GLDN Pty Ltd v Cessnock City Council - [2006] NSWLEC 186

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: GLDN Pty Ltd v Cessnock City Council [2006] NSWLEC 186

PARTIES:
APPLICANT
GLDN Pty Ltd
RESPONDENT
Cessnock City Council

FILE NUMBER(S): 10767 of 2005

CORAM: Hoffman C

KEY ISSUES: Development Application :- Useable open space, streetscape, solar access to private courtyards and living rooms, vehicle manoeuvring, visual privacy of living rooms, visual and acoustic privacy of bedrooms

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Cessnock Local Environmental Plan 1989

CASES CITED: Meriton v Sydney City Council [2004] NSWLEC 313

DATES OF HEARING: 23/01/2006

DATE OF JUDGMENT:
04/18/2006

LEGAL REPRESENTATIVES: APPLICANT
Mr P Sladen, agent
RESPONDENT
Mr R Mallik, solicitor
SOLICITORS
Cleaves Mallik Gibbs

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

18 April 2006
10767 of 2005 GLDN Pty Ltd v

Cessnock City Council

JUDGMENT

1. This is a class one appeal No. 10767 of 2005 between GLDN Pty Ltd and Cessnock City Council in regard to the deemed refusal of a proposal to demolish an existing house and erect four villa units at No. 30 Rawson Street, Aberdare.

2. The locality is one of wide streets up to 30 m road reservation with grass table drains and verges and centre sealed road. The next city block west on Rawson Street from the site has a local school. Down hill one city block are local shops, a hotel, bowling club and another block down playing fields.

3. The locality is predominantly detached houses with some newer medium density single storey villa developments on individual lots similar to the proposal. The site is 1,012 sq m in area with 20.1 m frontage and 50.2 m depth to a laneway at the rear. The site rises about 2 m from Rawson Street to the lane. The lot has a north-south orientation with Rawson Street at the south end.

4. The council opposes access of the rear laneway to new medium density development and none is proposed in this application.

5. The design has a driveway on the entire western boundary with the four villas about along the centreline of the allotment. There is a single visitor’s car space at the end of the driveway near the lane. There is a drainage easement along the rear boundary.

6. The villas are arranged with private courtyards on the eastern boundary separated in most cases by garages and laundries that project through to the eastern boundary. This also creates recesses in the western elevation to allow turning spaces for cars into and out of the garages.

7. The courtyards of Units 2 and 3 are separated by a fence.

8. The single car garages for each unit are located between Units 3 and 4 at the north end of the site. The garage to Unit 2 is between it and Unit 1. The latter has a separate driveway direct off Rawson Street to its garage.

9. There is a laundry in each villa at the rear of each garage. In Units 2, 3 and 4, there is direct access to the related courtyard. In Unit 1 the washing must be carried through the living room to the courtyard.

10. The driveway to the garage in Unit 1 crosses the front setback which is a distance of 4 m. That driveway is beside the main drive along the western boundary so that the footpath crossing is 6 m wide to accommodate both.

11. The grassed area within the front setback is proposed as the communal open space of the development for use of all residents. It is in front of the two bedroom windows and the front door of Unit 1 and is approximately 4 m wide and 10 m long. A picket fence is proposed along the front boundary except for the driveway entries.

12. Adjoining the main driveway in Unit 1 are windows to its garage, laundry and bathroom. A north facing family room window faces the drive apron immediately outside Unit 2’s garage, and the window is directly across the 3m wide apron to windows of Unit 2’s living room.

13. The main windows to the living room and kitchen of Unit 1 are into its private courtyard on the east.

14. Unit 2 has windows to its two bedrooms facing the main driveway. The front door is recessed into its garage entry apron and its living room window faces south onto the apron as previously mentioned. It has a family room and kitchen window facing east into its private courtyard. Unit 3 is a mirror reverse of Unit 2 so it too has windows of both bedrooms facing the main driveway. The living room window faces north onto the apron of its garage.

15. Unit 4 is a mirror reverse of Unit 3. Because Unit 4 has its garage beside that of Unit 3 the two aprons give a total width of about 6 m. The living room window of Unit 4 faces south across the apron towards the living room window of Unit 3.

