Chouman v Hurstville City Council

[2015] NSWLEC 1574

Land and Environment Court

New South Wales

Medium Neutral Citation:	Chouman & Anor v Hurstville City Council [2015] NSWLEC 1574
Hearing dates:	16 December 2015
Date of orders:	16 December 2015
Decision date:	16 December 2015
Jurisdiction:	Class 1
Before:	Hussey AC
Decision:	1. The appeal is allowed; 2. Development consent is granted to DA 2014/1188 for the demolition of the existing dwelling and construction of 2, 2 - storey attached dual occupancy dwellings at 5 Thomas Street, Hurstville, subject to the conditions in Annexure A; and 3. The exhibits are retained, except for exhibit 2.
Catchwords:	Development application: Dual occupancy, urban design, compatibility with neighbourhood, minimum lot width control and internal amenity
Legislation Cited:	Hurstville LEP 2012, State Environmental Policy No 55, and Development Control Plan No1 – LGA Wide.
Category:	Principal judgment
Parties:	Shady Chouman (Applicant) Hurstville City Council (Respondent)
Representation:	Solicitors: Mr P Duffy, (Applicant) Duffy Law Group Ms V McGrath (Respondent) Norton Rose Fulbright
File Number(s):	10819 of 2015

This determination was given extemporaneously and has been edited prior to publication

JUDGMENT

Background:

1. This appeal concerns, and arose out of, a refusal of a development application for the demolition of existing structures on the subject property known as 5 Thomas Street, Hurstville, the construction of 2 x 2-storey attached dual occupancy dwellings and associated front fence.

2. The site is known as lot 17 in DP 10395 and it has an area of 656 sq m and is located on the south‑western side of Thomas Street. The site has splayed frontage of 16.09m to Thomas Street. The average width of the site is 14.6 m and the average depth is 42.67 m. The site falls from the rear boundary to the street by approximately 3 m.

3. There is currently an existing single storey dwelling house with detached garage in the rear yard on the site. The locality is characterised by a mix of single and two storey houses that vary in age and architectural style in an area that is undergoing change.

Planning Controls:

4. The relevant planning controls are:

1. Hurstville LEP 2012,

2. State Environmental Policy No 55, and

3. Development Control Plan No1 – LGA Wide.

Contentions:

5. For the appeal the council identified a number of issues which are summarised as follows:

1. The proposed development fails to meet the objectives of the residential R2 low density zoning under the HLEP;

2. The proposal is in conflict with the objectives of dual occupancy housing as contained within s 4.2 of DCP No1;

3. The proposal does not meet the requirements of council’s minimum lot widths contained in s 4.2.3.3 of DCP No 1 of 15 m;

4. The proposal does not provide floor to ceiling heights as required under s 4.2.2.4 of DCP No 1;

5. The proposal does not comply with the provisions contained within s 4.2.5 of DCP No1 relating to streetscape and building design;

6. The proposal does not comply with the provisions contained within s 4.26 of DCP No1 relating to landscaped area and private open space;

7. The proposal does not comply with the provisions contained in s 4.27 of DCP No1 relating to vehicle access and car parking;

8. The proposal does not comply with the provisions contained in s 4.210 of DCP No 1 – Solar Design, and

9. There was insufficient information provided.

The appeal:

6. The Appeal was set down for a s 34AA conference which commenced on site and the parties undertook discussions during the conciliation conference regarding these aforementioned contentions concerning non‑compliances with the various development controls. The discussion was focused on the detailed joint planner’s report, exhibit B, undertaken by Mr G Turrisi, the respondent’s consulting planner, and Mr David Haskew, the applicant’s consulting planner.

7. Following these discussions the parties agreed to consider amended plans responsive to the issues raised and the matters of particular concern to Mr Turrisi.

8. Consequently, consideration of these amended plans (Exhibit A) has resulted in Council’s agreement to all the design matters satisfying the contentions except for contention No 3, i.e. the minimum lot width.

