Cistulli v Lane Cove Council

[2004] NSWLEC 707

Land and Environment Court

of New South Wales

CITATION:

Cistulli v Lane Cove Council [2004] NSWLEC 707

PARTIES:

APPLICANT
Vincent Cistulli

RESPONDENT
Lane Cove Council

FILE NUMBER(S):

10960 of 2004

CORAM:

Brown C

KEY ISSUES:

Development Consent :- Refusal of an application to modify approval granted for alterations and additions to an existing dwelling for professional consulting room and residence- whether substantially the same development - impact on amenity of area

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Lane Cove Local Environmental Plan 1987

CASES CITED:

Moto Projects( No 2) Pty Ltd v North Sydney Council [1999] 106 LGERA 298.

DATES OF HEARING:

16/11/2004

DATE OF JUDGMENT:

11/17/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr V Cistulli
Litigant in Person

RESPONDENT
Mr S Griffiths, solicitor
SOLICITORS
Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

17 November 2004

10960 of 2004 Vincent Cistulli v Lane Cove Council

JUDGMENT

1 This is an appeal against a refusal of an application to modify the approval granted by Lane Cove Council (the council), for alterations and additions to an existing dwelling house by converting the ground floor into professional consulting rooms and constructing a private residence at the first floor level at 208 Burns Bay Road, Lane Cove (the site).

2 The site has an area of 765.1 sq m with a frontage to Burns Bay Road of 15.6 m and a depth of 49.5 m. The allotment is rectangular in shape, and has a fall of approximately 900 mm to the rear of the site. Adjoining the property to the north is Burns Bay Road Ambulance Station and a single storey dwelling house at 1 Best Street. Adjoining the property to the south and rear are one and two storey dwelling houses respectively.

3 The approval granted by the council followed a mediation between the applicant and objectors. A number of deferred commencement conditions flowed from the mediation and formed part of the approval. These conditions were;

1 . The ground floor of the proposed dwelling to be reduced by five (5) metres, measured from the rear elevation, which is the balcony edge.

2. The first floor to be reduced by eight (8) metres, again from the proposed rear elevation and to include a juliet balcony only.

3. The northern boundary to include a section of screen lattice on top of any proposed fence and to be planted with appropriate vine plantings to match the existing height and an additional tree planted in what is current to the car turning bay area.

4. Side elevations to include windows of a highlight nature or glass to full height. A satisfactory landscaping plan of the rear property of the site, such landscaping to including two or three mature trees strategically placed.

5. The disabled parking space to be re-located to the front of the site with an approved layout.

4 Of these deferred commencement conditions, the applicant sought the following amendments as part of the s 96 application;

• The ground floor of the proposed dwelling to be reduced by 2.7 m, measured from the rear elevation rather than 5 m.
• The first floor to be reduced by 2.7 m from the rear elevation rather than 8 m and the reduction of the balcony to 3 m in width in place of a juliet balcony with lattice privacy screen to a height of 1.8 m, proposed along the north eastern edge of the balcony.
• Deletion of condition 3.
• Deletion of condition 4.
• The disabled parking space relocated to the front of the site with a second vehicular crossover to enable the disable vehicle to leave the premises in a forward direction.

5 In relation to the operative conditions, the s 96 application proposes modification to conditions 6, 7 and 8 that require screen planning to be provided to the rear and side boundaries of the property in the form of advanced tree planting. The s 96 modification application proposes a lattice extension to the proposed boundary fencing. This will achieve a total fencing height of 2.8 m to the north east and rear boundaries. It is also proposed to reduce the number of trees to be planted along the north eastern boundary from 3 to 1 and all require trees to have a minimum height of 1.5 m. The s 96 modification application also proposes the screen planting required by condition 8 along the south western boundary adjacent to the dwelling house alterations and additions be deleted.

6 The remaining modifications consist of;

• Deletion of the balcony to the front of the first floor addition and moving the first floor addition forward by 2.1 m.

• Providing a 500 mm indentation to the north eastern front elevation of the building.

• The south western elevation of the ground and the first floor addition, being increased by 850 mm towards the side boundary.

