Andrew Aitchison (Unwins) v Marrickville Municipal Council

[2004] NSWLEC 228

Land and Environment Court

of New South Wales

CITATION:

Andrew Aitchison (Unwins) v Marrickville Municipal Council [2004] NSWLEC 228

PARTIES:

APPLICANT
Andrew Aitchison (Unwins)

RESPONDENT
Marrickville Municipal Council

FILE NUMBER(S):

10060 of 2004

CORAM:

Watts C at 1

KEY ISSUES:

Development Application :-

LEGISLATION CITED:

Marrickville Local Environmental Plan 2001, (MLEP);
Marrickville Development Control Plan NO 35, Vol 1 - Urban Housing, (DCP35);
Environmental Planning and Assesment Act 1979, ss79C and 97

CASES CITED:

DATES OF HEARING:

5/05/2004

DATE OF JUDGMENT:

05/14/2004

LEGAL REPRESENTATIVES:

APPLICANT:
Mr M Ball, town planner
RESPONDENT:
Mr G A Christmas

JUDGMENT:

Appeal No: 10060 of 2004

12

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES


Watts C

14 May 2004
Andrew Aitchison (Unwins)
Applicant
v
Marrickville Municipal Council
Respondent
Judgment

Introduction

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 against the deemed refusal by Marrickville Council of a development application to demolish the existing dwelling house, to subdivide into two allotments and to erect a two-storey with attic dwelling (three levels) on each allotment at Lot 1 DP 102245 known as No 117 Unwins Bridge Road, Tempe.

2 I visited the land in company with the parties on the first day of the hearing and at No 3 Hillcrest Street, Ms Sandra Luong gave evidence on behalf of her parents.

3 I have concluded that the application should fail for reason of being out of character with its predominantly single-storey surroundings.

The land
4 The land is situated on the northwestern side of Unwins Bridge Road between Hillcrest and Bridge Streets and opposite the Lymerston Street intersection. It has a frontage to Unwins Bridge Road of 10.06m and a depth of 50.47m and an area of 505.9m2.

5 The land slopes gently down from the southwest to northeast with a cross fall of 300mm.

6 A single-storey dwelling house is erected on the land and a garage and shed are located towards the rear. A driveway is located along the northeastern boundary.

7 There are no significant trees on the land. A 1.8m high masonry and lattice fence is located on the front boundary.

8 A mixture of masonry, ‘Colourbond’ and paling fences are erected on the other boundaries.

The Locality
9 Unwins Bridge Road, at Tempe, is a secondary road which runs from Sydney Park, Alexandria to the Cooks River, Tempe.

10 The main suburban railway line is about 140m north of the land and Sydenham Station is about 560m walking distance away.

11 Tempe Primary and High Schools are about 180m to the southwest on Unwins Bridge Road and Tilman Park is 200m to the northeast on the same street.

12 Immediately opposite the land on the southeastern corner of Lymerston Street and Unwins Bridge Road is a commercial building with a part two-storey residence at the rear.

13 Otherwise the land is surrounded by predominantly single-storey detached dwelling houses, with some two-storey buildings interspersed.

Relevant planning controls
Marrickville Local Environmental Plan 2001, (MLEP)

14 The land is zoned Residential 2(A) under the provisions of MLEP, gazetted on 18 May 2001, and the proposal is permissible with development consent. The relevant clauses of the MLEP are: cl 10 (zoning) and cl 26 (subdivision).

15 The relevant objective of the 2(A) zone is; “(a) to identify areas suitable for predominantly single dwelling residential development”.

16 The Urban Strategy Stage 1 on which the MLEP was based states, [Note: Exhibit 10 Stage 1 p 3]:
The Council is cognisant of the growth implications in the Sydney Region, and is committed to ensuring that Marrickville continues to play an important role in the Region.

17 The Strategy suggests; “…in areas well serviced by bus and rail there are opportunities for increased densities around stations” , [Note: Exhibit 10 Stage 1 p 3]. The land is about 560m from Sydenham station and slightly further than the 400m or 5min walking distance, [Note: Strategy Stage 2 Fig 5 400m circles around stations shown].

18 Under the land use table dual occupancies and dwelling houses require consent and subdivision, which is defined, is an innominate use and is also permissible with consent under cl 26 of the MLEP.

19 The land is not within a heritage conservation area or within the vicinity of a listed heritage item under the MLEP.

20 No floor space ratios or height limits apply to dwelling houses in the Residential A zones under the MLEP.

Marrickville Development Control Plan No 35, Vol 1 - Urban Housing, (DCP35)

21 DCP35 was adopted by the council on 5 December 2000 and came into force upon gazettal of MLEP. The relevant sections of DCP35 include:
· B2 Building Setbacks;
· B3 Streetscape;
· 3A Subdivision; and
· 3B Garages, Carports and Driveways.

