Casaceli v Bega Valley Shire Council

[2006] NSWLEC 150

Land and Environment Court

of New South Wales

CITATION:	Casaceli v Bega Valley Shire Council [2006] NSWLEC 150
PARTIES:	APPLICANT Lucas Casaceli RESPONDENT Bega Valley Shire Council
FILE NUMBER(S):	11322 of 2005
CORAM:	Brown C
KEY ISSUES:	Development Application :- erection of attached dual occupancy development - character/streetscape - solar access - loss of privacy
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Bega Valley Local Environmental Plan 2002
DATES OF HEARING:	22/02/06, written submissions 14/03/06
DATE OF JUDGMENT:	04/07/2006
LEGAL REPRESENTATIVES:	APPLICANT In person RESPONDENT Mr M McMahon, solicitor SOLICITORS M E McMahon & Associates

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

7 April 2006

11322 of 2006 Lucas Casaceli v Bega Valley Shire Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal of DA No. 2005.0167 by Bega Valley Shire Council (the council) for the erection of attached dual occupancy development at 15 Barragoot Street, Bermagui (the site).

2 The proceedings were originally set down as a Court hearing however the parties agreed that the proceedings be conducted as an On Site Hearing on 22 February 2006. Following a view of the site and surrounding area the proceedings were adjourned for the applicant to prepare amended plans. The amended plans were filed on 2 March 2006 and were the subject of a Telephone Mention on 8 March 2006. Directions were given for the filing of written submissions by 14 March 2006. The amended plans have been marked as Exhibit D.

The site

3 The site is Lot 110 in DP 1074082. It has a frontage and western boundary to Barragoot Street of 20.115 metres, a rear boundary of 20.17 metres and side boundaries of 27.4 metres and 28.915 metres giving a total area of 566.4 square metres.

4 The site slopes from east to west and is currently vacant. A 1.5 metre wide easement for services is located on the northern boundary.

The proposal

5 The proposal provides for an attached two-storey dual occupancy development. The original proposal contained three bedrooms with the amended plans adding a study on the ground level. The Torrens title subdivision of each occupancy is also proposed.

Relevant planning controls

6 The site is within Zone 2(a) (Residential Low Density Zone) under Bega Valley Local Environmental Plan 2002 (the LEP). The proposed use is permissible with consent within this zone. Clause (8)(3) states that consent must not be granted unless consideration has being given to the objectives of the zone and the consent authority is satisfied that the development is consistent with the relevant zone objectives. Clause 20(2) provides objectives of the zone.

7 Clause 27 provides requirements for landscaped area and floor space ratio. There was no dispute that the proposed development satisfies these requirements. Clause 65 provides general principles for development and use of land and buildings.

8 Bega Valley Development Control Plan No. 1 - Residential Development (DCP 1) also applies and provides specific requirements for attached dual occupancy development at Part 4. Relevant controls relate to Building height (cl 3), Setbacks (cl 4), Private open space (cl 5), Sunlight access (cl 6), Privacy (cl 7) and Building design (cl 9). There was no dispute that the proposed development satisfies the height, setback and private open space requirements.

The Issues

9 The council filed a Statement of Issues containing two major issues and a number of the sub-issues. The issues can be conveniently grouped into following areas:

1) whether the proposed development adequately addresses the character of the area and the streetscape,
2) whether the proposed development creates unacceptable overshadowing impacts on the adjoining property,
3) whether the proposed development creates unacceptable overlooking impacts on adjoining properties.
The evidence

10 The parties agreed to the appointment of Mr David Clarke, an architect, as the Court appointed expert to address the issues. The Court also heard from a number of local residents including the owner of the property to the south. This property was also inspected with the parties.

Character and streetscape

11 The objectives for attached dual occupancy development in DCP 1 provide for development that is "integrated into the existing residential environment" and minimises "the impact of attached dual occupancy housing in areas, characterised by a single detached housing".

12 Clause 9 of DCP 1 provides requirements for building design. The objective is "built form and design is to provide for a contemporary design solution for a site that results in an acceptable relationship between new and existing development". The clause further states "attached dual occupancy development should be designed where practicable to look like a large dwelling house when viewed from a public street or place".

13 Mr Clarke states that the proposal would detract from the streetscape as the bulk and height exceeds that of surrounding housing development. The proposal would also detract from the neighbours amenity by substantially restricting solar access to the residential property to the south and impinging on the privacy of the properties to the north and south.

