Catania v Sydney City Council

[2005] NSWLEC 611

Land and Environment Court

of New South Wales

CITATION:

Catania v Sydney City Council [2005] NSWLEC 611

PARTIES:

APPLICANT
Alexander and Jeffery Catania

RESPONDENT
Sydney City Council

FILE NUMBER(S):

10453 of 2005

CORAM:

Murrell C

KEY ISSUES:

Appeal :- Development application for subdivision and the erection of two dwellings - streetscape - impact on adjoining neighbour - character of the conservation area - amenity of open space areas -solar access

LEGISLATION CITED:

Environmental Planning and Assessment Act, 1979
South Sydney Local Environmental Plan, 1998

DATES OF HEARING:

17/08/2005

 
DATE OF JUDGMENT: 

11/03/2000

LEGAL REPRESENTATIVES:

APPLICANT
Mr A Catania, litigant in person

RESPONDENT
Mr S Kondilios, solicitor
Of Maddocks Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

3 November 2005

10453 of 2005 Catania Alexander v Sydney City Council

JUDGMENT

1 This judgment is for an appeal under s 97 of the Environmental Planning and Assessment Act against the refusal by the City of Sydney Council of a development application for the property known as No. 40 Devine Street, Erskineville.

2 The application is for the demolition of the existing single storey cottage and the construction of two detached two-storey dwellings. The application submitted to the council is also for the subdivision of the land into two allotments, although the applicant advises the Court that subdivision is not pressed.

3 The subject site is on the corner of Devine and Flora Streets and is Lot 1 in DP 524065. The boundary to Devine Street is 6.91 m and to Flora Street about 20 m yielding a site area of 138.4 sq m. The site falls approximately 0.5 m from the west to the east along Devine Street, and 1 m from the south to the north along Flora Street.

4 Currently erected on the site there is a single storey weatherboard cottage with frontage to Devine Street and a single storey garage at the rear with access to Flora Street.

5 The character of the area can be generally described as being of a fine urban fabric with a relatively small subdivision size, refer to Figure 1, and a mix of one and two storey dwellings, dual occupancies and residential flat buildings.

6 Opposite the site in Flora Street there is a railway reservation/open space area that leads to an underpass. Adjoining the site at No. 38 Devine Street is an infill two storey dwelling house built boundary to boundary constructed in about the 1970s/80’s and this is adjoined by a more recent part single and two storey residence at No. 38 and No. 36 Flora Street is also a more recent infill development that reads as a terrace style building with a party wall. No. 38 is an allotment of 6.9 m x 20 m, built boundary to boundary, with the large mass of the building punctuated by a light well/court yard adjacent to the boundary of the subject site.

7 To the north of the subject site there is a large two storey terrace style building and the pattern of development opposite near the railway line in Flora Street is either two storey or single cottages.

8 The area is made up of buildings spanning a wide period from modest weather board cottages to two storey terrace style development including more recently constructed dual occupancies, and while not in the visual catchment of the subject site there are residential flat buildings of modern design with basement parking.

9 In the Statement of Issues, council raised five issues that can be summarised as follows:

• Whether the proposed allotment sizes are of a suitable size to permit adequate solar access, landscaping, open space and car parking given the proposed built form and extent of non-compliance.
• Whether the open space is of sufficient size and dimensions to enable recreational use and to serve as an extension of the function of the dwelling for relaxation, dining and entertainment.
• Whether the proposed built form provides a reasonable level of solar and daylight access to the principle living areas and private open space of the dwelling.
• Whether the proposed built form is appropriate given the surrounding built form and the impacts on privacy of neighbouring dwellings from the windows and upper level deck of No. 48A Devine Street.
• Whether the proposed design adversely impacts upon the heritage conservation area and streetscape given the proposed built form and the existing built form and the extent of non-compliance.
  

10 The statutory planning regime for assessment of the proposed development includes: the South Sydney Local Environmental Plan 1998 (LEP); South Sydney (Heritage Conservation) Development Control Plan 1998, the Urban Design Development Control Plan 1997 and Development Control Plan No 11 – transport guidelines for development.

11 Under the LEP cl 10 states that the council shall not grant consent unless it is of the opinion that the proposal is consistent with the objectives of the zone. The subject site is in the Residential Medium Density 2(b) zone and the relevant objectives include:

(a) to enhance the amenity of existing medium density residential areas;
(c) to ensure that building form including alterations and additions is in character with the surrounding built environment and does not detract from the amenity enjoyed by nearby residents or the existing quality of the environment; and
(e) to facilitate a higher density and diverse forms of residential development on appropriate sites.

