Atra J v Canterbury City Council
[2004] NSWLEC 144
•2 March 2004
NEW SOUTH WALES LAND AND ENVIRONMENT COURT
CITATION: Atra J v Canterbury City Council [2004] NSWLEC 144
PARTIES:
APPLICANT
John Atra
RESPONDENT
Canterbury City Council
CASE NUMBER: 11399 of 2003
CATCH WORDS: Development Application
LEGISLATION CITED:
Canterbury Planning Scheme Ordinance
Draft Local Environmental Plan No 204
CORAM: Tuor C.
DATES OF HEARING: 18/02/2004
DECISION DATE: 02/03/2004
LEGAL REPRESENTATIVES
APPLICANT
Mr M Connell
SOLICITORS
Michell Sillar
RESPONDENT
Mr A Seton
SOLICITORS
Marsdens Law Group
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
11399 of 2003
Tuor C
2 March 2004
John Atra
Applicant
v
Canterbury City Council
Respondent
Judgment
This is an appeal against the refusal by Canterbury City Council (the council) of two development applications for two storey dwellings at 32 and 32A River Street, Earlwood.
The background to the proposal and a description of the site and its context is provided in Mr Layman’s, the town planner for the applicant, statement of evidence and the report to council dated 23 October 2003.
The sites are both 196.9 m2 with a frontage to River Street of 6.09 m and a depth of 32.31 m. The size of these two allotments is typical of other allotments within the subdivision.
A single storey house is constructed over both allotments. It is proposed to demolish this house and in its place construct a two storey house on each allotment. The houses are attached with no setback at their common boundary.
The sites are zoned Residential 2(b) under Canterbury Planning Scheme Ordinance. Canterbury Development Control Plan 37 (DCP 37) and a Dwelling Code (Code) also apply to the site. The Code specifies a maximum floor space of 0.7:1 for sites less than 250 m2 and a maximum height of 7.2 m to the underside of the ceiling.
The proposal complies with these and other controls in the Code with the exception of: the setback from the common boundary; the setback from the front boundary, where 5.4 m is proposed and 7.5 m is required; and providing a parking space forward of the building line. The Code does not include a minimum allotment size, street frontage or landscape area requirements normally found in planning instruments and policies.
A draft Local Environmental Plan No. 204 (draft LEP) has been exhibited. This would have the effect of prohibiting the development as it is on a site less than 460 m2.
The main issues in this case are:
whether the dwelling should be developed on a site which currently contains one dwelling and the weight that should be given to the draft LEP: and
whether the bulk of the development is appropriate and has an acceptable impact on the amenity of adjoining properties.
Council did not provide expert evidence to support its case. Mr Layman gave expert evidence on behalf of the applicant.
The Court also heard from the following resident objectors:
Mr Terrill, 23 Bedford Street, Earlwood;
Ms S Tang, 34 River Street, Earlwood;
Mr I Latham, 3 Cameron Avenue, Earlwood;
Ms P Verdon, 11 Stone Street, Earlwood;
Ms C Fraser, 13 Stone Street, Earlwood.
Mr Latham is a councillor at Canterbury Council and Ms Verdon and Ms Fraser are spokespersons for the Residents Against Inappropriate Development in Earlwood. These people spoke of their broader concerns with the type of development proposed and the background to the draft LEP which is aimed at preventing this type of development. The concerns centred on the small size of the allotments and other allotments in the subdivision.
The pattern of development in the area consists of single storey houses on one allotment or two or more allotments. More recent development has seen additions to these houses to add an extra storey or the demolition of original housing stock and its replacement generally with two storey houses. A recent occurrence has been applications to demolish a single storey house built over two or more allotments and replace it with a two storey house on each allotment, which is what is proposed in the subject application.
In the residents opinion this results in a loss of on street parking where a house currently has no street access or where one driveway is replaced by two. The narrow nature of the streets, the width of the allotments and the lack of offstreet parking mean that there is already a demand for onstreet parking that is not being met and resultant traffic impacts which would be exacerbated by the proposal and other similar applications before council.
The draft LEP seeks to address this by restricting the minimum size of an allotment and preventing a situation where two or more allotments developed with a single house can be developed with a dwelling on each allotment. While I understand the concerns that the draft LEP seeks to address and it is a matter that I am required to consider under s 79C the question as to the weight that I should give the draft LEP relies upon whether it is imminent or certain.
