Boustany v Canterbury-Bankstown Council

Case •

[2018] NSWLEC 1531

•

11 October 2018

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Boustany v Canterbury-Bankstown Council [2018] NSWLEC 1531
Hearing dates: 2 & 3 October 2018
Date of orders: 11 October 2018
Decision date: 11 October 2018
Jurisdiction:Class 1
Before: Morris AC
Decision:

(1)   The Applicant is granted leave to amend Development Application No. DA-28/2018 and rely upon the amended plans that form Exhibit A and are detailed in Condition 1 of Annexure A.
(2)   No Orders as to costs.
(3)   The appeal is upheld.
(4)   Development Application No. DA-28/2018 for demolition of an existing dwelling, construction of a dual occupancy comprising two detached dwellings, swimming pools, car parking and landscaping and Torrens Title subdivision at 79 Trafalgar Street, Belmore is approved subject to the conditions in Annexure A.
(5)   Exhibits 2, 3, 4, 5, C, D and F are returned.

Catchwords: DEVELOPMENT APPLICATION: dual occupancy – basement parking
Legislation Cited: Canterbury Local Environmental Plan 2012
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Cases Cited: Nil
Texts Cited: Canterbury Development Control Plan 2012
Category:Principal judgment
Parties: Elie Boustany (Applicant)
Canterbury-Bankstown Council (Respondent)
Representation: Solicitors:
G McKee, McKees Legal Solutions (Applicant)
P Jackson, Pikes & Verekers Lawyers (Respondent)
File Number(s): 2018/104688
Publication restriction: No

Judgment

  1. Mr Boustany (applicant) lodged Development Application No. DA-28/2018 with Canterbury-Bankstown Council (Council) on 25 January 2018 seeking consent for demolition of an existing dwelling, construction of a dual occupancy comprising two detached dwellings, swimming pools, car parking and landscaping and Torrens Title subdivision at 79 Trafalgar Street, Belmore.

  2. The Council refused consent and Mr Boustany is appealing that decision.

  3. The matter is heard pursuant to the provisions of s 34AA of the Land and Environment Court Act 1979 and commenced with a site view. That view included observation of a site at No 5 Sutton Avenue, Earlwood. The Council had recently granted approval for an attached dual occupancy development on that land however construction has not commenced.

  4. No agreement was reached during the compulsory conciliation phase so the matter proceeded to hearing in accordance with the provisions of s 34AA(2)(b)(i). The parties did not agree that the discussions held during the conciliation phase form any of the evidence in the proceedings apart from the site view.

The site and its context

  1. The subject site is a single, rectangular allotment located on the western side of Trafalgar Street, Belmore with a frontage of 21.64m and site area of 659.6m2. It is wider and of less depth than the nearby allotments, the majority of which have a frontage of 13.41m and some are 15.09m. This is relevant to the form of any future development that may occur on these allotments.

  2. A single storey dwelling house is erected on the site which would be demolished. Due to the fall of the land from the rear to the street, the front building alignment of the land has been filled and is retained by a front fence approximately 900mm high. The dwelling house is elevated above the street level. Driveway access to a garage is located along the northern boundary of the site.

  3. Development in the vicinity of the site primarily consists of older style, single storey dwelling houses. There are a few more recent two storey dwellings and dual occupancy developments in proximity to the site.

Background and the proposal

  1. It is proposed to demolish the existing dwelling house and garage and erect two dwellings on the allotment as dual occupancy (detached). Each dwelling would contain a basement car park accommodating two vehicles, a large manoeuvring area and plant rooms. The basements would be accessed by individual ramps along the southern boundary of each proposed allotment.

  2. The ground floor of each dwelling is similar with an open plan living/kitchen/dining area, study/theatre room, bathroom and laundry. The first floor contains four bedrooms, ensuite and a bathroom. A swimming pool is proposed within the rear yard of each dwelling.

  3. The application includes a proposal for subdivision of the land into two allotments. Each would have a frontage of 10.82m and area of 329.8m2.

  4. The Council refused consent on 20 March 2018 on four grounds. Those grounds form the basis of the contentions in the case.

  5. In its assessment of the application, a compliance table was prepared by the assessing officer which is included in the Council’s Bundle of Documents, Exhibit 2. That table indicates the only area of non-compliance with the Council’s planning controls is in relation to the incorporation of a basement in the design of the proposal. That table suggests that basements and subfloor parking is a specific prohibition under the controls. The other area of non-compliance is the rear setback with a setback of 3.87m proposed and 6m required.

