It is stated in DCP 50 that development needs to be compatible with the character of the area, whilst allowing new development to take place, including infll development. In this regard, the emerging character of the streetscape has been dictated by the development controls rather than existing housing stock. It is clear that this is the existing established character, which is stated in the DCP of importance, whilst allowing new development to take place, particularly infill development. This form of development is likely to occur on these large lots in the future, and in the form of either attached or detached dual occupancy development, as other forms of medium density development are restricted to certain areas of the LGA. It is also likely that battle-axe lots will emerge given the size of some of the lots. This form of subdivision has occurred in the immediate area.

It is therefore likely that the area will change over-time from one of modest dwelling on large lots to infill development. The elements of character include:­

(a) Streetscape, including building form, massing, scale and setbacks.

(b) Housing density, allotment size and associated privacy attributes; and

(c) Scale of development relative to allotment size and the relationship of buildings with neighbouring properties.

The existing dwelling somewhat constrains the development of the property. If the proposed dual occupancy had been built first on a 6m setback to Tahmoor Road, the issue of the secondary setback (minimum of 2.5m) would not arise. In other words, if the existing dwelling was proposed as the dual occupancy, the setback to this street would be compliant.

It is also noted that clause 1.8 of the DCP allows the developments standards to be varied where it can be demonstrated that the objectives of the particular standard can be achieved without detriment. The applicant (Refer to folio 77-78) requested a variation to the setback provision. Unfortunately, this submission relates to the initial application for a tow-storey dwelling. Notwithstanding this aspect, the explanatory notes to the setback requirements states that setbacks are a means of protecting neighbour amenity and assisting in the establishment of streetscape character. It is considered that there are no issues in relation to privacy and the issue of character has been addressed above. I am of the opinion that the objectives of providing adequate space for landscaping and open space, visual and acoustic privacy and the establishment of a sense of enclosure have been met by this proposal, and therefore consistent with the objectives. The setback will perform the sense of enclosure and will be similar to the setback on the opposite corner (north).

Having regard to the general inconsistent setbacks in the area and the unusual greater setback to the dwelling to the south at No 16 Tahmoor Road, I do not support Council's reason for refusal in 1.

Issue 2 - Site area

11.4 Clause 5.4 of the DCP requires a minimum of 800m2 for attached dual occupancies. The property has an area of 793m2, a shortfall of 7m2.

11.5 The applicant made a submission requesting variation based mainly on the fact that this was a corner lot and part of the area taken out of the lot was for the splay corner, otherwise the lot would be compliant. The submission at folio 77 also states that the shortfall is 1 % and that the minimum width at the building line has been met.

11.6 The shortfall in area is minor in nature and the underlying purpose of the area and frontage requirements would be to ensure that a dual occupancy development can be constructed on the lot and meeting the objectives of this clause. This is also highlighted in the explanatory notes. The development demonstrates that this can be achieved. More relevant is that the minimum width is achieved at the building line setback.

11.7 The objectives of the DCP state that the requirement for site area and dimensions is to ensure that development responds to streetscape, solar and daylight access, privacy, landscaping, outdoor space and vehicular access, and to ensure opportunities for future infill development is retained.

11.8 The proposed development is consistent with these objectives. 11.9 I therefore do not support Issue 2.

Issue 3 - Impact on streetscape

11.10 In relation to issue 3, similar issues have been raised in terms of streetscape character and setbacks. This issue has been partly addressed above in terms of character and it is considered that there is not a consistent established dwelling character or style. The area is made up of single dwellings of one and two storey construction.

11.11 The particulars state that the development is not consistent with objectives of DCP in relation to Clause 2 (a) and (c); clauses 5.12 and 5.14. In relation to 2 (a) and (c), there is no distinguishing character of this part of Tahmoor. Lot sizes, shapes and setbacks are varied throughout this part of the area. It is clear from the objectives of the setback requirements is that council is trying to establish a sense of character by requiring dwellings to be constructed on a 6m building setback. It is also clear that the once larger parcels are now being subdivided in a haphazard fashion as individual owners subdivide their parcels. This is different to a master planned estate where road patterns and lot sizes etc, are clearly established. This is evident in the subdivision to the south in Oxley Grove where there are a variety of lots sizes, shapes and setbacks (Refer to aerial photograph).

11.12 This form of subdivision is likely to continue to occur to the east and southeast of Tahmoor Road when these lots are subdivided unless there is a Masterplan or DCP directing the built form, road pattern, etc. Fragmented ownership and aspirations of various owners does not assist in masterplanning of these areas and does not establish a clear framework of character.

11.13 I am therefore of the opinion that the proposal is not inconsistent with clause 2 (a) and (c).

11.14 The objectives of clause 5.12 have been stated at 8.15 above. The objectives and controls require that dwellings should front/address the street for appearance, safety and be of a scale and character that enhances the streetscape.

11.15 The proposal has been designed such that its address is to Tahmoor Road thereby reducing the impact of further garages on the Abelia Street frontage. The garage for the proposed development is well setback behind the front 6m setback with the dwelling articulated to reduce any dominance of the dwelling or garage on the streetscape. This is consistent with the DCP. The proposal is also setback some 3m from the southern boundary to reduce privacy and acoustic impacts.

11.16 In terms of clause 5.14 objectives, the applicant has submitted amended plans, which provide that the existing and proposed development will be bagged and painted in the same colour, including the roof. The wing walls on the existing dwelling are also to be removed so that the dwellings are consistent in design.

11.17 I am of the opinion that these changes will ensure the total development enhances the character of the existing area. I do not support Issue 3.

Issue 3 - Precedent and public Interest

11.18 Basically the issue of public interest arises as an issue to be considered. I note that there was only one submission to this application. The issue of precedent is one that must be considered on the merits of the particular case. In my opinion, the development is not inconsistent with the objectives of the DCP and therefore there is no peculiar circumstance that would justify refusal of the application."

Conclusion

13 Having considered the evidence, I am satisfied to rely on the Court appointed expert, Mr Brown’s opinion that this development proposal is consistent with the objectives of the zone and merits conditional consent. In this regard, I note Council now does not oppose the conditional consent on the basis of the amended proposal. Insofar as Mr Clarke is dissatisfied with the proposal, nevertheless I consider that the conditions of consent should address his concerns to a reasonable extent.

Court Orders

1. The appeal is upheld.

2. Development consent is granted to DA 476/05 for alterations and extension to an existing dwelling at 2 Abelia Street, Tahmoor for the construction of a multi unit dwelling, subject to the conditions in Annexure ‘A’.

3. The exhibits may be returned except for Exhibits 1, 2, 3, 6, 7 and A.

___________________

R Hussey
Commissioner of the Court
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