Casaceli & Anor v Bega Valley Shire Council
[2006] NSWLEC 788
•27/11/2006
Land and Environment Court
of New South Wales
CITATION: Casaceli & Anor v Bega Valley Shire Council [2006] NSWLEC 788 PARTIES: APPLICANT
RESPONDENT
Lucas Casaceli & Peter Casaceli
Bega Valley Shire CouncilFILE NUMBER(S): 10817 of 2006 CORAM: Murrell C KEY ISSUES: Dual Occupancy :- development, compatibility with character of area and streetscape, public domain, urban design, need for site analysis, impact of mirror image design and prominence of garaging presentation to street. LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Bega Valley Local Environmental Plan 2002
Bega Valley Development Control PlanDATES OF HEARING: 27/11/2006 EX TEMPORE JUDGMENT DATE: 11/27/2006 LEGAL REPRESENTATIVES: APPLICANT
Mr P. Casaceli, litigant in personRESPONDENT
Mr M. McMahon, solicitor
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Murrell C
10817 of 2006 Lucas and Peter Casaceli v27 November 2006
JUDGMENT
Bega Valley Shire Council
1 This is an extempore judgment for an appeal under s 97 of the Environmental Planning and Assessment Act (the Act) against the refusal of Bega Valley Shire Council for a dual occupancy development at the property known as 41 Koerber Street, Bermagui. The appeal has proceeded by way of an on-site hearing.
2 The proposed development is a two storey dual occupancy development with garages, a double garage proposed for the middle of the allotment with two open carports on either side.
3 The land is relatively steep, it rises from the street to the rear boundary by approximately 7 m in total. The proposed development is setback on the lot such that the garages are in approximate line with the adjoining dwelling and the dwelling then extends into the rear yard 5 m from the rear boundary. The subject site is 16 m wide and some 46 m in length with a site area of 740 sq m.
4 The council refused the development application on the basis that it considered that the development was one that was not appropriate in terms of the streetscape, and the dominance of the garages. The other main issue raised relates to privacy in particular the relationship in terms of floor levels of the proposed development to the adjoining property in particular the property to the south. The property to the north is somewhat lower and privacy does not concern the council to the same extent.
5 The dwellings in the streetscape are generally on well proportioned lots of land with the dwelling not being dominant such that there is a relationship in the proportion of built form. The Court had the opportunity of inspecting the subject site and also the surrounding streets. It is pointed out by the applicant that there is a development of a single dwelling house in the streets at the rear of the subject property or rather right angles to the subject property and there is clearly a dominance of two large double garage elements built on the boundary with a single dwelling house behind.
6 It was also pointed out to the Court at the end of that same street, that is a cul-de-sac, there is a large garage which is at the rear of the dwelling house facing another street. Precedent is something that is often raised in proceedings and the Court must consider the issue of precedent, people generally expect to be able to invoke previous decisions in respect of their own properties and therefore consistency in decision making is important.
7 The Court was assisted today in its deliberations by the council’s expert Mr Stephen Taylor, architect, and also the applicant’s expert architect, Mr Geoffrey Cloke. The Court has heard the evidence today and has also had the opportunity of reading the joint expert report.
8 The applicant submits that the proposed development complies with all of council’s numeric controls and indeed the proposed development is less than the 0.5:1 FSR and also less than the permissible height as articulated in the DCP. The issue in these proceedings is one of merit and it is always less concrete than what numeric controls provide for.
9 I will say at this point in my judgment that based on the evidence, based on the Court’s own expertise, I am not satisfied that the proposed development is one that is worthy of approval. If the Court is of the view that it would only require some modification or massaging I would provide that the applicant be given the opportunity to do so. However, I am of the opinion that the application before me has fundamental problems which could not be overcome by amendments and therefore the development application should be refused.
10 The council’s planning regime is that the Bega Valley Local Environmental Plan 2002 zones the subject site 2A and the zone objectives are:
a) to allow residential development including dwelling houses and attached dual occupancies;
b) to maintain and enhance the character of residential areas to promote good design;
c) to ensure that development does not have unacceptable impact on adjoining land by way of shadowing, invasion of privacy, noise and the like.
11 The other applicable controls relate to cl 65 that are general principles for development and the use of land and buildings and council must have regard (in this case the Court) to the criteria in the consideration of development applications. That is, the impact of the development on the streetscape, character of the locality, the scale and design of neighbouring development and significant views enjoyed from parks, reserves, etc. and public places. The definition of attached dual occupancy in the LEP means “two dwellings are on one allotment which are physically attached and characterised by having the appearance of a single house, with similar roof pitch, external finishes and design finishes”.
12 The Development Control Plan is the Residential DCP of August 2003. The relevant provisions I have had regard to and while there is no numeric non-compliance with the DCP, nonetheless must also be considered on its merits.
