Fibopo Pty Ltd v Willoughby C

[2005] NSWLEC 683

Land and Environment Court

of New South Wales

CITATION:

Fibopo Pty Ltd v Willoughby C [2005] NSWLEC 683

PARTIES:

APPLICANT
Fibopo Pty Limited

RESPONDENT
Willoughby Council

FILE NUMBER(S):

10203 of 2005

CORAM:

Hussey C

KEY ISSUES:

Development Application :- construction of dual occupancy - solar access - privacy impact - landscaping - streetscape - character - public interest - height bulk and scale

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Willoughby Local Environmental Plan 195

DATES OF HEARING:

24/11/2005 - Court orders 12/12/2005

EX TEMPORE JUDGMENT DATE:

11/25/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr J. Cole, solicitor
of Abbott Tout

RESPONDENT
Ms H. Irish, barrister
Instructed by Ms M. Tregoning
of Mallesons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

25 November 2005

10203 of 2005 Fibopo Pty Limited v Willoughby Council

JUDGMENT

This decision was given extemporaneously. It has been revised and edited prior to publication.

Background.

1 The matter involves an appeal against council’s refusal of a development application for the demolition of an existing dwelling and construction of an attached dual occupancy development at 8 Coolaroo Road, Lane Cove. The site is described as Lot 17 in DP 14213 and it is situated on the southern side of Coolaroo Road and has a total area of 869.9 sq m.

2 The existing dwelling on the site is described as a single storey, red-faced brick dwelling with a red tile hipped roof and gable, with single garage on the eastern side. Other 1950-1960 style single storey dwellings exist in this neighbourhood.

3 From the evidence presented to the Court, it is apparent that the assessment process for this application has been protracted, which has involved a number of amendments to the original application. These amendments have included revision of the layout, lowering of the ridge line, shifting the building footprint closer to the road and consideration of landscaping aspects.

4 Consequently, the resultant plans before the Court are mainly Revision C. Insofar as these plans have addressed some of the initial concerns, the following issues remained for the appeal:

• Solar access amenity,
• Privacy impact,
• Provision of adequate soft landscaping area,
• Streetscape,
• Compliance with the desired future character considerations,
• Public interest.
  

5 The parties agreed to the appointment of Mr A Ludvik as the Court appointed expert for planning and he prepared a detailed assessment report (Exhibit 2).

The proposal

6 This proposal involves the demolition of the existing structures on the site to enable the construction of the attached dual occupancy, in a side-by-side arrangement.

7 Both the new dwellings contain 4 bedrooms. The proposal provides for basement parking for 2 cars in each dwelling, over which are 2 residential levels. The upper floor contains 3 bedrooms and bathrooms, mainly within the roof structure.

8 The proposal has a floor space ratio (FSR) of 0.4:1 and the proposed dwellings have gross floor areas of 169.5 sq m and 175.8 sq m.

9 Access to the proposal is via a single driveway from the road, which widens to the separate single entry basement garages. These garages are separated by approximately 2.3 m.

• Willoughby Local Environmental Plan 195 (LEP). Under this LEP the site is zoned 2(a) (Residential “A”) and the proposed development is permissible with consent. The relevant provisions of the LEP are: cl 14a, cl 32 and cl 13D.
  
• Willoughby Development Control Plan 16 – dwelling houses, dual occupancy and boarding houses in residential zones (DCP 16). This DCP contains the relevant development controls for dual occupancy development.
  

The evidence.

10 In addition to Mr Ludviks report, a considerable number of objections were lodged and these have been considered in the assessment of the proposal. Apart from the specific concerns of the adjoining neighbours, which relates to loss of privacy due to overlooking and loss of amenity due to overshadowing, the objectors expressed dissatisfaction with the height bulk and scale of this building, which in their opinion is not compatible with the existing or desired future character of this neighbourhood.

11 The overshadowing issue concerns the adjoining property to the east (No. 6), which is owned by Ms Belling and Mr Sealry. Their primary concern is that the position and height of the proposed upper level will introduce additional shadowing into their backyard. When this is considered in conjunction with shadowing created by a recently approved extension on the adjoining property at No. 4, the cumulative effect is that the amenity of their rear terrace area and the backyard is significantly compromised.

12 This concern has been assessed by Mr Ludvik, based on the accepted shadow diagrams contained in Exhibit C. These shadow diagrams show the effect of the proposal at 22 June whereby:

• At 9 a.m. there is no effect,
• At 12 noon, there is no effect,
• At 3 p.m. the proposal introduces a shadow of approximately 4.5 m wide along the western boundary.
  

