Decadence Investments Pty Ltd v Marrickville Council

[2007] NSWLEC 402

Land and Environment Court

of New South Wales

CITATION:	Decadence Investments Pty Ltd v Marrickville Council [2007] NSWLEC 402
PARTIES:	Decadence Investments Pty Limited Marrickville Council
FILE NUMBER(S):	10324 of 2007
CORAM:	Hussey C
KEY ISSUES:	Development Application :- Demolition/Subdivision/New dwelling; compatibility with subdivision pattern, parking, height, bulk scale.
LEGISLATION CITED:	Enivronmental Protection and Assessment Act 1979 Marrickville Local Environment Plan 2007
DATES OF HEARING:	3/7/2007
DATE OF JUDGMENT:	4 July 2007
LEGAL REPRESENTATIVES:	Applicant Mrs. M. Lynne Taylor, Solicitor Mr. Norman Waterhouse Respondent Mr. S. Christmas, Solicitor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

4 July 2007

10324 of 2007 Decadence Investments Pty Limited v Marrickville Council

JUDGMENT

Background

1 This appeal was lodged against council's refusal of a development application for the demolition of an existing shed, a 2-Lot subdivision of the land and construction a new part 1/2 storey dwelling at 10 Hillcrest Street, Tempe. For the appeal number of issues were identified, which can be summarised as:

• Consistency of the proposed subdivision with the existing subdivision lot pattern,
• Height, bulk and scale of the proposed dwelling,
• Provision of on-site car parking space,
• Visual and aural impacts on neighbouring properties.

The Site.

2 The subject site is located on the south-western side of Hillcrest Street north of Unwins Bridge Road and it also has access from the rear via Way Street. The site is described as Lot 1 Sec 1 DP 5649.

3 It has a frontage to Hillcrest Street of 9.21m and a total area of 447.5 sq m. The site slopes from the southwest to the northwest with a crossfall from Way Street to Hillcrest Street in the order of 5 m.

4 At present there is a single storey dwelling house with garage located at the rear of property, which is accessed from Way Street.

5 The surrounding area mainly comprises of single storey attached dwelling houses. The playgrounds of Tempe High School are located directly south of the site on the opposite side of Way Street.

6 Tempe High School, which is located to the south of the site and 22 Hillcrest Street, which is located to the northwest of the site are listed as heritage items under Schedule 5 of MLEP 2001.

The proposal .

7 This proposal is to:

• Demolish the garage located at the rear of the property and part of the rear portion of the existing dwelling,
• Subdivide the land in 2 allotments as follows;

a. Lot A – a new Lot containing existing dwelling only a frontage of 9.21m to Hillcrest Street and a total area of 243.5 sq m.,

b. Lot B – a new Lot with frontage to Way Street and having a total area of 203.96 sq m.

• Erect a one, part two storey dwelling house on the new lot B.

8 Planning Controls:

Marrickville Local Environmental Plan 2001 (MLEP 2001); under which the site is zoned Residential 2(A). “Subdivision” is a permissible form of development, subject to consent. Dwelling houses are also permitted.

Marrickville Development Control Plan No 35 - Urban Housing,

Marrickville Development Control Plan No 19 - Parking Strategy,

Development Control Plan No 27 - Waste Management,

Development Control Plan No 32 - Energy Smart Water Wise,

Development Control Plan No 38 - Committee Safety,

Marrickville Section 94 Contributions Plan 2004 .

The evidence.

9 For the determination of this matter, the parties agreed not to lodge any expert evidence. However, a detailed s 79C assessment report by Councils’ town planner is contained within the bundle of documents.

10 A number of objections were lodged against the proposal. They include objections from the neighbours Mr & Mrs Glendinning from No 12 and Mr Merchant from No 8. Mr Glendenning said the main concerns of both neighbours are that the subdivision is uncharacteristic of the existing lot pattern, the proposed building is of excessive height and bulk, which will cause adverse outlook from his property and the possibility of aural dismenity. He also expressed concern about the proposals inability to provide an on-site parking space for the new Lot A, as required by the DCP, because of current demand for on-street parking spaces.

11 Insofar as there was some argument about the applicability of the planner’s assessment report, nevertheless it contains relevant facts for this appeal, which have not been challenged. Of particular interest is following table:

Lot, 1 (Existing Dwelling)	Lot 2
Total Floor Space	120.05sqm	121.23 sqm
Site Area	243.50 sqm	203.96sqm
Floor Space Ratio Proposed	0.49:1	0.6:1
Floor Space Ratio Permitted	1:1	1:1
Site Coverage Proposed	46%	64%
Site Coverage Permitted	66% (max)	66%

12 I note then that there is no maximum height specified under DCP 35. This is limited to the height of adjoining buildings, solar access to adjoining dwelling and street context. It is therefore apparent to me that the size of the proposed dwelling substantially complies with the relevant numeric controls and the main issues concerns the impacts of this proposed dwelling.