12 Division 1 of the LEP contains the heritage conservation provisions and cl 22 states consent shall not be granted within a heritage conservation area unless the consent authority is of the opinion that the proposal is consistent with the following relevant aims and objectives:

(e) to ensure that any development is undertaken in a manner that is sympathetic to and does not detract from the heritage significance of heritage items, of heritage conservation areas and their setting, and of streetscape within heritage streetscape areas and their setting …

(h) to encourage the restoration or reconstruction of buildings or works with are heritage items or buildings or works that contribute to the character of heritage conservation areas …

13 The LEP contains provisions in cl 28 for the built environment - design principles, and council must take into consideration whether the development:

(a) has been design to reinforce and protect the local topography and setting
(b) reinforces and enhances the streetscape and character of the locality
(c) is compatible with the scale and design of neighbouring development;
(d) has been design with adequate provision for the intended occupants, and those in the vicinity of the site of the proposed development, in terms of:
(i) privacy;
(ii) access to sunlight …
(f) it establishes and enhances the public domain

14 The Development Control Plan provides guidelines for passive solar design stating that “this can be achieved by siting, orientation and building layout to maximise energy gained in winter and where buildings and their private open space are sited and oriented towards north to maximise winter sunshine and warmth whilst maintaining reasonable sun access and daylight available to adjoining properties”. The controls state that:

Solar access reaching principle living area windows and to a minimum of 50% of the private open space is maintained for at least two hours between 9 and 3 pm at the winter solstice and that:
The living areas and their windows as well as the principle open space areas are oriented towards the north within a range of 30 degrees east to 20 degrees west of due north to allow maximum solar penetration during the winter months.

15 The DCP contains design criteria for specific types of development and council’s policy is “to permit a variety of lot sizes as long as the allotment size and shape relates to the existing street pattern, the context of the site, and are adequately sized to provide open space, parking and landscaping”. The objective is:

To ensure the size of the allotments caters for a variety of dwelling and household types and permits adequate solar access, landscaping, open space and car parking.

16 The performance criteria relates to an appropriate size and dimension to enable siting and construction of a dwelling and ancillary outbuildings to provide:

• Usable outdoor open space;
• Activities for relaxation, recreation, dining and children’s play;
• Convenience vehicle access and parking; and
• Functional indoor space requirements

17 The DCP also states that allotment size is to be similar to the existing subdivision pattern for adjoining properties. And “lots of not less than 135 sq m in area may be appropriate”.

18 In part 4 of the DCP under Conservation Guidelines and Controls relevantly new infill development is addressed with the principle that:

All new developments in a conservation area should be treated as infill, that is, should respect the design of its neighbours and the character of the area generally … In order to be successful the infill design will need to satisfy all of the following criteria:

• Harmony of character;
• Sympathy of scale
• Appropriateness and massing;
• Sympathetic materials and details
• Appropriate orientation and setback

19 The DCP also refers to conservation areas having a special character, the character may be uniform or in some cases, a mixture of different architectural styles. “The character or style of an infill building should relate to the overall character of the area … (and this) should harmonize with the style of its neighbours and should avoid becoming a dominant element in the street.”

20 Guidelines are also provided for the scale of infill development in the DCP and notes “scale refers to size, both in terms of overall height and the relative proportions of its parts and the performance criteria are:

• The scale of new development should respond to the predominating scale of the streetscape;
• New development should respect the proportions of neighbouring heritage buildings.

21 The guidelines in the DCP for massing state: “the massing of a building refers to its form, overall bulk and the arrangement of its parts. The shape of a roof and the profile that it has against the sky is one of the key determinants of form. A performance criteria is “the massing of new buildings should complement the form of existing buildings in the area”.

22 The development control plan provides for a floor space ratio of 1:1 and a height control 5.2 m. The FSR for the proposal is about 1.1:1 and the height is also slightly exceeded although neither the height nor the FSR are an issue in the proceedings but rather the design and form of the proposal.

23 The proposal is to provide for two dwellings sited on land 6.9 m by approximately 10 m yielding 66 sq m for the northern allotment and 72 sq m for the southern allotment both with frontage and vehicular access to Flora Street. A living area with kitchen is provided at the ground level of each dwelling. A bedroom at upstairs for the northern dwelling and two bedrooms upstairs for the southern dwelling. Both dwellings have an open space area of some 28 sq m that has the dual purpose of providing car parking with access from Flora Street. Both dwellings also have a northern deck at the upper level. Figure 2 shows the street elevations of the proposal.

24 Evidence was given to the Court on behalf of the respondent by Mr F Morgan, council’s town planner and Ms C Kemp, council’s heritage officer. On behalf of the applicant evidence was given by Mr Colin Brady, a consultant with heritage and urban planning expertise.

