Conway and Amibeaggi v Blue Mountains City Council - [2007] NSWLEC 419

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Conway and Amibeaggi v Blue Mountains City Council [2007] NSWLEC 419

PARTIES:
APPLICANT
Vashti Elizabeth Conway and Farshad Amibeaggi
RESPONDENT
Blue Mountains City Council

FILE NUMBER(S): 10811 of 2006

CORAM: Hoffman C

KEY ISSUES: Deemed Refusal :- three detached 2-storey disabled persons accessible house, bulk and scale, car parking and vehicular access, stormwater management, landscape settings and streetscape, privacy and public interest

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

DATES OF HEARING: 20/04/2007 and 23/04/2007

DATE OF JUDGMENT:
12 July 2007

LEGAL REPRESENTATIVES:
APPLICANT
Mr A. Pickles, barrister
Instructed by Mr F. Amibeaggi of
Yates Beaggi
RESPONDENT
Mr A. Seton, solicitor
of Marsdens Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

12 July 2007

10811 of 2006 Vashti Elizabeth Conway & Farshad Amibeaggi v Blue Mountains City Council
JUDGMENT

1 This is a Class 1 Appeal No. 10811 of 2006 between Elizabeth Conway Vashti and Blue Mountains City Council in regard to a deemed refusal of DA No.X/1240/2005 for three (3) detached 2-storey disable persons accessible houses at No. 36 Old Bathurst Road, Blaxland.

THE SITE

2 Dimensions: The site is rectangular in shape with a slight splay corner on the southeast. A survey plan, prepared by Lovegrove Oxley Consultants, Plan No 64626 dated 24 June 2006, indicates dimensions of 48.16m to the eastern boundary along Reserve Avenue, 20.115m to the northern boundary, 51.815m to the western boundary and 16.46m to the southern boundary along Old Bathurst Road.

3 Topography: The site drains to the north-west corner, with a fall of 2.6 m from the corner of Old Bathurst Road and Reserve Avenue.

4 Vegetation: The site contains a number of existing trees along both street frontages, with a significant stand located along the Old Bathurst Road frontage. These trees are characteristic canopy species of the Sandstone Shale Transition Forest or Turpentine/Ironbark Forest. Other vegetation on site is of limited significance.

5 Existing Improvements:, The site presently contains a two storey brick dwelling and detached outbuilding.

THE LOCALITY

6 Old Bathurst Road is a fully formed road providing a link between the Great Western Highway at Blaxland, and the city of Penrith. Reserve Avenue is a sealed road without kerb and guttering. The locality is characterised by residential lots of size consistent with the subject site. Single detached dwelling houses dominate. A local retail centre is located approximately 300 m to the east along Old Bathurst Road containing a number of small convenience retailers and a service station. The commercial town centre of Blaxland is located approximately 1 km to the south west. Bus stops are located within 100 m and 200 m of the site. A railway station is located at Blaxland town centre.

STATUTORY CONTROLS

7 Blue Mountains Local Environmental Plan 2005 (“BMLEP”), this site is in Zone: Living General.

Accessible Housing Area.

Relevant Provisions:

8 Blue Mountains Better Living Development Control Plan

Relevant Provisions:
Part A - Introduction Part B - Site Planning
Part C - General Principles Part D5 - Accessible Housing

THE ISSUES as Further Amended to 20 March 2007

9 Issue 1) The proposed development does not provide an acceptable level of accessibility for future residents, including people with a disability.

1.a) Deleted.

1.b) Deleted.

1.c) Deleted.

1.d) Deleted.

1.e) Deleted.

1.f) Deleted.

1.g) Pedestrian pathways at the front of the site do not link directly to the footpath area resulting in the most appropriate form of pedestrian access to the footpath being via the driveways. The proposed driveways are of a gravel finish which is an unsuitable surface for pedestrian access and presents a hazard for residents and visitors to the site. The development fails to satisfy the requirements of cl D5.13.7 of the Better Living DCP in this regard or the requirements of cl 116 of LEP 2005.

1.i) The application was not accompanied by an objection under the provisions of SEPP 1 to the development standard in cl 116 and is therefore prohibited.

1.j) An on-site detention tank is provided within the courtyard for the rear unit with a finish ground level 0.34m below the entrance level courtyard (levels referenced are those shown on the engineering plans which differ from those shown on the site plan.) This is considered unacceptable, presenting a hazard for future residents.

Stormwater Management

2) Whether the proposed development is unacceptable in so far as inadequate information has been provided to demonstrate that stormwater run-off from the site can be managed and disposed of to the existing stormwater drainage system.