Subdivision

13 For this development to proceed, the approval of the subdivision is required initially. The subdivision controls are contained in Section 3A of the DCP where the stated objectives are:

0.1 To retain the prevailing subdivision and building character of the street.

0.2 To ensure the size of new allotments caters for a variety of dwelling and household types and permits adequate solar access, areas for open space, landscaping and car parking.

0.3 To ensure subdivision or amalgamation of site reflects and reinforces the predominant subdivision pattern of the street.

14 The associated controls requiring compliance are:

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.

C2 Proposed lots shall have a size and have dimensions to enable the siting and construction of a dwelling and ancillary buildings that:
• protect any natural or cultural features, including heritage items and the curtilage,
• acknowledge site constraints such as to terrain or soil erosion,
• address the street,
• minimise impact on neighbours amenity including access to sunlight, daylight, privacy and views,
• provide usable outdoor open space,
• provide areas for relaxation, recreation, outdoor dining and children's play area, and
• provide convenient vehicle access and parking.

15 From my consideration of the evidence and observations at the view, it is apparent that the original subdivision pattern with lots extending from Hillcrest Street through to Way Street is not intact. In relatively close proximity to the site at Nos 14 and 24 Hillcrest Street similar subdivisions to that proposed have been approved in the past. I also understand that in June 2007 a subdivision similar to that currently proposed was approved at 18 Hillcrest Street, to allow a new house to front Way Street.

16 Taking into account that the controls do not specify any minimum subdivision lot size, the existence of the aforementioned subdivisions indicates to me that the application of the controls envisage some change in the future character from the original lot pattern and size. Consequently, the proposal will maintain the Hillcrest Street streetscape and allow a new dwelling to front the rear Way Street.

17 For my assessment of the impact of the proposed subdivision I note the following opinions expressed in the council planners report:

• The proposed subdivision layout and dimensions will enable a building that will be consistent with the building pattern found in the street.
• The size of the proposed allotments is suitable to enable the siting and construction of an appropriately sized and proportioned dwelling house that provides adequate amenity to future residents and areas for open space and parking.
• The proposed subdivision will allow for continuation of the dominant built form of houses in the street and the solar access, open space, parking and other amenity impacts are satisfactory.

18 There was no substantive evidence presented, which I consider would lead to the rejection of these opinions. It also seems to me that the rear, Way Street has a different character to many older-style subdivision lots that back on to a narrow laneway. Here, Way Street appears as a normal width road whereby the proposed new dwelling is likely to enhance the streetscape, when compared to the various older style garages currently fronting the street. In any case there are dwellings fronting the western section of Way Street.

19 I am satisfied then that the subdivision does not warrant refusal because the lot sizes are smaller than neighbouring Lots. Instead it seems to me that the planning controls allow for smaller lots to accommodate ‘a variety of dwelling and household types”, where satisfactory amenity and streetscape impacts result. In my assessment, this is the case with subject proposal.

New dwelling

20 As I have noted previously, the proposed dwelling comfortably complies with the building envelope controls for this area. The proposed dwelling has an FSR of 0.6:1, comfortably complies with the permitted FSR of 1:1. It also complies with the site coverage requirements and does not offend any height restrictions.

21 The main objections expressed about the new dwelling concern its height and bulk, opportunities for acoustic impacts and overlooking from the upper level. This upper level contains a main bedroom, ensuite and deck, which has a northern orientation. Whilst it would be possible for occupants to overlook neighbouring properties from the proposed deck, I consider this concern could be addressed by a reduction in the size of this balcony, to permit only are smaller Juilliete type balcony that allows light and air circulation, but restricts outside usage.

22 This reduced size balcony, together with the proposed boundary landscaping by the applicant should result in a reasonable standard of privacy impacts for this neighbourhood. In this regard, I give reduced weight to the objections because any overlooking opportunities would come from the upstairs bedroom area and views onto the neighbouring properties would be at a significant oblique angle. Also, I understand that the primary northern views from this upper level would be towards the city and therefore the aforementioned oblique views on the neighbouring properties would be very much of a secondary nature. I am therefore satisfied that minor design amendments, including side screens for this recessed deck can satisfactorily address this concern.