25 Mr P Eppel, the owner of the adjoining property at No. 38 Devine Street, gave evidence to the Court on-site. He is concerned that the proposal will result in an impact on his visual and acoustic privacy and view loss. In particular the west end of the balcony for the front dwelling is proposed at 1 m from the common boundary adjacent to the central light well of his dwelling that has extensive glazing at both ground and first floor levels. He also expressed concern about the inaccurate information that had been submitted with the development application, in particular the relative levels and details of his dwelling such as location of windows. Mr Eppel’s dwelling is in the form of two building masses linked by a corridor on the western side with a courtyard that also serves as a light well to the internal rooms of his dwelling.

26 Ms Kemp considers that the subdivision pattern is an important element in retaining the character, and the historical and social significance of the conservation area and she states that the existing lot size of 132.8 sq m is already below the minimum size specified in the South Sydney LEP which provides for 135 sq m. The lot sizes proposed for the two new dwellings are 72.5 sq m and 65.5 sq m for the rear allotment.

27 Ms Kemp is of the opinion that the proposal to develop the site with two separate dwellings one fronting Devine Street and the other fronting Flora Street would result in a built form that is not compatible with the conservation area. Ms Kemp continues by saying that “the facades have a horizontal rather than the desired vertical emphasis due to fenestration design and balustrade design and timber privacy screens. Window and door openings are not vertically proportioned. The façade to Devine Street contains continuous glazing elements and is not predominantly masonry. The design fails to incorporate design elements of adjoining dwellings such as front veranda and uses incompatible materials”.

28 Mr Morgan is of the opinion that:

the continuation of the existing subdivision pattern and the predominant building form allows development to be undertaken in a manner which minimises adverse impacts on amenity from noise, overlooking and overshadowing. The subdivision pattern and building setbacks will also impact on the design of the building (s) and the manner in which they address the street.

29 He is also of the opinion that the proposed lot sizes are insufficient in area to provide for a dwelling, usable outdoor open space, landscaping and parking. And while he says the car parking could be deleted, this would result in a loss of off street parking. Mr Morgan also considers that “furthermore the proposed allotment size and shape is not similar to the existing subdivision and dominant building pattern and results in adverse impacts on amenity of future occupants and neighbouring development and results in an unsympathetic design.”

30 Mr Morgan states that the area of open space provided at ground level is 63% of the requirement and it is also proposed for a dual use as car parking. The combined use of car parking will eliminate the functionality of this open space at times when it is most likely that the occupants will be home and requiring the use of the outdoor area.

31 With respect to solar access Mr Morgan states that the proposal does not meet the minimum controls for solar access to private open space. In particular No. 40A Devine Street would receive less than one hour to a less than 4% of the open space during the winter solstice that is between 11 am and 12 noon and the lack of solar access to the open space of No. 40A is considered inconsistent with the objectives of the built environmental design principles of cl 28 (1)(d).

32 Mr Brady considers that there are two options to the design of dwellings for the subject site that is as proposed in the application with two pavilion or building masses, one at the front and one at the rear of the site or alternately providing for two narrow dwellings fronting Devine Street. He agrees that the presentation to Devine Street should include a setback with a veranda balcony to the street. He says that “the streetscape may be summarised as that of a substantially altered and reconstructed residential precinct of a later 19th century workingman’s suburb. The character of the streetscape has been substantially altered with good and poor examples of contemporary inner suburban residential design maintaining a cohesive scale of development”.

33 Mr Brady also considers that the existing dwelling has limited heritage significance owing to the state of existing fabric and later alterations to the existing residence.

34 The applicant referred to a number of council approved developments in the vicinity of the subject site and I requested some further details because it is reasonable that applicants expect consistency in decision making. However, the built-form of these is different to the current application before me and the similarity of two occupancies on the one allotment, whether approved or not, is not the issue. For example: at No. 34 Devine Street with a similar allotment size of 7 m x 20 m approval was granted for two self contained units with a building located towards Devine Street with shared open space to the rear; and at No. 36 Devine Street with an allotment size 9 m x 20 m a dwelling was approved that has the appearance of two dwellings from Devine Street with open space at the rear. It is also noted that neither of these developments provide parking.

35 I have assessed the proposal in the context of council’s planning controls and guidelines and s 79C of the Act and I have decided that the application is unsatisfactory as it will result in a built form that is not compatible with the character of the area, irrespective of whether the land is subdivided or not. Furthermore I am not persuaded that the size and amenity of the open space areas, and the solar access for the southern dwelling, is satisfactory.

36 In my assessment the critical issue is whether the proposed built form is compatible with the area and whether the size of the land for each dwelling is adequate to ensure appropriate amenity for the occupants of the new dwellings in terms of usable outdoor open space/car parking area.

37 While the applicant has advised the Court that the subdivision is not pressed, nonetheless whether the subdivision occurs in title or not is somewhat immaterial as the proposed building form will be perceived as separate dwellings on individual parcels/pieces of land. And the built form in my assessment is not compatible, but rather it is inconsistent and antipathetic, with the character of the area, whether or not subdivision takes place.