At the time of the hearing, the council had resolved to forward the LEP to the Minister but the resolution was subject to a rescission motion. Regardless of the outcome of this rescission motion the LEP has not yet been considered by the Department. I therefore find that the LEP is not imminent and certain and I give it little weight.
The objectors also had concerns about the form of housing that was proposed on each allotment, particularly the lack of setback between the houses resulting in a scale of development that was too large for the allotments. They also considered the development would result in unacceptable privacy and noise impacts and that due to the east west orientation of the blocks, unacceptable overshadowing and solar access impacts to both the existing dwelling and the proposed dwellings to the south.
Mr Terrill and Ms Tang agreed with these broader issues and raised specific concerns about the impact of the proposal on the amenity of their properties. Mr Terrill lives immediately to the rear of the proposal, his main concern was the loss of privacy to his back garden and upstairs bedroom, noise impacts due to the proximity of the proposed dwelling and the loss of views from the increase in height.
Ms Tang’s property adjoins the proposed development to the south. Her main concerns were the loss of sunlight to the side of her house and its garden, overlooking of her back garden, lack of street space for parking and collection of rubbish.
In relation to privacy, any overlooking of these dwellings would be from the upstairs bedrooms of the dwelling at 32A. As this window faces the west it would provide only limited opportunity to overlook No. 34. It is a bedroom and its distance from 23 Bedford Street, of some 13 m building to building, would not result in any privacy impact. The terrace and living areas of the proposal are at a lower level to No. 23 Bedford Street and the terrace is roofed. This, together with the proposed condition relating to the fence height and landscaping, will ensure there is no unacceptable privacy impact.
The noise generated by the development would not be any different to that reasonably expected from a residential dwelling.
In relation to overshadowing, the shadow diagrams and the evidence of Mr Layman is that the proposal will comply with the requirements of DCP 37 in that at least 50% of the open space of the adjoining property receives two hours of sunlight between 9 am and 3 pm in mid winter. Mr Layman’s estimate is that all the courtyard to No. 34 would receive sunlight to 11 am and 50% up until 11.30 am which satisfies these minimum requirements.
The northern facade of Ms Tang’s property is built about 300 mm off the boundary and currently has no windows. Ms Tang indicated that she may seek approval to place windows on this facade to improve ventilation and solar access. Such windows would need to be highlight windows and drenched. Mr Layman stated that even if these windows were allowed they would open onto the hallway of the house and provide little amenity benefit. The impact of the development on solar access to this wall is therefore not significant.
Mr Terrill also raised concerns regarding view loss. The development will marginally reduce his views but this reduction is one anticipated within the planning controls. A development of even a single two storey house over both allotments would have a similar view impact and the height of the proposal is below the maximum permissible under the controls.
In relation to parking, the proposal provides a garage and parking space for each dwelling, a total of four spaces. Mr Layman’s evidence was that by providing two driveways the proposal would remove two on-street parking spaces and generate a demand for two additional spaces. By providing four off street spaces the impact of the proposal was therefore neutral and would not exacerbate any shortage of parking in the area.
The other issue in relation to parking was the provision of parking spaces in front of the building line, which does not comply with the Code. This permits parking in front of the building line on sites with single storey dwelling houses, however, the rationale as to why this may be appropriate for single storey dwellings but not for two storey houses is not clear. Presumably the area of site likely to be occupied by a single storey house may necessitate a relaxation in the parking control. Nonetheless the impact of providing an uncovered parking space in front of the building line is minimal. In the current proposal it only means that a car may park on the driveway that is required to access the garage. The appearance of the double garage is also no different to the appearance of the double garages in the area provided for single dwelling houses. The only difference in appearance is that the driveway may be wider than if it were only required to service a double garage for a single house but this is not sufficient reason to warrant refusal of the application.
I have deleted condition 1.1.1 and 1.11 which required redesign of the driveway as this would result in deletion of an on-site carparking space. The landscape plan will also need to be amended to reflect this change.
The proposal does not comply with the minimum front setback requirements. The non-compliance results from the garage and the roof over the terrace at first floor level. The applicant has agreed to remove or reduce the extent of the roof. This will reduce the bulk of the dwelling on the street.
With this change I accept that the setback of the building is consistent with other houses in the street and of itself does not warrant refusal of the application.