The planning controls

  1. The site is zoned R3 – Medium Density Residential under the provisions of Canterbury Local Environmental Plan 2012 (LEP). The aims of the LEP are:

(a) to provide for a range of development that promotes housing, employment and recreation opportunities for the existing and future residents of Canterbury,

(b) to promote a variety of housing types to meet population demand,

(c) to ensure that development is of a design and type that supports the amenity and character of an area and enhances the quality of life of the community,

(d) to create vibrant town centres by focusing employment and residential uses around existing centres and public transport nodes,

(e) to revitalise Canterbury Road by encouraging a mix of land uses that does not detract from the economic viability of existing town centres,

(f) to retain industrial areas and promote a range of employment opportunities and services,

(g) to promote healthy lifestyles by providing open space that supports a variety of leisure and recreational facilities and encouraging an increased use of public transport, walking and cycling,

(h) to protect the natural environment for future generations and implement ecological sustainability in the planning and development process,

(i) to protect and promote the environmental and cultural heritage values of Canterbury.

  1. Dual occupancy (detached) is a form of development permissible with consent in that zone. The objectives of the R3 zone are:

• To provide for the housing needs of the community within a medium density residential environment.

• To provide a variety of housing types within a medium density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

  1. Clause 4.1A requires a minimum site area of 600m2 for dual occupancy development and cl 4.1B provides for subdivision of approved dual occupancy development with a development standard for minimum lot size. That requires a minimum of 300m2. These standards are met. Other relevant development standards are cl 4.3 Height of Buildings with a maximum height of 8.5m and cl 4.4 Floor Space Ratio (0.5:1 permitted). The proposal complies with those standards.

  2. Canterbury Development Control Plan 2012 (DCP) applies to the application with Parts A1 Statutory Information, B1 Transport and Parking, B2 Landscaping and C2 Dual Occupancies and Semi-detached Dwellings most relevant to the determination of the case.

  3. In accordance with Section A1, the DCP has the following aims:

“(a) Achieve well-designed development that is compatible with its context and

acceptable to the community;

(b) Enhance amenity for people in Canterbury;

(c) Conserve non-renewable resources;

(d) Protect natural features and the environment;

(e) Ensure development in Canterbury functions in a way that meets the needs of the community;

(f) Facilitate full consideration of human, environmental and servicing

requirements in relation to proposed development;

(g) Allow designers to respond to the individual circumstances of a site;

(h) Support the LEP and strategic focus for Canterbury; and

(i) Support a comprehensive development assessment process.”

  1. In assessing applications, section A1.6 provides the following guidance:

“Compliance with the objectives and controls of this DCP does not guarantee that consent will be granted.

Applications will be considered on their merits and against:

• Relevant SEPPs;

• Aims, objectives, provisions and development standards contained in the

LEP;

• Objectives and controls contained in this DCP;

• Impact of the development on the locality;

• Suitability of the site for the development;

• Views of public authorities; and

• Submissions from the community that may be affected by a development

proposal.

Minor variations to the numerical controls specified in this DCP may be

acceptable, where it is demonstrated that such variations will not have an

adverse and unreasonable impact and the proposed development is consistent with the aims and objectives of the LEP and this DCP.”

  1. Chapter B1 Transport and Parking has a series of objectives, Objective O8 being relevant to the application and is to minimise the visual impact of parking structures on the appearance of streetscapes. In accordance with the table to clause B1.3.1, two parking spaces are required for each dwelling. The proposal incorporates these spaces within a proposed basement.

  2. Part B1.4.6 applies to Basement Parking and incorporates the following general controls:

“General

C1 Provide basement parking and loading bays.

C2 Provide ventilation to basement parking. Location and details of mechanical ventilation design must be outlined in applications to Council.

C3 Design and integrate basement parking so as not to accentuate the scale or bulk of a building or detract from the streetscape or front setback character.

C4 Basement podiums shall protrude a maximum of 1m above existing ground level, except where it forms a barrier to 1:100 year flood events (in which case it may protrude to the 1:100 year flood level plus 0.5m).”

  1. The General Objectives of Chapter C2 Dual Occupancies and Semi-detached Dwellings are:

“O1 To ensure all neighbourhoods are safe and comfortable.

O2 To ensure a diversity of well-designed dwellings that are sympathetic to the density and function of each neighbourhood.

O3 To ensure residential streets and yards are green and leafy, with substantial tree canopy.

O4 To ensure buildings are adequately setback from existing structures to facilitate household activities and landscaping.

