Drawtech Group Pty Ltd v Rockdale City Council
[2006] NSWLEC 457
•03/07/2006
Land and Environment Court
of New South Wales
CITATION: Drawtech Group Pty Ltd v Rockdale City Council [2006] NSWLEC 457 PARTIES: APPLICANT
RESPONDENT
Drawtech Group Pty Ltd
Rockdale City CouncilFILE NUMBER(S): 10129 of 2006 CORAM: Bly C KEY ISSUES: Development Application :- Demolition of existing structures and construction of two villas and two townhouses, privacy, overshadowing, non-compliance with council standards, on-site parking, safety issues LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Rockdale Local Environmental Plan 2000
Rockdale Development Control Plan 34 for Villa and Townhouse Development
Rockdale Development Control Plan 28 Requirements for Access
Development Control Plan 53 - Construction Site Waste Management and Minimisation PlanDATES OF HEARING: 03/07/2006 EX TEMPORE JUDGMENT DATE: 07/03/2006 LEGAL REPRESENTATIVES: APPLICANT
Mr J Doyle, barristerRESPONDENT
Mr M Reilly, solicitor
SOLICITORS
Abbott Tout
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Bly C
10129 of 2006 Drawtech Group Pty Ltd v3 July 2006
Rockdale City Council
JUDGMENT
This decision was given extemporaneously
and has been revised and edited prior to publication.
1 This appeal relates to development application 1259/2004 which is for the demolition of existing structures and the construction of two villas and two townhouses at 33 Solander Street, Monterey. Whilst strata subdivision was originally intended this aspect of the development application is no longer sought with the applicant agreeing that aspects of strata subdivision can be dealt with at a later stage. Such strata subdivision will require in due course a further development application.
2 The site comprises Lot D DP10009 and extends onto Lot 6 (owned by the present applicant) in the adjoining strata plan SP65404 at 35-37 Solander Street. Also the existing driveway in that existing strata plan is to be utilised in part by the proposal.
3 The development in the adjoining strata plan comprises five completed and occupied dwellings which dwellings are situated for the most part 9 m to the east of the proposal. The locality includes a number of villa and townhouse developments and further to the west there are a number of residential flat buildings.
4 Relevant statutory controls comprise Rockdale Local Environmental Plan 2000 (“the LEP”), Rockdale Development Control Plan 34 for Villa and Townhouse Development (“DCP 34”), Rockdale Development Control Plan 28 Requirements for Access, Development Control Plan 53 Construction Site Waste Management and Minimisation Plan (“DCP 53”) and Rockdale Stormwater Design Code (“Stormwater Code”).
5 Situated in the Residential 2(b) zone under the LEP the proposal is permissible with development consent. The objectives of the 2(b) zone include a need to encourage a variety of housing types including low and medium density housing as well as the facilitation of a diversity of forms of housing.
6 The application was notified and as a consequence a number of submissions were received by the council, principally from the owners and occupiers of the existing dwellings at 35-37 Solander Street. Matters of concern raised in those submissions include amenity aspects associated with loss of privacy and overshadowing, non-compliance with various council standards, insufficient provision of on-site parking resulting in additional demand for on-street parking, inadequate manoeuvring areas on-site and associated safety issues.
7 Having considered a council officer’s report that recommended refusal the council decided to refuse the application by notice of determination dated 20 April 2006 for reasons relating to owners consent, non-compliance with various requirements of DCP 34 including matters of privacy, internal amenity and vehicular movement, non-compliance with the requirements of the stormwater code and because the proposal would not be in the public interest.
8 Following the applicant’s lodgement of an appeal, consultations between the council and the applicant have resulted in a number of changes to the proposal and the applicant’s agreement to a number of conditions resulting in the council deciding to enter into consent orders with the applicant, those consent orders were tendered at the hearing and became Exhibit 1. Attached to the orders is a set of conditions that the applicant has agreed to including an additional Condition, 19A, dealing with landscaping.
9 One of the principal concerns to the council involved stormwater drainage and this issue has been resolved by the applicant providing a landscape concept plan as well as the applicant agreeing to deferred commencement conditions which require various aspects associated with drainage being finalised. Again the applicant has agreed to these deferred commencement conditions and I am satisfied that a drainage design is capable of being finalised to ensure that the development is drained in an appropriate manner and in accordance with council’s requirements.
10 Another of the more significant issues of concern to the council was that of owner’s consent and matters associated with strata subdivision. A number of documents were provided to the Court in relation to the strata plan of the related adjoining property and other title documents. Taking into account the proposed deferred commencement condition in Exhibit F and as referred to earlier, this is not a matter that I need to determine but would nevertheless comment that I would expect that this matter would most likely be determined in favour of the applicant. If it is not then any consent granted would be of no effect.
11 The decision by the council to enter into consent orders was notified to those persons who objected to the application and they were given an opportunity to be present at the hearing and indeed to give evidence. Two residents took up this opportunity.
