Hussain v North Sydney Council
[2013] NSWLEC 1092
•31 May 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: Hussain v North Sydney Council [2013] NSWLEC 1092 Hearing dates: 13 May 2013 Decision date: 31 May 2013 Jurisdiction: Class 1 Before: Brown C Decision: 1. The appeal is upheld.
2. Development Application 463/11 for alterations and additions to an existing dwelling at 20 Tryon Avenue Wollstonecraft is approved subject to the conditions in Annexure A.
3. The exhibits are returned with the exception of exhibits B and C.
Catchwords: DEVELOPMENT APPLICATION: alterations and additions to an existing dwelling - breaches of the landscaped area, height and building height plane development standards - whether SEPP 1 objections well founded - bulk - overshadowing Legislation Cited: Environmental Planning and Assessment Act 1979
North Sydney Local Environmental Plan 2001
State Environmental Planning Policy No 1Cases Cited: Wehbe v Pittwater Council [2007] 156 LGERA 446
Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46Category: Principal judgment Parties: Syed Hussain (Applicant)
North Sydney Council (Respondent)Representation: Mr G McKee, solicitor (Applicant)
Ms C Morton, solicitor (Respondent)
Solicitors
McKees Legal Solutions (Applicant)
Sparke Helmore (Respondent)
File Number(s): 11267 of 2012
Judgment
COMMISSIONER: This is an appeal against the refusal of Development Application 463/11 by North Sydney Council (the council) for alterations and additions to an existing dwelling at 20 Tryon Avenue Wollstonecraft (the site).
The contentions raised by the council relate to:
- non-compliance with the landscaped area development standard,
- non-compliance with the maximum height development standard,
- non-compliance with the building height plane development standard,
- unacceptable overshadowing, and
- unacceptable visual bulk when viewed from the adjoining properties and from Tryon Avenue.
The applicant provided objections under State Environmental Planning Policy No 1 - Development Standards (SEPP 1) to show why strict compliance with the landscaped area, maximum height and building height plane development standards are unreasonable and unnecessary.
The site
The site is Lot 2 in DP 225171. It is generally rectangular in shape having front and rear boundary widths of approximately 20m and an average depth of approximately 30m and a total site area of 608m2.
The site is a sloping allotment having a fall from the rear (west) boundary towards the front (east) boundary and comprises two distinct levels defined by a centrally located rock escarpment that traverses the site in a generally north-south direction. The total fall from the rear north western corner to the front south eastern corner is approximately 11m.
The site currently contains a part 2 and part 3 storey dwelling house comprising of two levels of habitable accommodation and a basement level containing a garage. The existing dwelling is painted brick construction with a flat roof that sits on the lower side and abuts the existing escarpment. The location of the dwelling on the site is a result of the short allotment depth and existing escarpment such that a minimal front setback (approx. 4m) is provided from the front wall of the dwelling to the front boundary.
Relevant planning controls
The site is zoned Residential A1 under North Sydney Local Environmental Plan 2001 (LEP 2001). The proposal is permissible in this zone. Clause 14 states:
14 Consistency of aims and objectives
(1) When considering a development application, the consent authority must take into account the aims and objectives stated in this plan.
(2) Consent must not be granted to the carrying out of any development that, in the opinion of the consent authority, is inconsistent with the specific aims of this plan, the objectives of the zone or the objectives of controls.
Clause 2 provides General aims of this plan and cl 3 provides Specific aims of this plan. The relevant clauses are 2(b), 3(a)(i), 3(b)(i) and 3(d)(i). The relevant zone objective is:
(a) maintain lower scale residential neighbourhoods of mainly detached housing, and
Clause 17 provides requirements for building heights, cl 18 provides requirements for a building height plane and cl 20 provides requirements for landscaped area.
North Sydney Council Development Control Plan 2002 (DCP 2002) applies. Part A provides Development Controls. Section 7.2 i provides requirements for visual privacy, s 7.3 e provides requirements for siting, s 7.3 f provides requirements for setbacks, s 7.4 h provides requirements for car parking and s 7.4 h provides requirements for landscaped area. The site falls within the Waverton-Wollstonecraft Planning Area and the Waverton/Wollstonecraft Character Statement.
The evidence
Expert evidence was provided by town planners Mr Andrew Minto, for the applicant and Ms Kerry Gordon, for the council.