22 DCP35 includes Objective O1 and O3 and Control C1:
O1 To retain the prevailing subdivision and building character of the street.
O3 To ensure subdivision or amalgamation of sites reflects and reinforces the predominant subdivision pattern of the street.
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.
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.
23 Other Development Control Plans and Policies include:
· DCP No 19 - Parking Strategy;
· DCP No 27 - Controls for Site Waste Minimisation;
· DCP No 32 - Energy Smart Water Wise;
· DCP No 38 - Community Safety; and
· Marrickville Contributions Plan 1996.

24 Under DCP19 car parking at the rate of one (1) space per dwelling house is required.

The proposal and its history
25 Development Application No 200300784 was lodged with Council on 3 December 2003, to demolish the existing dwelling house, subdivide the land into two allotments, and erect a two-storey with attic dwelling house on each allotment.

26 The proposed new allotments are roughly rectangular in shape with a width of 5.03m and length of 50.47m and a site area of 252.95m2 for each lot.

27 The dwellings would have nil side boundary setbacks at the front with lightwells at the rear. The front setback of both dwellings would be about 3.9m to the main building line or 2.4m to the balcony edge. The dwellings would have a maximum height of about 9.5m.

28 Each dwelling would comprise a living, dining and kitchen area on the ground floor as well as a laundry and amenities. Four (4) bedrooms and three (3) bathrooms are proposed on the first and second floors.

29 The floor area of each of the dwellings would be 173.27m2 resulting in a floor space ratio (FSR) of 0.685:1, [Note: Exhibit A Drawing No 03170 DA 01A].

Notification
30 The application was notified in accordance with the Council's policy and the Council received eight submissions and one petition with 18 signatories.

31 Concerns raised relate to:
· subdivision,
· setbacks,
· height,
· loss of views,
· overshadowing,
· privacy,
· streetscape,
· visual impacts and
· impact to an adjoining wall.

The council’s decision
32 On 8 March 2004, Council refused the application for the following reasons:
1. The proposed allotment widths result in a subdivision pattern and building form inconsistent with the streetscape, contrary to Council's subdivision objectives and controls under Marrickville Development Control Plan No. 35 - Urban Housing (Volume 1).
2. The proposed development, by virtue of its height, massing, nil side setbacks and garages in the front facade is inconsistent with, and would result in a negative impact on, the streetscape.

The hearing
33 The appeal was filed on 21 January 2004.

34 At the hearing the Court heard evidence on behalf of the respondent council from:
· Ms N Harras, town planner with Marrickville Council;

35 On behalf of the applicant evidence was given by:
· Mr W J Long, consultant town planner;

The issues
36 On 3 March 2004 the council filed the issues:
Issue 1 (subdivision)
Whether the proposed subdivision of the land is acceptable having regard to the prevailing subdivision pattern of the streetscape in terms of block width and allows for continuation of the dominant building character of the street as required by objectives O1 and O3 and control C1 of Part 3 Section 3A of Development Control Plan No. 35 Volume 1 - Urban Housing ("the DCP").
Issue 2 (streetscape)
Whether the height, scale and style of the proposed dwellings is complementary to development in the street as required by objective O1 and controls C3, C20 and C21 of Part 2 Section B3 of the DCP.
Issue 3 (setbacks)
Whether the proposed nil side boundary setbacks are acceptable having regard to objectives O1 and O4 and controls C2 and C4 of Part 2 Section B2 of the DCP.
Issue 4 (garages)
Whether the proposed garages at the front of the dwellings:
(a) respect the character of the street;
(b) are the dominant features on the site; and
(c) will permit safe vehicular movements.
Issue 5 (neighbour objections)
Whether consent should be granted having regard to the issues raised by the objectors.

37 The salient issues were the character of the subdivision and the proposed dwellings in the streetscape.

The evidence and findings
Issue 1 (subdivision)

38 The town planning experts agreed that the existing subdivision pattern in the street is characterised by a regular grid of mainly long and narrow rectangular allotments, and that the frontage width of those allotments between Hillcrest Street and Bridge Street varies from 5.9m to 18.29m, [Note: Exhibit 11 p 1].

39 Ms Harras contended that the dominant block width on the western side of the street is 9.1m, and that on the opposite side of the street between Lymerston and Samuel Streets the block width is consistent at around 6.93m. However, it was agreed between the experts that there is diversity in building character between Hillcrest and Bridge Streets because of the varied block width but the character is predominantly that of single-storey dwelling houses.