16. Unit 4 has its two bedroom windows facing the visitors’ carpark at the end of the driveway. Its family and kitchen windows face east into its private courtyard.

17. The north wall of Unit 4 has a 1.1 m setback to the rear lane that is proposed to be landscaped with screen trees. Unit 4’s only window facing north is the bathroom window.

18 The issues are:

1. Useable Open Space - Inadequate Areas

While the submitted plans indicate 35 square metres of useable open space for units 2, 3 and 4, these areas include clothes drying and bin storage facilities. This fails to satisfy "the definition of useable open space and as such, the limited area provided is unable to satisfy the objectives and performance criteria set aside for useable open space under Section 3.5 of DCP No. 22.

The provision of internal clothes dryers in place of outdoor drying areas is not considered good justification for a reduced area of useable open space as this fails to satisfy the principles of energy conservation under Section 4.5 - Provision 3 of DCP No. 22 and 3.3 of DCP 48 which aims to reduce total energy use in residential buildings.

2. Useable Open Space -Inadequate Solar Access

3. Solar Access to Living Rooms

The development does not provide adequate solar access to the living rooms of Units 1, 2 and 4 (due to overshadowing) and as such, fails to provide suitable amenity for the future residents and is contrary to the following additional Sections of DCP No. 22:
· Section 3.3 (Site Planning and Layout) -Objective 4 which encourages site planning and building design that optimises solar access to land and buildings.
· Section 4.5 (Energy Conservation) -Objectives 1 and 2 which aim to provide adequate daylight to habitable rooms and avoid the potential for significant overshadowing of habitable rooms.
· Part 3 DCP 48 is not complied with

4. Privacy to Living Rooms

In this instance, the living room windows between Units 1 and 2 are directly opposite each other and are only separated by a 3 metre driveway. The living room windows between Units 3 and 4 are also located opposite each other and are only separated by a 6 metre driveway.

5. Privacy to Bedrooms

The proposed development is designed such that the windows of each bedroom contained in Units 2, 3 and 4 are directly adjoining the shared driveway and parking areas. A separation distance of only 500 mm is proposed (small garden bed). This is unsatisfactory and is contrary to objective 2 of Section 4.6 which is to site and design buildings to meet projected user requirements for visual and acoustic privacy. In this instance, the occupiers of each of the bedrooms in Units 2, 3 and 4 will be affected visually (car lights during evening hours) and acoustically (noise of vehicles adjacent bedrooms).

6. Streetscape Character

While the applicant has attempted to address the issue of street appeal by incorporating feature gables, a broken roofline and a l.2m picket fence into the design, the placement and style of windows is not in proportion to these other design features and the street elevation appears unbalanced and lacks architectural merit. Overall, the development lacks high architectural standards and does not present as an attractive, well designed residential development (Section 4.2 -Objectives 1 and 2 of DCP 22 -External Appearance).

Further, the driveway along the western boundary of the site is entirely visible from the street and represents "gun-barrel" development which is contrary to Section 4.8 -Performance Criteria 4 of DCP No. 22. The thin strip of landscaping proposed along the western boundary will not accommodate suitable landscaping to improve this situation.

7. Cumulative Impacts and Precedent

The development fails to satisfy the various objectives, performance criteria and provisions of DCP 22 and the cumulation of deficiencies result in an unacceptable development that undermines the planning principles contained in the DCP. Support of such a development will create an undesirable precedent that will lower the standard for future housing developments in the locality.

19. The appearances for the parties were for the applicant:

20. Appearing for the respondent was:

21. The site is zoned Residential 2(a) under the Cessnock Local Environmental Plan 1989. Most of the surrounding land is the same zone. The school is Special Uses 5(a) Zone.

22. The objectives of the 2(a) zone are:

a) primarily to provide for lower density residential development;

b) to enable residential flat buildings which are compatible with single dwelling development;

c) to provide for other forms of development which may appropriately be located in the Residential Zone and

23. The use is permissible with consent of the responsible authority.

24. The applicable controls are:

Cessnock Development Control Plan No. 22 – Lower Hunter Urban Housing

Cessnock Development Control Plan No. 2 – Off Street Vehicular Carparking Code.

