Hansimikali v Rockdale City Council - [2003] NSWLEC 442

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Land and Environment Court

of New South Wales

CITATION: Hansimikali v Rockdale City Council [2003] NSWLEC 442

PARTIES:
APPLICANT
Constantine Hansimikali
and
Manuel Hansimikali
RESPONDENT
Rockdale City Council

FILE NUMBER(S): 10449 of 2003

CORAM: Hoffman C

KEY ISSUES:
Development Application :- deemed refusal of seven two storey townhouses with basement garages for fourteen cars

LEGISLATION CITED: State Environmental Planning Policy No. 55
Rockdale City Council Development Control Plan No. 34
landscaping Development Control Plan 34
Environmental Planning and Assessment Act 1979

CASES CITED:

DATES OF HEARING: 08/09/2003 and 09/09/2003

DATE OF JUDGMENT:
12/11/2003

LEGAL REPRESENTATIVES:

APPLICANT
Mr. G. Green, solicitor
of Pike Pike and Fenwick
RESPONDENT
Mr. J. Reilly, solicitor
of Abbott Tout

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

10449 of 2003

Hoffman C

11 December 2003

Constantine Hansimikali
And
Manuel Hansimikali
Applicant
v

Rockdale City Council
Respondent

Reasons for Judgment

Introduction
1. This was a class one appeal No. 10449/03 between Constantine Hansimikali and Manuel Hansimikali v Rockdale City Council in regard to the deemed refusal of seven two storey townhouses with basement garages for fourteen cars at No. 174-176 President Avenue Kogarah.

The site, surrounds and the proposal
2. The site had three frontages, 36 m to President Lane, 40 m to Crawford Road and 36 m to President Avenue. The site was a vacant service station. The total area was 1,453 sq m. The site was generally flat with a rise of about a half a metre between President Avenue and the laneway.
3. Its nearest neighbour on the eastern side No. 180 President Avenue was a house. Its lot ran between the avenue and the laneway and had its garages off the laneway. On the opposite side of President Avenue were villa homes. To the west on the corner of Crawford Road and the avenue were two storey shops having residences on the upper floor, and zero set back to both the avenue and Crawford Road.
4. On the north across the laneway was No. 108 Crawford Road. It was a house that had its garage entry in the backyard off the laneway. The proposal also had its drive entry off the lane about ten metres from the intersection with Crawford Road. Above the driveway was a gap between the units, which in the evidence allowed northern sunlight to penetrate a central courtyard at ground level.
5. The proposed units were arranged around the central courtyard, each having one-eighth of the ground space except for unit No. 1 adjoining the ramp on the north western corner of the site. It had a quarter of the space. Each part of the courtyard was divided off by a 1.6 m high fence to create a service yard with clothesline, and access via the sliding glass doors to the dining room of each unit. In the centre of the courtyard was a proposed tree. In the final landscape plans around this tree an area was fenced off from the service yards to form a small communal space where residents could meet under the tree. The gate from each service yard gave access, to the communal space and there was a seat around the base of the tree.
6. On the exterior of the site each unit had a private open space in the form of a courtyard directly accessed via a separate gate from one of the roadways. Units 1 and 2 were accessed from Crawford Road, units 3, 4 and 5 were accessed from President Avenue and units 6 and 7 were accessed from the laneway. This gave each unit a street address. There was a narrow veranda outside the living room of each unit, it was raised about a metre above the street side courtyards.
7. There was to be an elaborate fence 1.5 m high adjacent to the three road boundaries having brick pillars and plinths with palisade pike staff panels between the piers. On the President Avenue side there was a 9 m setback to the ground floor and the basement of the building. To the palisade fence on the same side there was a 5.5 m front setback. It was to be heavily landscaped along the President Avenue frontage. On Crawford Road the fence was setback 1.5 m behind landscaping, and on the lane the fence was a 900 mm set back to provide a pedestrian pathway dedication to council.
8. The only common boundary to an offsite neighbour was to the east with No. 180 President Avenue. A 1.8 m high solid fence was proposed on that boundary. There was boundary screen planting and some trees proposed just inside the fence.
9. Each unit had three bedrooms on the upper level and there were dormer windows into the roof spaces of each unit. There were to be attic spaces only, with access via a ceiling hatch and ladder in each unit.
10. At the end of the hearing the dormers were deleted by drawings in exhibit N and skylights inserted and the pitch lowered on the hip tiled roofs. The applicant put these as an alternative to the original design for the Court to assess.
11. The issues were

1 whether the site has been adequately re-mediated and is suitable for residential development having regard to the requirements of State Environmental Planning Policy No. 55.