• The front fence being increased in height from 1.6 metres to 1.8 m.

• Increasing the number of consultancy rooms and medical practitioners to 2 and hours of operation increased from Friday 10am to 3pm to Monday to Friday 8am to 8pm, Saturday 8am to 8pm and Sunday limited to emergencies only.

7 The council filed a Statement of Issues containing 14 issues and particulars. These can be conveniently grouped into the following main areas;

1. Is the proposed development substantially the same development as that previously approved by the council?

2. Will the amenity of the adjoining and nearby neighbours be adversely affected by the increased hours of operation, additional parking, loss of privacy and impacts on streetscape.

3. Are the proposed amendments satisfactory in terms of car parking and manoeuvrability?

8 Evidence for the council was provided by Ms Nika Fomin, a town planner and Mr Ross Guerra, a development engineer. Ms. Jennifer Dennis, a town planner provided evidence on behalf of the owner of the property at 3 Best Street.

9 The applicant, Dr Vincent Cistulli is a medical practitioner and was self represented. He provided no expert evidence but responded in writing to the council’s experts.

10 On the issue of whether the proposed development is substantially the same development as that previously approved by the council, s 96(1A)(b) of the Environmental Planning Assessment Act 1979 requires that an application for modification cannot be considered if the development is not substantially the same development as that originally approved. There was general agreement that the physical form of the proposed amendment is not so different that it could not be seen as being substantially the same development however the use of the building however was in issue between the parties.

11 Ms Fomin and Ms Dennis agreed that the intensification of the use has substantially increased from a one day a week medical practice with one medical practitioner operating from 10am to 3pm to a 6 day medical practice with two medical practitioners operating from 8am to 8pm with emergency facilities on Sundays. It was their opinion that the increased activity will increase traffic generation, add to on street parking problems, operate at peak times on Burns Bay Road and adversely affect the amenity of the nearby residential area.

12 Dr Cistulli maintained that the proposed increase in operating hours did not substantially change the development as originally approved. He relies on previous advice from the council and his assessment that traffic generation based on the RTA Guidelines, will still be similar to a residential development.

13 In considering the requirements in s 96(1A)(b), the Court is required to assess the difference in a quantitative and qualitative sense (Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] 106 LGERA 298). On this basis, the evidence of Ms Fomin and Ms Dennis must be accepted. The increased operating hours clearly pose additional issues to those matters considered in the original approval, particularly in the areas of traffic generation and impacts on adjoining residential properties.

14 I refer to the objectives of the Residential 2(a1) zone and the provisions of cl 9(3) of LEP 1987 where consistency with the zone objectives is required otherwise approval must not be granted. The retention and improvement of the existing residential amenity of a detached, single family dwelling area is a zone objective. It must be an important consideration in the assessment of the development application. I am not satisfied that the modifications proposed result in a development that is consistent with this objective.

15 Even though the zoning makes provision for professional consulting rooms in residential zones, this cannot be seen as an unrestricted opportunity for this form of development. I find that the modification application is not substantially the same as the development for which consent was originally granted and for this reason the appeal must fail. For completeness I will deal with the other issues.

16 The additional operating hours were seen by Dr Cistulli as being similar to that of a residential development based on his assessment of likely patients. This was calculated on the basis of one patient per hour. He describes the one patient per hour ratio as being consistent with the needs of his speciality in preventative medicine.

17 In my view, this is an unreasonable assumption on which to base any potential traffic generation figures for a number of reasons. Firstly, the approval runs with the land and not the specific characteristics of each individual medical practitioner. Secondly, there was no evidence that the second medical practitioner would operate with the same one hour appointment schedule. Thirdly, the evidence of Dr Cistulli was that he was a general practitioner with an interest in preventative medicine. This does not suggest that every patient should be seen as requiring a one hour appointment. Fourthly, I am not convinced that the comparison with the traffic generation figures for a residential dwelling has properly interpreted the RTA Guidelines.

18 In my opinion, additional patients are likely to attend the premises than estimated by Dr Cistulli, although I am not convinced that my conclusion of the overall unsuitability of the site for the proposed development would be substantially different even if Dr Cistulli’s more conservative patient numbers were adopted.