Particulars

The development relies upon the creation of an easement for drainage through the adjoining property to the north, No. 73 Boorea Road. This property therefore forms part of the development and the application is incomplete in that the consent of the relevant property owner(s) has not been provided for the creation of this easement.

The engineering plans are inadequate in that:
i) Deleted.

ii) Deleted.

iii) Deleted.

v) They do not accord with the proposed landscape plan which proposes planting in the location of stormwater prates.

vi) Deleted.

vii) Deleted.

viii) Deleted.

ix) The relationship of the channel profile within the proposed easement to the existing fencing, terracing and landscape works along the western boundary of 73 Boorea Road has not been demonstrated.

x) Insufficient detail has been provided to demonstrate a suitable overland flow channel profile to contain the critical 100-year ARI flows with a suitable freeboard within and along the proposed easement.

xii) The development does not provide acceptable habitable floor level heights relative to finished ground level in accordance with the requirements of the Building Code of Australia or cl D.5.4.6 of the Better Living DCP.

Housing Choice

3) The development is prohibited in that it does not provide for a variety of housing choice to meet the individual needs future residents in the area and in that regard is inconsistent with cl 110 of LEP 2005.

Particulars

3.a) Clause 110(a) of LEP 2005 requires that accessible housing developments are to incorporate a range of dwelling sizes contributing to the increased provision of single and two bedroom dwelling stock (see also cl D5.14.14 of the Better Living DCP). All dwellings within the development are of the same size, each containing two bedrooms and one study. Given that the study is able to be converted to a bedroom, it is maintained that all units contain three bedrooms.

3.b) Deleted.

3.c) The application was not accompanied by an objection under the provisions of SEPP 1 to the development standard in cl 110 and is therefore prohibited.

Car Parking and Vehicular Access

4) The proposed development is unacceptable in that the proposed car parking and vehicular access arrangements for the development are inadequate.

Particulars

4.a) Deleted.

4.b) Inadequate provision for visitor car parking is provided within the development, which is a requirement of cl D5.9.1 of the Better Living DCP (see particulars (k), (1), (m) and (n) in relation to the proposed driveway).

4.c) The garage for each dwelling is setback 4.2 m from the front boundary of the site and a 1 m high picket fence is proposed around the perimeter of the site. The limited driveway distance and the location of the picket fence results in reduced sight lines and the potential for vehicular and pedestrian conflict when vehicles reverse from the proposed garages. This is inconsistent with cl 99(3)(a) of LEP 2005.

4.d) Deleted.

4.e) Deleted.

4.f) Deleted.

4.g) Deleted.

4.h) Deleted.

4.j) All driveways are provided with a gravel surface. This presents a pedestrian hazard, potential stormwater issue and also has an adverse aesthetic impact on the streetscape. The provision of gravel driveways is inconsistent with the requirements of cl D5.9.15 of the Better Living DCP.

4.I) The driveways within the development form a visually prominent element of the streetscape and this is inconsistent with the requirements of cl 100(2) of LEP 2005.

4.m) The location of the northern driveway does not comply with the requirements of cl D5.9.16 of the Better Living DCP in that a 1.5m landscape strip is not provided along the side boundary.

4.n) It is assumed that the northern driveway provides for an additional car parking space within the front setback. This is contrary to the requirements of cl D5.9.3 of the Better Living DCP and cl 100 (2) of LEP 2005.

4.p) A longitudinal section of the northern driveway has not been provided to demonstrate an appropriate grade and the relationship of the driveway to the adjoining site.

Bulk and Scale

5) The proposed development is unacceptable in that it is excessive in bulk and scale and in that regard is inconsistent and incompatible with the character of surrounding properties and the existing streetscape.

Particulars

5.a) The limited variety in front building setbacks along the Reserve Avenue elevation will result in the development presenting an unacceptable bulk and scale relative to surrounding developments when viewed from Reserve Avenue and Old Bathurst Road, with proposed fencing and landscaping offering limited measures to reduce these impacts. In that regard the proposal is inconsistent with the requirements of Cl 60(1)(a), 60(3)(a) and 60(3)(b) of LEP 2005.

5.b) Deleted.

5.c) All dwellings present with a similar elevation to Reserve Avenue with only the rear unit reflecting minor design variation due to a single garage and altered first floor layout. This is incompatible with existing development in Reserve Avenue, and does not serve to enhance the quality of the streetscape. The failure to provide variation in design and an individual dwelling and street address in inconsistent with the requirements of cl 60(3)(c) of LEP 2005.