Cessnock Development Control Plan No. 38 – Notification and Advertising of Applications.

Cessnock Development Control Plan No. 40 – Waste Management and Minimization.

Cessnock Development Control Plan No. 48 – Energy Smart Homes.

25. The applicant had submitted several amendments to the plans prior to the hearing in answer to council staff advising of non-compliances.

26. At the hearing the applicant’s sought to incorporate further changes by conditions of consent to answer continuing non-compliances.

27. The conditions sought are:

1. Double glazing to bedroom windows of Units 2 and 3.

2. Privacy screens to living room windows to Units 2 and 4.

3. Garages and laundries to Units 2, 3 and 4 to be moved west 1.175 mm.

4. Sliding glass door in living room to Unit 1 to be moved 1.5 m to the south.

5. Window in kitchen of Unit 4 to be moved to the northern side.

6. Walls cut to 45 degrees on the southern side of laundries to Units 2 and 3.

28. The respondent objected to the amended plans in Exhibit G of Mr Joyce’s report in Exhibit B as the respondent had expressly written to the applicant to ask if those plans were to be relied upon. A letter was received from the applicant advising it was the plans in Exhibit 3 that are in contention.

29. Nevertheless the respondent considered the draft conditions and said they could be dealt with at the hearing except for the garages as the council’s engineer would need to assess car turning circles in the reduced driveway space.

30. The two experts agreed that bedrooms of Units 2, 3 and 4 had unsatisfactory proximity to the driveway and car noise at night with the slamming of doors, engine revs and people talking. Mr Giannopoulos said the double-glazing proposed in the draft conditions only works to reduce that noise if the windows are shut. For ventilation they need to be open. The acoustic impacts would remain.

31. The bedroom windows face west so in summer the rooms would be hot from the afternoon sun and the windows need to be kept open. With 0.5 m separation from the driveway across the garden bed, privacy and security of the bedrooms would also be questionable.

32. Unit 1 bedrooms had windows facing into the 4 m wide front setback that is proposed as communal useable open space. Mr Giannopoulos said the usability of that for communal recreation is doubtful due to the exposure to the street and being right beside bedroom windows and the front entry door of Unit 1. It is unlikely residents in Unit 1 would tolerate communal use of the front setback due to privacy and noise impacts such as children playing in it or residents of other units using it for say a BBQ or entertainment of guests.

33. Mr Joyce agreed this would be a potential problem but put in any case that the private courtyards of the proposal had 35 sq m minimum of usable open space for each unit. Under the development control plan therefore the communal area is not needed to make up the total usable open space requirement.

34. Mr Giannopoulos disputed the private courtyards met the 35 sq m minimum. He said the plans did not show clothes lines and eaves overhangs that are excluded from the calculation of open space area. Also the garbage bins are shown in each garage and Mr Giannopoulos said the garages are not long enough for a car plus a bin. Also the plans only showed one bin per garage whereas the council provided two bins, one for recycling and one for putrescible waste. As a result the residents would put the bins in the courtyards. He calculated Unit 1 had 27.32 sq m. Unit 2 had 26.22 sq m, Unit 3 had 26.22 sq m and Unit 4 had 29.98 sq m.

35. Mr Joyce said under the definition of usable open space eaves overhangs are not excluded, and clothes-lines can be retractable type. He agreed space for garbage bins should be provided in the courtyards but even with that he calculated Unit 1 at 38.16 sq m, Unit 2 had 35.41 sq m, Unit 3 had 35.41 sq m and Unit 4 had 39.27 sq m.

36. In oral evidence Mr Joyce agreed the front setback area would have impacts of privacy and noise for the residents of Unit 1 and the space would be very open to pedestrians passing the site.

37. I conclude the front setback cannot be termed usable open space under the development control plan. In calculating useable open space, it seems reasonable to me to include areas under eaves that have standard overhangs of 450 mm or less as the proposal does. Wider eaves or roofed areas in courtyards would not be open to the sky and the area under them should be deducted from courtyard and useable open space calculations.