13 The section of the DCP with respect to garages and “carports states that carports and garages should be designed so as not to dominate the appearance of the building when viewed from the street by minimising width and ensuring roof form, pitch and building material compliment are that of the residence and the controls relate to the visual impact of development from the streetscape”. There are also building outcomes and “there are no absolute rights or wrongs to building design but there are design queues that should be respected and where a different type is being introduced the external appearance should be sympathetic to neighbouring development. The overall shape or the portions of the dwelling should have a mutual or beneficial affect on the existing streetscape. Buildings especially, of more than one-storey should be sited and designed so as not to overlook or overshadow private open space and living areas of neighbouring development”.
14 The DCP provides for privacy controls and provides guidance in terms of layout etc. In terms of building design the objective is “built form and design is to provide the contemporary design solution for a site that results in an acceptable relationship between new and existing development, attached dual occupancy development should be designed where practical to look like a large dwelling house when viewed from a public street or place”. There are also design queues in order to achieve compliance for an acceptable solution, including the appearance from the street “the building has living room windows or balconies in front of the building, entry areas are visible, garages to be complimentary to the building design and ensure that at least one principal living room and entry to each dwelling is visible from the street, driveway pavement size minimised to retain sufficient area for attractive front garden consistent with the low density residential environment”.
15 There are also controls and guidelines in the DCP with respect to building articulation, materials and design elements. “The design of a building is to provide interest to the street by the use of significant recesses and projections, variations in materials and/or building form to reduce the appearance of building bulk. Design elements such as verandahs and balconies are used to create visual light and shape variations in building form”.
16 In considering the merits of the development application I am not satisfied that it represents good design. From the guidelines, whilst numerically it may comply there is more to an assessment and it is simplistic to think that one tick the compliance table and then the development is satisfactory. The guidelines for garages, are not satisfied with four garages or two garages and two carports parallel to the street, forward and ‘proud’ of the building is not a good design element and this is clearly articulated in the DCP in terms of garages not dominating the streetscape.
17 For dual occupancy development, the DCP requires such development be to read as a large dwelling house that means it should be well proportioned with landscaping commensurate with dwelling houses and clearly the FSR and other provisions of dual occupancy cannot exceed that of dwelling houses within the vicinity of the development. The proposal is located in the low density zone and dual occupancy development is permissible, however, the criteria or criterion that it fit in with the residential area site is an important aspect of allowing dual occupancy generally in the Residential A area. The subject site is also clearly visible from the park opposite so in terms of the public domain reference in the DCP one must also have regard to this in the assessment.
18 In my assessment of the development application in terms of the resolution of the backyard area and the height of the balcony at the rear this is also not desirable. The dwelling houses or built form should respect topography and stepping down the site would be a more acceptable resolution of a built form on the subject lot. As such, whilst the numerics are complied with, in terms of s 79C(1)(c) the proposed development is not suitable for the site. This site requires careful consideration to resolve a design for two dwellings on this site. The width of the site and other constraints means that it may not be appropriate to have a mirror image dual occupancy side by side.
19 The site obviously has advantages in terms of the surrounding area, aspect and the pleasantness of views obtained. The impact of the proposed development extending so far into the rear must also to be considered. There is no articulation to the façade and very little articulation to the side boundaries, the proposed development being the minimum 900 mm from each side boundary. The front of the dwelling house also does not take advantage of balconies that one would normally find on such properties in seaside/beachside locations. For example a balcony of 1.5 m for one of the dwellings, the southern dwelling is not good design for the appearance and presentation of the dwelling but also in terms of utility. Also with respect to the relationship with the stairs and the use of the balcony with the entrance staircases at the front of the living space does not provide for easy access or allow appropriate presentation to the streetscape.
20 The subject site may have the ability to accommodate a dual occupancy development but one should not necessarily look at subdividing it down the middle and placing equal building quantities on either side. The general topography must also be respected in terms of stepping down. This site requires very careful consideration and a site analysis to understand where the built form can be best placed to take advantage of the change in slope and also to minimise the impacts on adjoining properties and provide an appropriate streetscape presentation.
21 It is understandable that the applicant pointed out to the Court the less than desirable built form around the corner but that would not justify the Court in approving the development application it has before it. One bad decision does not justify another and future applicants would also seek to use it as a precedent. It is also understandable that applicants may consider that just because the numerics are complied with then an application should pass the test. However today the planning regime and planning controls recognise the need for good design and environmental considerations and assessments require there be a great deal of thought and consideration in terms of a site analysis before one considers the built form for a particular site.
22 As I stated I would have given the applicant the opportunity to amend the plan but I consider that the application is fundamentally flawed and it is not one that can be amended to ameliorate the impact of the built form in particular on the streetscape. The design of any future development for the site must be informed by a proper site analysis. For relevant urban design principles I also refer the parties to the ‘Coastal Design guidelines of NSW’ a document prepared by the State Government.
23 Accordingly the formal orders of the Court in this matter are:
1. The appeal in respect of the property known as 41 Koerber Street, Bermagui, is dismissed.
2. The development application submitted to Bega Valley Shire Council and as amended and shown in Exhibit A is determined by the refusal of consent.
3. The exhibits may be returned with the exception of A.
___________________
J S Murrell
Commissioner of the Court
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