Bobbin v Canterbury City Council
[2006] NSWLEC 333
•19/06/2006
Land and Environment Court
of New South Wales
CITATION: Bobbin v Canterbury City Council [2006] NSWLEC 333 PARTIES: APPLICANT
RESPONDENT
Gordon Bobbin
Canterbury City CouncilFILE NUMBER(S): 11358 of 2005 CORAM: Hoffman C KEY ISSUES: Appeal :- dual occupancy, bulk and scale, floor space ratio, overshadowing, garage width, stormwater disposal, loss of privacy and amenity, character of locality, parking, overshadowing LEGISLATION CITED: Canterbury Planning Scheme Ordinance
Development Control Plan No. 14 - Dual Occupancy Development
Development Control Plan No. 37 - Energy Smart Homes
Development Control Plan No. 20 - ParkingDATES OF HEARING: 20/04/2006 and 24/05/2006
DATE OF JUDGMENT:
06/19/2006LEGAL REPRESENTATIVES: APPLICANT
Mr A Pickles, barrister
SOLICITORS
Macedone Christie WillisRESPONDENT
Mr A Simpson, solicitor
SOLICITORS
Pike Pike & Fenwick
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESHoffman C
19 June 2006
11358 of 2005 Gordon Bobbin v Canterbury City Council
JUDGMENT
1 This is a class one appeal No. 11358 of 2005 between Gordon Bobbin and Canterbury City Council in regard to the refusal of consent for an attached dual occupancy at No. 10 Zuttion Avenue, Beverley Hills.
2 The street is a cul-de-sac and the site is one of a number of wedge or fan shaped lots at the head of the cul-de-sac. The site rises about 2 m along its length above the cul-de-sac. The existing house is to be demolished.
3 The lot has a curved frontage of 7.62 m to the cul-de-sac and a depth of 30.48 m along the south boundary adjoining No. 8 Zuttion Avenue. The latter has a two-storey brick walls and tile roof house on it.
4 The north boundary of the site is 41.1 m long adjoining No. 12, a single-storey house. The rear boundary is 30.48 m long and adjoins three lots being Nos. 20, 22 and 24 Midlothian Avenue uphill of the side.
5 The proposal is for two dwellings separated by a central party wall and being two-storeys. Each contains a single car garage, lounge, meals room, kitchen and laundry/WC on the ground floor with three bedrooms and en-suite and a bathroom on the upper floor. The plans show only one WC in each unit being the one on the ground floor. Neither the bathroom nor the en-suite has a toilet.
6 The northern dwelling of the two is setback about 9.6 m from the front boundary. The south dwelling is about 8.6 m back creating an offset between the two units.
7 Although the plans of each house are a mirror reverse of each other, the offset is used to produce an asymmetric front elevation. The garage of the southern unit has a gable end, the northern one a hipped roof. The upper balcony of the northern unit has a gable end at the second storey level, the southern unit has a hipped roof. The main roof covers both units.
8 The driveway is proposed to be more or less central to the frontage and one car in width. The driveway widens to two car widths at the garages. The applicant says this provides for a second car for each dwelling to park in front of each garage.
9 The ground floor of each unit is only about 350 mm above the garage level, and due to the slope of the allotment this results in the rear of the northern dwelling being excavated about 400 mm and the southern dwelling about 800 mm.
10 The plans show a pathway extending around the side and rear of each dwelling to provide access and a setback from each house to the edge of the excavation. The southern dwelling has a retaining wall along the outer edge of its path, and some steps at the rear to give easy access from the sliding glass doors of the meals room up on to the grassed area of private open space.
11 Each dwelling has a private courtyard at the rear separated by a fence of unknown height and materials. It is noted on the plans simply to be “by owner”.
12 Although the hearing was set down to commence on site and then proceed to a Courtroom hearing, the parties sought to convert it to an on-site hearing. It seemed all the objectors were in attendance on-site and completing the hearing on-site would not cause any procedural error. As a result the application to be heard on-site was granted.