5.d) The floor space ratio of the proposal is inconsistent with the maximum floor space ratio of 0.4:1 as required under Schedule 2, Part 1, cl 4(2) of LEP 2005. The application was not accompanied by an objection under the provisions of SEPP 1 to the development standard in Schedule 2, Part 1, cl 4(2) and is therefore prohibited.

5.f) Deleted.

Landscape Setting and Streetscape

6) The proposed development is unacceptable in that it does not demonstrate a suitable landscape outcome that will contribute to the streetscape, character and landscape setting of the area.

Particulars

6.a) The landscape plan is inadequate in that it does not accord with the drainage plans and proposes garden beds and landscaping works in the location of stormwater drains. This presents a concern for the ongoing maintenance of the stormwater system with respect to mulch and vegetation potentially blocking the system.

6.b) Whilst a number of trees are proposed to be retained along the Old Bathurst Road frontage of the site, the application has not been accompanied by a SULE report (safe useful life expectancy) demonstrating that the most appropriate trees are retained. The application proposes to retain trees that are unsuitable for retention and has not demonstrated how other trees to be retained will be protected during construction works and suitably maintained thereafter. In this regard, the development is inconsistent with the provisions of cl 53(3) of LEP 2005.

6.c) The loss of existing mature trees will have an unacceptable impact on the landscape setting of the site and serve to undesirably alter the nature of the existing streetscape.

6.d.i) The design of buildings complement the physical characteristics of the site and minimize the removal of mature vegetation and site disturbance.

6.d.ii) The location of buildings maximize the retention of mature vegetation and maintains significant mature landscape features that contribute to the streetscape.

6.e) The NSW Rural Fire Service requires the entire site to be maintained as an Inner Protection Area. This will result in the loss of existing trees in close proximity to the corner dwelling which are currently proposed to be retained, and will have an unacceptable impact on the landscape setting of the site and serve to undesirably alter the nature of the existing streetscape.

Privacy

7) The proposed development is unacceptable in terms of the adverse privacy impacts within the development and for adjoining properties.

Particulars

7.a) The finished floor level of all units will result in the potential for overlooking to adjoining properties from living room windows. Finished courtyard levels will also result in the potential for overlooking to adjoining properties. Proposed fencing and landscaping is insufficient to address these impacts.

Inadequate Information

8) Insufficient information has been provided with the development application to enable an adequate assessment of the proposed development.

Particulars

Environmental Planning and Assessment Regulation 2000

Public Interest

9) The proposal is not in the public interest having regard to the non compliance with the provisions of LEP 2005 in relation to accessible housing, the impact of the development on the streetscape in terms of bulk/scale and landscape setting and the unacceptable amenity for future and existing residents.

10 The respondent’s evidence was heard from:

Ms S. Jensen, Subdivision Engineer for Council

Ms Shephard, town planner for the council

Mr & Mrs Heggie, the resident owners of No.73 Boorea St, had not lodged a formal objection because the original application did not show a drainage easement through their land. However they attended the on-site component of the hearing and gave evidence.

11 The applicants’ evidence came from:

Mr R. D. Williams, Consulting Civil Engineer.

Mr. T Byrnes, Consulting Town Planner.

12 The Statement of Environmental Effects and the BASIX certificates in evidence were for the original application. The design before the Court was in exhibits A, B, C and D being amended architectural, drainage, driveway and landscape drawings. The respondent had not objected to the tender of the changed design because they had changed in ways that could be assessed except for the BASIX certificates. Also the respondent asked that an objection to the original application from the Sheridans of No.34 Old Bathurst Road, should be taken into account. The applicant agreed.

13 During the hearing the changes said to ameliorate concerns of the Council were disputed by the respondents evidence. Also the respondent put that if the judgment fell in favour of the applicant, it should be produced as Preliminary Findings so that an easement for drainage could be negotiated or obtained through No.73 Boorea. Any Orders should not be issued until an easement or other suitable stormwater drainage solution could be found and any additional evidence on that heard. The applicant agreed to this procedure.

14 Part of the respondents concerns was the streetscape appearance of the development that used matching details and colours for the three houses that all faced Reserve Ave, that street ordinarily being the side boundary of the allotment. A coloured photomontage was tendered in Exhibit E showing the original design. Although there were some differences in architectural design amongst the three, the houses appeared one-storey with attic rooms within hipped roofs and dormer windows. There was a picket fence on both street boundaries and three sets of picket driveway gates and pedestrian gates to Reserve Ave.

15 The applicant had sought to change this in the amended plans so that different colours and materials were used although the appearance of the houses was almost the same. The driveway gates were deleted in the amended plans. These changes were shown in another coloured photomontage in exhibit G. The latter included 4 street trees to be planted along the verge of Reserve Avenue.