O5 To ensure that development provides good amenity, solar access and privacy for occupiers of new and existing buildings.

O6 To ensure that development is of a high quality design, appearance and performance.”

  1. Control C5 in Part C2.2 Site planning states that dual occupancy (detached) is acceptable only where each dwelling can face and have frontage to the street, such as on a corner site. The two proposed dwellings have frontage to a street despite the fact that they are not located on a corner site.

  2. Part C2.3.2 Height which forms part of Section C2.3 Building Envelope states:

“The maximum permissible height of a building is prescribed in the Canterbury LEP 2012 and varies across residential zones. The definition of height of building is defined under LEP.

Operating in conjunction with the LEP height of building control, external wall height and storey provisions in this DCP prescribe the maximum height for the external enclosing walls of a building.

Note: Development adjacent to, or in the vicinity of, a heritage item may preclude achievement of maximum building heights (to Chapter B8 Heritage of this DCP).”

  1. The Objective of the control is:

“To ensure that development is of a scale that is visually compatible with adjacent buildings, character of the area, and the objectives of the zone.” (Emphasis added)

  1. The following controls are relevant to that section and the contentions in the case:

“Height

C1 Development for the purposes of dual occupancy and semi-detached dwellings must not exceed the following numerical requirements:

(a) A maximum two storey built form.

(b) A maximum external wall height of 7m where the maximum height of buildings standard under the LEP is 8.5m.

(c) A maximum external wall height of 8m where the maximum height of building standard under the LEP is 9.5m.

(d) Finished ground floor level is not to exceed 1m above the natural ground level.

Basement and Sub-floor Projection

C2 Dual occupancy or semi-detached dwelling development must not include basement or subfloor parking.”

The issues

  1. In its Statement of Fact and Contentions, Exhibit 1, the Council raised two contentions, one relating to Basement Parking and the other to the rear setback. The latter contention was not pressed following the town planning experts’ joint conferencing where they agree that the proposed rear setbacks were appropriate in the circumstances of the case.

  2. The only contention is whether consent to the application should be refused because the site has a basement parking arrangement which is contrary to provision D2.3.2 C2 of Chapter C2 of the DCP which states that dual occupancy or semi-detached dwelling development must not include basement or subfloor parking.

The evidence

  1. Expert town planning evidence was heard from Mr M Leavey for the applicant and Mr B Leavy for the Council. Their Joint Report, Exhibit 3, considers amended plans which the applicant sought and was granted leave to rely on those plans. No Order in regards to costs was made as the parties and Court agreed that the amendments were minor. Those plans, the Revision B plans form Exhibit A.

  2. The experts agree that the proposal does not comply with the requirements of Section C2.3.2 C2 of the DCP because it contains basement car parking. It is common ground that there are no objectives specific to that provision. The clause is found under the heading Height which has the objective detailed at [24].

  3. It is agreed that basement and sub-floor parking can form part of a dwelling house or multi-dwelling housing. In the case of dwelling houses, the following considerations apply:

“…

C5 Dwelling houses may provide basement or subfloor parking where site constraints warrant and it can be demonstrated that there will be no adverse impacts on amenity, streetscape or public domain.

C6 Basement and sub-floor parking is only suitable where compliance with Chapter B1 Transport and Parking of this DCP can be demonstrated.”

  1. In the case of multi dwelling housing, the flowing controls apply to basement and sub-floor areas:

“…

C6 Attached dwelling development must not include basement or subfloor parking.

C7 Basement and sub-floor parking is suitable in the R4 High Density Residential Zone under the LEP for multi dwelling housing.

C8 The provision of basement parking for multi dwelling housing in the R3 Medium Residential Zone of the LEP may be considered where site constraints warrant and it can be demonstrated that there will be no adverse impacts on amenity, streetscape or public domain.

C9 Basement and sub-floor parking is only suitable where compliance with Chapter B1 Transport and Parking of this DCP can be demonstrated.

C10 Any part of a basement or sub-floor area that projects greater than 1m above ground level comprises a storey.”

  1. The experts agree that the provisions of Section C2.3.2 C2 apply as an intended prohibition of basement parking for dual occupancy development, with no discretion as applies to basement parking for other forms of residential development including dwelling houses and multi dwelling housing. They also agree that the provisions of C1.3.2 and C3.3.2 allowing basement parking for dwelling houses and multi dwelling housing, subject to performance measures and Part B1 of the DCP, have the same objective as the objective of C2.3.2 which seeks to restrict basement parking for dual occupancy development.