38 The three properties on similar shaped and sized allotments to the west of the site in Devine Street, all have the common characteristic of verandas and/or porches to the Devine Street elevation and while they have a zero setback from the boundary they also have verandas and porches with a setback to the face of the walls. These elements reflect the building form of many older dwellings in the conservation area. No’s. 34 and 36 are a more contemporary interpretation of terrace forms of development and they make a positive contribution to the streescape providing an appropriate emphasis on verticality in their design. The adjoining property at No. 38 Devine Street while it could not be said to be a good example of infill development, it nonetheless reasonably maintains the rhythm of the streetscape.

39 From my assessment it also follows that the size of the parcels of land for each dwelling, irrespective of the titling arrangement, is not large enough to meet the expectations and requirements of occupants of single dwellings. While the dual use of the open space area as a car parking space may be appropriate in certain circumstances, this would be dependent upon on the size and shape of usable space with or without a vehicle. In this application the use of open space car/ parking area would not facilitate enjoyment of the open space with dimensions for the space of only about 4 m x 6 m.

40 It could be argued that car spaces are not necessary for the proposed development on the basis that little is achieved in providing two X 4m wide gutter crossings to access each space, and thereby removing the extent of kerbside parking available. It is also clear that in terms of approval that council has granted for other recent developments in Devine Street that car parking has not been required in the approval of those applications. Indeed council’s Development Control Plan No. 11 - Transport Guideline for Development states that “the parking rates do not represent a code that should be blindly adhered to” (and the rate for single dwellings is one space per dwelling).

41 The DCP states: “concessions to reduce car parking can be considered against criteria including: the size and type of development; the degree of impact on local parking conditions; the availability and level of service of public transport; the availability of car parking on-street; the location of non-residential uses such as schools, local services, employment retail and recreational facilities and whether the proximity of these services will reduce the need for vehicle use; and the projected requirements of people occupying the development”.

42 If the car parking and the gutter crossings were deleted from the proposed development this would not overcome the inappropriate presentation to the public domain/streets. I am also not persuaded that the open space area associated with the southern dwelling would be satisfactory in terms of the number of hours of sun received at the winter solstice.

43 While the applicant did not press the subdivision, it follows from my findings above that the subdivision is not favoured and in this regard I agree with council officers that the size of the proposed allotments of approximately 71 sq m and 66 sq m does not provide adequate space on which to erect a dwelling and associated open space areas with an appropriate level of solar access. Furthermore, apart from an assessment of the allotment sizes in terms of the proposal before the Court, I am also of the opinion that the configuration of the subdivision is out of keeping with the pattern of subdivision in the area. The smaller lots in the area generally have a narrow boundary to the street frontage, and where there are corner allotments dwellings generally address the narrow street frontage.

44 The floor space ratio and height exceedance of the proposal are not an issue. However the built form proposed is unacceptable in the context of the surrounding area.

45 The impacts of the proposed development on No. 38 also in my assessment would not warrant refusal of the application. While any future development of the subject site must have regard to minimising/mitigating adverse impacts at the same time the subject site has redevelopment potential and the reasonableness of any impacts will need to be assessed in terms of the council’s controls and guidelines in any future proposal.

46 Given that I consider the application should be dismissed because for the fundamental reason that it provides for an inappropriate built-form in the streetscape that is out of character with the area, the more detailed design therefore is a secondary matter. The applicant requested the opportunity to amend the plans with respect to the street elevations. However, my reasons for refusal go to the fundamental question of the location of the two built forms on the land and the inadequate open space provided.

47 Therefore, amended plans are not appropriate in the circumstances as they would not overcome my determinative reasons for refusal. As such, any future redevelopment plans for the site should be by way of a fresh development application.

48 The heritage impact assessment in many respects overlaps with my findings above in that the built-form is not sympathetic to the streetscape and conservation area. The land allocation as proposed, even if not subdivided, is also out of character with the heritage conservation area. By way of comment, on the site inspection as pointed out by the applicant, the boundary of the conservation area does not appear to be well founded. Nonetheless if the subject land was not in a conservation area the proposed development would still be out of character with the area and would not warrant approval on a merits assessment.

49 There is no dispute that the existing dwelling has been significantly altered, both internally and externally, and the council does not seek its retention in any redevelopment of the site.

50 On the basis of my assessment above, the orders of the Court are:

1. The appeal in respect of the property known as No. 40 Devine Street, Erskineville, is dismissed.
2. The development application submitted to the Sydney City Council, and as amended, is determined by the refusal of consent.
3. The exhibits are returned.

_______________________
J S Murrell
Commissioner of the Court
rjs