The issue of bulk and scale also relates to the non-compliance with the side boundary setbacks. The Code requires a setback of 1 m from the side boundaries. The proposal does not comply with this requirement as the dwellings are attached on their common boundary. The question before the Court is whether the bulk and scale of the proposal is unacceptable due to the lack of this setback. Mr Layman’s evidence was:
The dwelling code requires a setback of one metre. This is intended in my opinion to be to allow sufficient space for light and ventilation between adjoining walls containing windows. A party wall is proposed between the two new dwellings. This “semi detached” form is common in many areas of Sydney both older and more recent. It is a common dual occupancy form which produces appropriate amenity on narrow sites such as the subject site.
The proposal has compliant setbacks to existing adjoining buildings. The side setbacks are totally satisfactory in my view and are an appropriate response to six metre wide sites. Compliance with the standard between the proposed buildings would be a waste of valuable site area in my view, producing dwelling houses four metres wide. This would be contrary to the Code objectives of good design, reasonable enjoyment of land and regard to amenity.
While I accept that the purpose of the setback control is to ensure adequate light and ventilation another purpose that the control achieves is in relation to bulk and scale. The bulk and scale of the proposal would be very different if the setback were provided as it would result in one dwelling on each site with a two metre separation between them. The built form would be two tall thin long structures with the opportunity for landscaping in between and to the sides as opposed to the proposal, which is essentially one mass.
Mr Layman’s evidence is that the nil setback is an appropriate form for dual occupancy, but this is not a dual occupancy development as the houses are on separate allotments. Under the Code, the FSR for a dual occupancy development is limited to 0.5:1 and there are additional requirements under the Dual Occupancy Code. The resultant bulk anticipated by this form of development would therefore be less than the bulk of the proposal, which has an FSR of 0.7:1.
The form of development proposed is not dissimilar to recent single dwelling houses in the area and according to Mr Layman is what would be expected if a two storey house were to be developed over both the sites, which would be the likely result if the draft LEP were to be gazetted. I accept this conclusion, but I note that the FSR for a dwelling house on the combined sites would be 0.6:1 which would also result in less bulk than that of the proposal.
Compliance with the setback and the resultant two separate dwellings may be of a bulk and scale that better relates to the established character of the area, particularly the subdivision pattern of small allotments with separate houses, albeit single storey. However, the appropriateness of two storey houses on a site of such a small frontage has not been tested and the question before the Court is not whether a better result is possible but whether what is proposed is acceptable.
The bulk of the proposal is generally consistent with a single two storey house over both allotments and does not result in adverse amenity impacts on adjoining neighbours. The proposal is consistent with other recent developments in the area that result from implementation of the planning framework.
I therefore agree that the bulk and scale of the proposal is acceptable and the appeal can be upheld. This conclusion is based on the lack of any contrary evidence put forward to me by council and that the proposal is consistent with the controls. However I am mindful that the controls under which the application must be assessed do not provide clear objectives. The area is one that has a particular character from its subdivision pattern and resultant form of development. The draft LEP seeks to address this character but essentially deals with the loss of on-street parking and does not provide guidance for the form of development that results from an application of the Code. The current proposal is consistent with the form of development anticipated by the Code, particularly the FSR provisions being larger for smaller sites and other concessions in the Code for smaller sites, coupled with the lack of objectives or the purpose of the controls as well as the absence of controls relating to matters such as landscaped area.
The drawings before the Court have the following inaccuracies or lack of detail and the parties agreed that they should be amended if the matter were to be approved:
no drawing numbers or titles for 32 River Street;
the south elevation should be north and the north elevation south;
the correct address should be on the plans for 32 River Street;
for both 32 and 32A River Street the east elevation should be laterally inverted;
the south and north elevations corrected in relation to the party wall;
the roof over the garage deleted or reduced to the row of columns closest to the house; and
the landscape plan amended to reflect the driveway arrangement in the architectural plans.
I uphold the appeal and consent for the development application will be granted subject to the conditions in Exhibit 2, amended to incorporate the amended drawing numbers and the deletion of conditions as discussed above. The amended drawings with changes outlined above and the amended conditions, plus a disk, are to be filed with the Court by close of business on Tuesday 9 March 2004, after which time the final orders will be issued.
_______________________
Annelise Tuor
Commissioner of the Court
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