  2. It is also agreed that there is no documented planning policy or purpose for not allowing basement parking for dual occupancy development, having regard to basement parking being allowed under the DCP for dwelling houses and multi dwelling housing subject to merit considerations.

  3. The experts agree that there are differences in Trafalgar Street in how car parking is provided, with a variety of different arrangements, and there is no predominant type of car parking arrangement. On the western side, due to the slope of the land, car parking is elevated above the road level, which increases the visibility of car parking, and parking is provided in carports to the side of dwellings, in garages at the rear of dwellings, on driveways and in garages located forward of the dwellings. On the eastern side, parking is predominantly in garages or driveways either beside or to the rear of the properties. The exception to this is the basement car parking provided at No. 86 Trafalgar Street.

  4. Photographs of the variety of parking spaces provided to dwelling houses and dual occupancy developments are provided in Attachment F of Exhibit 3. Attachment G incorporates photographs of existing dual occupancy, multi dwelling housing and dwelling houses within the Canterbury Local Government Area (LGA) that contain basement car parking.

  5. The experts do not agree whether it is appropriate for the development to be approved with basement parking. Mr Leavy for the Council says it is not and Mr Leavey for the applicant says that it is.

  6. Mr Leavy says that the reason for not allowing basement parking for dual occupancy development, having regard to basement parking being allowed for dwelling houses and multi dwelling housing subject to merit considerations, is that given the narrow nature often associated with the required frontage of dual occupancy developments, compared to dwelling houses or multi dwelling development, it would give rise to a greater concentration of basements and access driveways along a given street with dual occupancy development compared to that arising from dwelling houses or multi dwelling development. He says that basement parking is permissible on dwelling houses, where the site is constrained and compliance with Part B1 of the DCP can be demonstrated.

  7. There is no evidence before the Court that the relevant provisions of Part B1 are not met by the proposal.

  8. Mr Leavy says the allocation and location of the parking provisions at or slightly above grade results in an outcome that allows for effective accessible access and egress to the dwelling for current and future occupants and also allows for a greater degree of surveillance to occur along the street frontages through the movement of occupants along the driveway.

  9. Mr Leavey disagrees and says there is no evident planning reason or purpose for not allowing basement parking for dual occupancy development having regard to basement parking being allowed for dwelling houses and multi dwelling housing. In response to Mr Leavy’s suggestion that it is a factor of lot width, he says that while the minimum frontage for a dwelling housie is 15m under the LEP, there are many allotments in the (former) Canterbury LGA with existing dwelling houses on lots with a lesser frontage, including almost all allotments on the opposite side to Trafalgar Street, which have a frontage of 13.1m, and including the large dwelling house with basement parking at 86 Trafalgar Street. Mr Leavey says that basements could potentially be provided as part of redeveloped dwelling houses at a rate of one per 13.41m, which would be allowed under the DCP. The proposal provides for basements at the rate of 1 per 10.8m of frontage which he says is similar spacing to what could be achieved compared to basements for dwelling houses on these 13.41m frontages.

  10. Mr Leavey says that the design of the proposal provides a similar streetscape and building bulk outcome that could result from basement parking allowed under the DCP for dwelling houses and multi dwelling housing and concludes that there is no planning, urban design or streetscape purpose for the prohibition of basement car parking for dual occupancy development.

  1. The Council’s particulars in relation to the contention are that the proposed basement parking compromises the ability to achieve a desirable streetscape outcome that is of a scale that is visually compatible with adjacent buildings, the character of the area and the objectives of the zone and also the objective of the DCP performance criteria.

  2. Mr Leavy says the basement parking results in an undesirable streetscape outcome, having regard to the lack of visual compatibility with adjacent buildings, the character of the area and the relevant objectives of both the LEP and DCP. He says the proposal is indicative of a three storey development, as the development steeply descends from the street to accommodate the basement parking component of the proposal which is not visually compatible with the adjoining single and two storey buildings, as the proposed development with basement parking accentuates the height of the building.

  3. The character of Trafalgar Street, particularly on the western side is raised from the street and consists of mixed housing and building types, including both dwelling houses and dual occupancies and there is no predominant development form. He considers the proposed design and recessed nature of the basement parking entrance and excessive setback of 11.84m is not in keeping with the existing setback provisions and streetscape for dual occupancies, nor does the design provide an outcome that is in keeping with the future character of the area.