13 Attending the on-site hearing were for the respondent:
- Mr A Simpson, solicitor
- Mr R Nakhle, town planner for the council
- Mr C Stavropoulos of 24 Midlothian Avenue
- Mr G Northey of 22 Midlothian Avenue,
- Mrs K Northey of 22 Midlothian Avenue,
- Mrs G Foti of 20 Midlothian Avenue,
- Mrs G Stavropoulos of 24 Midlothian Avenue
14 Appearing for the applicant were:
- Mr A Pickles, barrister
- Mr B Phillips, solicitor
- Mr G Bobbin, applicant of 21 Maramba Close, Kingsgrove
- Mr E Bobbin of 21 Maramba Close, Kingsgrove
- Mr B Collison of 21 Maramba Close, Kingsgrove
15 The parties had agreed to appoint a joint expert town planner Mr L Winnacott who also gave oral evidence as well as a report in Exhibit 2. The parties came to the hearing with consent orders in Exhibit 1. The objectors were concerned that the issues in the original refusal of the proposal appeared to be overlooked.
16 The issues have been:
- 1. Minimum Site Width
- The site has a narrow frontage and is unsuitable for the proposed occupancy development.
(a) Part 5.1(b) of Development Control Plan No. 14 Dual Occupancy Development ("DCP 14") requires that the minimum site width for dual occupancy development is 15 metres measured along the entire length of the lot.
(b) Part 5.1(d) of DP 14 states that the parts of an irregular or wedged shaped sites with widths less than 15 metres, will be excluded from the site area when calculating floor space ratio.
(d) The site width objective is to allow dual occupancy development that can provide a good living environment for occupants and neighbours. It is considered that the front portion of the subject site is not of a sufficient width to provide reasonable separation between the adjoining buildings and provide an area at the front for landscaping and to minimise impact on the streetscape.(c) Approximately 22% of the site area has a width of less than 15 metres.
- 2. Bulk and Scale
The proposal is not responsive to the wedged shaped allotment with a narrow frontage and the bulk, scale and location of the proposed dual occupancy will have an undesirable impact on the neighbouring residences and the streetscape.
The proposal does not comply with clause 5.4(a) of DCP 14 in that the proposed floor space ratio exceeds 0.5:1. The proposed FSR is .65:1.
The proposal will overshadow the north facing windows of the adjoining property at No. 8 Zuttion Avenue and compliance with Part 7.9 of Development Control Plan No. 37 - Energy Smart Homes Policy ("DCP 37") has not been demonstrated.
The proposal does not comply with Part 5.9(e) of DCP 14 which requires garages and carports must not occupy more than 50% of the width of each dwelling.
(a) The two single garages proposed occupy 53.7% of the total width of the proposed building.Particulars
The hydraulic proposal is not made in accordance with the following requirements of Canterbury City Council's Stormwater Management Manual (SMM) -Specification 9:
(a) The plan is not drawn to scale 1:100:
- (b) The silt arrestor pit does not comply with the SMM and AS/NZS 3500.3.2:1998;
(c) The proposed connection of the overflow from the rainwater tank into the stormwater system is not clearly demonstrated (relevant levels), furthermore the 100mm UPVC charged line from the roof of the garages is not favoured;
(e) The discharge points into Zuttion Avenue shall be at 45° angle to the flow in the gutter.(d) Proposed finished and invert levels of the grated drain is not shown; and
Particulars7. Objections received from Adjoining Properties
(a) The proposed two storey building will be out of character.
(b) Non-compliance with minimum width control.
(c) compliance with maximum floor space ratio.
(d) Incompatible with existing streetscape.
(e) Will be first and only dual occupancy in street.
(f) Car space is not behind front setback.
(g) Non-compliance with control concerning garages not occupying more than 50% of width of site.
(h) Loss of privacy.
(i) Overshadowing.(i) Overlooking from first floor balconies.
8 Circumstances of the case and the public interest.
17 In looking at the plans I noted that the drainage plans in Exhibit B did not work with the building plans in Exhibit A nor the landscaping plans in Exhibit C. Exhibit B showed both the retaining wall mentioned above and an excavated batter uphill of the position of the retaining wall and drainage sumps as if the paths outside the building were extended out to the batter line to create terraces as a level just below the ground floor of the units.
18 The applicant said the batter and extra drainage sumps were an error and the retaining wall design in Exhibits A and C were correct. Exhibit B needed to be changed.
