Irwin P J v Eurobodalla Shire Council

[2004] NSWLEC 165

Land and Environment Court

of New South Wales

CITATION:	Irwin P J v Eurobodalla Shire Council [2004] NSWLEC 165
PARTIES:	APPLICANT P J Irwin RESPONDENT Eurobodalla Shire Council
FILE NUMBER(S):	11552 of 2003
CORAM:	Hoffman C
KEY ISSUES:	Development Application :- an additional detached garage two storeys high and in a Quaker's Barn Style in a low density residential area.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Eurobodalla Urban Local Environmental Plan 1999
CASES CITED:
DATES OF HEARING:	19/04/2004
EX TEMPORE JUDGMENT DATE :	04/19/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr R Kalde, solicitor SOLICITORS K Q Lawyers RESPONDENT Mr D Briggs, solicitor SOLICITORS DG Briggs and Associates

JUDGMENT:

1

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

11552 of 2003 Hoffman C 19 April 2003

Philip John Irwin
Applicant

v Eurobodalla Shire Council
Respondent Judgment


1. This was a class 1 appeal No. 11552 of 2003 between Philip John Irwin and Eurobodalla Shire Council in regard to the refusal of consent for a two storey Quaker’s Barn Style garage at No. 18 Hibiscus Close, Maloneys Beach.

2. The site and the surroundings were in an area of houses behind the beach. The land was generally flat. There was a mix of one and two storey houses with brick walls and tiled roofs predominating. There were some other houses constructed in materials such as sheet metal roofs and weatherboard with skillion roofs, hipped roofs and gables.

3. The site had two frontages, the main one to Hibiscus Close and a second frontage to Balangay Court. The allotment was slightly “cranked” about 2/3 of its length from Hibiscus Close. At the point of the crank was a drainage easement across the width of the lot.

4. There was an existing two storey house at the Hibiscus frontage with a two car garage under. The proposed additional garage was at the Balangay Court frontage. It had a 3 m front setback to Balangay. It had two garage doors facing Balangay, and above them on the first floor a balcony and sliding glass doors. There were other windows at the rear and on one side facing the house on No. 18. The additional garage was to be used to house restored cars with the upstairs, used to keep spare parts. Two shrubs on the Balangay Street front were to be kept as only one footpath crossing was intended to give access to only one of the two garage doors in the front elevation.

5. The Issues were:

1. Whether the proposed development satisfies the objectives of Clause 8(g)(ii) of the Eurobodalla Urban Local Environmental Plan 1999 ("EULEP") to "ensure that new development is consistent with the character of the existing residential areas, having regard to the physical characteristics of the land, the nature of the vegetation and landscape, and existing buildings in the locality … .
2. Whether the proposed development satisfies the objectives of Clause 14 (a) and (b) of the EULEP (Objectives of the 2g Residential -General Zone) in terms of character of the proposed development within the locality;
3. Whether the proposed development satisfies the objectives of Clause 2.2 of the Euroboda1la Shire Council's Development Control Plan - Residential Design & Development Guidelines ("Residential DCP") (Privacy) to:
(a) “Provide for the privacy to dwellings and their private outdoor areas"; and
(b) "Avoid overlooking of living spaces of adjoining properties including private open space";
4 Whether the proposed development satisfies the objectives of Clause 2.5 of the Residential DCP (Building Height) to "maintain and enhance the existing character of residential areas and streetscape continuity";
5 Whether the proposed development satisfies the objectives of Clause 2.6 of the Residential DCP (Set-Back and Building Line") to "preserve and enhance the existing streetscape";
6 Whether the architectural design and use of the materials proposed will have an unacceptable impact upon the streetscape and character of the locality;
7 Whether, having regard to Section 79C of the Environmental Planning and Assessment Act 1979 and the public interest, it is appropriate for the Court to grant development consent to the development application.