  4. Mr Leavey disagrees and says the basement parking is an alternative solution to the DCP performance criteria, which removes visually dominant garage doors from the ground-level street presentation, and effectively screens these elements from view being located at a lower level and with screening gates/fences provided. The basement parking responds to the slope of the site which rises up from the street by approximately 2.62m and having regard to the ground floor level of the dwellings which needs to maintain levels relevant to ground level at the rear of the site. The proposal takes advantage of the slope of the land to provide a basement that is largely at or below the existing ground level, and at the highest point, no more than 0.7m above existing ground level. For that reason, he says the basement does not constitute a storey for the purposes of the DCP.

  5. He says the basement minimises the visual impact of car parking having regard to streetscape impacts of dominant garage elements of nearby properties and assists in maximising the residential frontage and articulation of the buildings at ground level resulting in an appropriate built form as viewed from the street and allowing for passive surveillance and interaction between the dwellings and the street. The design of the basement allows for two cars to be accommodated with only a single opening and results in a desirable streetscape outcome having regard to visual compatibility with adjacent buildings, the character of the area and the relevant objectives of both the LEP and DCP. That is because the proposal complies with relevant height and setback controls.

  6. Mr Leavey agrees with Mr Leavy that there is no predominant development for, particularly on the western side of Trafalgar Street with mixed housing and building types. Mr Leavey says a feature of the character of the area relating to car parking is there is a variety of ways it is provided with no predominant or consistent type of arrangement and because the proposal provides effective screening of the basement parking, lessens the visual impact of that parking, it is visually compatible with the character of the area.

  7. Having regard to the zone objectives, DCP objectives and objectives for dual occupancy, Mr Leavey says those relevant are met. The development is a two storey development and is less that permitted under the building height and meets the floor space ratio development standards.

  8. In regard to the consent issued by the Council for a two storey attached dual occupancy development at No 5 Sutton Avenue Earlwood, the experts agreed that this site has a frontage of 15.19m. The two parking spaces provided within the proposed development would be within a basement or subfloor area and the level of that garage floor is at or about the level of the existing kerb in Sutton Avenue. They also agree that the resultant building would be two storeys in height.

Conclusion and findings

  1. There is only one contention in this case and that is whether the development should be approved because it incorporates basement car parking. The DCP makes specific reference to dual occupancy developments not incorporating basement or subfloor parking. Other than the general objective for height in clause C2.3.2 at O1, there is no guidance in the DCP that assists in determining what the objective of the control is and what it is seeking to achieve.

  2. It must have some planning purpose and accordingly it is appropriate to refer to the objectives of the LEP, zone and DCP.

  3. Section 4.15(3A)(b) of the Environmental Planning and Assessment Act 1979 (EP&A Act) details those matters for consideration in determination of a development application, specifically in regard to development control plans. Those sections relevant to the determination of the matter are:

If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority:

(a) ….

(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and

(c) may consider those provisions only in connection with the assessment of that development application.

In this subsection, standards include performance criteria.

  1. The DCP sets standards or performance standards in respect to the provision of basements car parking areas and, in the case of dual occupancy development, does not support the use of basements or subfloor areas to meet the required parking provision. The application before the Court does not comply with those provisions.

  2. I do accept the proposition that the provisions of Section C2.3.2 C2 are an intended prohibition of basement parking for dual occupancy development with no discretion as applies to basement parking for other forms of residential development including dwelling houses and multi dwelling housing. That fact, however, cannot lead to the automatic refusal of an application because the proposal incorporates a basement car park.

  3. It is clear that the development application does not comply with the provisions of Section C2.3.2 C2 because it incorporates basement parking into each proposed dwelling. It is the applicant’s submission that, in the circumstances of the case, the basement car park is a reasonable alternative solution and achieves the objective of the standard. It also relies on the Council’s recent approval of the basement car park at 5 Suttor Avenue to demonstrate that the Council does consider variations to the standard where it is satisfied that the alternative solution proffered has merit and applies a flexible approach to determination of applications.

  4. In accordance with the provisions of Section 4.15(3A)(b) of the EP&A Act, if I am satisfied that the alternative solution for parking provision achieves the objects of the standard for dealing with that aspect of the development, a flexible approach can be taken and consent granted.

  5. Having regard to the evidence, I am satisfied that in this circumstance, particularly because of the width of the site, the fact the development contains two separate dwelling houses as a detached dual occupancy development and that the bulk and scale of the development is consistent and compatible with the existing and future character of the locality. The proposal is consistent with the relevant aims of the LEP.