A number of residents provided evidence and reiterated the matters raised by the council, as well as the following matters:
- loss of privacy,
- loss of treed outlook,
- the removal of existing vegetation,
- lack of separation or setbacks between buildings, and
- excessive size of privacy screens.
Landscaped area
The development standard
Schedule 2 provides definitions and relevantly states:
landscaped area of a site means the part of the site that is generally at existing ground level, that is not occupied at or above or below ground level by any building structure, swimming pool or hard-surfaced tennis court, or the like, that is or is proposed to be predominantly landscaped by way of plantings, gardens, lawns, shrubs or trees and that is available for use and enjoyment by the occupants of the building erected on the site, but does not include any area set aside for driveways and parking.
Clause 20(1) provides objectives for landscaped area which state:
(1) Landscaped area objectivesThe specific objectives of the landscaped area controls are to:
(a) promote the character of the neighbourhood, and
(b) provide useable private open space for the enjoyment of residents, and
(c) provide a landscaped buffer between adjoining properties, and
(d) maximise retention and absorption of surface drainage water on site, and
(e) minimise obstruction to the underground flow of water, and
(f) promote substantial landscaping, including trees which will grow to a minimum height of 15 metres, and
(g) control site density, and
(h) minimise site disturbance.
Clause 20(2) provides that for a site with an area between 600 sq m and 700 sq m, 54% of the site is to be landscaped area. Mr Minto and Ms Gordon agree that the proposal provides 321.2 sq m of landscaped area, that equates to 52.8% of the site area or a breach of 7.1 sq m or 2.2% of the minimum requirement.
The evidence
Mr Minto provided an objection under SEPP 1 that addressed the breach of the development standard with reference to Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46 and Wehbe v Pittwater Council [2007] 156 LGERA 446. He states that strict compliance with the development standard would be inconsistent with the objects specified in section 5(a)(i) and (ii) of the EPA Act as it would prevent the efficient and economic use of the land.
If the proposal is assessed against the objectives of the development standard, it is consistent with these objectives. In his opinion, the proposed landscaping will:
- enhance the landscape character of the site (objective (a)),
- provide generous areas of private open space (objective (b)),
- provide extensive planting to create a buffer around the perimeter of the site (objective (c)),
- provide stormwater collection, retention and disposal to councils satisfaction (objective (d)),
- not impact on the underground flow of water (objective (e)),
- promote substantial landscaping (objective (f)),
- provide a density that is consistent with the aims of the council and the surrounding character (objective (g)), and
- minimise site disturbance, particularly excavation (objective (h)).
On this basis, strict compliance with the landscaped area development standard is unreasonable and unnecessary and the SEPP 1 objection is well founded.
Ms Gordon accepts that the proposal is consistent with some objectives but maintains that that the breach of the landscaped area results in a higher density building than anticipated and this has unacceptable impacts on visual bulk and overshadowing.
Findings
The decision by Preston J in Wehbe supplements the finding in Winten and identifies a number of ways of establishing that compliance with a development standard is unreasonable or unnecessary. The most commonly invoked way is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard (Test 1). A second way is to establish that the underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary (Test 2). A third way is to establish that the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable (Test 3). A fourth way is to establish that the development standard has been virtually abandoned or destroyed by the council's own actions in granting consents departing from the standard and hence compliance with the standard is unnecessary in unreasonable (Test 4). A fifth way is to establish that the zoning of particular land was unreasonable or inappropriate so that a development standard appropriate that that zoning was also unreasonable or unnecessary as it applied to that land and that compliance with the standard in that case would also be unreasonable or unnecessary (Test 5).
In this case, the SEPP 1 objection sought to show that the objectives of the development standard are achieved notwithstanding non-compliance with the standard (Wehbe - Test 1). As stated in Wehbe, the Court must be satisfied of three matters before it can uphold the SEPP 1 objection and then consider the merits of the application. The three matters are:
- the Court must be satisfied that "the objection is well founded" (clause 7 of SEPP 1).
- the Court must be of the opinion that "granting of consent to that development application is consistent with the aims of this Policy as set out in clause 3" (clause 7 of SEPP 1). The aims and objects of SEPP 1 set out in clause 3 are to provide "flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act". The last mentioned objects in s 5(a)(i) and (ii) of the Act are to encourage:
(1) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment,
(2) the promotion and coordination of the orderly and economic use of developed land."