23 The other concern raised by Mr Glendinning relates to noise impacts due to the orientation of the ground floor family room and the upstairs bedroom. However it seems to me that the separation distance, in excess of 12m from the family room to the neighbouring structures is adequate, on the basis that the occupants of the new dwelling act as ‘ good neighbours’. Therefore I do not consider it reasonable to refuse this application due to potential noise concerns from the proposed dwelling.

Parking

24 Mr Christmas made submissions that the proposal should be refused because the proposed new lot fronting Hillcrest Street does not provide for on street parking, as required by the DCP. Against this, Ms Taylor submits that the provisions of B 7 Waiving Off-Street Car Parking allows discretion to approve the proposal, notwithstanding Lot A does not provide of street parking. Section B 7 provides:

In determining whether or not to waive the additional off street car parking required for development under the provisions of this Development Control Plan unable to be provided on site, Council will take the following matters, as are of relevance, into consideration:
• The size and type of development and the degree of traffic impact of the development on the surrounding locality and peak parking and traffic activity periods for the proposed allotment.
• Existing site and building constraints which may affect the provision of off street car parking facilities.
• The practicality of providing of street car parking.
• The availability of public transport and/or alternative forms of transport that is:
  • off peak and peak hour services
  • proximity to transport facilities.
• Alternative transport …
• The availability of on-street car parking in the immediate locality and in nearby public car parking facilities.
• The location of other uses such as schools, local services, employment centres, retail and recreational facilities, and whether their proximity would reduce the need for vehicle trips.
• Competing parking demand from adjoining developments considered to be significant traffic generators.

25 In considering these matters, I note that the proposed new dwelling on Lot B includes a garage, thereby satisfying the requirements for the provision of 1 car space. Whilst I accept Mr Glendinning's evidence that sometimes traffic parking congestion occurs in Way Street and surrounds due to activities at the swimming pool and the high school, nevertheless I do not consider the incremental change for vehicles associated with the new dwelling is of sufficient magnitude to warrant rejection of the proposal.

26 I accept that it is not practical to provide car parking for the existing dwelling fronting Hillcrest Street, due to the setback of the building and topographical constraints. However it seems to me that a reasonable case has been made to waive this requirement because:

• A number of the dwellings in Hillcrest Street do not have off street parking, therefore reliance on private vehicles is apparently not essential in this locality.
• The property is located within reasonable proximity to Tempe railway station, which is 600m walking distance.
• Hillcrest Street is a relatively wide street that allows occasional on-street parking. Even though the existing residents say that there is congestion at times, there are no parking regulations in the street to indicate excessive demand/competition for car parking spaces.
• The heritage property at No 24 Hillcrest contains large grounds incorporating on-site parking, which is likely to reduce on-street demand at this end of the street.

27 Under these circumstances, I consider it reasonable to waive the requirement for the car parking space for this existing dwelling, partly on the exclusions allowed in Part B 7 and also for ecologically sustainable development considerations. It seems that the DCP recognises that public interest considerations are likely to be well served by occupants of some residential developments being encouraged to use public transport, when a development site is located within reasonable proximity to public transport facilities, which I consider is the case in the subject matter.

Conclusions .

27 Having considered the evidence, the submissions and undertaken a view, I am satisfied that this proposal merits conditional consent. It demonstrates reasonable compliance with the set of controls in the DCP, which allow the subdivision of the land and erection of new dwellings, providing the amenity impacts are satisfactory.

28 In this case, the subdivision whilst creating smaller allotments, still provides opportunities for appropriate dwellings to front both frontage streets and maintain satisfactory streetscape impacts.

29 The proposed new dwelling on Lot B will result in some changes to amenity, however I am satisfied that the controls allow for variety of buildings, which can be on an allotment of the proposed dimensions. This new dwelling is predominantly single storey, with a main bedroom/ensuite in the roof area, and maintains the evolving residential character of the streets.

30 The overall bulk and scale of this dwelling comfortably satisfies the FSR controls, with the main concerns made about aural and overlooking opportunities from the upstairs balcony. However I am satisfied that taking into account the separation distances from the existing buildings on neighbouring properties and conditions requiring the reduction in the balcony to that of a narrower “Juilliette balcony”, which permits light and air circulation, but limits personal outdoor usage, then these perceived impacts should be controlled to a reasonable level. I also note that primary, attractive distance city skyline views are afforded from this upper level.

31 In my assessment, this proposal demonstrates reasonable compliance with the development controls to merit conditional consent.

1. The appeal is upheld.

2. Development consent is granted to DA No 200600452 for the demolition of an existing garage, subdivision of the existing allotment into 2 allotments and the construction of a new 2-storey dwelling at 10 Hillcrest Street, Tempe subject to the conditions in Annexure A.

3. The exhibits may be returned except for 1, 3, B and C.

___________________

A.K