Dickson v Sydney City Council

Case •

[2016] NSWLEC 1090

•

15 March 2016

No judgment structure available for this case.

Land and Environment Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Dickson v Sydney City Council [2016] NSWLEC 1090
Hearing dates:4 March 2016
Date of orders: 15 March 2016
Decision date: 15 March 2016
Jurisdiction:Class 1
Before: Morris C
Decision:

Appeal upheld

Catchwords: DEVELOPMENT APPLICATION: amended plans, whether plans are consistent with objectives of DCP, streetscape, laneway dwellings
Legislation Cited: Environmental Planning and Assessment Act 1979;
Land and Environment Court Act 1979;
Sydney Local Environmental Plan 2012
Texts Cited: Sydney Development Control Plan 2012
Category:Principal judgment
Parties:

Andrew Dickson (Applicant)

  Sydney City Council (Respondent)
Representation: Solicitors:
Mr T Sattler
Sattler & Associates Pty Limited (Applicant)
Ms K Ridling
Sydney City Council
(Respondent)
File Number(s):11070 of 2015

Judgment

  1. Mr Dickson obtained development consent from Sydney City Council which authorised demolition of a garage and construction of a garage with studio above. Mr Dickson lodged an application to review the approved plans through substitution of alternate plans. The Council refused that application and he is appealing that decision.

The site and its context

  1. The site is known as 122 Victoria Street Beaconsfield and has an area of approximately 139 m² with a primary street frontage to Victoria Street (east) and a secondary frontage to Victoria Lane (west). The site contains a two storey dwelling fronting Victoria Street with a single storey garage accessed from Victoria Lane. A courtyard separates these two structures on the site.

  2. Surrounding land uses are predominantly residential with the exception of a warehouse building directly to the south adjacent to the site which is used for commercial purposes. The residential development in the vicinity of the site varies from single storey dwelling houses to residential flat buildings up to 3 storeys in height. The predominant built form on the eastern side of Victoria Lane is single storey garage structures. On the western side there is a mix of garages, industrial and residential buildings ranging from one to three storeys in height.

Background and the proposal

  1. The original consent D/2014/1320 was granted by the Council on 23 December 2014 and incorporated design amendments that had been requested by the Council so as to reflect what it says is required by the provisions of Clause 4.1.6.1 of the Sydney Development Control Plan 2012 (DCP).

  2. Mr Dickson sought a review of the development consent pursuant to the provisions of Section 82A of the Environmental Planning and Assessment Act 1979 (EP&AAct). It sought to review Condition 1 of the consent, amending the approved design to that originally submitted with the initial application. The application was refused by the Council due to non-compliance with the DCP, specifically the 2 storey built form.

  3. The plans approved by the Council (Exhibit A) provide for the construction of a building adjacent to the rear, northern and southern boundary of the site. That building would contain a single garage and laundry at the Victoria Lane Street level with a small balcony at the rear with stairs leading to the courtyard. A stairway accessed from a door off Victoria Lane would provide access to a first floor studio area that incorporates a living area with kitchen, laundry (washing machine/dryer) and a separate ensuite. The parties agree the studio is designed as a separate dwelling. The ensuite portion of the studio is designed as a room within the roof and the plans provide for that roof to be constructed at a 40° pitched above the gutter of the ground level garage area. The building would appear as 2 storey when viewed from the courtyard.

  4. The proposed plans (Exhibit C) provide for the same ground level configuration however the first floor area incorporates a larger ensuite and studio as the ensuite extends to the western (Victoria Lane) boundary and is wider from that approved under the consent. A sloped roof element has been provided above the stairway with the remaining roof area a decked area surrounded by a parapet constructed to RL23.22. The facade of the building to Victoria Lane is a single wall incorporating the garage and entry doors at Lane level and windows to the ensuite on the upper floor.

  5. The matter commenced as a conciliation pursuant to the provisions of section 34AA of the Land and Environment Court Act 1979 (LECAct). No agreement was reached during the conciliation phase so the matter proceeded directly to a hearing. That is despite agreement by the four experts that amended plans prepared reflecting their findings resolved the contentions. Those plans (Exhibit E) were agreed to satisfy the objectives of the DCP (refer to the Joint Report, Exhibit 2).

  6. Despite the agreement of the experts, the applicant seeks consent for the Exhibit C plans.

  7. The parties agreed that the evidence and the discussions occurred during the conciliation phase would be evidence in the proceedings.