- the Court must be satisfied that a consideration of the matters in clause 8(a) and (b) of SEPP 1 justifies the upholding of the SEPP 1 objection: The matters in clause 8(a) and (b) are:
(a) whether non-compliance with the development standard raises any matter of significance for State or regional environmental planning, and
(b) the public benefit of maintaining the planning controls adopted by the environmental planning instrument".
On this matter, I agree with Mr Minto. I am satisfied that the proposed development will improve the landscaped character of the area through the provision of additional landscaping. The proposal will also provide landscaping to the side setbacks to the adjoining residential properties. Both are subject to a landscape plan that will be included in any approval as a condition of consent.
While Ms Gordon legitimately raised visual bulk and overshadowing issues, I am not satisfied that these matters fall properly within a SEPP 1 objection for landscaped area, particularly considering the breach of the development standard involves only area of 7.1 sq m. It would be difficult to accept that a building reduced in size by 7.1 sq m (or a 0.5 m reduction in the length of the building, according to Ms Gordon) would have any meaningful effect on visual bulk and overshadowing. In any event, the issues of visual bulk and overshadowing are addressed as separate issues later in the judgment and were found to be acceptable.
In my opinion, there is no inconsistency with the objectives of the landscaped area development standard that would warrant the refusal of the application for the breach of this development standard.
For the reasons mentioned in the preceding paragraphs, I am satisfied that the SEPP 1 objection is consistent with the aims of SEPP 1. Also, strict compliance with the development standard, in this case, is unreasonable and unnecessary, tends to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act and there is a public benefit in varying the planning controls adopted by the environmental planning instrument. Consequently, the SEPP 1 objection is well founded and the merits of the development application can be considered.
Height
The development standard
Clause 17(1) provides objectives for building heights which state:
The specific objectives of the building height controls are to:
(a) limit the height of buildings in residential zones to:
(i) one storey, at the street façade, where that is the characteristic building height, or
(ii) subject to subparagraph (i), heights which are the same as or similar to the characteristic building heights, or
(iii) if neither subparagraph (i) nor (ii) applies, two storeys, or
(iv) despite subparagraphs (i)-(iii), in the case of apartment buildings in the residential C zone, three storeys or the height indicated on the map, and
(a1) promote development that conforms to and reflects natural landforms, by stepping development on sloping land to follow the natural gradient, and
(b) promote gabled and hipped roofs in all residential zones and avoid other roof forms except:
(i) skillion roofs over verandas and rear extensions to buildings that have a main roof that is gabled or hipped, or
(ii) where it is desirable to preserve views, other roof forms that are characteristic of the area, and
(c) promote the retention of and, if appropriate, sharing of existing views, and
(d) maintain solar access to new and existing dwellings, public reserves and streets, and promote solar access to new buildings, and
(e) maintain privacy for residents of existing dwellings and promote privacy for residents of new buildings, and
(f) prevent the excavation of sites for building works, other than for garages and car parking.
Note. characteristic building height is defined in Schedule 2.
Clause 17(2) provides that a building must not be erected, in a residential zone, in excess of 8.5 m in height. Mr Minto and Ms Gordon agree that the maximum height of the building is 9.5 m measured to the top of the glass balustrade on the third floor and 8.9 m measured to the roof of the third floor for approximately one third of its area. They also agreed that the building satisfies the building height requirement in the councils draft LEP that has been adopted by the council. Mr Minto and Ms Gordon helpfully marked the breaches of the building height requirement on the architectural plans.
The evidence
Mr Minto provided an objection under SEPP 1 that addressed the breach of the development standard with reference to Winten and Wehbe. He states that strict compliance with the development standard would be inconsistent with the objects specified in section 5(a)(i) and (ii) of the EPA Act as it would prevent the efficient and economic use of the land.
If the proposal is assessed against the objectives of the development standard, the proposal is consistent with these objectives. In his opinion, the proposed height will:
- provide a building height which is in keeping with the characteristic building height of the locality, noting that there are a number of 3 storey dwellings located in close proximity,
- reflect the natural landforms, including the existing rock escarpment which is located immediately to the rear of the existing dwelling,
- provide a flat roof in order to maintain consistency with the existing dwelling and minimise height and maximise views,
- not create any unacceptable overshadowing or solar access impacts as a result of the height non-compliance, and
- not create the need for any excavation for the proposed alterations and additions.
On this basis, strict compliance with the height development standard is unreasonable and unnecessary and the SEPP 1 objection is well founded.
