Ge v Inner West Council

[2023] NSWLEC 1104

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ge v Inner West Council [2023] NSWLEC 1104

Hearing dates:

09 February 2023

Date of orders:

09 March 2023

Decision date:

09 March 2023

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court Orders that:

(1) The Appeal is dismissed.

(2) That Development Application DA/2021/0756, to demolish part of the existing dwelling house and to undertake alterations and additions at the rear of the existing dwelling, at Lots 23 and 24 in DP 1365, otherwise known as 23 Milton Street North, Ashfield, is refused.

(3) The Exhibits, apart from Exhibit 6, are returned.

Catchwords:

DEVELOPMENT APPLICATION – Alterations and Additions to Dwelling – hearing

Legislation Cited:

Ashfield Local Environmental Plan 2013, cll 4.3, 4.4
Environmental Planning and Assessment Act 1979, s 4.15, 8.7,
Land and Environment Court Act 1979, cl34AA

Texts Cited:

Comprehensive Inner West Development Control Plan 2016

Category:

Principal judgment

Parties:

Shixiong Ge (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
Shixiong Ge (Self Represented)(Applicant)
G Christmas (Solicitor)(Respondent)

Solicitors:
Apex Planning and Environment Law (Respondent)

File Number(s):

2022/336036

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Shixiong Ge (the Applicant) against the actual refusal by Inner West Council (the Respondent) of Development Application DA/2021/0756 (Development Application) for alterations and additions to an existing dwelling house at 23 Milton Street North, Ashfield.

2. The Court arranged a conciliation conference between the parties under s34AA(2) of the Land and Environment Court Act 1979. This was held on 9 February 2023. The parties failed to reach an agreement during the conciliation process. Accordingly, the conciliation was terminated, and the matter proceeded to hearing on the same day.

The Proposal

3. The Development Application is seeking Development Consent to undertake the following work:

1. Retention of a portion of the existing dwelling including the front porch and entry, a toilet and three bedrooms.

2. Demolition of a portion of the existing dwelling (the rear section) and the existing freestanding garage located in the north-west corner of the Site.

3. Construction of a rear addition, including a living area with access from the driveway, kitchen at the rear, laundry, shower and toilet.

The Site and Locality

4. The site is legally described as Lot 23 and 24 in DP 1365, otherwise known as 23 Milton Street North, Ashfield. The existing dwelling house straddles both allotments.

5. The consolidated Site has a 12.19 metre (m) frontage to Milton Street North, a northern boundary of 29.405m, southern boundary of 31.72m, rear boundary of 12.41m and a site area of 372m².

6. The parties undertook a site view at the commencement of the hearing. This included an inspection of the rear yard so as to understand the nature of the development. This inspection also afforded views of adjacent and nearby roof forms which is one of the aspects of dispute between the parties.

7. The Development Application was publicly notified for fourteen (14) days between 7 and 21 September 2021. No submissions were received during the exhibition period nor were any written or oral submissions made as part of the Court hearing.

The Ashfield Local Environmental Plan 2013

8. The site is located within the R2 Low Density Residential zone pursuant to Ashfield Local Environmental Plan 2013 (ALEP 2013). The proposed development, being alterations and additions to a dwelling house, is permissible with Development Consent within the zone.

9. There is a brick wall that separates the rear yard from a concrete hardstand area associated with the drainage channel adjoining the rear boundary. That part of the site associated with the drainage channel is zoned SP2 – Drainage pursuant to the ALEP 2013.

10. The ALEP 2013 contains Development Standards applicable to the application. The proposal is compliant with the Development Standard in cl 4.3 being a maximum for the Height of Buildings of 8.5m. The proposal is also compliant with the Development Standard contained in cl 4.4 being a maximum Floor Space Ratio of 0.5:1.

11. The Site is not identified as an item of heritage significance, nor located within a heritage conservation area, or in the vicinity of heritage items.

The Comprehensive Inner West Development Control Plan 2016

12. There is a dispute around the application of the various controls in the Comprehensive Inner West Development Control Plan 2016 (CIWDCP 2016). The disputed controls are outlined below.

13. The preamble in Chapter F – Development Category Guidelines, Part 1 – Dwelling Houses states:

“This Guideline applies to dwelling houses.

This includes a new dwelling house such as a “knock down and rebuild” and alterations and additions to an existing dwelling houses[sic].