2 whether the proposal complies with the density provision in cl. 5.3, density of Rockdale City Council Development Control Plan No. 34.

(a) cl. 9 streetscape of Rockdale City Council Development Control Plan No. 34 in particular the siting of the building on a skewed angle to the street, the front fencing and courtyards proposed and the general architectural details of the building.

Rockdale City Council Development Control Plan No. 34

4 whether the overshadowing of the adjoining property to the east of the site is acceptable having regard to cl. 12 overshadowing of Rockdale City Council Development Control Plan No. 34 .

5 whether the roofline of the proposed development unnecessarily contributes to bulk and scale of the building.

6 whether the proposed development complies with the objectives and requirements of cl. 14.1 Landscaping Development Control Plan 34 in relation to the provision of soft landscaping, provision of adequate and useable private and communal open space, and solar access.

8 whether the central courtyard of the proposed development is suitable having regard to solar access amenity and privacy for occupants in the development.

9 whether the proposed development has provided adequate parking having regard to cl. 16.1 of Development Control Plan 34,

10 whether vehicular access to the site from the rear lane is acceptable in relation to the requirements of cl. 16.3 and 16.4 of Development Control Plan 34.

11 whether the proposed development has been adequately sited in relation to solar orientation having regard to the requirements of cl. 17 of Development Control Plan 34 in relation to minimising energy consumption.

Rockdale Local Environmental Plan 2000

12. Issue 1 was agreed between the parties as being able to be resolved by suitable deferred commencement conditions for remediation of the old service station site.

(a)

(b)

(c)

(d)

(e)

Mr J Kotsileros objector and resident of 180 President Avenue,
Ms C Andreou objector and resident of 108 Crawford Road,
Mr S R Layman architect town planner and urban designer,
Ms M Andari Diakostasi objector and resident of 104 Crawford Road.

Mr D Crane town planner,
Ms N W Sonter landscape consultant.,
Mr R Varga traffic engineer.

The evidence
16. During the hearing there were landscape plans tendered in exhibit B with amendment for the changed basement entry ramp. Also, a revised basement plan DA4e was inserted into exhibit A to show fourteen cars in the basement. DA1e and DA6e were also inserted into exhibit to show garden walls and balustrades in more detail. Exhibit M showed revised elevations as mentioned previously deleting the dormers, inserting skylights and lowering the roof pitch to 26o and identifying highlight windows to some rooms and obscured glass privacy screens on balconies and verandas.

Car parking and density
17. In the end, the evidence on the car park revealed that cars could use the amended vehicle ramp up to the laneway with adequate sight lines at the top for safety when entering the laneway. The ramp at 3.5 m wide was acceptable given the small number of cars using it. The layout of the basement also allowed the 14 cars to be parked and to manoeuvre.
18. The remaining question was whether a total of sixteen car spaces including two visitor spaces should be imposed if the units were in the category of “large”. The applicant said that the closing of the service station driveways would provide at least another 3 on-street spaces, and with the three road frontages of the site it was reasonable to allow visitors to be on the street.
19. In any case, the applicant argued the units were not in the “large” category, the council had assumed the attic spaces were habitable and the attics were not habitable, they were only accessible by ceiling hatch, and had only small spaces without any wall or ceiling linings within which a person could stand. If the roof pitch was lowered to twenty-six degrees they did not have headroom. As a result, the applicant said only 14 car spaces were required.
20. The respondent pointed out that the traffic lights and pedestrian crossings on the corner of Crawford and President prevented parking on most of those frontages and the visitors’ spaces should be on-site and the units were pressed as “large”.
21. The Court accepts that with exhibit M the lower roof pitch and deletion of the dormer windows the proposal has 2 “large” units and 5 “medium” sized. Therefore the density of the proposal complies and only 14 car spaces are required.

