Dale v Blacktown City Council

[2008] NSWLEC 1425

Land and Environment Court

of New South Wales

CITATION:	Dale v Blacktown City Council [2008] NSWLEC 1425
PARTIES:	APPLICANT Robert and Colleen Dale RESPONDENT Blacktown City Council
FILE NUMBER(S):	10754; 10755; 10756 of 2008
CORAM:	Brown C
KEY ISSUES:	Development Application :- three separate development applications for the erection of three dwellings on three separate lots - streetscape/character - bulk/scale - car parking
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Blacktown Local Environmental Plan 1998
DATES OF HEARING:	10/10/08
DATE OF JUDGMENT:	24 October 2008
LEGAL REPRESENTATIVES:	APPLICANT Mr R Byrd, solicitor SOLICITORS P J Donnellan & Co RESPONDENT Ms M L Taylor, solicitor SOLICITORS Bartier Perry

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

24 October 2008

10754, 10755 and 10756 of 2008 Robert and Colleen Dale v Blacktown City Council

JUDGMENT

1 COMMISSIONER: These are three separate but related appeals against the refusal by Blacktown City Council (the council) of three separate development applications for the erection of three dwellings on three separate lots at 3 Waratah Street Rooty Hill (the site). The appeals were heard concurrently.

2 The contentions raised by the council relate to the unacceptable bulk and scale and the impact on the streetscape and character of the area and the unsuitable on-site car parking. Local residents raised additional issues of overlooking, overshadowing, inaccessibility for garbage trucks and insufficient off street parking.

The site

3 The proposal comprises three lots, being:

• Lot 3, Sec C, DP 2358 – DA–07–3311 (Appeal No 10754 of 2008),
• Lot 4, Sec C, DP 2358 – DA–07–3312 (Appeal No 10755 of 2008),
• Lot 5, Sec C, DP 2358 – DA–07–3313 (Appeal No 10756 of 2008).

4 Each lot has a frontage and rear boundary of 7.62 m and a depth of 33.53 m and an area of 252.9 sq m giving a total site area of 758.7 sq m. There is a fall from the Waratah Street frontage to the rear. The site is currently vacant with no significant trees.

5 The surrounding area is residential in character and developed predominantly with single dwellings of a mix of single and two-storey construction. Most dwellings were built in the 1950s and 1960s and consist of brick or clad construction.

The proposal

6 The proposal is to erect a two storey dwelling on each of the lots. The garage of each dwelling is setback 6.2 m from Waratah Street with the remainder of the dwelling setback a further 1.9 m. The dwellings on Lots 3 and 4 are joined along the common boundary and the dwelling on Lot 5 is joined at the upper level. A side setback of around 1 m is provided for Lots 3 and 5.

Relevant planning controls

7 The site is zoned Residential 2(a) under Blacktown Local Environmental Plan 1998 (LEP 1998). The proposed use is permissible with consent within this zone. Clause 9(3) provides that consent shall not be granted unless the development is generally consistent with one more of the objectives of the plan or one or more of the objectives of the zone. The relevant zone objectives are:

(b) to identify the existing residential areas of a predominantly single dwelling character, and to maintain the character by prohibiting residential flat buildings,
(c) to enable sensitive infill development of other housing types if the infill development is of a bulk, scale and appearance that does not adversely impact on adjoining development or the amenity of the locality,
(d) to enable development for a variety of housing forms, including townhouses, villas, integrated housing, dual occupancies and the like, if such development does not interfere with the amenity of surrounding residential areas by way of overshadowing, overlooking, or loss of privacy,

8 Blacktown Development Control Plan 2006 (DCP 2006) applies. Part C - Development in the Residential Zones applies. Relevantly, Part C, cl 3.9 provides requirements for Narrow Frontage Allotments. Appendix A – Definitions defines each lot as “Narrow Frontage Allotment”. Clause 3.9.3 provides objectives for Narrow Frontage Allotments that state:

(1) To achieve a high standard of building design and additional design innovation from proposals, to accommodate the restrictive nature of narrow frontage allotments.
(2) To ensure that orderly and visually appealing development is not compromised, and high standards of design are maintained.
(3) To ensure that the development of narrow allotments is appropriate to the character and streetscape of existing residential neighbourhoods, and makes a positive contribution to the local built environment.
(4) To ensure that the design of narrow allotments facilitates a high standard of amenity to occupants and neighbouring properties.
(5) To ensure consistency with Council’s dwelling-house development controls and other relevant guidelines elsewhere in Blacktown DCP 2006.