This guideline applies to Heritage Items and Heritage Conservation areas only where specifically stated in this part [emphasis added]. Primary controls for buildings which are Heritage Items or Heritage Conservation areas are in Inner West LEP 2022 and Chapter E – Heritage Conservation part of the DCP. These include guidelines for building design, height and scale, pattern of development and site layout.”

14. The controls relating to Landscaped Area, in PC8 of the CWIDCP 2016, set the following performance criteria.

“Landscaped Areas:

• soften the visual impact of built form

• are sympathetic to the existing character of the streetscape

• reduces the bulk and scale of the dwelling house

• provide adequate open space suitable for activities and recreation

• provide for adequate principal private open space and deep soil planting”

15. The numerical requirements relating to these performance outcomes are found in Clause DS8.2:

Figure 1 - DS8.2 Landscape Area Controls

16. The requirements for private open space are found in Clause PC9 and DS9.1, as follows:

The Issues

17. The Statement of Facts and Contentions identified landscaping and private open space as the main contentions that inform the Respondent’s position that the Development Application should be refused. Additional contentions also outline deficiencies in the information supplied as part of the Development Application. The Respondent says that these deficiencies have hampered a full and proper assessment of the proposal.

18. The Applicant states that specific controls in the CIWDCP 2016 are not applicable to the proposed development. The Applicant says that the landscaped area and private open space requirements of the CIWDCP 2016 are excluded from application to this proposal as they only apply to Heritage Items or development within Heritage Conservation Areas, neither of which affect this proposal.

19. The Respondent relied on expert reports prepared in the areas of Town Planning and Engineering. The Applicant chose not to engage technical experts. As result, a joint reporting exercise has not been undertaken in either of the two areas of expert evidence.

20. The Respondent also raised concerns around the form and scale of the roof extending into the rear yard and the subsequent amenity impacts that may arise to adjoining properties. These concerns relate to overshadowing, visual bulk and the scale of the proposed additions. These concerns were in respect to the interface with surrounding properties.

Do the Controls of the Comprehensive Inner West Development Control 2016 apply to the proposed development?

21. The dispute, as to the interpretation of the CIWDCP 2016, is a critical issue for the determination of this matter. This is because the application falls significantly short of the CIWDCP 2016 controls, and required outcomes, should they apply.

22. The Applicant has interpreted the preamble words [in par 13 above] to mean that Part F, Chapter 1, only applies to Heritage related development. The Applicant emphasises that “This guideline applies to Heritage Items and Heritage Conservation areas only”. On the basis of these selective words, the Applicant draws the conclusion that the whole of Chapter 1 is only applicable to heritage related development.

23. The Applicant also has a second tier approach to further justify that specific clause in Part F, Chapter 1, do not apply. This is based on the wording at the end of each Clause. The Applicant says that the preamble to Chapter 1 of the CIWDCP 2016 states that the controls in that chapter will apply to heritage related development only where it is specifically stated in each clause. This can be seen in the extract of Clause DS8.2 which includes a reference to the application of heritage based development at the end of the clause.

24. There is no such reference to heritage related development at the end of the Clause PC9 relating to private open space. Nevertheless, the Applicant references back to the preamble exclusion as justification as to why this clause is not applicable.

25. The Respondent’s says that the initial sentence in the preamble of Chapter 1, which states that the section is applicable to all dwellings and alterations and additions, is an overarching statement and that the default position is that the chapter applies to all dwellings. The various references to heritage related development only serve to exclude heritage affected dwellings where specifically stated. It does not remove the overarching statement that the Chapter applies to all dwellings. The current proposal is not affected by heritage controls and therefore any reference to the inclusion, or exclusion, of heritage controls is not applicable to this application. The controls therefore apply to this proposal.

Findings

26. The Applicant’s position ignores the overarching preamble comment in Part F, Chapter 1 of the CIWDCP 2016 that, as a standalone statement, Part F applies to all dwellings and alterations and additions to dwellings. The Applicant, in extracting only the third paragraph in the preamble, and then truncating the opening sentence, has incorrectly changed the grammatical context of the statement that provides a caveat to the application of the Part F planning controls for Heritage related development and drawn the incorrect conclusion that the application of Part F excludes dwellings which are not affected by Heritage controls.

