Greg Dickinson Homes Pty Limited v Camden Council

Case •

[2015] NSWLEC 1221

•

23 June 2015

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Greg Dickinson Homes Pty Limited v Camden Council [2015] NSWLEC 1221
Hearing dates:18 June 2015
Date of orders: 23 June 2015
Decision date: 23 June 2015
Jurisdiction:Class 1
Before: Dixon C
Decision:

1. The appeal is upheld.
2. Development consent is granted for the demolition of the existing dwelling, and the construction of five single-storey seniors’ living dwellings, strata subdivision and associated site works at 27 Elizabeth Macarthur Avenue Camden South in accordance with the amended development application DA 240/2014 and subject to the conditions marked annexure ‘A” to this judgment.
3. The exhibits are returned except for 2, A and D.

Catchwords: Appeal - Development application - Seniors living development - character of the area - Setbacks
Legislation Cited: Land and Environment Court Act 1979
Environmental Planning and Assessment Act 1979
State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004
Camden Local Environmental Plan 2010
Camden Development Control Plan 2011
Category:Principal judgment
Parties: Greg Dickinson Homes Pty Limited (Applicant)
Camden Council (Respondent)
Representation:

Counsel:
Mr P. Duffy, solicitor (Applicant)
Mr C. Drury, solicitor (Respondent)

Solicitors:
Duffy Law Group (Applicant)
Sparke Helmore Lawyers (Respondent)
File Number(s):10939 of 2014

Judgment

Introduction

  1. This Class one appeal concerns a development application (DA 240/2014) for the demolition of an existing dwelling and the construction of five single storey seniors living dwellings, strata subdivision and associated site works at 27 Elizabeth Macarthur Avenue, Camden South (the site).

  2. The site is zoned R2 -Low Density Residential under the provisions of the Camden Local Environmental Plan 2010 (LEP 2010) and development for the purpose of seniors living is permissible with consent. However, this application is made pursuant to State Environmental Planning Policy (Housing for seniors or People with a Disability) 2004. Relevantly, it prevails over the Council’s local planning controls including the Camden Development Control Plan 2011 (CDCP).

  3. The applicant, Greg Dickenson Homes Pty Ltd, has commenced these proceedings under s 97 of the Environmental Planning and Assessment Act 1979 (the EPA Act) because Camden Council has refused development consent to its application. The grounds of refusal are identified in the Council’s Notice of Determination issued on 4 July 2014. In summary the Council determined that the application originally filed offered poor internal amenity, inadequate landscaping and, was generally unsympathetic to the character of the area in terms of its bulk, scale and setbacks. It also decided that an approval of the application was not in the public interest having regard to the concerns expressed by the local residents.

The amended plans

  1. On 12 February 2015, the Court facilitated the first of a series of preliminary conferences between the parties pursuant to s34 of the Land and Environment Court Act 1979 (LEC Act). During that process the applicant provided additional information to the Council and amended its plans to reduce the number of dwellings from 6 to 5 and to provide a driveway along the western side of the site. The redesign addressed a number of the contentions raised by the Council in its Statement of facts and contentions dated 16 December 2014. In particular, the amended plans provided:

• an increase in the front setback by 5m and the rear setback by 1.2m,

• improved landscaping,

• changes to the floor levels to all 5 units,

• the redesign of unit 1 and alteration to the development to address accessibility issues and solar access/sunlight,

• the addition of a garbage bin storage area and,

• the provision of a disabled parking space within the site.

  1. Despite these improvements to the development the parties were unable to resolve the proceedings by agreement at the last conference so that process was terminated. Shortly, thereafter the amended plans were substituted in the appeal and the matter was listed for hearing.

  2. The amended plans (exhibit 1) are the subject of this judgment.

The objectors’ evidence

  1. The hearing commenced onsite with a view. At the view the Court received oral evidence from three local residents who object to the amended application. They are :

• Ken Macauley of 27A Elizabeth Macarthur Avenue, Camden South.

• Margaret Moloney of 4 Hopson Avenue, Camden.

• David Miner of 16 Selkirk Place, Camden South.

  1. Generally, the local residents said that they object to the density of the proposed development because it is out of character with their neighbourhood and its current subdivision pattern. Their collective view is that the amended proposal (despite a reduction in the number of dwellings) remains too large and bulky and fails to achieve a built form which responds to the characteristics of its site.

  2. Mrs Moloney is particularly concerned about the impact of the development on her existing residential amenity. Her property adjoins the rear boundary of the site and she believes that the built form will cause overshadowing and privacy issues for her home. She objects to any tall landscaping along the sites’ rear boundary and in the front setback. She is also very concerned about the lack of parking provided onsite and the impact the development will have on existing traffic congestion in the Elizabeth Macarthur Avenue.

  3. With respect to setbacks Mr Macauley told me that the proposed 10.8m front setback is inadequate having regard to the large front setbacks along the street and at the adjoining properties. He suggested that a more appropriate front setback is derived by an averaging of the existing front setbacks on the adjoining sites. One of which he owns. He did not believe that the front setback of the newly approved subdivision development at 25 Elizabeth Macarthur Avenue was a relevant yardstick for the setback of this development. Mr Macauley is also concerned about the landscaping proposed along the common boundary with his property. He believes it is too tall and will impact on his solar amenity and cause leaf litter. He is also concerned about overlooking and privacy because two bedroom windows of his home will directly face into the backyards of the proposed development.

  4. In response to the landscaping concerns it was explained to Mrs Moloney and Mr Macauley that an amended landscape plan had been prepared and it provided a lower species of planting along the common boundaries. These residents preferred the revised landscape plan.

  5. Copies of the written objections received by the Council in response to the notification of the original and amended applications were tendered to the Court in the Council’s bundle of documents (exhibit B). I have read them.

