Da Silva v Marrickville C

[2006] NSWLEC 113

Land and Environment Court

of New South Wales

CITATION:

Da Silva v Marrickville C [2006] NSWLEC 113

PARTIES:

APPLICANT
Luis Da Silva

RESPONDENT
Marrickville Council

FILE NUMBER(S):

11304 of 2005

CORAM:

Hoffman C

KEY ISSUES:

Development Application :- sub-division of an existing allotment into two allotments with construction of a 2-storey terrace house -

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Marrickville Local Environmental Plan 2001
Marrickville Development Control Plan No. 35 (Vol1) including amendments Nos 1 and 2
Marrickville Development Control Plan No. 19 - Parking Strategy including amendment No 1

DATES OF HEARING:

21/02/2006

EX TEMPORE JUDGMENT DATE:

02/21/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr G. Green, solicitor
of Pike Pike and Fenwick

RESPONDENT
Mr G. Christmas, solicitor
of Marrickville Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

21 February 2006

11304 of 2005 Da Silva, Luis v Marrickville Council

JUDGMENT

1 This is a Class 1 Appeal No. 11304/2005 between Luis Da Silva and Rosario Da Silva and Marrickville Council in regard to the refusal of the Development Application (DA), to subdivide an existing allotment into two allotments and to erect on each a 2-storey terrace house each attached to the other, at No. 12 Constitution Road, Dulwich Hill.

2 The Site is Lot 18 in Deposited Plan 59484. It currently has a 12.9 m splayed frontage to Constitution Road and a depth at the north western side of 38.76 m and a depth on the south eastern side of 38.86 m and an area approximately 449 sq m. Existing on it is a single storey dwelling with a tile roof and a side driveway.

3 The locality is a Residential 2(A) under Marrickville Local Environmental Plan 2001 and since there is no minimum area for subdivision in that zoning, the subdivision is permissible with consent as are the attached dwelling houses under the relevant definition in the LEP.

4 Also permitted in the zone are dual occupancies where they are attached on allotments in excess of 400 sq m such as the subject lot is. I was told dual occupancies usually take the form of one dwelling set behind the other with a side driveway access, thus retaining the original appearance of allotment width in the streetscape. On lots larger than 1500 sq m apartments and larger complexes can be developed with consent.

5 In the locality of the property, there are opposite the site two older apartments buildings set well back from the street with trees and vegetation on the site. Totalling about 18 apartments they also have some parking on each site but not for every apartment.

6 Adjoining the site on the south is a row of six 2-storey terrace houses about 120 years old. They are not heritage items. However within the locality of the site they are the only developments of that type. The remaining properties are detached dwelling houses, one of which is said to be a dual occupancy that is not evident from the street.

7 The proposal will result in two lots each with a frontage of about 6.095 m to Constitution Road and an area of 224.5 sq m. The terrace style dwelling houses would have on the outside boundaries a 900 mm setback with the boundaries of No.10 Constitution Road and No. 14 Constitution Road. Each terrace house would contain a lounge, dining area, family/living area and kitchen laundry and bathroom on the ground floor, and upstairs 3 bedrooms and an en-suite and a bathroom. No on-site car parking is proposed.

8 The dwellings are set close to the front boundary and set square to the length of the allotments rather than the splayed street boundary. This results in the two proposed terraces having a step or offset to each other on the street elevation.

9 The older terraces on the southern side of the development actually are set on the street splayed boundary with the common walls between each terrace running at a splay to the street. As a result their street front rooms have an oblong interior rather than rectangular, and the street façade is one continuous wall with indented verandas on the ground floor and indented balconies above with Victorian cast-iron balustrades. The roof is one continuous equal gable roof above the six old terraces with the end gable abutting the subject site.

10 The proposal has two offset roofs on the side elevation due to the step between the two dwellings and the roofs are 25 degree pitch at the front up to a ridge about 2.5 m from the front and then a 5 degree skillion roof about 15 m long to the rear.