27. The Respondent has demonstrated an interpretation of the Chapter which is logical and more obvious. The CIWDCP 2016 has a Chapter applying to all dwelling houses, as a default position, including Heritage Items and dwellings in Heritage Conservation areas. Specific clauses, which may have limited application to heritage related development, or may change the character of a conservation area, have statements at the end of that clause that exclude heritage related development from that control.

28. The Respondent’s arguments are convincing and I agree with that position. There is a Chapter in the CIWDCP 2016 applying generally to dwelling houses, this being Chapter 1. The operation of clauses in Chapter 1, which may impact on heritage aspects of a Dwelling House development are then excluded by specific reference.

Is the Landscaping and Private Open Space acceptable?

29. The application before the Court is for a proposal that extends the existing dwelling to within 2711mm of the brick wall at the rear of the yard. The proposal also provides for a 2010mm setback to the northern boundary and a 900mm setback to the southern boundary.

30. The Respondent says that the proposal fails against Performance Criteria 8 – Landscape Area. In particular, DS 8.2 – Landscape Area, and results in a landscaped area requirement of 28% of the site, being 104m². The Respondent contends that the landscaped area is approximately 30m² and only 8% of the site area. The Applicant does not contest these figures but takes the position that this requirement, or section of the CIWDCP 2016, is not applicable as discussed above.

31. Mr Chapman, the Town Planning expert for the Respondent, says, “The proposed rear addition that extends into the rear yard does not allow for sufficient landscape area and functional private open space contrary to the Landscape Area and Site Coverage Performance Criteria and Design Solutions at Part 1 Dwelling Houses of the DCP. Design Solution (DS8.2) requires landscaped area of 28% of the site area that equates to 104m2.” (para 10, p3 of Chapman Report). Mr Chapman also highlights non-compliance with the Performance Criteria in PC8 (outlined in Para 14 above) based on the scale of the extension and the limited area available for achieving these outcomes. Mr Chapman also raises concern with the treatment of these areas, in particular, the significant retention of concreted areas within setbacks.

32. The Respondent demonstrated that the proposal does not achieve the Landscape Area Performance Criteria nor numerical requirements and that the proposal is deficient as a result. The reduced setbacks also impact on the ability to provide an area of private open space that has a minimum dimension of 3.5m and an area of 20m². As a result, the requirements of DS9.1 of the CIWDCP 2016 are also not met.

Findings

33. I agree with the Respondent, that is, because of the reduced setbacks and the treatment of the area within the reduced setbacks that the application warrants refusal. The proposal does not provide the required landscape area and private open space to meet the required performance outcomes.

34. The provision of landscaping and private open space, associated with dwelling houses, is a fundamental aspect of dwelling house design. The absence of adequate landscaping, and the absence of adequate private open space within the provided landscape area, compounds the potential that the visual scale of the proposed hipped roof additions will impact negatively on adjoining properties because of the proposed dwellings overall proximity to all boundaries.

35. Irrespective of the non-compliance with the CIWDCP 2016 controls, pursuant to section 4.15 of the EPA Act, an appropriate environmental outcome would be to provide adequate landscape area and usable private open space as a minimum level of amenity for the future occupants and to buffer surrounding development. The application does not propose adequate outcomes in this regard.

Other Matters

36. The evidence before the Court indicates that the issues around flood levels, freeboard and subsequent floor levels may have been resolvable. In light of my determination, on andscaped area and private open space, it is unnecessary to pursue the outcomes in respect to the flooding contention.

Conclusions

37. The proposal does not achieve minimum standards that are expected in terms of the provision of landscaping and adequate private open space. The proposed rear extension is of a substantive nature and should include appropriate outcomes to ensure the amenity for future occupants and adjoining property owners. This would include appropriate setbacks to ensure the provision of adequate landscape area and the provision of private open space of reasonable utility.

Orders

38. The Court orders that:

1. The appeal is dismissed.

2. That the DA/2021/0756, to demolish part of the existing dwelling house and to undertake alterations and additions at the rear of the existing dwelling, at Lots 23 and 24 in DP 1365, otherwise known as 23 Milton Street North, Ashfield, is refused.

3. The Exhibits, apart from Exhibits 6, are returned.

…………………..

S Harding AC

Acting Commissioner of the Court

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Decision last updated: 09 March 2023