9. Mr Turrisi in exhibit A confirms the acceptability of these amendments. His support is on the basis that:

1. Contention 5; The applicant has amended the scheme to introduce, to dwelling No 2 a strong vertical element over its entry. This element extends to the upper level. This design element now removes the previous concerns regarding the mirror image of the dwellings.

2. Contention 7; The applicant has now amended the plan to provide for a single vehicle crossing. An additional condition is being imposed to widen the opening at the street boundary.

3. Contention 8; the rear patios have been amended where the side walls have been removed. The roof has in part been replaced with an open pergola. In addition the first floor rear balconies have been removed to both dwellings and additional skylights provided to improve natural light into the living rooms for both dwellings. These changes have resolved this contention and an additional condition has been recommended to add another skylight to each dwelling.

4. Contention 9; I have reviewed the levels now provided and am satisfied the proposal is compliant in terms of height.

10. However, Contention 3 concerns the lots average width of 14.6m not complying with the DCP 1 minimum width requirement of 15 m. In the absence of a s34 Agreement, the conciliation phase was terminated and the appeal proceeded for s34AA determination. The planners dealt with this issue in their joint report (Exhibit B) on the basis of the following DCP particulars:

Particulars

(i)The proposal is in conflict with the following site frontage objectives contained in Section 4.2.3.3 of DCP 1;

• To ensure sites for dual occupancy developments are of adequate width to accommodate good building design.

• To limit the impacts of buildings upon the amenity of neighbouring land.

• To provide a variety of frontage controls for dual occupancy that respond to their impact on streetscape.

(ii)The objectives of the Building Envelope and Site Requirements have not been met, namely;

• A coherent and attractive streetscape.

• Off-street parking and vegetation corridors at the rear of sites.

• Better opportunities for natural light, ventilation and privacy.

(iii)The Design Principles contained within this section have not been met, namely;

• Dwellings are private and allow adequate natural light into living area.

• Dwellings minimise overlooking to adjoining dwellings, and orientate the main living areas to the front and rear, rather than the side boundary.

• Designs include attractive open space that is private, receives sunlight and allows for rainwater infiltration.

• Designs allow for areas of landscaping and retain significant trees.

11. Considering that this lot has a frontage of 16.09 m and it is a splay shape block with an average width is 14.6 m, the non‑compliance is in the order of 400 mm. At para 13 of the joint report, the planning experts initially agreed that the resolution of Contentions 4, 5, 6, 7, 8 and 9 would mean that the non-compliance with the 15 m width requirement contained within DCP No 1 could be deemed as adequate justification to vary the standard.

12. At para 14, Mr Turrisi was of the view that if the contentions listed above have not been resolved then the 15 m width would be valid grounds for refusal.

13. I understand that the 15m width is a development control in the DCP, which allows appropriate exercise of discretion and that it was apparently a development standard in the superceded LEP. However under LEP 2012 it is no longer a development standard.

Conclusion

14. Having considered the evidence, and in the absence of any challenge, I accept the planner’s agreement that the resolution of all the design issues in the contentions results in a satisfactory design for this proposal. Accordingly, relying on this evidence, I consider it reasonable to exercise discretion, so as to permit the minor width non‑compliance of approximately 400mm in the DCP control, as originally agreed by the planners. In this regard, I note that there were no objections raised by the parties that the amended proposal was not a good building design or that there would be unreasonable impacts on neighbouring land. Accordingly, I consider it merits conditional consent.

Court Orders:

15. The Court orders that:

1. The appeal is allowed;

2. Development consent is granted to DA 2014/1188 for the demolition of the existing dwelling and construction of 2, 2 - storey attached dual occupancy dwellings at 5 Thomas Street, Hurstville, subject to the conditions in Annexure A; and

3. The exhibits are retained, except for exhibit 2.

Acting Commissioner R Hussey

Decision last updated: 11 April 2016