The expert evidence

  1. The Court received expert evidence from the parties’ planning experts. They are Kate Drinan who is the Council’s Acting Manager Strategic Planning and the applicant’s planning consultant Michael Brown. Their joint report is (exhibit C). They also gave oral evidence concurrently onsite and at the resumed hearing in Court (exhibit C).

Consideration

  1. While Ms Drinan told the Court that she sympathises with the local residents’ concerns that the density of the development is out of character with the existing surrounding area ultimately she supports an approval of the amended application subject to the proposed conditions of consent.

  2. In giving this evidence Ms Drinan accepts that the SEPP prevails over the Council’s local controls and on that basis the amended design in her assessment achieves on balance a reasonable outcome for the site. In her opinion it achieves the aims of the Policy as set out in cl2 which provides:

“This Policy aims to encourage the provision of housing (including residential care facilities) that will:

(a) increase the supply and diversity of residences that meet the needs of seniors or people with a disability, and

(b) make efficient use of existing infrastructure and services, and

(c) be a good design.

  1. She also believes that the amended design responds to the characteristics of the site and land form in accord with cl2(2) which provides :

These aims will be achieved by:

(a)setting aside local planning controls that would prevent the development of housing for seniors or people with a disability that meets the development criteria and standards specified in this Policy, and

(b) setting out design principles that should be followed to achieve built form that responds to the characteristics of its site and form, and

(c) ensuring that applicants provide support services for seniors or people with a disability for developments on land adjoining land zone primarily for urban purposes

Characteristics of the site and existing infrastructure

  1. As the Court view confirmed the site is situated on the southern side of Elizabeth Macarthur Avenue where dwellings are characterised by deep front setbacks with established canopy trees. It has a frontage of 28.12 m to Elizabeth Macarthur Avenue, and a depth of 60.35 m with an overall area of 1697 m². It is a rectangular shaped allotment of land which slopes from the rear (south) to the front and (north) falling about 5.7 m. The land has a cross fall of about half a metre from east to west.

  2. The site currently accommodates a single storey dwelling with a detached garage towards the rear of the western side of the property. This built form is typical of the area which is characterised by low density residential development that is predominantly one and two story residential dwellings.

  3. To the north of the site is the Camden town centre and further north again is the Old Hume Highway and the rural suburb of Cawdor is to the west. The Camden Bypass, the Nepean River and the developing urban release area of Spring Farm lie to the north-east. Belgenny Farm, being a State Heritage Item, is located approximately 500 m east of the site and Elizabeth Macarthur Avenue is the only access to the heritage property.

  4. The site is located within 61 m of a bus - stop on the eastern side of Bowman Avenue. It provides access to community, retail and commercial services. No pedestrian pathway exists in the vicinity between 27 Elizabeth Macarthur Avenue and the bus-stop on Bowman Avenue. However, the applicant has agreed to construct a pedestrian access to the bus - stop and a bench at the bus - stop to the Council specifications (condition 2 (17). Council is satisfied that this ensures compliance with cl26 of SEPP.

Compliance with statutory controls

  1. Ms Drinan believes that the amended application complies with the relevant controls set out in the SEPP. At pp4-6 of the Council’s Amended Statement of Facts and Contentions (exhibit A) she sets out her assessment of the application against those controls. Since filing that document the plans have been further refined to provide adequate solar access and sunlight and landscaping. It is now the case that the amended development meets all relevant controls under the SEPP.

  2. Ms Drinan is of the opinion that the proposed 10.8m front setback (rather than the 15.5 m under DCP) is an appropriate distance in this case. Following an analysis of the site documentation lodged and a consideration of the Design Principles in Division 2 Part 3 of the SEPP she is of the opinion that the recently issued development approval at 25 Elizabeth Macarthur Road is a relevant consideration in determining the front setback. She believes that the proposed setback ensures that the design of the front building of the development is set back in sympathy with, but not necessarily the same as the existing building line and this is an acceptable outcome.

  3. Ms Drinan is also satisfied with the solar access and sunlight achieved in the final design offered by the applicant. Her concerns expressed in the joint report in relation to the required three hours of solar access to main living areas is now satisfied after the swapping of the media room with the front bedroom in unit 5. In Ms Drinan expert assessment the built form and siting of the development relates to the site’s land form and will not generate unacceptable privacy or overshadowing issues for the neighbours.

  4. The landscaping issues are also resolved to her satisfaction by the amended landscape plan drawing number L – 01 dated 16 June 2015. This plan is the same plan that was explained to Mrs Maloney and Mr Macauley at the commencement of the hearing and, as stated, they prefer the planting now proposed at a reduced height on their common boundaries.

Conclusion

  1. Having had the opportunity to view the site and consider the evidence I am satisfied on basis of the planning evidence given by the Council’s senior strategic planner, Ms Drinan that the application is acceptable and should be approved subject to the conditions in (exhibit D). In my assessment, under the EPA Act the amended application satisfactorily addresses the relevant controls in the SEPP and the concerns of the local objectors. Accordingly, the Court orders are:

1. The appeal is upheld.

2. Development consent is granted for the demolition of the existing dwelling, and construction of five single-storey seniors’ living dwellings, strata subdivision and associated site works at 27 Elizabeth Macarthur Avenue Camden South in accordance with the amended development application DA 240/2014 and subject to the conditions marked annexure ‘A” to this judgment

3. The exhibits are returned except for 2, A and D.

Commissioner Dixon

10939 of 2014 Dixon (C) (90.1 KB, pdf)

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Decision last updated: 23 June 2015

Citations

Greg Dickinson Homes Pty Limited v Camden Council [2015] NSWLEC 1221

Citations to this Decision

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