Streetscape
22. In regard to streetscape, the evidence of the respondent was the development did not recognise the existing residential character of the locality, and maximised the potential of the site to an extent that created poor design outcomes.
23. Given the finding on density and car parking with the amended plans, the maximisation argument fails, but the appropriateness of streetscape impact remains. The lowering of the roof pitch reduced the overall height of the roof structures by about a metre and considerably reduced the visual bulk.
24. It was acknowledged by the respondent that the proposal did address the corner of President Avenue and Crawford Road but the architectural features were not sympathetic to the locality.
25. Also, the respondent said the high front fences and the setback to President Avenue of the front fence, and the private open spaces fronting the streets was uncharacteristic of the area. Also, the respondent said the offset of the buildings by 45o to the streets was uncharacteristic of the area, and produced a further discontinuity in the streetscape.
26. It was put by the objectors, and implicitly by the respondent, a better design would be to put a row of two storey townhouses facing President Avenue with a corner feature at Crawford and President. And if there was space, single storey units adjacent to the laneway.
27. The applicant said there was a zone in Rockdale Local Environmental Plan, which required a two storey and a one storey mix. But this land was in the area identified for two storey, and the rezoning had occurred only in the year 2000. There was no obligation to build one storey provided other aspects of the proposal were satisfactory.
28. The Court was shown on the view other recent developments nearby that were two storeys plus rooms in the roof making a total of three storeys, built almost to the side boundaries. There were other developments at two storeys.
29. The applicant’s evidence was that the newer developments showed the expected future streetscape of the area due to the Rockdale Local Environmental Plan 2000, whereas the existing single storey detached homes did not.
30. The applicant drew the Court’s attention to the large two storey shops with dwelling over on the opposite corner of Crawford and President. It had zero front and side setbacks and extended almost two-thirds of the allotment’s length along Crawford Road. It had hip tiled roofs and balconies to the first floor dwelling.
31. The proposal was said to be a balance to the bulk and visual impact of that building. The two together identified the T-intersection of Crawford and President. The forty-five degree offset layout of the proposal created visual interest by its articulation much more than would a row of terraces parallel to President Avenue.
32. The applicant said there was no consistency of style or design in the locality. There were three storey flats above ground level parking at the next intersection along President Avenue in the zone 2C residential area. The site was zone 2B for townhouses.
33. The flats appeared to range from the 1960s period to the 1980s. Opposite the site in President Avenue were villa homes of unidentifiable age but somewhere in the last thirty years. The single storey houses near the site ranged from probably 1950s onwards but many had been renovated so their age was difficult to assess. Hip tiled roofs predominated.
34. The proposal in being two storeys masonry with hip tiled roofs was sympathetic to the only design pattern in the area that approximated the “Modern Context Category” in the sketches on streetscape in Development Control Plan No. 34.
35. Having each unit with a pedestrian access off the street it fronted, gave each unit an identity, and produced a design that had no side or rear elevation. All elevations appeared as front elevations without any unsightly elements.
36. The respondent put that the setback with the fence to President Avenue did not maintain the line of fences on the boundary common on the houses. The applicant put that the area enabled deep rooted planting of trees and the creation of an attractive setting for the building which partially resulted from their required 9 m setback from President Avenue. The sequence of vegetation, palisade fence, private open space and building would set an excellent example in the streetscape.
37. The proposal provides 59.6 % landscaped area whereas the development control plan requires only 40 %. Overall the Court agrees that the streetscape issues were not sufficient for refusal. The proposal was a balance to the block of shops on the opposite Crawford Road corner, the design was articulated and created interesting forms using a design style sympathetic to the existing newer buildings in the area. The landscape proposals would create an attractive setting for the buildings and would form a streetscape feature.

