Davidovic v Botany Bay City Council
[2012] NSWLEC 1208
•01 August 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Davidovic v Botany Bay City Council [2012] NSWLEC 1208 Hearing dates: 31 July 2012 Decision date: 01 August 2012 Jurisdiction: Class 1 Before: Morris C Decision: Appeal upheld
Catchwords: Development application, dwelling houses Legislation Cited: Botany Local Environmental Plan 1995
Land and Environment Court Act 1979;Texts Cited: Development Control Plan No. 38 - Houses and Ancillary Structures Category: Principal judgment Parties: Dusica Davidovic (Applicant)
Botany Bay City Council (Respondent)Representation: Solicitors
Mr T O'Connor Houston Dearn O'Connor (Respondent)
Mr G Christmas Apex Law (Applicant)
File Number(s): 10469 of 2012
Judgment
Mr Dadovic lodged a development application with Botany Bay City Council on 27 September 2010 that proposed the demolition of an existing dwelling and associated outbuildings and the construction of two x three storey terrace homes on land known as 17 Universal Street, Eastlakes. The council refused the application on 24 November 2011 and Mr Dadovic is appealing that decision.
As a result of the joint conferencing between town planning and urban design experts, the applicant prepared amended plans that significantly reduced the height of the building. Those plans were discussed at a conciliation conference held on site under the provisions of s 34 of the Land and Environment Court Act 1979 (LECAct) where the experts for the parties agreed that the amended design was satisfactory and addressed all of the contentions raised by the council.
The council staff present at the conciliation conference did not have delegation from their council to enter into an agreement under s 34(3) of the LECAct however consented to the proceedings being disposed of on the basis of what had occurred at the conciliation conference in accordance with the provisions of s 34(4)(b)(ii).
The site and its context
The site is located on the southern side of Universal Street between Maloney Street and St Helena Parade and is rectangular in shape. It comprises two allotments and is legally described as Lot 25 and Lot 26 in DP 3239 with each lot being identical in size, having a frontage of 6.095 m, depth of 30.175 m and site area of 183.4 sq m.
A single storey dwelling house with a number of outbuildings is currently erected on the site. Development to the immediate west of the site comprises a two storey dwelling house and a single storey dwelling adjoins the site's eastern boundary.
Universal Street, whilst originally comprising a regular subdivision pattern of narrow allotments, similar in dimension to the two lots that are the subject of the application, contains a range of housing types. These vary from small detached, single storey dwellings on single allotments to four level residential flat buildings built across consolidated parcels.
The site view undertaken by the Court suggests the area is in transition with a number of recently completed two-storey terrace type dwellings having been constructed and more currently under construction. The majority of those dwellings are built to the side boundaries.
The proposal
The plans before the Court now propose the construction of a two storey dwelling on each allotment sharing a common party wall. Each dwelling would comprise a single garage, entry foyer, laundry, WC, kitchen and lounge/dining room at ground level and three bedrooms and two bathrooms on the first floor.
The western dwelling, T1, would be sited 900 mm from the western property boundary and the eastern dwelling, T2, 150 mm from the eastern boundary. T2 would incorporate a 3.8 m x 2.2 m courtyard area in the centre of its footprint. That area would be enclosed on its eastern side by a 1.8 m high brick wall.
Both dwellings would be erected on an alignment of 5.5 m to Universal Street with a small 1.43 m entry patio and first floor balcony encroaching part of that setback. Dwellings on either side of the site are constructed forward of the proposed building. The dwellings would be setback 7.335 m from the rear boundary at the ground level and a further 1.14 m or 8.475 m at first floor level. A 1 m wide patio is proposed at ground level adjacent to the rear lounge/dining room which would provide access to the rear yard. That area and the front building line would be landscaped in accordance with plans agreed between the parties.
The planning controls
The site is zoned Residential 2(a) in accordance with Botany Local Environmental Plan 1995 (the LEP). That plan provides primary and secondary objectives for the 2(a) zone as follows:
The primary objective is to provide for the development and use of detached dwelling-houses and semi-detached dwellings as the predominant built form, together with community and service uses of a type and scale appropriate to the enjoyment of such housing.
The secondary objectives are:
(aa) to promote detached dwelling-houses,
(a) to ensure that building form, including alterations and additions, is in character with surrounding development and does not detract from the amenity of surrounding residents or the existing quality of the environment,
(b) to allow community facilities and purposes which are compatible with residential use,
(c) to encourage the preservation and improvement of buildings which are of architectural or heritage significance,
(d) to allow certain non-residential development which provides services for residents and which is of a type and scale which does not interfere with the amenity of surrounding residential uses, and
(e) to encourage energy efficiency and energy conservation in all forms of development permissible within the zone.
