Beryan Interiors v Leichhardt Municipal Council

[2004] NSWLEC 449

Land and Environment Court

of New South Wales

CITATION:	Beryan Interiors v Leichhardt Municipal Council [2004] NSWLEC 449
PARTIES:	Applicant: Beryan Interiors Pty Ltd Respondent: Leichhardt Municipal Council
FILE NUMBER(S):	10308 of 2004
CORAM:	Roseth SC
KEY ISSUES:	Development Application :- vehicular access Floor Space Ratio
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	15/07/2004 and 13/08/2004
DATE OF JUDGMENT:	08/17/2004
LEGAL REPRESENTATIVES:	Mr B Hones, solicitor Mr G Green, solicitor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

17 August 2004

10308 of 2004 Beryan Interiors Pty Ltd v Leichhardt Municipal Council

JUDGMENT

1 SENIOR COMMISSIONER: This is an appeal against the refusal by Leichhardt Council of a development application to subdivide lot 23 of section 3 DP 2626, known as 17 Hathern Street, Leichhardt, into two allotments, to retain the existing dwelling and to erect a new dwelling on the second allotment.

The site

2 The site has an 11m frontage, a depth of 46m and an area of 488m2. Hathern Street was once a quiet cul-de-sac but now it leads into an overpass over Parramatta Road and is a busy road. As part of the reconstruction of the street, the road reservation in front of Nos 15, 17 and 19 has become a “shared zone” ie an access way used by cars and pedestrians. To enter the shared zone from the south, a car must make a right-hand turn across double yellow lines. To enter the shared zone from the north (ie from the overpass), a car must bake a 180o turn. Both manoeuvres are awkward.

3 There is a two-storey house on the east half of the site. The west half contains a half-built shed. The house to the east at No 15 is a two-storey terrace-type house. The house to the west at No 19 is a two-storey townhouse (ie a recently built terrace). In the wider locality most of the buildings are one or two-storey houses on small sites.

The proposal

4 The applicant proposes to subdivide the allotment into two lots, retain the existing house on the east lot, and demolish the half-built structure and erect a new dwelling house on the west lot. The existing house is to be without on-site parking. The new house is to have a single garage. The Floor Space Ratio (FSR) of both dwelling houses is 0.65:1.

Planning controls

5 The Leichhardt Local Environmental Plan 2000 zones the site residential and establishes a maximum permissible FSR of 0.5:1.

The issues

6 The council filed a Statement of Issues containing eight issues. However, at the hearing there were only two issues, namely the higher than permissible FSR and the difficulty of accessing the site.

The expert evidence

7 When the applicant lodged the appeal, the council sought expert advice from Ms D Laidlow, a planning consultant and Mr R Varga, a traffic consultant. Ms Laidlow reported that the subdivision of the site and a second dwelling were appropriate, provided three changes were made to the proposed dwelling:

· removal of the attic room, thus lowering the FSR,

· lowering of the pitch of the roof,

· raising the level of the balcony.

8 Mr Varga found that access was unacceptable and the provision of only one off-street parking space for two dwellings was undesirable.

9 Despite the fact that the council had already sought expert advice on its own behalf, the parties agreed to Court-appointed planning and traffic consultants. Mr A Smith, the Court-appointed planning consultant concluded that the SEPP 1 Objection to the strict application of the FSR development standard was well founded. Mr Hallam concluded that, while the access to the site was unsatisfactory, the existing situation is worse, so the access does not justify refusal. Mr Hallam accepted one off-street parking space for two dwellings on the grounds that the DCP does not require a parking space for dwellings.

10 The council asked Mr Varga to comment on Mr Hallam’s report. After Mr Varga and Mr Hallam consulted, they agreed that the ability to drive into the shared zone in a forward as well as a backward direction would increase flexibility and was therefore desirable. Flexibility may be achieved either by giving the new dwelling a triangular right-of-way over the front yard of the existing dwelling, or by switching the garage from the east to the west side of the new dwelling. Mr Varga said that the additional demand for kerbside parking generated by the proposal in Hathern Street was a negative feature, but not sufficient to justify refusal.

11 The Court heard the evidence of three objectors. Their main concern was that additional vehicles would be using the shared zone, which they all said was an unsafe form of access. In addition they thought that subdivision of the land and construction of a second dwelling was unsympathetic to the character of the area. While they preferred to have no development of the site, if a new dwelling were to be constructed, they would prefer both dwellings to be without parking.