Privacy and bulk and over shadowing
38. In regard to privacy of neighbours and the bulk of the building, the respondent’s evidence was that having the ground floor elevated about one metre above external ground level raised people in the proposed living rooms and verandas so that they could look over neighbours’ fences in close proximity. And, it raised the building unnecessarily increasing its height and dominance. The respondent said it was poor design.
39. The applicant said the building had to be raised to enable the vehicular entry ramp to the basement to achieve permissible gradients, and to enable louvre vents in the podium beneath the verandas in order to ventilate the basement.
40. The statutes and controls permitted a basement to project up to 1 m out of the ground for those purposes without being included in the floor space ratio calculation.
41. The applicant said the privacy of the neighbour at No. 180 President Avenue was the only one that was close enough to warrant protection. The other neighbours were across the street or across the lane at a distance that met the appropriate guides and controls for privacy by separation distance.
42. The privacy of No. 180 both in the house and backyard was protected by putting highlight and obscure glass windows in units 5 and 6 on the sides facing No. 180, and full height obscured glazing to the ends of balconies and verandas adjacent to No. 180. Screen vegetation along the boundary would give additional protection as it grew.
43. The outlook from No. 180’s side windows and backyard instead of being into a service station would be to greenery with glimpses of some parts of the building. This must be considered an improvement, the applicant said.
44. The concern about overshadowing had to be considered against the fact that any new building on the subject site must cause some overshadowing on No. 180 in the afternoon hours. During the rest of the day it had full sun to its backyard and back veranda and north facing sliding glass doors to its living rooms. They would not commence to be shadowed until 2pm in mid-winter. The smaller west facing windows to the same living rooms would be in shadow by about 1pm but that gave more sun and air than would a row of townhouses set at the minimum side boundary setback. The forty-five degree offset to the side boundary in the plans of the proposal gave more space outside these western windows of No. 180 than buildings set parallel to the boundary.
45. The objectors’ and the respondent’s final position was that from unit 5 living room and veranda, first floor bedroom and balcony, the forty-five degree offset layout of the building enabled direct overlooking of the west windows. And the verandas of units 6 and 7 overlooked the backyard of No. 180.
46. The Court saw that in regard to units 6 and 7 the overlooking of yard could only be the far northern end near the laneway, and the living room of unit 5 did look towards the western bedroom window of No. 180 at a separation distance of about 6 m from the veranda. The applicant adjusted the landscape plan to place trees to provide additional screens to both bedroom and the yard although the boundary hedge planting would probably have been sufficient. Side boundary setbacks averaged 5.5 m width, which exceeded the council’s minimum considerably and compensated for being a 3.5 m setback at some point locations only due to the forty-five degree offset layout. Overall the privacy and solar access of No. 180 was protected quite sufficiently.
47. The privacy of the neighbours to the north across the laneway and beyond were at such separation distances that privacy was adequate based just on distance, but was improved by trees in their own backyards, and by trees proposed to be planted on site.
48. In regard to internal privacy, the Court found that in their exterior private open spaces facing towards roadways the screen vegetation would provide sufficient privacy from those public areas, and because of the forty-five degree offset would provide acceptable suburban privacy between courtyards, each unit only being able to see small portions of the other’s courtyard from the veranda.
49. On the central courtyard, the central tree would screen one unit from another in looking across the yard area. And in any case this was the utility area only. Privacy matters in the Court’s opinion were satisfactory given the medium density of the proposal.

Amenity
50. The concern of No. 108 Crawford about cars emerging from the basement shining lights upon a lane-side bedroom window was found to be inaccurate when seen on site. The drive emerged a little to the west of the window, and the angle of the drive would mean that most cars would head towards Crawford Road away from the bedroom. In any case, the room was beside a public laneway roadway and must already be affected by existing traffic. The proposal would not add significantly to the overall volume of traffic.
51. During the hearing the garbage bin enclosure off the laneway was redesigned in exhibit B by an A4 sized plan to provide vegetation on the lane side and a smaller gate to improve its anonymity. It was logical it should be located off the laneway instead of President Avenue or Crawford Road, and the Court accepts it would not be visually unacceptable or otherwise objectionable sufficient for refusal.
52. The only aspect on which the proposal was marginal was the solar access to some of the units themselves and to some of the private open space yards. The applicant noted that the design having the central service courtyard allowed through-ventilation of every unit and would achieve acceptable natHERS ratings. Also the central courtyard enabled those units facing President Avenue to get direct solar access through the sliding glass doors and kitchen windows facing the central courtyard. It was the south side private open space courtyards that received marginal solar access mid-winter.
53. The shadow diagrams for December showed excellent summer time sunlight to all units and all courtyards. The respondent said in mid-winter units 3, 4, 5 and 6 did not get adequate sun. The applicant presented in exhibit C a natHERS rating assessment from an accredited authority that showed the units achieved between 3.5 stars and 4.5 stars rating with 3.5 being the minimum allowable. Except for the question of direct solar access, it would seem on that basis the units met appropriate standards.
54. The applicant’s evidence was in addition that unit 4 got direct sun in its main private open space until 11am in midwinter and that gave two hours and in its rear courtyard it received two and a half hours sun in the afternoon. That gave it four and a half hours sun in the courtyards, which meant the three hours minimum were complied with. It was the living area that only got two and a half hours sun in the afternoon and none in the morning.
55. Unit 5 got about the same two hours in its main courtyard in the morning, and the sun also went into the highlight and stair windows to the living rooms. Its rear yard and windows got direct sun from about 2pm until 4pm. Unit 5 had a total of about four hours, which also exceeded the three hours minimum. Unit three got good sun in its rear courtyard and rear windows of the living areas from about 11am until 2pm. The main yard got sun progressively from about noon until 4pm mid-winter. It exceeded the three hours minimum.
56. Unit 6 would get sun to its main court and its main living room windows from 9am until about 1pm. And in the courtyard it would continue until 3pm. It exceeded the three hours minimum.
57. The lowered roof pitches in exhibit M would further reduce the shadow impacts in mid-winter, and so even better solar access would result than was shown in the shadow diagrams based on the original high roof design.
58. The Court concluded that unit 4 was the one that did not comply with the solar access requirement, and all the others were either just above the minimum or well above minimum. In the circumstances, one unit out of the seven not achieving required solar access or conservation of energy or cl.23 of the Rockdale Local Environmental Plan 2000 compliance was not sufficient for refusal of the proposal.
59. Ms Sonter gave evidence that the size of the rear courtyards of each unit were useable for a table setting of eight persons. And, the main courtyards although having “point only” non compliances with minimum width requirements, due to the forty-five degree offset design, there was ample space for larger table settings in the wider parts of all courtyards. And in addition, all courtyards exceeded the minimum area requirement of council by several square metres.
60. She said in each courtyard the ground level was raised to give only an 850 mm step from each veranda to ground level so that the veranda became an informal seat to be used in addition to any outdoor furniture. She said the screen hedges could be planted in seventy-five litre size which would be about 2.4 m high at planting and the trees could be planted in 400 litre size which would give a four metre height at planting so that screening of the proposal from its neighbours would be immediate.