16 No reason was given for the gate deletion, but it appeared that the garage doors were 4.2m from the fence, so the gates would have been awkward to use while manoeuvring a car in and out of each garage.

17 The evidence of the respondent was that any 85%-ile sized car standing in the driveways would project onto the footpath reserve, and that was one of the demonstrations of the overdevelopment that the respondent calculated at 0.46:1 Floor Space Ratio as in calculation in Exhibit 11, when the statutory maximum is 0.4:1.

18 The Respondent said another demonstration of overdevelopment was the garages being set at 4.2m from the street, and the living room wall of each house at 4.0m from the street. This put the garages in a prominent position on the facades when the Council controls asked for them to be recessive, or down a side driveway.

19 The applicants’ evidence was that the garages would appear recessed because the verandas of each house projected out from the living rooms of each house creating a “visual recess” to the garages. The respondent’s evidence was that the verandas projected 1.5m into the front setback of each house, bringing the buildings to within 2.5m of the street frontage. Thus it was just another illustration of the crowding of the houses onto the street caused by overdevelopment.

20 The applicant said the main frontage was Old Bathurst Road where there is an 8.0m to 10.0m variable front setback to retain the major trees on the site.

21 The respondents evidence was that some of the trees said to be retained would not survive construction, and in any case the Bushfire protection required by the Rural Fire Service needed some of the trees to go to separate canopies and create an “Inner Asset Protection Zone” regime for the whole site. In view of the latter I believe the grove of trees will be reduced one way or another probably by more than shown in arborist report in Exhibit F. On a site such as this some trees must be lost and so long as the arborist does what is achievable, tree loss in this case need not be a determinative issue.

22 But this does not change the desirability that a “main frontage setback” needs to be a garden visible to the street in order to contribute to the streetscape. The landscape plans and the architectural showed a 1.8m high masonry wall set 1.5m in from the boundary with Old Bathurst Rd to create a private courtyard for the proposed house on the street corner. The use of the courtyard and the masonry wall would be over the root systems of the trees said to be retained, and as a result even with pier footing construction the trees must decline over the years.

23 This Old Bathurst Rd component of the design just illustrated overdevelopment again by compromising the 8-10 m setback of the building with a 1.8 m masonry wall just inside the boundary. Visual crowding into the streetscape results again.

24 The applicant had not provided the respondent with any calculation of the floor space ratio (FSR). At the hearing the applicant conceded the proposal was more than 0.4:1, and said the exceedence was equivalent to the study in the northern-most house (called Unit 3). The respondent asked if it was intended to delete the study in order to comply and the applicant demurred. Mr Byrnes in his SEPP No. 1 objection to the floor space exceedence said the FSR was 0.436:1 if the study of Unit 3 is deleted.

25 During the hearing the dwellings were named since no references were shown on the plans. Unit 3 is the northern, Unit 2 the middle and Unit 1 is on the street corner.

26 The applicant complained that the respondent was including in its calculation of FSR, one of the double car spaces in each of Units 1 & 2, and they had never been told that before. The respondent said the carparking and floor space controls were clear that any carspace in excess of the council requirement is included in floor space. The council had repeatedly asked the applicant to supply its calculation of floor space so it could see where the dispute lay in the statutory requirement of cl 99(1) of the BMLEP. Never having received the calculation the council could only assume the applicant understood the DCP provisions on carspaces relative to floor space are made statutory by cl 99(1). The applicant chose to convert previous 3rd bedrooms in the units into studies, and a 2-bed unit requires only 1 carspace.

27 I note that a 2-car garage obviously has much larger bulk than a 1-car garage, and can add considerably to visual bulk of a building, its site coverage and floor space ratio.

28 Another concern of the respondent in regard to carparking, overdevelopment, disability access and streetscape is that 1 on-site visitor carspace is required. The applicant showed a carspace on the northern boundary with No.73 Boorea. The visitor space had its own driveway from Reserve Ave, and just fitted between Unit 3 and the boundary such that no landscaping was possible along the side boundary. The visitor carspace was gravel finish, as were the driveways between the street boundary and the three garages (the council would require the footpath drive crossings to be concrete). There was no proposal for a pedestrian footpath from the visitor carspace to the units either within the property or alongside the public roadway.