19 Mr Stavropoulos said that some of the issues had been resolved when Mr Winnacott’s evidence was considered. But there remained three issues in Mr Stavropoulos’s opinion:
- The lot is less than the 15 m minimum width required by the council
- The floor space ratio (FSR) is 0.65:1 when the requirement is 0.5:1
- The two garages comprise more than 50% of the width of the building
20 Mr Stavropoulos said the rest of the community is required to comply with council rules and regulations, how can the applicant be allowed to not comply.
21 Mr Pickles said the FSR exceedance came about because Development Control Plan No. 14 (DCP 14) did not allow in the FSR calculation, the inclusion of the area of that part of the site that had a width less than 15 m.
22 Because of the wedge or fan shape of the allotment this site had 15 m width at the front setback line, but it meant the area of the front setback yard area is excluded from the FSR calculation. Being at the front of the lot, that area played an important role in the streetscape visual impact of the proposal Mr Winnacott said.
23 The proposal is to be setback the same distance to its garages as Nos. 8 and 12 Zuttion Avenue. The two-storey sections of the dwellings are about 2.7 m further setback than the garages, so the main bulk of the dwellings steps back behind the alignment of Nos. 8 and 12.
24 The parts of the garages that are in front of the dwellings are single storey, so Mr Winnacott said the main visual bulk is seen at 11 m and 12 m front setback for the south and north units respectively. Both adjacent houses are about 8.6 m front setback.
25 If the development on the site was a house, the front setback area that is less than 15 m width would be included in the FSR calculation. The allowable FSR for a house is 0.57:1 Mr Winnacott said. If the front setback is included in the dual occupancy calculation the proposal is 0.5:1. So, in theory, a single house that would be bigger than the proposal and closer to the street, could be located on site.
26 Mr Winnacott added that the site exceeded the 600 sq m minimum site area for dual occupancy so in that respect the proposal complied. Also it complied and in most cases provided greater side and rear setback than the controls required. The private open space courtyards also exceeded the minimum area requirement. The southern unit exceeded the courtyard area by about 5 sq m, the northern unit, due to the fan shape of the lot had a courtyard nearly double the minimum area requirement.
27 On the garage width as a proportion of the front elevation, Mr Winnacott agreed that the two garages occupied about 53.7% of the total width. He said such a small variation from the 50% control would hardly be detectable and should be considered against the DCP 14 controls that in fact were stated as “suggestions” to achieve the “objectives” of garages that are integrated into the design of dwellings and do not dominate the streetscape.
28 He noted DCP 14 allowed consideration of exceptions where the variation was minor, where the streetscape would be not adversely affected, and where the garages did not dominate the front façade of the building.
29 In checking the subject design Mr Winnacott said he found that:
- 1. The garages are integrated into the dwellings.
2. Although they occupied 53% of the width of the front façade, they are single storey on a two storey building so they comprise only about 25% of the front façade area. He did not think they dominated the front façade.
3. The minimum street front setback under DCP 14 is 7.5 m and the garages are at 8.6 m and 9.6 m setback.
4. They do not project forward of the front setback of adjacent houses.
6. The landscape plan in Exhibit C shows a range of trees and shrubs planted in the front setback that would give acceptable softening of the built form and allow it to fit in with the streetscape especially noting No. 8 on the south side of the proposal has recently been enlarged with a second storey addition.5. There is a single driveway so the area of landscape in the front setback can be maximised.
30 In their objections Messrs Stavropoulos, Rose and Northey were concerned that the two storey nature of the proposal and its size would not be in character with the single storey nature of the area. This had two impacts even ignoring the dual occupancy in that the streetscape would be dominated by the two storey building at maximum bulk and it created opportunities for amenity impacts that do not exist in single storey areas.
31 They said the open feeling of suburban backyards due to single storey houses would be changed to a feeling of being hemmed in and windows at the first floor level create overlooking into neighbours yards.
32 In Mrs Stavropoulos’s cases he said the proximity of the proposal to the back fence added to these amenity impacts.
33 Mr Winnacott said that given his evidence on the size of the proposal being less than a potential new house on the site, and seeing the recent second storey addition to No. 8 Zuttion Avenue, it could be said the council permits two storey development. As the existing single storey houses in the area are renovated or rebuilt it could be expected the streetscape will change. Otherwise the council controls should limit development to single storey.