11 The applicable Statute is the Marrickville Local Environmental Plan 2001, and also applicable is the Marrickville Development Control Plan No. 35 (Vol1) including amendments Nos 1 and 2 and the Marrickville Development Control Plan No. 19 – Parking Strategy including amendment No. 1.

12 The issues in the appeal are:

1. The prevailing subdivision pattern and building character of Constitution Road is that of detached dwelling houses on lots 12 m to 15 m wide. The proposed subdivision of the land into two allotments is inconsistent with the prevailing subdivision pattern found in the street an will not permit the continuation of the dominant building pattern, particularly having regard to objectives 01 and 03 and control C1 of Part 3A of Development Control Plan No. 35 – Urban Housing Volume 1 (“the DCP”).

2. The proposed development is not in keeping with the established character of the street, being that of single storey attached houses with generous front setbacks which are generally landscaped. Such a design is contrary to the provisions of Part 2, Section B3 of the DCP. While the design of the proposed development has been influence by the terrace houses directly adjoining the site, these terraces are not considered to represent the predominant building character in the street. In any event, the proposed development does not positively relate to the adjoining terraces in that the massing, roof shape, boundary setbacks and architectural detailing varies significantly from that of the adjoining terrace houses.

3. The proposed development is likely to result in an unacceptable loss of solar access to the adjoining dwelling house at No.14 Constitution Road having regard to the controls contained in Part 2 Section A1 of the DCP. The submitted shadow diagrams indicate that the skylight above the kitchen and a rear facing window which provides light into internal living areas will not receive a minimum of 2 hours of sunlight between 9am and 3pm on the 21 June.

4. The proposed development fails to provide on-site car parking in accordance with the DCP. The inability to provide car parking suggests that the proposed lots are not of sufficient size and dimension to meet user requirements (including access and car parking) as required under Part 3 Section 3B of the DCP.

5. The proposal is not in the public interest and regard must be had to the submissions objecting to the original development application and the review application.

13 Appearing for the Respondent at the hearing was:

• Mr G. Christmas solicitor, Principal Solicitor for Marrickville Council,
• Mr J. Erken - Town Planner for the Council,
• Ms H. Bytheway - No. 16 Constitution Avenue,
• Ms E. Donalson - No. 14 Constitution Avenue,
• Ms K. Wilson - No. 10 Constitution Avenue,
• Mr P. Walsh - No. 10 Constitution Avenue.

14 Appearing for the Applicant was:

• Mr G. Green and Ms N. Lawe of Pike Pike and Fenwick,
• Ms Rosalia Da Silva – Applicant,
• Mr Luis Da Silva – Applicant,
• Mr Luis De Abreu,
• Ms. Christine Da Silva,
• Mr K. Nash - Town Planner.

15 During the hearing the experts had agreed that the skylight to the kitchen of No. 14 would not achieve the minimum 2 hours sunlight in mid-winter that is required by the DCP, and the applicant offered to lower the rear of the terrace house on the southern side by one metre in order to enable a full two hours to be achieved. Currently the skylight received about four hours of direct sunlight in mid-winter and it was the only source of natural light to the internal kitchen of No. 14.

16 To some extent that change if agreed to by the Court will resolve issue 3. So the other issues 1, 2 and 4 became the primary issues in the appeal. Of those both parties tended to the opinion that issue 1 was the primary issue in that the subdivision of the existing allotment into 2 narrow, small lots is contrary to the character and context of the local streetscape, and it would not enable the appropriate provisions of the DCP be complied with. Associated with that, is the lack of provision of car parking on the site, which is also a matter required to be complied with under the DCP.

17 The Applicant had been in negotiation with the Council since 2004 and the plans before the Court at this hearing were all issue C as in exhibit A. There had been a number of changes one of which was said to be the deletion of car parking in front of the terrace houses within a front setback. It was said the Council considered that to be out of context with the streetscape.