29 The council said the 4th drive crossing, and the visitor carspace being largely within the front garden setback to Reserve Ave added another undesireable element to the streetscape when the controls only allowed two drive crossings. That emphasised the crowding of the site and its appearance in the streetscape. Being gravel finish and no connecting pedestrian pathway to the units, the carspace did not provide for disable access. The gravel driveways to the three garages likewise made them unsuitable for a disable person to alight from a vehicle unless it was inside the garage. The statute and controls sought houses, built under the concessions available in the statutory Accessible Housing Areas, to be user friendly to disable persons.

30 To make the visitor space useable and provide 1m wide accessible pedestrian paths within the front setback clear of the verandas would reduce the landscaped width of front gardens to 1.5m. The additional pavement adds further to the other elements, mentioned above, that crowd the development into the streetscape. The overall visual appearance would be contrary to the existing and desired future character of the locality. The street trees that the applicant proposes, although welcome in the public footpath reserve, would not overcome this, and should not be allowed as a “compensation” for, or a “screening” of on-site shortcomings. A development is required to deal with the design and planning requirements within its own site.

31 The respondent says, another contributing factor to overdevelopment of the site, and non-compliance with the choice of housing types and sizes requirements is that the statute asks for 1/3 of any accessible development to be units of less than 100 sq m. All of the proposed units exceed 100sq m and Units 2 & 3 are about 166 sq m. Unit 1 is only less in size because of having a 1-car garage. Considering all of the units are 2-bedrooms plus a study with separate living and dining rooms, they are all about the same size.

32 The applicant said that the choice of housing as read in the statute only requires the range to be available within each designated Accessible Housing Area on the BMLEP map. Since this appears to be the first accessible development in the Blaxland area, the variety can be made up in future approvals. Also the proposal does provide choices by having:

Unit 1 with two private courtyards, and a downstairs master bedroom and en-suite, and a 2-car garage.

Unit 2 with one private courtyard, an upstairs master bedroom with en-suite and study, and a 2-car garage.

Unit 3 with one private courtyard, an upstairs master bedroom with en-suite and study and a 1-car garage.

33 In looking at cl 110 of BMLEP, it does say in summary: Not grant consent unless satisfied the housing will contribute to housing choice in the locality by providing a range of dwelling sizes particularly 1-bed and 2-bed units, and by 33% of units being a size not greater than 100 sq m.

34 This is probably a clause that is wide enough to be interpreted the way the applicant says if the consent authority is content to do so. If this is the first development in the Blaxland Accessible Housing Area, it seems to me it has an obligation to meet the requirement. As the accessible housing stock increases, later developments may be able to claim there is no need to provide units of 1-bed or less than 100 sq m floorspace due to the excess of such units available at that time. This development has units all about the same size and room configuration except one has a 1-car garage whilst the others have a 2-car garage. None are 1-bed, and the council says 2-bed plus a study is de facto 3-beds when visitors arrive. They are large units giving no choice in size, only a choice of layout.

35 I do not think I need to explore all the other issues in this appeal, because the proposal fails clearly on Issues 1, 3, 4, 5, 6, and cannot meet the objectives of the statutes that may have justified upholding the SEPP No.1 objections tendered during the hearing.

36 The drainage issue is an important one that I want to make a “comment only” because of the need for an easement through No.73 Boorea, or some alternative. The applicant indicated during the site visit that it had suggested draining across Reserve Ave to a stormwater pit on the corner of Boorea and Reserve; also that it could pipe to Old Bathurst Road via a deep pipe that could be taken downhill from the site until it could discharge into the kerb. The council had resisted these options that seemed to me, on first glance, to offer a less complicated solution compared to the easement through No.73 Boorea. Perhaps a revised application could investigate these options further.

37 The Orders of the Court are:

1. The appeal is dismissed.

2. The exhibits are returned to the parties except Exhibits A, B, C, D, 1 and 2.

___________________

K G Hoffman

Commissioner of the Court

A.K

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Conway and Amibeaggi v Blue Mountains City Council [2007] NSWLEC 419

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CITATION:	Conway and Amibeaggi v Blue Mountains City Council [2007] NSWLEC 419
PARTIES:	APPLICANT Vashti Elizabeth Conway and Farshad Amibeaggi RESPONDENT Blue Mountains City Council
FILE NUMBER(S):	10811 of 2006
CORAM:	Hoffman C
KEY ISSUES:	Deemed Refusal :- three detached 2-storey disabled persons accessible house, bulk and scale, car parking and vehicular access, stormwater management, landscape settings and streetscape, privacy and public interest
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
DATES OF HEARING:	20/04/2007 and 23/04/2007
DATE OF JUDGMENT:	12 July 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr A. Pickles, barrister Instructed by Mr F. Amibeaggi of Yates Beaggi RESPONDENT Mr A. Seton, solicitor of Marsdens Law Group