34 Also Mr Winnacott said the rear setbacks of the proposal exceed council minimums and because of the slope uphill from Zuttion to Midlothian Avenue the backyards of all three objectors houses were above the proposal. There would be only a single bedroom window in each unit of the dual occupancy that could look towards their backyards. Bedrooms are normally considered in town planning terms to be unlikely sources of overlooking due to their main use being at night. They could not be considered as unacceptable in Mr Winnacott’s opinion.
35 The landscape plan also provided boundary vegetation to soften and screen the visual bulk of the proposal from the uphill neighbours. Since the proposed building was lower down the hill it would be much less visible than otherwise it might be.
36 When looking at the landscape plan it was noted that directly adjacent Mrs Foti’s brick garage and Angophora tree was proposed. A large tree like that could damage a brick structure. The applicant agreed to put a more suitable tree in its place.
37 Another advantage of the proposal being downhill is that shadows even in midwinter from the proposal would not exceed the fence height of the neighbours on Midlothian Avenue except perhaps very early morning.
38 On the inspection of the neighbours’ properties during the hearing I noted they had garages or sheds on parts of their back boundaries all with fences up to about 1.8 m high. Mr Winnacott’s evidence on shadows had some logic as illustrated by the shadow diagrams. It was true that No. 8 Zuttion Avenue would receive some shadows in the morning and midday period at mid winter. However the windows that might be shadowed for a time were not living room windows and the clothes drying area of No. 8 and most of its backyard would always be in sun during the day. The adverse effect of the proposal in terms of shadows on No. 8 were minimal and acceptable. Number 12 being on the north side has no overshadowing from the proposal.
39 Another concern of neighbours was the increased activity of two households versus the existing one, on their amenity.
40 Mr Winnacott said the proposal having its living rooms and courtyards lower down the hill than the Midlothian houses, noise from entertainment would have less impact than usual. And, due to the long rear boundary of the fan shaped site, Messrs Stavropoulos and Northey would have only one dwelling below them and Mrs Foti would only have one dwelling below her.
41 That is a normal suburban relationship between dwellings rather than a medium density situation so in Mr Winnacott’s opinion the residential amenity impacts of the proposal would be quite within acceptable limits.
42 The objectors were also concerned about visitor parking due to the cul-de-sac location.
43 The diameter of the turn point and the number of driveways in the cul-de-sac meant visitors would have to park down the street and inconvenience other residents. Also the second car space for each unit is proposed in the front setback, and that is not acceptable in the streetscape the objectors said.
44 Mr Winnacott said that DCP 14 did allow parking in the front setback provided it is unroofed and open as the proposal is.
45 Also the development does provide the required amount of on-site parking. It is not reasonable to expect additional on-site parking. Being a suburban street, there is ample spare parking in the street – admittedly away from the cul-de-sac – but within a short walking distance.
46 The objectors agreed that living in Midlothian Avenue there would be no impact on them from parking for the proposal.
47 It was true the cumulative impact of multiple dual occupancies in the cul-de-sac had not assessed, but then it was not one of the issues raised directly.
48 Overall Mr Winnacott said the proposal is a permissible use in the zone even if existing residents did not particularly agree with that. In his opinion the proposal met all reasonable requirements of the council’s statutes and control plans.
49 The hearing was adjourned to enable:
- 1. The drainage plans to be corrected.
- 2. The landscape plan to show a water gum in place of Angophora.
3. Drawing numbers to be corrected.
4. Updated consent order conditions to be prepared.
50 The parties were given seven days to complete those directions, but it took longer.
51 The hearing resumed late in May and the updated conditions still had a fault in condition 12 regarding the amounts stipulated for s 94 contributions being unreadable. Once a correct version of the additions was received the parties agreed the signed consent orders in Exhibit 1 with the final updated conditions should be approved.
52 Having the benefit of Mr Winnacott’s evidence in support of the proposal, I have formed the opinion that the objectors’ concerns have been considered and that either conditions have been imposed that mitigate any impacts to acceptable levels, or others of their objections had not been substantiated and could not justify refusal of the proposal.
53 Therefore the orders of the Court, by consent of the parties are:
2. The exhibits are returned to the parties, except Exhibits A, C, 1 and 2.1. Development consent is granted to Development Application No. 322/05 to Gordon Bobbin for the demolition of existing structures and the construction of a two storey attached dual occupancy at No. 10 Zuttion Avenue, Beverley Hills in accordance with the attached conditions of development consent marked “A”.
- ___________________
- K G Hoffman
Commissioner of the Court
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