19 I also agree with the concerns of local residents that additional patients could create additional on-street parking, particularly in Best Street. Patients will clearly use this street and other surrounding streets for parking because of the safety issues associated with heavy traffic volumes on Burns Bay Road and the limited parking provided on site. With the proposed hours of operation, the movements of vehicles could adversely impact on the amenity of the residential area.

20 The impact on of 3 Best Street will be exacerbated when vehicles use the limited on-site car parking as it adjoins the rear yard of this property. The ability to be able to create a buffer between the car park and manoeuvring areas and the rear yard of 3 Best Street is limited by the need to provide total paving in this area.

21 In terms of loss of privacy, I do not accept that the provision of additional screening on the existing fencing is an acceptable solution. This creates a fence some 2.8 m in height and would be unnecessarily over-bearing when viewed from the adjoining residential properties. As a general principle, any impact created by a new development should be largely addressed within the site of the new development. The starting point should be the design of the proposed development. If impacts cannot be addressed through design then other alternative methods should be considered. Landscaping is preferable as it provides a softer treatment.

22 In this case, I am not convinced that design alternatives are not available to address the issue of overlooking from the balcony and living room and kitchen areas of the proposed dwelling. While Dr Cistulli sought to obtain distant views from the first floor of the proposed residence, this must be balanced against the potential overlooking of adjoining properties. In my view, the balance is tipped unacceptably in favour of the applicant.

23 The loss of privacy to the property at 210 Burns Bay Road was also an issue with the proposed entry to the first floor residence potentially creating noise and overlooking impacts. While shown on the original approval, it is now some 850 mm closer to the boundary. I agree with the owner of the property that the entry in this location is essentially duplicated by another entrance adjoining the car parking area. There is no valid reason why it should not be deleted.

24 The use of the area adjoining 210 Burns Bay Road is also capable of being used as an access to the surgeries from the car park. While Dr Cistulli stated that other means of gaining access to the surgeries would be provided, these were not shown on the plans and the access along the boundary to 210 Burns Bay Road still provides a most convenient access to the surgeries from the rear car park.

25 Mr Guerro raised issue with the access to the designated disabled space in front of the building. He states that the turning movements into and out of this space did not satisfy the relevant Australian standard because of the existing wall on the front boundary. This was disputed by Dr Cistulli although he ultimately offered to remove the offending wall. Technically, the car parking space could be acceptable however, it does impact on the streetscape and further removes the development from the residential character envisaged by the residential zone objectives.

26 Mr Guerro also opposes the use of the two driveways, stating that it was inconsistent with the policy of the council. Dr Cistulli maintained that the two driveways were acceptable as the policy provides for two driveways in exceptional circumstances.

27 In my reading of the policy, I agree with Mr Guerro. The proposal displays no exceptional circumstances beyond the applicant’s desire to provide the level of development proposed in the application.

28 While not specifically raised as an issue I do not accept that adequate car parking has been provided on site. The proposal provides 4 spaces and 1 disabled space for 2 surgeries and a residence. Unfortunately, the council has no specific requirements for car parking for professional consulting rooms although the RTA Guidelines recommend 3 spaces per surgery. At a minimum this would require 6 spaces plus 2 spaces for the 4 bedroom and study dwelling.

29 Further parking is limited on the site, as it would encroach into the required landscaped area for the dwelling. With access only available from Burns Bay Road, it is essential that all the ingress and egress to the site maximise safety because of the busy nature of this road. The unsafe nature of parking on Burns Bay Road also suggests that adequate on site parking should be provided. I do not consider that the proposal adequately addresses either situation based on the evidence provided at the hearing.

30 Overall, the proposed modification application provides a development that is inappropriate for the site. The impacts on adjoining properties clearly highlight an overdevelopment of the site.

31 For the foregoing reasons the Orders of the Court are;

1. The appeal is dismissed.

2. The application to modify DA202/03 for alterations and additions to the dwelling at 208 Burns Bay Road Lane Cove is refused.

3. The exhibits are returned.

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