38. In my opinion the DCP requires that clothes line areas even if retractable should be deducted from the calculation of usable open space, otherwise you have areas that comply when the clothes line is retracted and do not comply when it is used. If that is deducted on the joint agreement of the two experts being an area of 3.52 sq m per courtyard, then three of the four courtyards are under sized even on Mr Joyce’s figures.

39. A reading of cl 3.5 of DCP 22 then brings into play the provision that 35 sq m per unit is a minimum provided all the objectives and performance criteria are met. There is no requirement in DCP22 to provide communal useable open space and although the driveway and the front setback are communal spaces, I do not accept they meet the criteria for usable open space.

40. Not all the courtyards can meet performance requirements (2) and (4) in cl 3.5. The space for service functions are deficient as referred to above and solar access to the courtyards does not allow comfortable year around use. Therefore the proposal is deficient in useable open space.

41. The experts agreed courtyards of Units 1, 2 and 3 are heavily overshadowed in winter especially when fence shadows and that of the shed directly on the boundary within the eastern neighbour’s property are considered. The fences and the shed are not shown on the shadow plans.

42. The proposal to cut the corners of the laundries of Units 2 and 3 at 45 degrees and to move the garages and laundries 1.175 m westwards would improve sun to the courtyards, but that change needed assessment of the vehicle turning circles to the garages.

43. Mr Joyce noted DCP 22 set no standards for solar access to private courtyards and sought to say the proposal is adequate since Cessnock has a hot climate and cool courtyards are more important than sunny ones. He based this on district electrical power consumption in summer being statistically higher than in winter. It seems to me that ignores winter heating with gas or kerosene or wood or coal fire places.

44. But in any case the principles of good sustainability planning practice including DCP 22 and DCP 48 look at favourable orientation of private courtyards and living rooms. Good design requires that these areas obtain natural heating for comfortable use in winter. Shading devices are intended for summer.

45. It is true DCP 22 only sets a standard for sunlight to adjacent property’s private open space. It says sunlight to the principal area (sic. of use) in that open space should not reduced to less than 2 hours sunlight between 9am and 3pm on 21 June. Where existing shadowing by buildings and fences are greater than this DCP 22 says do not reduce sunlight further by more than 20%. In cl 4.5 of DCP 22, “adequate sunlight” to private open space of a new development is required. Presumably, “adequate” must mean two hours because 20% less is a fall back situation for compromise. If it were not so then 1 hour 36 minutes of sunlight would be the standard without any allowance for less.

46. It is unhelpful that the control does not identify the part of the open space that must receive adequate sunlight except as “the principal area”. If it is the 4 m x 4 m space outside living rooms set out in cl 3.5 then I doubt that Units 1, 2 and 3 would receive two hours of sun to that space when buildings and fences are accounted for.

47. DCP 22 in cl 4.5 requires living room windows facing north to get a minimum of 3 hours sunlight between 9 am and 3 pm on 21 June. The two experts agree no units would get that since all living rooms face east or south except Unit 3 that has a northern window.

48. Unit 3’s living room window faces directly across the garage aprons of Units 3 and 4 to the living room window of Unit 4. I shall refer to this again later in this judgment.

49. If Unit 1’s north window to its family room is classified as a living room, it has a problem of looking directly across 3 m into the living room window of Unit 2. Mr Joyce recommends a privacy screen on Unit 2’s window.

50. Even with a privacy screen, I am still concerned that Unit 1’s window is directly facing onto the garage entry apron of Unit 2 and only a little offset from Unit 2’s front porch. Privacy would usually require Unit 1’s family room window to be curtained. So little sun would get inside.

51. Mr Joyce says that the control only requires north facing windows to receive the three hours of sunlight. If there are no north facing windows then the control does not have to be complied with.

52. It seems to me Mr Giannopoulos’s evidence carries some weight that the requirements of DCP 22 and DCP 48 seek to ensure good design by orienting living rooms and private open spaces to obtain northern exposure and thus satisfy provisions for comfortable habitation of new development.