The planning controls

  1. The site is zoned R1 General Residential under Sydney Local Environmental Plan 2012 (LEP). The development is permissible with consent in that zone. The LEP contains definitions of attic and secondary dwelling as follows:

attic means any habitable space, but not a separate dwelling, contained wholly within a roof above the ceiling line of the storey immediately below, except for minor elements such as dormer windows and the like.

secondary dwelling means a self-contained dwelling that:

(a) is established in conjunction with another dwelling (the principal dwelling), and

(b) is on the same lot of land as the principal dwelling, and

(c) is located within, or is attached to, or is separate from, the principal dwelling.

  1. Clause 5.4(9) of the LEP includes controls for secondary dwellings and is in the following form:

(9) Secondary dwellings

If development for the purposes of a secondary dwelling is permitted under this Plan, the total floor area of the dwelling (excluding any area used for parking) must not exceed whichever of the following is the greater:

(a) 60 square metres,

(b) 30% of the total floor area of the principal dwelling.

  1. The proposed studio would satisfy those numerical controls.

  2. The DCP provides specific provisions for secondary and laneway dwellings at clause 4.1.6. That clause is in the following form:

4.1.6 Secondary and laneway dwellings

A secondary dwelling is a self-contained dwelling located on the same land title as the principal dwelling. The Sydney LEP 2012 defines and permits secondary dwellings in certain zones and establishes their maximum size.

Objectives

(a) Ensure secondary dwellings activate lanes and address the public domain.

(b) Maintain a reasonable level of amenity to the principal dwelling, the site,

surrounding properties, and any adjoining lane.

(c) Ensure the scale and type of development is compatible with the width

of the lane, the significance and the scale of heritage items and heritage

conservation areas.

Provisions

4.1.6.1 General

(1) A one storey structure with an attic above is permissible adjacent to a rear

lane, provided the height does not exceed 5.4m and amenity to adjacent

sites is maintained.

(2) On lots smaller than 150sqm, a secondary dwelling is not permitted unless

it can achieve a minimum consolidated area of private open space for the

principal dwelling of 16sqm with a minimum dimension of 3m.

(3) The roof pitch of a rear lane building must not exceed 40°.

(4) The secondary dwelling on a lot adjoining a rear lane is to be clearly

subservient to the principal dwelling.

(5) A habitable space may be located below a garage where:

(a) where the rear lane is at a higher level than the private open space for

the principal dwelling; and

(b) the floor level of the habitable space is at the same level and

contiguous with the private open space for the principal dwelling, as

shown in Figure 4.18 Habitable space located below a garage.

  1. Pursuant to Clause 1.8 of the DCP, where the DCP uses terms that are defined in LEP, the definitions in the LEP are to be adopted.

The issues

  1. The contentions in the case are that the proposed design does not meet the requirements of the DCP in that it does not present as a single storey dwelling with “attic” and would set a precedent for future development along the laneway.

The evidence

  1. Expert town planning evidence was provided by Mr V Milligan (applicant) and Mr J Sheather (Council) with Mr S Georges, an architect providing evidence for the applicant and Mr J Cooke providing urban design evidence for the Council. In their joint report, they concluded the plans which were referred to as the 'compromise' plans, Exhibit E, were an acceptable solution.

  2. The experts agree that the proposed design present as a two storey building. They also agree that the laneway fronting building at 166 Victoria Street Beaconsfield sets a precedent for laneway development along the eastern side of Victoria Lane as it presents as a single storey building with a roof form hosting floor space.

  3. They acknowledge the roof form does not comply with section 4.1.6.1(3) of the DCP in that it exceeds 40° however they say it still presents as a single storey building with an attic above, as per the LEP definition of an attic. The esperts agree that with regard the precedent at 166 Victoria Street, a design may be incorporated to create an attic roof form that does not comply with the 40° pitch set under the DCP and that there is no need for a roof form transition between the site and the northern, adjacent site at 120 Victoria Street. Both Mr Georges and Mr Milligan agree that No. 166 is inconsistent with the DCP control however say it is an example of what was right for that context. Mr Georges says a site is capable of variation if the site allow. That would be closer to what the DCP is trying to achieve in terms of built form.

  4. All experts agree the objectives of the DCP control is that the laneway developments appear as a one storey building with any second storey appearing as rooms in the roof. Mr Milligan says the proposed plan does not reflect the precedent from number 166 and says there could be improvement that could be made to reflect that building. He says the building should look like an attic and the proposed plans do not but the compromise plans do. The DCP supports single storey and rooms above and the plans should pay more regard to the single storey and roof element described.