Ms Gordon states that all components of the building works which breach the height control relate to the third floor. The third floor is also inconsistent with the characteristic building heights in Tryon Avenue, which is in conflict with objective 1(a)(ii). Also, the third floor results in significant overshadowing of the courtyard of 18 Tryon Avenue, which is conflict with objective 1(d). In her opinion, the third floor also has significant unacceptable impacts in relation to visual bulk and when viewed from 18 Tryon Avenue and should be deleted.
Consequently, the development breaches two objectives of the height control and it follows that the SEPP 1 objection is not well founded.
Findings
Adopting the same approach to considering the SEPP 1 objection (see pars 20 and 21) I agree with the conclusions of Mr Minto. The proposal is seen as being inconsistent with objectives 1(a)(ii) and 1(d) by Ms Gordon. These state:
(a) limit the height of buildings in residential zones to:
(i) one storey, at the street façade, where that is the characteristic building height, or
(ii) subject to subparagraph (i), heights which are the same as or similar to the characteristic building heights, or
(d) maintain solar access to new and existing dwellings, public reserves and streets, and promote solar access to new buildings, and
While the definition includes a note that states "Note. characteristic building height is defined in Schedule 2", there is no definition in the schedule however with the benefit of the site inspection, I am satisfied that the proposed building height is "similar to the characteristic building heights" of buildings in the vicinity of the site. I have taken "similar to the characteristic building heights" to mean that the proposed building should have a height that resembles or has a likeness to the general heights of buildings in the vicinity of the site or the height anticipated by the councils planning controls. In this context, the proposed building height is consistent with the characteristic building heights of buildings in the vicinity of the site as these buildings (like the building on the site) respond to the natural topography of the area that includes a significant escarpment that runs through the site. I agree with Mr Minto that the breaches are relatively minor when shown on the architectural plans and further confirms that the proposed building height is "similar to the characteristic building heights" of buildings in the vicinity of the site.
The issue of overshadowing and loss of solar access is addressed as a separate issue later in the judgment and was found to be acceptable.
In my opinion, there is no inconsistency with the relevant objectives of the height development standard that would warrant the refusal of the application for the breach of this development standard.
For the reasons mentioned in the preceding paragraphs, I am satisfied that the SEPP 1 objection is consistent with the aims of SEPP 1. Also, strict compliance with the development standard, in this case, is unreasonable and unnecessary, tends to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act and there is a public benefit in varying the planning controls adopted by the environmental planning instrument. Consequently, the SEPP 1 objection is well founded and the merits of the development application can be considered.
Building height plane
The development standard
Clause 18(1) provides objectives for a building height plane which state:
The specific objectives of the building height plane controls are to:
(a) control the bulk and scale of buildings, and
(b) provide separation between buildings, and
(c) preserve the amenity of existing dwellings and provide amenity to new dwellings in terms of shadowing, privacy, views, ventilation and solar access.
Clause 18(2) provides:
(2) Building height plane control in residential A1, A2, B and F zonesA building must not be erected in the residential A1, A2, B or F zone if any part of the building will exceed a building height plane, commencing at 1.8 metres above existing ground level, and projected at an angle of 45 degrees, at all points from each of the boundaries of the site.
Schedule 2 provides:
building height plane means a plane projected at an angle of 45 degrees over a site, commencing, at the height specified in this plan, along the boundary of the site or along any other line or boundary specified in this plan for the purpose of establishing a building height plane.
The evidence
The breach of the building height plane was acknowledged by Ms Gordon however she accepted that the SEPP 1 objection was well founded so strict compliance with the development standard, in this case, is unreasonable and unnecessary.
Having read the SEPP 1 objection I concur with her conclusions.
Solar access
The requirements
Part 7.2 f states:
Solar access
f. All dwellings have access to sunlight and daylight. Minimal overshadowing of windows to internal living areas and private open space of adjoining dwellings. Existing sunlight and daylight to adjoining dwellings is maintained.
i. Design and site development so as to allow solar access to any solar panels, the main internal living areas and principal private open space areas of the subject property and adjoining properties, for a minimum of three hours between the hours of 9.00am and 3.00pm during winter solstice (21st June)
ii. Design and site development so as not to reduce any existing solar access to adjoining properties if that solar access is already below three hours between the hours of 9.00am and 3.00pm during winter solstice (21st June)
iii. Consider shadows cast from all development
The evidence
Mr Minto and Ms Gordon agree that the adjoining property at 18 Tryon Avenue will receive direct solar access to the north facing living room window to at least 50% of its area for a minimum of 3.5 hours on the winter solstice and this is a reasonable amount of solar access to this area.