53. It is reasonable in new developments that not all units may be able to satisfy such requirements. In this case only Unit 4 would marginally meet the requirement for the sunlight exposure to its family room. However, its living room faces south and only its kitchen would get three hours sun or more if the applicant’s draft condition is applied.

54. Turning to the movement of the garages and laundries 1.175 m west in order to gain more sun for courtyards and family or living rooms. I note that council’s engineer did not arrive to give evidence on the effect of the movement on car manoeuvring in the driveway.

55. In lieu of that I believe it is admissible for me to take judicial notice of AS 2890 Australian Standards for Parking and Vehicle Manoeuvring. In applying the turning template for the 85%-ile vehicle to the plans in Exhibit 3 with the garages and laundries moved 1.175 m west, I find that a car in Unit 4 garage needs the visitor space to be able to reverse out and then go forward down the driveway in 2 movements. A 2-point turn is acceptable in medium density development.

56. However, with another car in the visitor spot, the manoeuvre becomes at least a 4-point turn. This is unacceptable. An 85%-ile car is equivalent to a standard Holden Commodore or Ford Falcon.

57. A 99%-ile vehicle such as a full size 4 wheel drive would have difficulty using Unit 2 garage because of the confines of the driveway and the space between Unit 1 and Unit 2 at the garage apron. It would also have difficulty reversing out of Unit 4 garage with a car in the visitor space. It would probably require a 6-point turn.

58. It seems that the applicant’s solution to obtain more sunlight to the courtyards and the family rooms creates other problems with vehicle manoeuvring.

59. Another solution of the applicant to privacy is to put privacy screens on the south facing living room windows of Units 4 and 2. This is to give privacy from living room windows of Units 3 and 1 respectively, that are directly across the garage aprons. The AMCORD guideline for medium density housing requires 9 m separation if there is no intervening privacy screen. The same distance is applied in DCP 22 cl. 4.6.

60. Between Units 1 and 2 living and family room windows there is only a 3 m gap. And between Units 3 and 4 there is only a 6m gap. The space is across concrete aprons to the garages where there is no opportunity for landscaping. The respondent put Meriton v Sydney City Council [2004] NSWLEC 313 in support of the privacy impacts.

61. The impact of the screening devices are twofold. Firstly they will greatly reduce the daylight coming in through those south facing windows, and secondly they will give the living rooms a “boxed in” feeling according to Mr Giannopoulos. The internal amenity would be poor in his opinion and I am inclined to agree.

62. I note also that moving the garages 1.175 mm west will reduce the size of the living room windows of Units 2, 3 and 4. I have not checked if that reduces the area of windows to the living rooms below the minimum size under the Building Code of Australia. There are no elevations to show the size of those windows on the plans.

63. Without the screening devices there are privacy impacts, and the north facing windows of Units 1 and 3 would normally be curtained or shuttered and therefore receive little sunlight.

64. In reading cl 4.6 of DCP22, I also note the provisions on acoustic privacy that require new developments to have bedroom windows at least 3m from parking areas, streets and shared driveways in order to give reasonable acoustic privacy. As is obvious from previous descriptions in this judgment Units 2, 3 and 4 do not comply with this requirement.

65. In proposing that there be double glazing to the windows, I have already stated my conclusions. I note that Mr Joyce has said the acoustic impacts would be minimal because of the small number of units. The average traffic generation of 7 vehicle movements per unit per day would not create significant disturbance. Unit 2, ignoring its own vehicle trips would have 14 vehicles per day past its windows from units 3 and 4. Mr Joyce said that ignoring Unit 3’s own movements it would only have 7 movements past its windows, and Unit 4 would only have the visitors’ cars.

66. It seems to me this estimate does not cover all the impacts. Units 3 and 4 having their garages together, and the manoeuvring area being so close to the bedroom windows of each, they would both have 14 movements per day plus visitors. Also there is the consideration that not all occupants of one unit may be out in their car at the same time, and so one should not necessarily ignore “own unit” car movements.

67. Then there are pedestrian movements in the driveway that can give rise to disturbance of persons in the bedrooms, and reduce their privacy due to persons in the driveway being able to overhear persons in the bedrooms, when the windows are open.