Development Control Plan No. 38 - Houses and Ancillary Structures (the DCP) also applies to the site.
The evidence
The conciliation conference was held on site and evidence was heard from residents of two adjoining properties, one to the side and one to the rear of the site. The resident of the Universal Street property objected to the development on the basis of its height, bulk and scale and in particular its proximity to the common boundary and the loss of solar access to windows along the western wall of that dwelling. Concerns in relation to potential damage during construction to both the dwelling and its pathways, trees and landscaped areas were also raised. The spokesperson for the owner of that property also expressed concerns that the plans as amended remained contrary to the council's planning controls.
The owner of a property to the rear of the site raised concerns in relation to overshadowing and loss of privacy from the upper floor bedroom windows. The objector's property comprises two allotments, one of which adjoins Lot 26, the eastern lot of the two lots that comprise the site. The issue of overshadowing was discussed and all of the experts agreed that the amended plans would have no greater impact on the objector's property than a typical boundary fence and that issue was resolved. The remaining concern was the size of the upper floor windows in each of the dwellings. Those are bedroom windows and, according to the elevations provided on the amended plans and the window schedule, they are 2.1 m wide and 1.2 m high with a sill height of 900 mm above floor level and are sited 8.475 m from the rear boundary that is common to the objector's property.
Ms S Butler Mr L Doyle and Mr B McDonald prepared a Joint Planning and Urban Design Report. That report had been prepared in response to the plans that had been refused by the council. The experts made a series of recommendations to address the contentions in the case. The applicant has incorporated those amendments in the plans now before the Court and the experts agree that the proposal is consistent with those recommendations and support consent being granted.
The principal changes made are:
- Deletion of the top (third) floor from both dwellings so as to reduce the height and bulk of the proposal.
- The "cut-out" or courtyard to T2 (Lot 26) incorporates the same dimensions at all levels through to the roof. This increases the setbacks from the adjoining property on the upper level.
Those changes were discussed in regard to the issues raised by objectors. In regard to the changes made through the increased setback of the upper floor to the courtyard, the experts agreed that this provides appropriate amenity to the adjoining property. The Court requested that they consider whether the option of setting the building back 900 mm from the boundary would provide better amenity in lieu of the changes proposed. It was agreed that there would be no benefit in terms of solar access to that property due to the location of the cut-out in terms of affected windows and that a 900 mm setback for the two storey building would in fact be a worse scenario. It was agreed that it will be important throughout construction to protect the adjoining property and the plants along the common boundary. The applicant has also agreed to delete the side boundary fence where it would adjoin the walls of the proposed building whilst the adjoining property remained in its current configuration. The effect of deleting that wall would be to provide a "borrowed" area of 150 mm to improve access down the side of the adjoining property.
In regard to the need to alter the size, location or sill height of the rear bedroom windows, the experts agreed that this was not necessary due to the considerable separation distance between the windows and the yard of the objector's property, the presence of the garage in the rear yard of that site and the fact that the rooms are bedrooms and therefore not utilised on a regular basis.
Further discussions in regard to stormwater disposal, location of tanks and site landscaping occurred and the parties agreed to further amendments to the landscaped plan.
An agreed set of conditions has been provided to the Court following the conference.
Conclusion and findings
The parties agree that the amendments incorporated in the plans now before the Court satisfies the council's contentions. The council does not oppose the grant of consent provided the Court is satisfied the application can be approved and, in particular, regard is had to the objector's evidence.
The site is within an area that is undergoing transition with older housing stock redeveloped with larger dwellings and that is likely to continue. That transition will inevitably lead to changes in the built form however, this change has been contemplated in the council's planning controls. The experts have assessed the proposal against those controls and agree the amended plans are satisfactory.
I am satisfied from the evidence provided by the experts that consent can be granted subject to the agreed conditions with some further amendments. The conditions address issues raised by objectors in relation to asbestos removal and protection of adjoining properties however, condition 47 should be amended to provide for protection of plants on the adjoining property to ensure these are not damaged during construction. These changes have been made to allow issue of final orders.
The Orders of the Court are:
(1) The appeal is upheld.
(2) Development Application No 10/401 for the demolition of an existing dwelling and associated outbuildings and the construction of two new, two storey, semi-detached dwellings is determined by the grant of development consent subject to the conditions contained in Annexure A.
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Sue Morris
Commissioner of the Court
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Decision last updated: 01 August 2012
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