Mr Minto and Ms Gordon however disagree on the acceptability of the solar access to the courtyard area of the adjoining property. Ms Gordon states that at present the courtyard receives 4.5 hours of sunlight on the winter solstice but the proposed development will reduce this to 2.5 hours on a "reasonable area" of the private open space largely because of the shadow cast by the second and third storeys of the alterations. In her opinion, the poor solar access results from the breach of the height standard. Mr Minto states that 3 hours of solar access will be available to a "reasonable area" of the private open space on the winter solstice if a "reasonable area" means 25% of the courtyard area and to a person sitting at a chair in the courtyard. If this approach was accepted by the Court, Ms Gordon accepted that the requirement for 3 hours sunlight would be satisfied.
Findings
In my reading of the shadow diagrams, I agree with Mr Minto that the solar access to 18 Tryon Avenue is acceptable for a number of reasons. First, I agree with both experts that whether there is compliance or not is difficult given the lack of detail in the controls however the test used by Mr Minto (25% of the courtyard area and solar access available to a person sitting at a chair in the private open space) is reasonable, in my view. Second, I agree that this test is satisfied (11 am to 2 pm) even though it may be necessary to move to different locations in the L-shaped courtyard as the sun moves. Third, the difficulty in maximising solar access to the adjoining property is not helped by the orientation and topography where the adjoining property is at a lower level and directly south of the site. Fourth, the design of the proposed building seeks to maximise solar access by moving the upper levels of the proposed building away from the common boundary with 18 Tryon Avenue.
Visual bulk
The requirements
Clause 3 relevantly states:
The specific aims of this plan are:
(a) in relation to the character of North Sydney's neighbourhoods, to:
(i) promote the character of the neighbourhoods and development which is compatible with neighbouring development in terms of bulk, scale and appearance, and
.
(b) in relation to residential development, to:
(i) protect and enhance the residential use and amenity of existing residential neighbourhoods and new residential development, and
Clause 16(b) relevantly states:
The specific objectives of the residential zone controls are:
(a) .:
(b) amenity for residents of new and existing dwellings, and
Clause 7.3 e of the DCP states:
Built form character
i. The design of new buildings reflects and reinforces, or is complementary to, the existing character of the locality.
i. Where a building is part of a uniform group of buildings of similar character locate any additions or alterations to the rear and not visible from the street or any public place
ii. Where a building is to be located amongst buildings having a consistent façade repeat the size, location and proportions of window, door openings and other distinctive features such as roof form
iii. Avoid pavilion style additions located at the rear of existing building
The evidence
Mr Minto and Ms Gordon disagree on the impact of the proposal on the streetscape and the adjoining properties. Ms Gordon states that the additions on the elevated land to the rear of the site will be visible above the roofline of the existing dwelling when viewed from Tryon Avenue in front of the dwelling, to either side of the dwelling and from the end of a cul-de-sac, over the roof to 22 Tryon Avenue. This element is uncharacteristic of the development of dwelling houses in the street, which does not extend to the upper elevated portion of the sites. Dwellings in the street tend to be constructed at the front of the site over three levels, with any the upper level set back further and being partially within the roof space. The existing dwelling on the site is inconsistent with this streetscape pattern.
Ms Gordon provided a number of photographs with the proposed extensions superimposed on the photographs and which support the position that the proposed alterations and additions are unacceptable although with the removal of the third level, an acceptable result is possible. Further, the two storey rear additions have a detrimental impact on the amenity of the adjoining properties by way of visual bulk.
Mr Minto comes to a different conclusion. He states that simply stating that the proposed additions will be visible within the streetscape does not mean that the application should be refused. The proposed design includes lightweight/flat roofed additions combined with significant setbacks and articulation and together with the proposed landscaping, will result in a built form, which is sympathetic to the surrounding residential development. He disputes the conclusion of Ms Gordon that development in the area is essentially confined to below the rock escarpment. Mr Minto states there is a consistent rear alignment with landscaping behind. While Ms Gordon may be correct for the directly adjoining properties, south in Tryon Avenue, the northern portion of the street contains built forms, which extend, in a stepped but continuous form up the slope away from the street.
Mr Minto also states that the photographs provided by Ms Gordon do not represent what will be viewed from the street, in all instances, particularly as the proposed landscaping is not shown.