68. I note Mr Giannopoulos’ and Mr Joyce’s evidence of the heat in summer in Cessnock. It is my opinion in summer at least, western bedroom windows would need to be open at night for cooling if not for ventilation. Mr Joyce’s evidence on the natHERS rating of the building would not avoid that necessity.

69. The applicant complained that it had spent 12 months negotiation with council staff and provided several amended plans, only to be told at the end that a total redesign is necessary.

70. In submissions the applicant and in Mr Joyce’s evidence it was said that the locality is not an up-market area and the other medium density developments nearby are similar to the proposal. The proposal would satisfy the market, they said, that is looking for budget priced villa units in Cessnock.

71. The applicant felt the most likely purchasers would be retired persons, or “empty-nesters”, or singles, or couples without children who would be less likely to have activity that might disturb other residents.

72. The respondent said the convenience to the schools, shops, and sports fields may well make it attractive to parents with children.

73. I do not think the Council statutes and controls distinguish between types of potential occupants of dwellings, except in the provision of seniors living and disable persons’ access developments. The statutes and controls are aimed at giving all persons living in medium density development reasonable amenity and practical and useable dwellings and facilities.

74. In respect of the time spent negotiating with council staff, it is a circumstance of the case, however my role is to look at the current plans de novo as if it is a fresh application just received and determine on fact and merit if it is worthy of approval under the applicable statutes and controls. To a large extent the previous plans and what negotiations occurred do not carry a lot of weight in a determination of whether or not the current and subject plans are a worthy proposal or not.

75. I was taken to look at nearby medium density developments and approved plans of 18 Rawson Street and 100 Rawson Street were shown to me. There was another villa development in Aberdare Road I was taken to. There are apparent non-compliances with development control requirements in them, and some compliances that are not so in the subject proposal. I do not see them as being good examples of the DCP22, DCP2, or DCP48 requirements as I understand them, and they should not be accepted as a precedent for future developments. The intent of the Council policies is obviously to improve the design of future proposals. Indeed the advent of the BASIX requirements at State Government level indicates better design and sustainability that is the direction of planning practice.

76. My conclusions are that there are a cumulative number of deficiencies in the proposal viz.:

· Inadequate amount of useable open space under the applicable definition.

· Inadequate amount of useable private open space in the courtyards of 3 of the 4 units.

· Poor vehicle manoeuvring spaces

· Poor acoustic amenity, privacy and security in respect of all bedrooms in Units 2, 3 and 4.

· Potentially poor acoustic amenity for both bedrooms of Unit 1 if the front setback is to be communal recreational open space.

· Poor direct sunlight exposure in mid-winter to the private courtyards and living rooms of 3 of the 4 units.

· Poor privacy to living rooms of all 4 units.
· Poor separation distances between living/family room windows of adjacent units creating visual and acoustic privacy impacts.

· The applicant’s proposed conditions to ameliorate these deficiencies are either insufficient or create co-lateral impacts that add to the conclusion that the proposal is not good design.

77. Therefore the Orders of the Court are:

1. The appeal is dismissed.

K G Hoffman

Commissioner of the Court

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Citations

GLDN Pty Ltd v Cessnock City Council [2006] NSWLEC 186

Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Meriton v Sydney City Council [2004] NSWLEC 313

CITATION:	GLDN Pty Ltd v Cessnock City Council [2006] NSWLEC 186
PARTIES:	APPLICANT GLDN Pty Ltd RESPONDENT Cessnock City Council
FILE NUMBER(S):	10767 of 2005
CORAM:	Hoffman C
KEY ISSUES:	Development Application :- Useable open space, streetscape, solar access to private courtyards and living rooms, vehicle manoeuvring, visual privacy of living rooms, visual and acoustic privacy of bedrooms
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Cessnock Local Environmental Plan 1989
CASES CITED:	Meriton v Sydney City Council [2004] NSWLEC 313
DATES OF HEARING:	23/01/2006
DATE OF JUDGMENT:	04/18/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr P Sladen, agent RESPONDENT Mr R Mallik, solicitor SOLICITORS Cleaves Mallik Gibbs