Summary
61. In regard to draft conditions, the applicant sought condition 1, the consent period to be made the standard five years under the Act instead of three. In exhibit 4 draft conditions the applicant sought condition 25 be amended to allow 14 car spaces and condition 28 to be amended as in Mr Vargas’s report exhibit E on page 1. The Court agrees with these amendments.
62. In addition, the Court requires all access to the site for construction to be from Crawford Road to minimise disturbance to the neighbours, and that the landscape boundary screen plantings and trees be in the super advanced size as Ms Sonter stated.
63. Although the applicant sought the original high roofs and dormer windows, the Court believes that on merit the exhibit M alternative offered by the applicant is the better solution in terms of height and bulk, and the relationship to existing development, and overshadowing, it is an improvement over the original design and more similar to the contemplated future streetscape contemplated in the zone 2B under the Rockdale Local Environmental Plan 2000.
64. Therefore the orders of the Court are:

1. The appeal is upheld.

2. Consent is granted for seven (7) 2 storey townhouses with basement parking for 14 cars at No.s 174-176 President Avenue Kogarah all as shown on drawings DA1E, DA2D, DA4E, DA5F, DA6F, DA9D, DA10D, DA11D by Darryl Blythe Pty Limited as in Exhibits A and M and the annotated landscape plan Nos. 02-1426A, and revised driveway and garbage bin store detail of 8 September 2003 by Botanica in Exhibit B and revised driveway detail drawing No. DET1B in Exhibit J. All to be as further amended by and in accordance with the Conditions in Annexure “A” hereto.

K G Hoffman

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Hansimikali v Rockdale City Council [2003] NSWLEC 442

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CITATION:	Hansimikali v Rockdale City Council [2003] NSWLEC 442
PARTIES:	APPLICANT Constantine Hansimikali and Manuel Hansimikali RESPONDENT Rockdale City Council
FILE NUMBER(S):	10449 of 2003
CORAM:	Hoffman C
KEY ISSUES:	Development Application :- deemed refusal of seven two storey townhouses with basement garages for fourteen cars
LEGISLATION CITED:	State Environmental Planning Policy No. 55 Rockdale City Council Development Control Plan No. 34 landscaping Development Control Plan 34 Environmental Planning and Assessment Act 1979
CASES CITED:
DATES OF HEARING:	08/09/2003 and 09/09/2003
DATE OF JUDGMENT:	12/11/2003
LEGAL REPRESENTATIVES:	APPLICANT Mr. G. Green, solicitor of Pike Pike and Fenwick RESPONDENT Mr. J. Reilly, solicitor of Abbott Tout