18 There was also the provision in the southern dwelling of the large light well or courtyard to the stairwell and hall of the southern terrace house. It will provide a gap in the roofline on that terrace house and allow sunlight through No. 14. As previously mentioned however, without further lowering of the rear section of that terrace house by 1 m, the required sunlight exposure period could not be achieved.

19 The Council said all these difficulties in the design meant that it was an unsuitable development to be approved.

20 Mr Nash had looked at the wider context of the locality as well as the immediate locality within 10 allotments of the proposal on either side of the street. He came to the conclusion that there is considerable variety of types of developments including the 120 year old terrace houses, the 1950’s or 60’s apartments buildings and the Victorian houses with some more modern detached dwellings. This variety reflects the wide mix of building types in the locality, and the proposed terrace houses being beside the existing ones could not be anathema to the streetscape.

21 Mr Erken, on the other hand had particular regard to the provisions of the DCP 35 objectives:

01 To retain the prevailing subdivision and building character of the street.
03 To ensure subdivision or amalgamation of sites reflects and reinforces the predominant subdivision pattern of the street.
C1 Proposed subdivision or amalgamation is similar to the prevailing subdivision and building character in terms of block width, site dimensions and layout, and is consistent with the streetscape of the subject development.

22 In regard to the provisions of DCP, the wider context taken by Mr Nash is not as applicable as the stated requirement to consider 10 allotments either side of the subject site and both sides of the street. Within that locality the majority of properties in this section of Constitution Road has street frontages in excess of 12 metres. The 120 year old terraces located at 14 – 24 Constitution Road represent a discrete group of dwellings constructed at a particular time, and are not representative of the prevailing character of this part of Constitution Road.

23 It is my conclusion that the subdivision of property into two allotments would not permit the continuation of the dominant subdivision pattern in terms of block width as required by the objectives and controls contained in the DCP.

24 Further it seems to me, that the physical appearance of the proposed terrace houses has several elements that are not consistent with the context of the locality and the nearby detached houses and the older terraces. In particular the proposed dwellings have gable roof forms presenting to Constitution Road and this design feature does not fit with the adjoining older terrace houses. Possibly more important than this, there are unequal skillion side elevation roofs proposed that are highly visible from the street. They will be quite uncharacteristic of the predominant roof forms in the locality. The only skillion roofs are in the rear single storey extensions of both the existing terrace houses and other adjoining detached dwellings.

25 The adjoining older terraces are constructed on a building alignment that runs parallel to Constitution Road whilst the proposed dwelling houses are constructed on a stepped alignment.

26 The existing terraces do not have a stepped character and whilst it is not necessary to repeat the form of the existing older terraces, it seems to me that the change of form in the proposed terrace houses would create a jarring visual impact adjacent to the older ones by disturbing their simple classic form with a hybrid concept. Currently the older terraces manage comfortably their contrast with one of the notable characteristics of the street being larger front setbacks with front garden areas and detached dwellings. But, the older terraces are the exception in the street and the proposal would extend their bulk and mass along the street front contrary to the predominant character.

27 Added to this is the lack of car parking. Evidence from the residents indicated that people in the apartments across the street and their visitors already overflow in parking at night time and add to congestion.

28 These two terrace houses would possibly generate the requirement for 4 cars and these would also have to go onto the street directly outside, contrary to DCP No. 19 and DCP No. 35 objectives. This would increase on street parking in the future rather than control it.

29 There is an element of precedent and cumulative impact raised during the appeal, in that an approval on the subject site could possibly engender a demand for other allotments in the street to demolish houses and subdivide similarly. Whilst this is technically permissible under DCP, it seems to me that such proposals, in the light of the objectives on the relevant DCP would be a contrary step to the proposed future streetscape and subdivision pattern. Overall therefore, I find in favour of the respondent.

30 The orders of the Court are:

1. The Appeal is dismissed
2. The exhibits are returned except the exhibits 5,6,7,8,A and B.

___________________

K G Hoffman
Commissioner of the Court
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