13 Mr Ludviks assessment is based on the provisions of Clause 4.10 of the DCP 16 where the stated intent is to maximise the energy efficiency of buildings and to ensure sufficient solar access to living areas within dwellings and open space around dwellings. He says that the relevant performance criterion relating to solar access involves the maintenance of a reasonable level of solar access to habitable rooms and open space and adjoining development by:

• careful siting and orientation of buildings;
• the use of setbacks, which increase with building height; and
• the use of deciduous trees adjacent to boundaries.

14 The control contained in cl 4.10.3 provides that where possible, building should be sited to maintain approximately 3 hours of solar access between 9 a.m. and 3 p.m. on 22 June to living areas and principal open space recreational areas of adjoining properties.

15 Accordingly, Mr Ludvik says taking into consideration that one of the amendments undertaken in involved additional setbacks of the upper level and also that the proposal comfortably complies with the building height controls, then:

“Shadow diagrams submitted with the application indicate that the proposed building work would not overshadow either the building or the private open space associated with 6 Coolaroo Road, between at least 9 a.m. and 12 noon.
Even at 3 p.m. shadows cast by the proposed building are not to be significantly greater than those cast by the existing building on the site.
There is no fenestration on the western wall 6 Coolaroo Road adjacent to its common boundary with the site.
The proposal complies with the solar access controls contained in cl 4.10 of DCP 16.”

16 Mr Ludvik also refers to the Australian Model Code for Residential Development (AMCORD), which he says that proposal also complies with.

17 In addition this, he makes reference to the principles for solar access stated in the matter of Parsonage v Ku-ring-gai Council. By application these principles in current circumstances he states:

• the established subdivision pattern involves allotments with a largely north-south orientation, which mitigates overshadowing impacts;
• the small size, some 140 sq m and architectural character of the existing house and its convenient location make intensification of residential development on the site likely;
• the building has been setback well in excess of the minimum setback controls contained in cl 4.4 of DCP designed to minimise overshadowing;
• the articulation of the building has been designed to minimise overshadowing;
• a satisfactory level of sunlight is to be retained to the living and private open space associated with the dwelling house on 6 Coolaroo Road and, while there will be some additional overshadowing to these areas, the extent of loss of sunlight is not unreasonable; and
• the solar access control’s contained in DCP 16 and AMCORD are to be achieved.
  

18 Having considered the evidence presented on this issue, I am satisfied to rely on Mr Ludvik’s opinion that this proposal does not create unreasonable overshadowing onto the neighbouring property No. 6.

19 However, I particularly note that the neighbours objection concerns the cumulative impact of shadowing also from No. 4. The recently approved extensions to No. 4 obviously create shadowing on No. 6 and presumably this was considered satisfactory in its recent approval by Council. Unfortunately, no detailed shadowing diagrams for this property were presented to the Court, but it is apparent that the shadowing affect recedes during the day.

20 But Mr Ludvik was examined in regard to the cumulative impact and estimates that:

• At 9 a.m. approximately 50% of the backyard is in sunlight,
• At 12 noon, still approximately with 50% the backyard is in sunlight,
• At 3 p.m. again approximately 50% of the backyard is in sunlight.
  

21 In the absence of any other detailed technical evidence, I then accept these estimates that approximately 50% of the backyard area of No. 6 retains solar access throughout the day and that the proposal does not significantly impact on the designated living area or designated activity area in the backyard. In my opinion, the provisions of cl 4.10 of the DCP are reasonably satisfied, so that the degree of overshadowing from this proposal is not sufficient to warrant rejection of the proposal.

22 The next issue concerns privacy amenity, due to overlooking opportunities from the upstairs bedroom windows. This applies firstly to No. 6, with particular concern about overlooking into the backyard from the proposed dormer window in bedroom 2. However, the applicant has responded to this, by amending this window to reduce its size and move it further to the front corner of the room and include a fixed pane on the front elevation. Considering then the separation distance from this amended, upstairs bedroom window to the open backyard, I satisfied that a reasonable privacy relationship will result, noting that in any case the controls allow two-storey dwellings in this area, from which some overlooking from upstairs windows could be anticipated in this neighbourhood.

23 Concerns were expressed by the other neighbours from No. 10 about overlooking into their rear-yard area. However after consideration of the proposed landscaping along the common boundary and the offer by the applicant to provide fast-growing, screening vegetation, this was accepted as reasonable. Accordingly I consider that this objection can be reasonably addressed by way of imposition of conditions of consent concerning provision and maintenance of effective screening landscaping along the common boundary. This also applies to the concerns expressed by the neighbour to the rear of the property.

24 Therefore I am satisfied that the objections raised about privacy can be reasonably address by conditions of consent requiring and amendment of the position of the upstairs bedroom window and maintenance of existing mature vegetation and provision of additional screening vegetation along the common boundaries. This is consistent with Mr Ludviks opinions.