12 The council’s position was that the application should be refused. However, this position was not based on the evidence of either the Court-appointed experts or its own experts, Mr Varga and Ms Laidlaw. There is only one point of difference between Mr Varga and Mr Hallam, namely whether the garage should be moved to the west side of the site in order to provide easier vehicular access to it. There is only one point of difference between Ms Laidlaw and Mr Smith, namely whether the roof pitch should be lowered and the attic room removed, so as to lower the FSR.

13 On the first issue, I suggested to the applicant that moving the garage to the west side would be a much better planning solution than using part of the front yard of the existing dwelling for access. The applicant agreed. This issue is therefore resolved to the satisfaction of both parties (though not to the satisfaction of the objectors).

14 On the second issue, I accept Mr Smith’s evidence that it is reasonable to vary the FSR of 0.5:1 to 0.65:1. The existing pitch of the roof results in an integration of the roofs of the existing and the new dwelling. Ms Laidlaw’s preference for a lower pitch is based on the fact that this would provide a step between the adjoining building at No 19 and the existing dwelling. In my opinion, few people would notice the stepping of roofs. Once one accepts the roof as proposed, the presence of an attic in it does not increase the building’s bulk. On the other hand, an attic adds considerably to the new dwelling’s amenity.

15 I accept that there is an argument that a three-bedroom house would generate a higher car ownership than a two-bedroom house (which the new dwelling would be without the attic). Since the site does not provide for the parking of all the cars its occupants are likely to have, the additional bedroom would increase the demand for on-street parking. However, the difference, to the extent that it might be measurable at all, would be negligible.

16 There is also an argument that the FSR of 0.5:1 should be observed because there is public benefit in standards being observed. In my opinion, this is the strongest argument for requiring the removal of the attic and the lowering of the FSR. However, in this case the additional FSR is not substantial, there is no increase in bulk and the dwelling’s amenity is enhanced. The arguments in favour of varying the standard outweigh those against.

17 I turn to the residents’ objections. I accept that the shared zone access is unsatisfactory. If the application is refused, a new owner of the existing dwelling will be able to park two or three cars on the site. If the application is approved, only one car will be able to be parked, so an approval would reduce the use of the shared zone, even taking into account additional traffic, such as deliveries generated by the new dwelling. It appears that the objectors considered that, because the previous owner of the existing dwelling did not own a car, the existing dwelling does not generate traffic. While this was true in the past, it is unlikely to be the case in the future.

18 I have considered the objectors’ desire that, if a new house were built on the site, it should provide no parking. I can see no justification for this in view of the fact that the total parking of the existing and new dwelling will still be less than that provided by the existing dwelling now.

19 In the circumstances I accept the Court-appointed experts’ evidence. I conclude that the proposal should be approved subject to Mr Varga’s suggestion that the garage of the new dwelling is moved to the west side of the new dwelling. The applicant has agreed to this change and prepared amended drawings, which were re-notified. The matter came before the Court again on 13 August 2004.

20 At the hearing on 13 August 2004 one of the objectors submitted, through the council, an email message from Mr F LaRue of the Roads and Traffic Authority of NSW to the effect that ingress and egress to the shared way was unsatisfactory. Both Mr Hallam and Mr Varga contradicted that opinion. Given that Mr La Rue has not visited the site, I accept the evidence of Mr Hallam and Mr Varga.

21 The council also presented a letter from Mr L Frayne of RailCorp, dated 27 July 2004, to the effect that a condition of consent should require an acoustic assessment because the site is affected by noise from a nearby freight line. The Interim Guidelines of the State Rail Authority for rail noise and vibration in the planing process identify 60m as the critical distance below which an acoustic assessment is required. The applicant submitted that the distance of this property from the freight line is 60m. Since the distance was not disputed, I find that an acoustic assessment is not necessary. The applicant accepts a condition requiring double-glazing, which has been imposed as Condition 8.

Orders

1. The appeal is upheld.

2. Development application to subdivide lot 23 of section 3 DP 2626, known as 17 Hathern Street, Leichhardt, into two allotments, to retain the existing dwelling and to erect a new dwelling on the second allotment is determined by approval subject to the conditions in Annexure A.

3. The exhibits are returned except Exhibits 8, B, C and E.

_____________
Dr John Roseth
Senior Commissioner