  5. Mr Georges agrees however says a two storey building would provide a transition to the adjacent warehouse building and whilst it is subjective and not part of any of the proposals, if there was a change of materials between the ground and first floors, that could better satisfy the Council’s concerns. He agreed that it would be appropriate to condition any modified plans to incorporate materials that differentiate the two levels of the building.

  6. In describing the main differences between the plans before the court (Exhibit C) and the 'compromise' plans, Mr Cook says the former present as a two storey building and the latter a one storey with dormer. Mr Sheather agrees and says the compromise plan would present as an attic however because it has side walls it is not wholly within the roof structure but, from the Lane, would present as it is. He says the proposed plan is of a much bigger scale whereas the approved and compromise plans would be more in scale with the Lane. He says these plans provide for a better scale to the Lane because they are a residential building and adjacent to other residential development whereas the adjacent building is not residential and present as a warehouse. He says it is the anomaly on this side of the laneway.

  7. Mr Milligan says the DCP control for secondary dwellings doesn't say a second storey is not permitted and a portion of the building would be two storeys, even in the compromise and approved plans. He agrees the compromise design gives more of a single storey appearance and the concern is the extent of the vertical facade without a break there is a need to look for some stepping back. Mr Georges agrees the proposal presents as a two storey building whereas the adjoining warehouse presents as a single storey building which would be comparable to 2 residential storeys in height. He says the compromise plans delineate the ground floor garage and provide for more delineation of the upper floor as the proposed plans do not delineate between the two storeys.

  8. The four experts agree that the compromise plans provide less floor area than the proposed plans however that difference is only around 1 m².

Conclusion and findings

  1. Having regard to the evidence, it is agreed that the plans before the Court do not reflect the objectives of the DCP in relation to laneway development however, as agreed by the experts, the ‘compromise’ plans would be acceptable. That is because the experts agree that the objectives and provisions of the DCP are to provide for development along laneways that appear as a single storey building with rooms within the roof space.

  2. It is apparent that the provisions of clause 4.1.6.1(1) of the DCP do not apply to the application as the DCP adopts the definitions included in the LEP. An attic, in accordance with that definition does not include a separate dwelling.

  3. It is common ground that the proposal incorporates a separate dwelling and that dwelling would fall within the definition of a secondary dwelling. Accordingly, the provisions of subclauses (2), (3) and (4) apply and are to be read in conjunction with the objectives.

  4. There is no dispute that the secondary dwelling would activate the lane and address the public domain or that it would result in adverse amenity impacts to adjoining properties and the principal dwelling. What is in dispute is whether the scale and type of development is compatible with the width of the lane.

  5. The site view provided an informative view of the locality and it is apparent that the intent of the controls as agreed by the experts is to limit the scale of development along the laneways to buildings that appear to be single storey with rooms in the roof. Where there are examples of two and three storey structures along the lanes, the scale of those buildings is not proportional to the width of the lanes. Accordingly, they do not appear to be compatible to the width of the lanes. The streets in the locality are wider and therefore are capable of absorbing taller buildings and this is evident from the number of two storey dwellings in those streets.

  6. Based on the agreed evidence that the scale of the proposed building is not compatible with the desired future character of the area, the development as proposed by the applicant should not be approved.

  7. Despite the fact that the ‘compromise plans’, Exhibit E, do not meet the numerical requirement for roof pitch, I am satisfied, having regard to the evidence, that they do meet the objectives of the control. For that reason it would be appropriate to modify the development consent to allow those plans including the condition that requires the use of contrasting materials to differentiate between the two levels.

  8. The Orders of the Court are:

  1. The appeal is upheld.

  2. The application lodged with Sydney Council to modify Development Consent No D/2014/1320 is approved by modifying condition 1(a) of that consent that relates to the approved plans and substituting the Exhibit E (Issue D) plans and adding a new condition, Condition 6A as follows:

6A.    DESIGN MODIFICATION

The upper level of the laneway façade of the secondary dwelling is to be finished in an external colour and material consistent with a roof type structure.

This modification is to be subject to approval by Council’s Area Planning Manager prior to the issue of the Construction Certificate.

  1. As a consequence of Order 2, Development Consent No D/2014/1320 is now subject to the consolidated, modified conditions of development consent set out in Annexure A.

  2. The exhibits, other that exhibits 1, B, C and E, are returned.

______________________

Sue Morris

Commissioner of the Court

11070 of 2015 Morris (C) (205 KB, pdf)

**********

Amendments

15 March 2016 - Entered correct date of orders

Decision last updated: 15 March 2016

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