40 Except for Nos 113, and 111 Unwins Bridge Road, which have frontages of 6.1m and 6.25m respectively, the other properties nearby and on the same side of the street, have widths in excess of 9m.

41 Ms Harras was of the opinion that the proposed 5m-width of the two proposed lots would be inconsistent with the 9.1m-wide properties prevailing on the northern side of Unwins Bridge Road or the 6.9m wide properties on the southern side of the road. As a result the proposal would not comply with the requirements of DCP35 for subdivision in terms of retaining the predominant subdivision pattern, block width or site dimensions.

42 She was also of the opinion that the proposed allotments would not permit the retention of “…the prevailing subdivision and building character of the street” depicted in a foldout photomontage attached to her report, [Note: Exhibit 4 p9].

43 She considered Nos 103, 105, 314 and 328 Unwins Bridge Road, to be anomalies within the streetscape and the prevailing building character to be typified by the single-storey detached dwelling houses. As a result she maintained that there is: “…a good degree of visual cohesiveness to the dominant building pattern due to the consistency in the built form.”

44 She referred to a decision of Hoffman C relating to the same land and a similar application for subdivision and the erection of two x two-storey dwellings. In that judgment Commissioner Hoffman who dismissed that application stated:
Part of that local character is obviously created by the rhythm and pattern of allotment widths. Ms Lillie's survey of allotments in parts of the streets near the site showed that there were no lots as narrow as 5m and the averages were considerably wider.


45 Mr Long took a contrary view and considered the proposed subdivision would fit in with the streetscape.

46 I am satisfied that the proposed subdivision would retain “…the prevailing subdivision and building character of the street” since the width of allotments is disguised by the buildings some with nil setbacks and others with wide setbacks and not be so inconsistent that the subdivision application should be refused for this reason.

47 I am satisfied that if the land were subdivided as proposed and developed with a single-storey or possibly single-storey with rooms in the roof development, either as a pair of semi-detached dwellings or one large dwelling the desired character of both the subdivision and the street would be retained. I would then be satisfied that the subdivision of the land into two allotments would not be out of character with the subdivision pattern in the street.

Issue 2 (streetscape)

48 Ms Harras was of the opinion that the proposed dwellings would be an anomaly in the area and the streetscape and not compatible with the predominant single-storey height, scale and character found in the street. However, the town planners agreed that the design and style of the proposal would echo the characteristic built elements of other two-storey terraced style dwellings nearby.

49 I am satisfied that the proposed two-storey terraced style dwellings although echoing some of the built elements of the nearby two-storey terraced buildings would be out of character in this part of the street by reason of their bulk and scale.

50 The evidence of Ms Harras that the proposal would be out of scale with the area persuades me and the application should be refused as a result.

Issue 3 (side setbacks)

51 Ms Harras stated that she was concerned that the proposal would not maintain the “setback character” in the street having regard to the fact that adjoining dwellings are sited on the boundary on one side and setback on the other side.

52 Mr Long took a contrary view and stated that the streetscape on the northwestern side of Unwins Bridge Road is not unified and setbacks vary.

53 I would not refuse the application for reason of its side setbacks, however the application fails for reason of a combination of setbacks and height.

Issue 4 (garages)
54 This was no longer in issue in that no garages are proposed.

Issue 5 (neighbour objections)

55 The town planners agreed that the proposal would not result in overlooking or overshadowing of habitable rooms or principle open space areas of adjoining properties. Also, it was agreed that the proposal would not be likely to result in a significant impact on existing views although there may a minor impact on the existing view from No 3 Hillcrest Avenue.

56 On the site inspection Ms Luong who gave evidence on behalf of her parents was concerned that the City views enjoyed from No 3 Hillcrest Street would be diminished. On the site inspection a stave was erected to show the position and height of both the ridge of the proposal and the rear wall and it was clear that when standing (or sitting) on the northern first floor balcony of that property that no City views would be obscured.

57 I am satisfied that this issue would not lead to a refusal of the application.

58 However, the application fails for reason of its bulk and scale in a predominantly single-storey area.

Orders

59 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed.

2. Development application No 200300784 lodged with the Council on 3 December 2003, to demolish the existing dwelling house, subdivide the land into two allotments, and erect a two-storey, with attic dwelling house on each allotment at Lot 1 DP 102245 known as No 117 Unwins Bridge Road, Tempe, is refused consent.

3. The exhibits with the exception of Exhibits A, B and 2 are returned.

S J Watts
Commissioner of the Court
sw