9 Specific requirements for three narrow frontage lots are provided in cl 3.9.3. The clause relevantly states:

Where 3 narrow frontage allotments exist, consolidation is required to create either a single allotment or two allotments in order to comply with the controls of this code and achieve the objectives for the development of narrow frontage allotments (See Figure 3.9.2).

Figure 3.9.2 - Three Lot Policy
( 1) 3 lots are to be consolidated to create 1 allotment for the development of a single dwelling house with a minimum frontage of 12 m.
(2) 3 lots are to be consolidated to create an attached dual occupancy with a minimum frontage of 12 m.
(3) 3 lots to be consolidated to create 2 allotments for the development of two single detached dwellings on two separate allotments, with a minimum frontage width of 10 m each

Where consolidation of 3 narrow frontage allotments creates 2 allotments of a minimum 10m width each, and the development of 2 single dwelling-houses is proposed, the standard of design is to be of the highest quality. Council’s Officers will be vigilant in their assessment of such proposals to ensure the frontage in not dominated by the garage and that the use of materials, articulation and architectural design makes a positive contribution to the local built environment and enhances the character and amenity of the streetscape and local neighbourhood .

Bulk, scale, character and streetscape
The evidence

10 Mr Rodney Jensen, a town planner and architect, provided evidence for the council. He states that the unacceptable bulk and scale of the proposal would arise from the cumulative impact of the three dwellings as they would read as a single building from the street. The building would present as a large development, of a bulk and scale similar to a townhouse style development. The form of development would be completely alien to the character of the small detached cottages, which are the predominant form of residential development in the locality. The development would be particularly visible and prominent when viewed from up and down the street where the sloping site will add to the bulk and height above the ground, emphasising the contrast with the neighbouring modest single storey cottages.

11 Mr Jensen further states that the breach of the Three Lot Policy is of fundamental concern and goes to the heart of safeguarding amenity in established residential areas such as the subject locality

12 Mr Hancock, a town planner, provided evidence for the applicant. He questions the basis for the Three Lot Policy by indicating that the council has regularly changed its view on its implementation. He notes that there are examples of single dwelling houses on narrow lots both within the immediate locality and elsewhere within the local government area demonstrating that the council has not been consistent in the application of the policy. In his opinion, strict compliance with the Three Lot Policy conflicts with the rational, orderly and economic development of land and infrastructure. He notes that the Court granted an approval in 1997 for three individual dwellings on the three lots that are subject to these proceedings. In any event, the proposed development provides for an acceptable streetscape with integrated garaging, adequate internal utility, recreational and living space, all of which provide for a satisfactory "liveability" in a building of satisfactory bulk, scale and streetscape given the buildings articulation and material selections.

Findings

13 The Residential 2(a) zone, through its objectives, acknowledges that the area is predominantly made up of single dwellings (Objective (a)) however other forms of infill development, such as townhouses, villas, integrated housing, dual occupancies are permitted providing that this form of development does not adversely impact on adjoining development or the amenity of the locality (Objectives (c) and (d)). In this case, the amenity of the locality must be given its broader meaning and include the wider aspects associated with character and streetscape as well as the more narrow aspects associated with visual and aural privacy and overshadowing. The locality extends beyond the immediate area of the site to include at least Waratah Street, Albert Parade, Willeroo Avenue, Leighton Street and part of Rooty Hill Road South. These areas have lots of a similar size to the site.

14 While there are examples where a dwelling has been constructed on a single lot (24A and 29A and Waratah Street and a dwelling in Leighton Street), the overwhelming majority of residential development is constructed on at least 2 lots. The existing dwellings creates a largely consistent character within the locality. The principal characteristics of the locality are modest and predominantly single storey dwellings (some with under croft areas on the high side of the street), a low site coverage, a largely undeveloped front setback area with some landscaping, generous side setbacks and mature street tree planting.

15 If the proposed development is tested against this established character, there is little alternative but to accept the conclusions of Mr Jensen. The mass, bulk and scale created by the three two storey dwellings is clearly inconsistent with the established pattern of development in the locality. The minimal separation between the dwellings of on Lot 4 and Lot 5 of 1 m achieves little in creating the impression of individual dwellings, even if the upper level attachment of the dwellings is removed. The 1 m separation would only be noticeable when standing directly in line with this area on Waratah Street. From all other locations, the three dwellings would appear as a single entity. The consistent setback at the ground and first floor levels at the Waratah Street frontage further adds to the dominant and imposing nature of the development from the street when compared to the existing development.