14 Following the site view, the parties and Mr Clarke discussed the opportunities to address the concerns expressed by Mr Clarke. There was general agreement that the presentation to the street and the overshadowing impacts on the properties to the south could be addressed by increasing the setback to the upper level of the proposed building. The floor space lost in this exercise could be relocated to the area above the garages, more centrally located on the site. Directions were given for the preparation, filing and serving of the amended plans. Because of the general agreement between the parties to this approach the Court directed that it was not necessary for Mr Clarke to address the amended plans.

15 The amended plans generally provide for;

• an increased setback of the upper level by 2 metres to 3.9 metres,
• a reduction in the ground for living area but with the inclusion of a study,
• increased height from 7.1 metres to 7.8 metres.
  

16 Notwithstanding the increased upper level setback and consequent reduction in overshadowing impact, the council maintained that the amended proposal was still not suitable for approval. Mr McMahon, the councils advocate, submits that the design is inappropriate for the east west facing small site. He submits that the site cannot accommodate two large dwellings (i.e., 3 bedrooms plus study) without generating adverse impact on neighbours and the character of the neighbourhood and also the future residents of the dwellings. A number of different design solutions were also offered.

17 In considering this issue, the Court must be guided by the requirements in DCP 1. I am not persuaded that the council's concerns that the proposal is inappropriate for its location can be supported. DCP 1 provides numerical standards and as well as objectives. Both requirements must be considered conjunctively. There was no dispute that the proposal satisfies, and in some cases exceeds the numerical standards for site area, floor space ratio, landscaped area, building height, setbacks and private open space. Putting aside the building design, the proposal clearly responds to the numerical controls and reflects the general form of development contemplated by DCP 1.

18 I do not accept that it is a reasonable approach to rely on the existing older form of single residential development as the basis for an assessment of character when the LEP provides for dual occupancy development and DCP 1 establishes the specific parameters for this form of development.

19 I also find that the building design is acceptable. While the attempts to avoid a mirror image of the dwellings are not overly comprehensive, the large setback to the upper level, the non-symmetrical roof form at the upper and ground level at the street frontage, the different position of the front doors and different setbacks at the upper level provide sufficient variation to satisfy the objectives in cl 9 of DCP 1.

Solar access

20 DCP 1 provides that the private open space areas of neighbouring properties should " receive at least 3 hours of sunlight over at least part of its area between 9.00 a.m. and 3.00 p.m. on 21 June". North facing windows to living areas of neighbouring properties should receive a similar amount of sunlight "over at least part of their surface" over the same time.

21 Mr McMahon submits that the applicants shadow diagrams for the amended plans understate the shadow effect although no details are provided on the extent to which the plans understate the shadowing or whether the amended plans satisfy the DCP 1 requirements.

22 In my assessment, the shadow diagrams indicate that the proposal would satisfy the solar access requirements for the private open space area of the adjoining property to the south.

23 Based on the shadow diagrams and in the absence of any specific evidence from the council, I also accept that the solar access requirements in DCP 1 for north facing windows of adjoining properties are satisfactorily addressed by the solar access available from around midday. The north facing window of the adjoining dwelling is located relatively close to the common boundary and will be affected to a large extent by the shadow cast by the proposed boundary fencing. In my opinion, the proposed dwelling does not unreasonably exacerbate this situation.

24 The council further submits that the amended plans raise additional solar access issues for Residence 2 brought about by the erection of a wall at ground level between the two dwellings and between the balconies. If this wall is limited to 1.8 metres in height, adequate solar access should be available the private open space area of this dwelling at midwinter.

Privacy

25 Clause 7 has the objective that "siting and design of development is to achieve visual and acoustic privacy in dwellings and private open space for the occupants and nearby residents".

26 The privacy issue relates to the rear facing decks located off bedroom 2 and bedroom 3 of each dwelling. The applicant has offered to provide a privacy screen to the end of each balcony to minimise overlooking in a northerly and southerly direction.

27 I accept that with the provision of the proposed privacy screens the issue of loss of privacy is adequately addressed and the objective in cl 7 is satisfied.

28 For the reasons mentioned in the preceding paragraphs and pursuant to cl (8)(3) I find that the amended proposal is consistent with the relevant zone objectives.

29 The council filed draft conditions although the parties did not address the conditions on site or in their written submissions. The council marked some conditions and I presume that this indicated some disagreement. I have made amendments to conditions 1, 5, 9 and 10 based on the need to be more specific and the reasonableness of the conditions.

Orders

30 For the foregoing reasons the Orders of the Court are:

1) The appeal is upheld.
2) DA No. 2005.0167 for the erection of attached dual occupancy development at 15 Barragoot Street, Bermagui is approved subject to the conditions in Annexure A.
3) The exhibits are returned with the exception of Exhibits D and 5.
_______________
G T Brown
Commissioner of the Court