Elias Melhem v Strathfield Municipal Council
[2005] NSWLEC 348
•06/29/2005
Land and Environment Court
of New South Wales
CITATION: Elias Melhem v Strathfield Municipal Council [2005] NSWLEC 348
PARTIES: APPLICANT:
Elias Melhem
RESPONDENT:
Strathfield Municipal CouncilFILE NUMBER(S): 10333 of 2005
CORAM: Watts C at 1
KEY ISSUES: Development Application :- Consent orders - New dwelling house - Bulk and scale - Privacy
LEGISLATION CITED: Strathfield Planning Ordinance Scheme 1969, (SPSO) - Strathfield DCP No 21 Dwelling Houses and Ancillary Structures, (DCP21) - Draft Strathfield Local Environmental Plan 2003, (DLEP)
DATES OF HEARING: 29/06/2005 EX TEMPORE JUDGMENT DATE: 06/29/2005
LEGAL REPRESENTATIVES: APPLICANT:
RESPONDENT:
Mr G McKee, solicitor
SOLICITORS:
McKees Lawyers
Mr A J Seton, solicitor
SOLICITORS:
Marsdens Law Group
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Watts C
29 June 2005
10333 of 2005 – Elias Melhem v Strathfield Municipal Council
JUDGMENT
1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Strathfield Municipal Council (the council) to refuse a development application to erect a new two-storey dwelling house with basement car parking at Lot 5 DP 312086 being No 26 Newton Road, Strathfield.
2 I visited the land in company with the parties on the morning of the on-site hearing.
3 I have concluded that the arrangements arrived at by the parties may be confirmed when the application is considered under s 79C of the Environmental Planning and Assessment Act 1979.
The land
4 The land is situated on the southern side of Newton Road near the intersection with Firth Avenue.
5 The land has a northern frontage to Newton Road of 15.25m and a rear southern boundary of 15.25m and eastern and western side boundaries of 60.35m and an area of some 919.7m2.
6 The land has a slight cross fall and a moderate slope from the rear to the front northern boundary. Gravity flow stormwater is possible to the council's existing stormwater system in Newton Road.
7 Existing improvements include a single-storey brick and tile dwelling with a detached rear carport, garage and swimming pool. There are two (2) street trees in Newton Road and these are to be retained.
8 The locality is characterised by detached single-storey and two-storey dwelling houses on large allotments. A rendered brick two-storey dwelling is under construction within the immediate vicinity and within the locality.
Relevant planning controls
Strathfield Planning Ordinance Scheme 1969, (SPSO)
9 Under the provisions of the SPSO the land is zoned Residential 2(a) and the proposal is permissible with consent.
10 Under cl 41B(a) and (c), the proposed development must be compatible with other development in the vicinity. Furthermore, the proposed development should not adversely affect the amenity of nearby residents by way of overshadowing, overlooking, noise, hours of operation or otherwise.
Strathfield DCP No 21 Dwelling Houses and Ancillary Structures, (DCP21)
11 The DCP21 applies to the Residential 2(a) land and the proposal is permissible with consent.
12 Under cll 2.6.3, 2.7, 6.3 the applicant is required to:
· establish an appropriate building envelope;
· encourage the use of materials in the construction or dwelling houses that are compatible with adjoining dwelling houses in terms of type, form and colour; and
· ensure materials used for side and rear fences must be similar to adjoining dwellings and shall not detract from the streetscape.
Draft Strathfield Local Environmental Plan 2003, (DLEP)
13 Under cll 16 and 17 of the DLEP the applicant is required “…to ensure that all development is designed to maintain and enhance the residential amenity” and to comply with the standards and development principles relating to scale, density, form, height, landscape design, traffic generation and car parking.
The proposal and its history
14 Development application No 0405-062 was lodged with the respondent council on 31 August 2004 to erect a new dwelling house on the land. The proposal is described in plans prepared by Ausbuild Design Co Pty Limited.
15 It is proposed to demolish the existing dwelling and associated structures, and to erect a two-storey dwelling with a basement level, entrance portico, masonry perimeter fence, swimming pool and associated retaining walls.
16 The proposal would be setback around 10.5m to Newton Road consistent with its neighbours, the minimum side setback would be 1.51m and the floor space ratio (FSR) would be 0.64:1 or a floor area of some 588m2.
17 Susan Miles of Edgecliff prepared a landscape plan.
Notification
18 The application was notified to nearby owners and occupants from 17 September to 1 October 2004 and the council received one submission. The council received from Mr Mansour, a second submission that was withdrawn at the on-site hearing. After considering these submissions the council’s planning officer recommended approval of the application.
The council’s decision
19 Despite this recommendation, by notice dated 8 March 2005 the council refused the application for the reason that “…the application does not comply with the current DCP.”
The hearing
20 The appeal was filed on 13 April 2005.
21 On 26 May 2005, Mr P Johnston, town planner of the respondent council prepared a statement of basic facts that was used to prepare this judgment.
The issues
22 On 9 June 2005 the council filed a statement of issues.
1. The proposed development is unacceptable in that it is inconsistent with Clause 2.6.3(1) of Strathfield Development Control Plan No.21 "Dwelling Houses and Ancillary Structures" ("DCP 21").
- Particulars
a. Clause 2.6.3(1) requires dwelling houses to be
"designed and located so as to fit within the building envelope illustrated in Figure 6" of DCP 21.
b. A parapet wall to a flat roof is proposed outside the plane of the front of the proposed dwelling and in that regard the proposal is inconsistent with clause 2.6.3(1) of DCP 21.
2. The proposed development is unacceptable in that the proposed dwelling and front fence are to be of rendered brick construction in circumstances where clause 2.7 of DCP 21 encourages the use of “monotone face brick” for residential development.
4. Whether there will be an unacceptable impact on the privacy of the residents of the dwelling located at 28 Newton Road, having regard to the proposed glass wall located adjacent to the common boundary between 28 Newton Road and the land subject of these proceedings.
23 The salient issues were whether the proposed bulk and scale of the dwelling would be acceptable in the streetscape and whether there would be unsatisfactory privacy impacts.
The evidence and findings
Proposed bulk and scale of the dwelling
24 The proposal would be consistent with the emerging bulk and scale of new development in this street, and the council accepts that the proposal complies with the planning controls except for a minor breach of the building envelope control of DCP21.
Privacy impacts
25 At the on-site hearing, the next-door neighbour Dr Chua, to the west at No 28 Newton Road, accepted the modifications agreed to by the parties in respect of the proposed obscure glazing to the stair well. Condition 4 was amended and was noted by Dr Chua.
26 On this basis consent orders were proposed by the parties, which I endorse.
27 For the above reasons, the appeal is upheld.
Conditions
28 The conditions are those in Exhibit 6 as amended during the hearing.
Consent orders
29 The consent orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.
2. Development application No 0405-062 lodged with the respondent council on 31 August 2004 to erect a new dwelling house with basement car parking at Lot 5 DP 312086, being No 26 Newton Road, Strathfield is approved subject to Conditions 1 to 80 in Annexure A.
3. The exhibits with the exception of A, B, C, D, 1, 2 and 6 are returned.
S J Watts
Commissioner of the Court
sw
The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the orders and conditions are available on the Court’s web site at
0
0
1