25 The next issue relates to provision of adequate soft landscaping. The general objective stated in cl 14A of the LEP for low-density residential development, is to maintain the scale, character and streetscape of individual localities is achieved, according to Mr Ludvik.

26 Furthermore that the following landscaping controls for dual occupancy are also required to be satisfied:

• A minimum natural/soft landscaped area of 35%, to ensure that the site is not overdeveloped (cl 4.6.2);
• A minimum natural/soft landscaping component at the street frontage of 70% of the area forward of the building line (cl 4.6.5); and
• The encouragement of tree planting in the property setback area, with new trees along the streetscape being semi-mature when planted and compatible with existing street trees (cl 4.6.8).
  

27 Associated with this are the following parking and access controls contained in cl 4.12 of DCP:

• To ensure that driveways and car parking facilities meet the needs of residents without adversely affecting the visual quality of the dwelling or the streetscape; and
• To maintain open frontages for passive surveillance and to ensure that car parking facilities contribute positively to the public domain.
  

28 According to Mr Ludviks assessment:

The proposed development is to have an overall soft landscaped area of some 47% of the site area, or 407.9 sq m, which exceeds the 35%, or 303.8 sq m, control contained in cl 4.6.2 of DCP 16 by some 104.1 sq m, or 34.3%.

Consequently, the proposal, overall, meets the intent of the Plan’s landscaping controls.

As the front boundary and the proposed building line are irregular due to the curvilinear geometry of Coolaroo road he assumes that the front setback area is defined by the main walls of the proposed building and the elevated terrace and porch, then the area of the front setback is some 188.6 sq m and a soft landscaped area of some 132 sq m would be required to meet the control contained in cl 4.6.5 of DCP 16.

The irregular nature of the geometry of the site and the proposed building provide some difficulty in calculating the precise extent of soft landscaping, however, He calculates the soft landscape area within the front setback to be in the order of 108.6 sq m, or 57.6% of the front setback area.

This represents a departure of some 23.4 sq m, or 17.7%, from the control contained in DCP 16.

Both the preciseness of such a numerical control and its strict application to achieve its intent are problematical from a town planning perspective.

However, in essence, the objective of the control is to provide sufficient landscaped area to enable the building to be integrated into the streetscape in Coolaroo Road.

This involves consideration of both the quantity and quality of the landscaping proposed.

29 In terms of quantity, he says that the departure from the control is minor and would not be readily discernible in terms of the streetscape. Also that the proposal as a whole meets the intent of the landscaping controls in relation to:

• The provision of adequate open space and reasonable privacy;
• The visual quality and amenity of the area;
• The maximisation of on-site infiltration of stormwater; and
• The predominant landscaped character of the area.
  

30 In addition to this Mr Ludvik has assessed the impact of the proposed building in terms of the reduced level of the ground floor levels, where the proposed first floor level is to be:

• Setback a minimum of 2 m from the front building line;
• Setback a minimum of 3.6 m from the side boundaries of the land; and
• Largely integrated into the building’s roof form.
  

31 Consequently, he concludes the first floor level will not be a dominant element in the overall building form.

32 The other contributing element to the visual impact and streetscape concerns the access arrangements to the individual, single garages, which are separated by a landscaping strip approximately 2.3 m wide.

33 According to Mr Ludvik’s evidence the southern side of Coolaroo Road contains an eclectic array of building forms, including houses and dual occupancy development, comprising buildings with a height of:

• One (1) storey;
• One (1) storey over parking (No’s 16, 18, 20, 22, 24 and 28);
• Two (2) storeys (no’s 2 and 14); and
• Two (2) storeys over parking (No. 30).
  

34 The perception of the streetscape is greatly influenced by the street trees and other vegetation within footpath areas and the curvilinear geometry of Coolaroo Road.

35 In terms of the proposed design and the site’s setting, the area available in the front setback area to provide soft landscaping will be sufficient to mitigate the height, bulk and scale of the building proposed in this application and to enable it to be integrated into the streetscape setting of Coolaroo Road, without any adverse visual impact.

36 The proposal would, therefore, meet the intent, performance criteria and controls for landscaping, access and parking contained in cls 4.6 and 4.12 of DCP 16 in terms of the quantity of soft landscaping proposed in the front setback area and, as such, would be consistent with the general objective of cl 14A(b) of WLEP of maintaining the scale, character and streetscape in this locality, according to Mr Ludvik.

37 Insofar as he expresses some reservations about the compatibility of the O.S.D. (drainage) System in the front landscaping area with the retention of existing vegetation, I accept his opinion that this can be covered by way of an integrated landscaped plan and included in the conditions of consent.

