Archiworks Architects Pty Ltd v Marrickville Council

[2005] NSWLEC 164

Land and Environment Court

of New South Wales

CITATION:

Archiworks Architects Pty Ltd v Marrickville Council [2005] NSWLEC 164

PARTIES:

APPLICANT
Archiworks Architects Pty Ltd

RESPONDENT
Marrickville Council

FILE NUMBER(S):

10037 of 2005

CORAM:

Murrell C

KEY ISSUES:

Development Application :- Two storey extension to a semi-detached dwelling

LEGISLATION CITED:

Environmental Planning and Assessment Act
Marrickville Local Environmental Plan

DATES OF HEARING:

07/04/2005

EX TEMPORE JUDGMENT DATE:

04/07/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr M Van Hoang, Agent

RESPONDENT
Mr G Christmas, solicitor Marrickville Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

7 April 2005

10037 of 2005 Archiworks Architects Pty Ltd v Marrickville Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act against Marrickville Council’s refusal of a development application for an extension to a dwelling at No. 25 Garnet Street, Dulwich Hill.

2 The development application for a two storey rear extension was submitted to the council in June 2004 and council assessed the application and it was also considered by council’s panel whereby it was recommended the application be refused in terms of the impacts of overshadowing on the adjoining property at No. 27 Garnet Street and in terms of the bulk and scale of the extension.

3 There is a letter of objection from the owner of that property at No. 27 to the proposed extension with concerns relating to the reasons why the panel also did not consider the application appropriate for the site. The subject site is zoned Residential A wherein single residential development is permissible with consent. However, where a site is 1,500 sq m or more multi-unit development can be provided. The subject site is the northern side of two semi-detached dwelling houses of single storey, the site is approximately 6 m wide by some 60 m in depth, it has the advantage of a rear lane providing vehicular access to the property.

4 The development surrounding the subject site is eclectic, there are residential flat buildings and indeed to the north of the subject site there is the driveway of a multi-unit development some 3½ to 4 m setback from the common boundary with the subject site.

5 There are also a number of dual occupancy developments that have taken advantage of the length of the subdivision pattern in terms of the depth of the blocks. There are also other dwelling houses which are of a turn of the century period and early 20th century dwellings as well. As I said the area has a mixture of architect are but nonetheless it has a most pleasant feel and the leafy nature of the area has been maintained.

6 The proposal is for a two-storey extension to the single-storey semi-detached building to be erected on the boundary of the subject site with No. 27 the other half of the semi-detached pair. The proposal is one that in my assessment, with the benefit of: the documentation; the plans; the overshadowing diagrams; and Mr Smith’s report, I agree that it would be excessive in terms of its impacts on the adjoining semi at No. 27 that together with the subject dwelling form the pair.

7 The proposal would provide for approximately a 5 to 6 m high brick wall on the boundary with the adjoining semi. The impacts are not only in terms of overshadowing but in terms of the bulk and scale of the proposal directly on the boundary extending some 20 m in length. In the Court’s assessment the development would be one that would be overwhelming and over-imposing and create unreasonable amenity for the adjoining property at No. 27.

8 With respect to overshadowing Mr Wang has indicated to the Court that even a single-storey development would create overshadowing and yes I agree given the orientation/subdivision pattern that this property is to the north of No. 27, there would be some overshadowing caused by even a single-storey development but nonetheless a far more sensitive development must be provided in order to maintain reasonable amenity for the dwelling at No. 27 Garnet Street.

9 The site has advantages as well the constraint of the narrowness of the site, but it also has the opportunities because of its length of some 60 m. The proposal is also for a rear garage and the rear garage is not of concern on the boundary. The laneway was inspected and it would not be out of keeping to have a double width garage on the rear laneway.

10 There are other opportunities and other options that clearly need to be pursued to provide the accommodation that Mr Wang’s clients require. There are opportunities to provide additional accommodation but this needs to be thought through in terms of impacts. It is not for the Court to design the proposal but it may provide for a single dwelling extension where it is adjoining the property at the rear of No. 27 and a pavilion development. There are opportunities for this site to provide appropriate development which would not have the impacts as proposed by the development application I have before me as shown in the plan WD01.

11 The importance of maintaining amenity where there are semi-detached houses is most important. It is noted that council’s DCP talks about a predominant building line in terms of semi-detached dwellings. I also take Mr Wang’s point that in fact this building line is very varied when one looks at the residential flat buildings and dual occupancies developed in the vicinity but nonetheless the impacts on the adjoining semi must be considered. Part of the important character is in terms of this dwelling being one of a pair of semi-detached dwelling and there must be careful consideration to the impacts that any extension would have on No. 27.

12 Therefore the formal orders of the Court of the Court are:

1. The appeal in respect of the property known as No. 25 Garnet Street, Dulwich Hill, is dismissed.

2. The development application as submitted to Marrickville Council shown on Plan WD01 prepared by Archiworks Architects Pty Ltd is determined by the refusal of consent.
3. The exhibits are returned.
__________________

J S Murrell
Commissioner of the Court
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