Dale v Blacktown City Council

[2007] NSWLEC 810

Land and Environment Court

of New South Wales

CITATION:	Dale v Blacktown City Council [2007] NSWLEC 810
PARTIES:	APPLICANT Robert and Colleen Dale RESPONDENT Blacktown City Council
FILE NUMBER(S):	10866; 10867; 10868 of 2007
CORAM:	Brown C
KEY ISSUES:	Development Application :- three separate development applications for the erection of three dwellings - bulk, scale, character - zone objectives
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
DATES OF HEARING:	10/12/07
EX TEMPORE JUDGMENT DATE:	10 December 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr J Hancock, agent RESPONDENT Mrs M L Taylor, solicitor SOLICITORS Bartier Perry Solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

10 December 2007

10866, 10867 and 10868 of 2007 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 at 3 Waratah Street Rooty Hill (the site). The appeals were heard concurrently.

2 The proceedings were originally set down as a Court Hearing however the parties agreed to amend the hearing to an On Site Hearing. The judgment reflects the relevant parts of the Statement of Facts and Contentions and the findings given at the On Site Hearing.

The site

3 The proposal comprises three lots, being:

• Lot 3, Sec C, DP 2358 – DA–07–346 (Appeal No 10867 of 2007),
• Lot 4, Sec C, DP 2358 – DA–07–344 (Appeal No 10866 of 2007),
• Lot 5, Sec C, DP 2358 – DA–07–345 (Appeal No 10868 of 2007).

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 dwelling on each of the lots with a setback of around 11.5 m from Waratah Street. A carport is proposed on each of the lots between the dwelling and the street boundary with a setback of 3.4 m from Waratah Street. The carports for Lots 3 and 4 are joined along the common boundary and the carport for Lot 5 is located on the eastern boundary of this lot.

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 A - Introduction and General Guidelines and Part C - Development in the Residential Zones apply. Relevantly, cl 3.2, Part C provides for a 7.5 m setback in the existing development localities or lesser where compatible with adjoining residential development.

9 Other planning documents relied on by the council are the Policy for New Dwellings on Narrow Allotments and Blacktown Draft Development Control Plan for Narrow Frontage Allotments.

The issues

10 The issues raised by the council in the three separate appeals are identical. The issues are:

1) the unacceptable bulk, scale and impact on the streetscape,
2) the non-compliance with Policy for New Dwellings on Narrow Allotments and Blacktown Draft Development Control Plan for Narrow Frontage Allotments,
3) matters raised by objectors, particularly overshadowing, lack of privacy, inadequate on street parking and unsatisfactory design.

11 The parties agreed to the appointment of Mr Warwick Gosling as the single town planning expert.

Bulk, scale and streetscape

12 Mr Gosling states that the development will have a detrimental impact on the streetscape of Waratah Street due to the siting of the carports, the lack of integration between the dwellings and the carports and the design of the dwelling and carport on Lot 5. For these reasons the development is inconsistent with zone objective (c).

13 Mr Hancock, for the applicant, brought to the Court's attention to the existing carport structures located at 1, 5 and 6 Waratah Street. He submitted that these structures extend into the setback area and support the construction of the proposed carports in the setback area.

14 With the benefit of the site view, I agree with the conclusions of Mr Gosling. By paraphrasing the zone objectives, the 2(a) acknowledges that the area is predominantly made up of single dwellings however other forms of residential development, such as townhouses, villas, integrated housing, dual occupancies are allowed providing that this form of development does not adversely impact on adjoining development or the amenity of the locality.

15 The locality extends beyond the immediate area of the site. DP 2358 includes Waratah Street, Albert Parade, Willeroo Avenue, Leighton Street and part of Rooty Hill Road South and consists of lots of a similar size to those in the proposed development. The residential character is made up of dwellings located on at least 2 lots, and in some instances, 3 lots. There are two examples where a dwelling has been constructed on a single lot (24A and 29A and Waratah Street). In the vast majority of residential development within this area, the setback area is largely undeveloped and predominantly landscaped. Together with the existing street planting, the predominantly landscaped setback area of the dwellings contributes significantly to the established character of the area.

16 Of the sites identified by Mr Hancock, the carport at 1 Waratah Street is located at the side of the dwelling and does not extend beyond the setback of the dwelling. The carport at 5 Waratah Street is located at the side of the dwelling but extends some 2 m into the setback area. Importantly, the carport extension into the setback area forms part of a verandah for the dwelling thereby creating a level of integration with the dwelling. The setback of the carport and the verandah is some 5 m. The carport at 6 Waratah Street extends from the dwelling into the setback area. It does not integrate with the dwelling but was approved in March 1999.

17 In considering Mr Hancock’s submissions, I am not satisfied that the existing examples of carports in the setback area can be realistically used to support the construction of the three carports proposed in the applications. The proposed carports are substantial structures and would be seen as obtrusive elements within the streetscape, particularly considering their collective appearance and a general absence of other structures within this area in the locality. They significantly breach the 7.5 m setback requirement in DCP 2006 and even if some consideration is given to the lesser setbacks of around 7 m on the adjoining properties there is still a significant breach.

18 I generally agree with the comments of Mr Gosling that it is possible that three dwellings could be constructed on the site however any design would need to be more sensitive to the streetscape. The dwellings located at 24A and 29A Waratah Street successfully locate a dwelling on a single lot without any unacceptable impact on the streetscape however I acknowledge that their corner location helps significantly in addressing the question of car parking.

19 The impact on the amenity of the locality is significant and the proposed developments should be refused for this reason alone. For completeness I will briefly deal with the other issues.

Policy for New Dwellings on Narrow Allotments and Blacktown Draft Development Control Plan for Narrow Frontage Allotments

20 These documents were relied upon by the council to support their position that the development was unsuitable, as it did not comply with the minimum lot frontage requirements. This was not a position accepted by Mr Gosling for a number of reasons.

21 The relevance and weight to be given to the documents is a significant issue however it is not a matter that needs to be addressed by the Court as part of these proceedings because of the failure of the application to satisfactorily address the general issue of bulk, scale and streetscape. Consequently, I make no findings on this issue.

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.

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

25 The issue of inadequate on-street parking is also not an issue that would warrant the refusal of the development application as the on-site parking satisfies the requirements of DCP 2006. I do however accept Mr Gosling’s evidence that a better solution to the on-site parking would be to provide a greater setback to any parking structure so that an additional car could be parked within the property thereby reducing the need for on-street parking.

26 On the general issue of design, there was general agreement from a number of local residents that the redevelopment of the site for two dwellings would be an appropriate development for the site. While I understand that such a response would be consistent with the Policy for New Dwellings on Narrow Allotments and Blacktown Draft Development Control Plan for Narrow Frontage Allotment, the enforcement of such a requirement would depend on the status of these documents at the time of the consideration of any future development applications.

Orders

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

Appeal No 10866 of 2007:
1) The appeal is dismissed.
2) DA–07–344 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 10867 of 2007:
1) The appeal is dismissed.
2) DA–07–346 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 10868 of 2007:
1) The appeal is dismissed.
2) DA–07–345 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