Findings
With the benefit of the inspection of the site and surrounding area, I am satisfied that the form of a development is acceptable in terms of character and streetscape. I have addressed the maximum height concerns of Ms Gordon previously and have found the height of the proposal to be acceptable.
While the additions can be viewed from Tryon Avenue in certain locations, I am satisfied that the additional built form does not unacceptably impact on the streetscape, largely due to it having significant setbacks that limits its ability to be seen from various locations. The third floor element is some 10.5 m to the balcony balustrade and 13.5 m from the face of the building from Tryon Avenue, the northerly setback is around 3 m, the southerly setback is around 7 m and the rear setback is around 8 m. Where it can be seen, the third floor element is largely recessive when viewed as part of the rest of the building as it is in the foreground and below the height of existing vegetation. Given the setbacks, I do not accept that the third level has any significant impact on the character of the area and is compatible with neighbouring development in terms of bulk, scale and appearance. This compatibility with the character and the streetscape will be further enhanced with the provision and maturing of the proposed vegetation.
From the rear, the building will be seen as single storey with the deck of the property at the rear having a similar level to the floor level of the third floor of the proposed development due to the fall in the level of the land from Shirley Road to Tryon Avenue. The plans indicate the height of the proposed dwelling at the rear setback is well below the height and building height plane requirements. While the current outlook will be changed for some dwellings in Shirley Street and Tryon Avenue, there is no planning reason why the area on the site above the rock escarpment cannot be used for the alterations and additions, subject to an appropriate design that addresses the potential impacts on adjoining properties. In coming to this conclusion I have also had regard to Part 7.2 a of the DCP where it seeks to maintain the natural topography and landform of land and place limits on the extent of excavation.
I am mindful of the concerns in relation to the visual bulk of the building and the consequent impact on the amenity of existing dwellings in terms of shadowing and solar access, however these are matters that are specifically called up by the objectives for the building height plane development standard but the council raised no issue with this development standard, including the proposed variation.
Conditions
The parties disagreed on a further condition requiring the eastern façade of the double garage to be set back further from the street boundary. The applicant proposed a further setback of 800 mm whereas the council sought a further setback of 1300 mm.
In my view, the larger setback should be applied given the already small front street setback (see condition C 1 i). The patio above and the planter boxes to the south should also have the same setback. Condition c2 i is to read:
i) The eastern façade of the double garage is to be set back a further 1300 mm from the street boundary for a setback of 2.3 m and the patio facing Tryon Avenue on the ground floor above the garage is to have the same setback. The landscaping planter boxes to the south are to be reduced in size to the same setback as the garage and patio.
Pursuant to cl 14, and having taken into account the relevant aims and objectives of LEP 2001 and having found that the proposal is consistent with the specific relevant aims of LEP 2001, the relevant objective of the zone and the objectives of the relevant controls, there is no reason why development consent should not be granted.
Resident concerns
The residents raised additional concerns not raised by the council. These are:
- loss of privacy,
- loss of treed outlook,
- the removal of existing vegetation,
- lack of separation or setbacks between buildings, and
- excessive size of privacy screens.
I agree that any loss of privacy is satisfactorily addressed through high sill heights, louvres, screens, obscure glazing (see condition C2) and landscaping (see condition A4). Part 7.2 i vii of the DCP provides separation distances between habitable rooms, balconies and non-habitable rooms. There was no evidence provided to suggest that the
separation distances were not satisfied or that other means identified in Part 7.2 were used to address potential visual privacy issues.
The loss of an existing treed outlook is likely to occur in some locations however this must be balanced against the reasonable development of the site based on the councils planning controls, and where variations are sought, these variations can be supported.
The proposed development removes the existing Chinese Elm however it was agreed that the tree was in poor condition.
The concern over lack of separation or setbacks between buildings was not substantiated given the satisfactory findings on the building height plane, privacy and overshadowing to the adjoining properties.
The privacy screens are 1500 mm in height and are appropriate in the circumstances.
Orders
The orders of the Court are:
1. The appeal is upheld.
2. Development Application 463/11 for alterations and additions to an existing dwelling at 20 Tryon Avenue Wollstonecraft is approved subject to the conditions in Annexure A.
3. The exhibits are returned with the exception of exhibits B and C.
___________
G T Brown
Commissioner of the Court
Decision last updated: 31 May 2013
0
0
3