16 The three garage doors occupy just below 50% of the frontage of each lot and are located forward of the rest of each dwelling. This is inconsistent with the objective in cl 3.8.1 of a DCP 2006 where it states that garages and carports should not dominate the frontage and should not detrimentally compromise the aesthetic relationship to the front garden and street.

17 I also find that the presentation of the proposed development to both adjoining properties is unacceptable. The side setbacks to these properties are around 1 m however of greater concern is the unbroken and unarticulated walls of the second-storey components of the dwellings that adjoin the neighbouring properties. It is a relatively well-established town planning principle that setbacks should increase with height. This is particularly relevant in this locality where the majority of housing is single storey with generous side setbacks. It is a further example of the proposed developments inconsistency with the established character of the locality.

18 Mr Jensen also raised the unacceptable impact on the character of the locality by the proposed on site car parking arrangements. While a sealed off street car parking space is permitted by cl 3.9.3 of DCP 2006 within the front setback, there must be a 2.5 m minimum setback from the front boundary, presumably to provide landscaping and help screen any vehicles from the street. The proposed development provides an appropriate sealed area however without the 2.5 m setback. In essence, this control dictates that the garage be setback around 2 m behind any proposed dwelling with a setback of 6.5 m. This is consistent with the DCP 2006 approach of garages not dominating the streetscape. This inconsistency further adds to the unsuitability of the proposed development in its context.

19 The submission of Mr Hancock that the Three Lot Policy should somehow be given little weight because of the council's previous deliberations on its provisions is without any real basis. There was no argument that the provisions of cl 3.9.3 were not properly made or that the provisions did not serve a proper planning purpose. Consequently, there is no valid reason why the Three Lot Policy should not be given the appropriate weight for a development control plan in the assessment of the development applications. The Three Lot Policy within DCP 2006 is, in my view, an appropriate and legitimate planning approach to address the existing historic subdivision pattern with the view to maintaining the established character of the locality.

20 The impact on the amenity of the locality in terms of character and streetscape is significant and there is no doubt that proposed development is inconsistent with zone objective (c). This impact, in my view, would be a sufficient reason to refuse the application.

21 The Three Lot Policy in DCP 2006 (together with other DCP 2006 controls) appropriately provides some standards that would allow a development to address the issues of character and streetscape in the existing residential context. The non compliance with the numerical requirements in the Three Lot Policy simply confirms the qualitative assessment of the proposed development. For completeness I will briefly deal with the other issues.

Matters raised by local residents

22 The following local residents provided evidence on-site:

• Mrs Patricia Baron of 4 Waratah Street,
• Mr and Mrs Wright of 5 Waratah Street and
• Mr and Mrs Fitzsimmons of 6 Waratah Street.

23 The council provided a bundle of documents containing further submissions including submissions from Mr and Mrs Ott of 1 Waratah Street who adjoin the site and who could not attend the site view.

24 The major issues raised by local residents and not addressed elsewhere in the judgment are overshadowing, lack of privacy and impact on existing on-street parking. Based on the site view and the documentation provided by the applicant, I am satisfied that these issues would warrant the refusal of the development application.

25 On the issue of the capacity of the site for redevelopment, there was general agreement from a number of local residents that the redevelopment of the site for two dwellings would be appropriate. While such a response would be in breach of the minimum frontage requirement in Three Lot Policy (12m required and 11.43 m possible), the enforcement of such a requirement would, I imagine ultimately depend on the quality of the proposed development given the small variation to the minimum frontage requirement.

Orders

26 For the reasons in the preceding paragraphs, the Orders of the Court are:

Appeal No 10754 of 2008:
1) The appeal is dismissed.
2) DA–07–3311 for the erection of a dwelling on Lot 3, Sec C, DP 2358, 3 Waratah Street, Rooty Hill is refused.
3) The exhibits are returned.
Appeal No 10755 of 2008:
1) The appeal is dismissed.
2) DA–07–3312 for the erection of a dwelling on Lot 4, Sec C, DP 2358, 3 Waratah Street, Rooty Hill is refused.
3) The exhibits are returned.

Appeal No 10756 of 2008:
1) The appeal is dismissed.
2) DA–07–3313 for the erection of a dwelling on Lot 5, Sec C, DP 2358, 3 Waratah Street, Rooty Hill is refused.
3) The exhibits are returned.
____________
G T Brown
Commissioner of the Court