  6. Because there is no specific objective included in the DCP in relation to basements other than the objective for height and that is to ensure that development is of a scale that is visually compatible with adjacent buildings, character of the area, and the objectives of the zone. That objective therefore must be the primary focus of my consideration.

  7. I accept the evidence of Mr Leavey that the proposed development will be of a scale visually compatible with adjacent buildings and character of the area. the fact that the development comprises detached dwellings means that it will appear as two smaller buildings rather than the larger building mass usually associated with attached dual occupancy developments, particularly those that have already been built in the locality and that may be built on those allotments that satisfy the 15m lot frontage development standard.

  8. It is common ground that the proposed buildings are lower than permitted under the height of buildings development standard in cl 4.3 of the LEP and that each dwelling complies with the maximum floor space ratio permitted under the provisions of cl 4.4. The roof levels of the dual occupancy dwellings at the highest points are between 1.35m and 0.81m lower than the height of the roof peak of the existing dwelling house on the site with the ground floor level of each dwelling set 0.44m lower than the floor level of the existing dwelling house on the site.

  9. It is also accepted that the frontage of the site is unique in the locality with the 21.64m frontage being considerably wider than the other allotments that typically have either a 13.41m or 15.09m frontage. I give considerable weight to the fact that the frontage of each subdivided lot will be 10.82m which, while less than all lots in the locality, is of sufficient size to accommodate the dwellings proposed so that they will be visually compatible with adjacent buildings and the existing and future character of the area. The wider block width and the single width driveway also provides opportunity to reduce the extent of hardstand area and increase landscaped areas ensuring compatibility with the locality.

  10. Having regard to the objectives of the R3 zone, I also prefer the evidence of Mr Leavey that the proposal will achieve those objectives relevant to determination of the application.

  11. The proposal will provide for the housing needs of the community within a medium density residential environment. The form of the development will be compatible with that environment. It will also add to the variety of housing types within that environment.

  12. I also consider the objectives of C2 Dual Occupancies and Semi-detached Dwellings and find that the proposal will meet these objectives, as it will assist in providing a safe and comfortable neighbourhood through passive surveillance of the street from living areas of the dwelling; ensure a diversity of well-designed dwellings that are sympathetic to the density and function of the neighbourhood; provide a green and leafy front garden area with sufficient space to plant a tree with a substantial tree canopy.

  13. Having regard to the streetscape, the setbacks of the proposed dwellings are adequate and provide for household activities and landscaping and ensure good amenity, solar access and privacy for occupiers of new and existing buildings. There is no dispute that the development is of a high quality design, appearance and performance.

  14. In addition to the objects of the standard, I also have regard to the objectives of other relevant controls, in particular those that relate to the element of the development that is the subject of the contention, the basement car park. The DCP contains general objectives for transport and parking and I consider those relevant to the application are met.

  15. The proposal provides adequate parking, will minimise overflow parking and other traffic impacts in the residential street through providing forward movement of vehicles onto and from the site, provides compliant, functional and safe parking and most importantly, minimises the visual impact of parking structures on the appearance of the streetscape.

  16. The site view assisted the Court in forming the opinions expressed above. I am satisfied that the basement has been designed to integrate with the building and not accentuate its bulk and does not distract from the streetscape or front setback character as required under the provisions of B1.4.6 of the DCP. The entrance to each basement is setback over 1m from the building line with a large recess, is screened and provides for landscaping of the setback as required under those provisions.

  17. In view of the reasons outlined above, I consider in the circumstances of this case that a flexible approach should be adopted to allow the proposed basement car parks. I do not consider that it would be appropriate to increase the height of the building as proffered by the applicant in the alternate plans, Exhibit E, as to do so would increase the height, bulk and scale of the building and increase the prominence of the garage entry.

Orders

  1. The Orders of the Court are:

  1. The Applicant is granted leave to amend Development Application No. DA-28/2018 and rely upon the amended plans that form Exhibit A and are detailed in Condition 1 of Annexure A;

  2. No Orders as to costs;

  3. The appeal is upheld;

  4. Development Application No. DA-28/2018 for demolition of an existing dwelling, construction of a dual occupancy comprising two detached dwellings, swimming pools, car parking and landscaping and Torrens Title subdivision at 79 Trafalgar Street, Belmore is approved subject to the conditions in Annexure A;

  5. Exhibits 2, 3, 4, 5, C, D and F are returned.

………………………..

Sue Morris

Acting Commissioner of the Court

Annexure A (73.1 KB, pdf)

Amended plans (1.02 MB, pdf)

**********

Decision last updated: 11 October 2018

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