6. The on-site hearing was attended by the applicants Mr Philip Irwin and Mrs Kris Irwin and their solicitor, Mr R Kalde and their planning consultant Mr D Hogan. The respondents were represented by Mr Briggs, solicitor, and council town planner Mr Costello. A number of resident objectors also attended and their names are listed as follows:

• Peter Forrest – 21 Hibiscus Cl, Maloney’s Beach
• Denise Lincoln– 21 Hibiscus Cl, Maloney’s Beach
• Charlie Azzopardi – 26 Hibiscus Cl, Maloney’s Beach
• Steve and Gail Marsh – 37 Hibiscus Cl, Maloney’s Beach
• Paul Tsouneq – 7 Balangay Crescent, Maloneys’ Beach
• Vince Naftel – 87 Maloney’s Drive, Maloney’s Beach
• Joanne Socha – 37 Hibiscus Cl, Maloney’s Beach
• Robert Williams – 68 Maloney’s Drive, Maloney’s Beach
• Robert Buckley – 8 Bottlebrush P/L, Maloney’s Beach
• Joy Williams – 68 Maloney’s Drive, Maloney’s Beach


7 . Some matters were agreed between the parties such as the proposal was permissible with consent in the 2G Zone under the Eurobodalla Local Environmental Plan 1999 , the applicable setback to Balangay Court was 7.5 m under the Council’s Residential DCP. The height of the proposal was less than the maximum and the building fitted beneath the applicable building envelope.
8 . Whilst there had been some disagreement about the exact position and setback of the proposal, the parties agreed that Exhibit 9 showed the plan size and position of the proposal correctly. Two frames had been erected on site to show the position and height and shape of the proposal.

9 . The Court was able to appreciate the shape and design of the proposal in more detail from the plans and manufacturers brochures put into evidence. The proposal was a standard Quaker’s Barn Style building by Multibuild and resembled photo 39 in the brochure in Exhibit 8 with some variations of windows and doors.

10 . In the end Mr Costello summarised the council’s concerns as principally streetscape impact and lack of compatibility with the character of the residential area.

11 . There were concerns by one objector that the second storey of the barn would eliminate his only view out to Bateman’s Bay. The other objectors were concerned about its height/bulk/visual impact and lack of compatibility with the area.

12 . The Court was taken to various provisions of the Eurobodalla Local Environmental Plan – Urban 1999 for Residential Design and Development . These required particularly, the need for garages to not dominate the streetscape, and to maintain and enhance the existing character of residential areas and streetscape continuity.

13 . The size of the garage being 9 m x 8 m in floor plan and two storeys meant it was about the size of a small house. Being set 3 m from the front boundary to Balangay Court, when 7.5 m was required, it projected this bulk into the streetscape and made it highly noticeable. There were existing houses that all observed the applicable setbacks. On a vacant lot next door council had approved a new dual occupancy that also would comply with the setbacks.
14 . The reason the applicant sought the 3 m setback to Balangay Crt was put as being the drainage easement across No. 18 prevented the building being put back further. Also the various buildings, roof forms and materials of the proposed garage were said by the applicant to be found in the vicinity. This meant that the Quaker’s Barn shape would not be incompatible with the local character, in the applicants’ opinion.
15 . In the end the Court has concluded that the respondent’s evidence has the greater weight. It was agreed between the parties experts that the Quaker’s Barn Style of design would be unique in the locality and was very different shape to other buildings nearby. The Court has concluded its height and bulk and 3 m setback to the street would make it obvious, and have a jarring visual impact amongst the houses that comprised its setting.
16 . In the Court’s experience constraints on a building site such as the drainage easement, usually means a lesser development potential, and a need for greater attention to good design. Constraints do not of themselves justify a reason for a concession on important requirements like a 7.5 m front setback.
17 . The evidence was that the way the building was set out diagonal to the drainage easement was a product of its being a standard manufacturer’s building and a better design could be set parallel to and next to the easement and could achieve similar floor space and greater street front setback. The character and height of such a design would need to take greater account of the styles and building materials of its neighbours to achieve acceptable compatibility and to not dominate.

18 . The orders of the Court are:
1. The appeal is dismissed.
2. The exhibits are returned to the parties except Exhibits A, B, C, F, 3, 8, 9 and 10.

________________________
K G Hoffman
Commissioner of the Court
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