Elias v Canterbury City Council
[2009] NSWLEC 1182
•15 April 2009
Land and Environment Court
of New South Wales
CITATION: Elias v Canterbury City Council [2009] NSWLEC 1182 PARTIES: APPLICANT
RESPONDENT
Simon and Betty Elias
Canterbury City CouncilFILE NUMBER(S): 11260 of 2008 CORAM: Tuor C KEY ISSUES: DEVELOPMENT APPLICATION :- Dual occupancy development, use existing building as "granny flat"
inadequate site area and rear setback, provision of parking in front setback area, amenity of dwelling and impact on neighboursLEGISLATION CITED: Environmental Planning and Assessment Act 1979
Canterbury Local Environmental Plan 178
Canterbury Development Control Plan 14DATES OF HEARING: 15 April 2009 EX TEMPORE JUDGMENT DATE: 15 April 2009 LEGAL REPRESENTATIVES: APPLICANT
Mr J Boers (Agent)RESPONDENT
Mr P Jackson (solicitor)
of Pikes Lawyers
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESTuor C
11260 of 2008 Simon and Betty Elias v Canterbury City Council15 April 2009
This judgment was given extemporaneously
and it has been edited prior to publication
JUDGMENT
1 Commissioner: This is an appeal against the refusal by Canterbury City Council (the council) of a development application (43/2008) under the Environmental Planning and Assessment Act 1979 (the Act) for a dual occupancy development including the use of an existing building as a granny flat at 14 Samuel Street, Wiley Park (the site).
2 The key issue between the parties is that the site is unsuitable for dual occupancy development due to its size, which results in insufficient open space, landscaping, parking and amenity impacts.
3 The applicant amended the proposal on the day of the hearing in response to these concerns.
Site and its locality
4 The site is on the southern side of Samuel Street. It has a width of 10.577 metres and a depth of 39.225 metres with an area of 414 sqm.
5 A single storey fibro dwelling is erected at the front of the site. The “granny flat” is situated at the rear of the site. It is a single storey fibro building thought to be originally used as a garage/storage space. The building is currently used as a granny flat.
6 The granny flat contains a living/kitchen area, laundry/bathroom and separate bedroom. It is accessed off the driveway along the side of the house and it is proposed to provide a parking/open space area to the north of the granny flat.
7 The locality is predominantly residential. There is a childcare centre, Lakemba Public School and a temple nearby. There is a residential flat building at the rear of the site.
Planning controls
8 The site is zoned Residential 2(c) under Canterbury Local Environmental Plan 178 - Belmore/Lakemba Precinct (the LEP). Dual occupancy development is permissible with consent.
9 Canterbury Development Control Plan 14 - Dual Occupancy Code (DCP 14) is also relevant. Clause 5.1(a) specifies a minimum site area of 600 sqm for dual occupancy development.
10 Clause 5.6 of DCP 14 specifies a minimum side setback of one metre and a minimum rear setback of five metres.
11 Clause 5.8(c) of DCP 14 requires 80% of private open space to be a minimum of 5 metres in width with a minimum area of 30 sqm.
12 Development Control Plan 45 - Landscaping (DCP 45) is also relevant. This requires that a landscaping regime be incorporated as part of residential development.
The evidence
13 The Court visited the site. The adjoining owner who made a submission was unable to attend due to illness. The main concerns in his letter of objection related to intensification of the use of the site and increase in parking.
14 The Court heard expert planning evidence for the applicant from Mr J Boers and for the council from Mr A Culbert.
15 The key difference in opinion between these experts in relation to the site area is that Mr Boers considers 414 sqm adequate to meet the objectives of the control because both dwellings on the site are small. He stated that the floor space ratio (FSR) of the proposal would be less than the 0.55:1 maximum FSR permissible for a dwelling house. Further, the proposal provided adequate open space and car parking for both dwellings and did not create adverse amenity impacts. This, in his opinion, indicated that the proposal was not an overdevelopment of the site and provided adequate amenity.
16 Mr Boers recognised that the building would need to be changed to address the Building Code of Australia (BCA) and stated that council could condition the proposal to meet any further concerns about privacy and amenity.
17 In Mr Boers’ opinion the granny flat had been used for at least 15 years without adverse amenity impacts. I note that the objection of the adjoining neighbour did not support this proposition.
18 Mr Culbert considered that the site area control was established to ensure that a site could accommodate two dwellings and provide good amenity for the occupants of each dwelling and the neighbours.
19 In Mr Culbert’s opinion the inadequate site area resulted in a number of non-compliances with other controls in DCP 14, in particular the provision of parking in the front setback area parallel to the house and the rear setback control.
20 The proposed 2 metre screen and the removal of the existing tree to provide parking were atypical of the streetscape and would, in Mr Culbert’s opinion, adversely affect the character of the area.
21 Mr Culbert considered the non-compliance with the 5 metre rear setback control would impact on the amenity of the occupants of the granny flat. The proposed setback is 834 mm, which is insufficient to provide and maintain landscaping and would require the removal or changes to the bedroom window that would reduce its ability to provide light and air. The proposed window on the eastern side would not compensate for this loss.
22 The bedroom adjoins the service drying area of the residential flat building to the rear. Mr Culbert considered the setback was inadequate to address noise impacts from the use of this area. He was less concerned about the setback to the side of 620 mm but noted that this would preclude the provision of windows and maintenance of landscaping along this side.
23 The proposed development would therefore have only a window to the bathroom and a window to the bedroom to provide for its requirements for light and air as well as the proposed glass doors.
24 The plan was amended on the day of the hearing to increase the width of the private open space. Mr Culbert accepted that the area may comply with the numerical controls but was concerned about the amenity resulting from potential overlooking from the elevated porch of the existing dwelling, the driveway and the street.
- Findings
25 I accept Mr Culbert’s evidence. The objective of the site area control in cl 5.1 of DCP 14 is:
to allow dual occupancy development on sites that can provide good living environment for occupants and neighbours.
26 The site is about 414 sqm, which represents a 31% deficiency in the 600 sqm requirement under cl 5.1(a) of DCP 14. The size of the site results in variations to other controls in DCP 14, most notably the rear setback control.
27 The non-compliance with the rear setback control, the changes likely to be required to comply with the BCA, the small size and minimal nature of the converted garage as well as the potential overlooking of the open space will not achieve a good living environment for the occupants of the dwelling.
28 The proposal also results in the impacts on the streetscape through the provision of car parking along the frontage of the existing dwelling. I agree with Mr Culbert that this arrangement and the proposed screening is atypical and not consistent with the character of the street. It would result in most of the street frontage being occupied by car parking and the driveway, which even with the screening, would be able to be seen when approaching the site from the west.
29 The two metre screen is also not consistent with the approach in DCP 14 for low open fences and safety by design. This will not achieve the objective of DCP 14 to provide good living environment for neighbours.
30 The proposal therefore does not comply with the numerical control and the objective in cl 5.1 of DCP 14 and for this reason it must fail.
31 The orders of the Court are:
- (1) The appeal is dismissed.
(2) The development application (43/2008) for a dual occupancy development including the use of an existing “granny flat” at 14 Samuel Street, Wiley Park, is refused and,
(3) The exhibits, except Exhibit 1, may be returned.
___________________
- Annelise Tuor
Commissioner of the Court
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