38 From my observations on the view, it is apparent that there is a variety of accessways to the other garages in the street, some including considerable areas of paving to double garages. I therefore accept Mr Ludviks opinion that the deficiency in the front landscaping area is relatively small, and substantially results because of the 2 separate entries to the separate dual occupancies. But this deficiency can be addressed by the provision of quality landscaping to achieve the landscaping objectives as required by development guidelines. Therefore I do not consider this relatively small deficiency in front landscaping area is sufficient to warrant rejection of this proposal.

Conclusions

39 Having considered the evidence, the submissions and undertaken view, I am satisfied this application merits conditional consent.

40 According to the evidence before the Court, this form of attached dual occupancy is permissible in this Residential “A” zone. It substantially complies with the numerical control’s for its site area of 867 sq m, including compliance with the FSR control of 0.4:1, which provides an accepted indicator of bulk and scale criterion. These controls also allow its 2-storey form, with basement garage and it has a conforming building envelope, which provides setbacks to the upper floor level that contains bedrooms, substantially within the roof space.

41 In assessing this proposal, I note the evidence that a number of amendments have been made to the proposal in order to reduce the amenity impacts. These various alternative designs have been subject to assessment by Council planners and supported for approval. These planning assessments indicate to me that the proposal satisfies the relevant planning controls and this position is consistent with the opinion of the Court appointed expert, Mr Ludvik who is also satisfied that this proposal complies with the relevant controls for conditional approval.

42 Notwithstanding this, I have also considered the objections raised by the neighbours. With regard to the overshadowing onto No. 6, I am satisfied that this proposal does not create unreasonable overshadowing and rely on Mr Ludviks evidence in this regard. Even though the proposal does introduce some shadowing after approximately 1 p.m. (22 June), it still complies with the relevant DCP control. The shadowing on this property is compounded by the development at No. 4, approved by Council.

43 However in the matters that the consent authority must consider before granting consent i.e. cl 13D of the LEP, specific reference is made to whether the proposed development is likely to have an adverse impact on an adjoining nearby property, including a reduction of sunlight to principal open space recreation areas. In this regard, I accept Mr Ludviks approach that this consideration should be based on some concept of reasonableness. It is apparent that this allowable type of development will necessarily involve a change in the form of development, which may impact on neighbouring properties. In my assessment, the shadow diagrams indicate to me that the reduction in sunlight, from this proposal is relatively small and is not sufficient magnitude to warrant rejection of the proposal, because in my opinion, the intent of development control is satisfactorily achieved.

44 I am also satisfied that the design has considered possible privacy impacts on neighbouring properties and this is mitigated to a reasonable extent by the setback windows within the roof space. However I also consider that the amendment proposed to alter the first floor bedroom 2 windows should be incorporated in the final design. Also the imposition of the revised conditions of consent, specifying perimeter landscaping, satisfactorily resolves privacy considerations to a reasonable level in my assessment.

45 As I have stated previously, I accept Mr Ludviks opinion that the overall proposal provides adequate soft landscaping and that the deficiency in the front area is relatively minor, which can be offset by the provision of reasonable quality landscaping to compliment this proposal. This will then result in an acceptable streetscape impact of the proposal, which is compatible, in my assessment with the various styles in this neighbourhood.

46 I note the strong public interest in this matter and have considered the submissions in this regard. However, the prevailing controls allow this form of dual occupancy development and the proposed building complies with the allowable design control, particularly the FSR control, and building height plane. Insofar as there is some dissatisfaction with the building style, I note that this site is not within a conservation area and the controls do recognise that contemporary styles are allowed, providing they are harmonious with the scale, form and massing of the surrounding dwellings.

47 Therefore the assessment of building form involves a subjective assessment and in the circumstances of this case, I am satisfied to rely on the opinion of the Court appointed expert, which is consistent with that of the Council planning assessment officer, that this proposed building form satisfies the desired future character controls in DCP.

48 In the ultimate, I have also considered the provisions of cl 13(3) of WLEP, which requires that the consent not be issued unless the development is consistent with one or more aims of the Plan and at least one specific objective of the zone. In my opinion in satisfies several of the aims of the plan, including accommodation of various house types and it also satisfies the specific zone objectives to accommodate dwelling houses and other land use which is compatible with existing houses, because the controls specifically allow this form of attached dual property development.

1. The appeal is upheld.
2. Development consent is granted to DA 40032, for the demolition of an existing dwelling and construction of attached dual occupancy development at 8 Coolaroo Road, Lane Cove, in accordance with the conditions in Annexure A.
3. The exhibits may be returned except for Exhibits 2, 3, 5, A and C.
4. Costs application is reserved.

___________________

R Hussey
Commissioner of the Court
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