12 Mr L Henwood of 1/35-37 Solander Street and who is also the treasurer of SP65404 was greatly concerned about the safety of the driveway which would on completion of the subject proposal be common and would be utilised by a total of nine dwellings. He was concerned that there would be an insufficiency of manoeuvring areas and that accidents could occur as a result. He was also concerned at the impact associated with the provision of an additional visitor car parking space and the consequential loss of garden areas and resultant difficulties for manoeuvring garbage bins.
13 Mr R Nyz of 2/35-37 Solander Street provided the Court with a comprehensive explanation in the form of a written document explaining his concerns. Commendably Mr Nyz took the time to consider council’s planning controls and assessed the proposal against those controls. In particular he was concerned about a number of general matters associated with site analysis and information that would normally be expected to be provided with an application of this kind in terms of landscape details and other building details. He also considered matters such as lot sizes, density, overshadowing, single sided development, distance between buildings, landscaping and open space, privacy, car parking and access and the internal amenity and detailed site arrangements of the proposal. He also explained how he, in Unit 2, would be adversely affected by the proposal, such matters comprising overshadowing and visual privacy. He was concerned that during the afternoon his dwelling, as well as other dwellings in his development to the south, would be overshadowed in the afternoon. He was also concerned that his living room and bedrooms would be positioned immediately opposite the living room and kitchen of proposed Unit 7. A similar arrangement exists in relation to other units.
14 The council officer’s report in the bundle of documents addresses the development requirements and standards in DCP 34 at length and whilst it identifies a number of non-compliances, the vast majority of its requirements are met by the proposal.
15 The first of the non-compliances involves the fact that a location for waste and recycling bins has not been shown on the drawings. It has now been explained to me that there are opportunities within the curtilage of each of the proposed dwellings for the location of such bins and that it is possible to take these bins either through a garage or through private open space to the driveway and thence to the street. This matter is required by a proposed condition to be finalised in accordance with the requirements of DCP 53.
16 The second of the non-compliances relates to room sizes, the officer’s report noting that some rooms do not comply with the minimum requirement in DCP 34. I note the marginal non-compliance with three and perhaps five of the bedrooms not meeting the minimum requirement. Whilst this matter is of some concern and could for the most part have been resolved by simply reducing the number of bedrooms, I do not accept that this is a matter that would require the Court to refuse the application.
17 The third DCP 34 non-compliance involves circulation and access and parking. I now understand that with the amendments to the design that this matter is now resolved and, notwithstanding the concerns of the residents at Nos. 35-37 Solander Street, I agree with the conclusions reached by the council officers that this arrangement is entirely satisfactory. Whilst suggestions were made that larger manoeuvring areas would be preferable, it seems to me that the minimisation of paved areas subject to appropriate levels of manoeuvrability is always the preferable outcome.
18 The fourth issue of non-compliance involves the fact that parts of the private open space are provided with pergolas. The DCP 34 provides that pergolas awnings and similar structures are permitted in private open space areas but the areas which they cover must be in addition to minimum open space requirements. The applicant has agreed to a condition that would prevent any roofing of the proposed pergolas and taking such a condition into account I would agree that the effect of DCP 34 requirement is met by the proposal. In this regard it seems logical to distinguish between an open pergola and a roofed awning type structure.
19 Dealing with the issue of overshadowing I note from the council officer’s report that the proposal complies with the DCP 34 requirement in that three hours of sunlight are retained for adjoining dwelling windows and open space.
20 Whilst Mr Nyz is correct in his assertion that his dwelling will be affected by the proposal, bearing in mind the compliance with DCP 34 this impact is not one that should result in the refusal of the application. I have reached this conclusion taking into account notwithstanding some minor projections by garage structures. The separation between the two rows of dwellings meets the distance of separation requirement in the DCP 34. In complying with this separation this also leads me to conclude that the issue of privacy between dwellings is also resolved, whilst there will be opportunities for direct overlooking between opposing dwellings this is again not a matter that would, taking into account the nature of this form of development and at the densities permissible and here proposed that it would again not be a reason for refusal and reaching this conclusion I have also taken into account the landscape plan which provides for plantings that should mitigate such impacts to a significant degree as maturity is reached.
21 The only other issue to be dealt with from the Statement of Issues involves the matter of privacy impacts on 31 Solander Street to the west. This matter has now been resolved by the reconfiguration of the west facing windows. Noting this reconfiguration and the fact that bedroom windows rather than living room windows are involved I am satisfied with this outcome.
22 Having considered all of the issues raised by the original Statement of Issues and the matters of concern to the residents, which matters I note have been taken into account by the council in reaching its decision that the appeal should be upheld by consent, I therefore make the orders contained in Exhibit 1 that:
1. The appeal is upheld.
2. Development application 1259/2004 to demolish existing structures and construct two villas and two townhouses at 33-37 Solander Street, Monterey, is determined by the granting of development consent, subject to the conditions in Annexure “A”.
3. Exhibits 1 and A are retained.
23 The Court notes that the parties have agreed to pay their own costs.
- ___________________
- T A Bly
Commissioner of the Court
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