J F Building Pty Ltd v Kogarah Council

[2004] NSWLEC 209

Land and Environment Court

of New South Wales

CITATION:	J F Building Pty Ltd v Kogarah Council [2004] NSWLEC 209
PARTIES:	APPLICANT J F Building Pty Ltd RESPONDENT Kogarah Council .
FILE NUMBER(S):	11244 of 2003
CORAM:	Moore C
KEY ISSUES:	Development Application :- Bulk and scale in streetscape .
LEGISLATION CITED:	Kogarah DCP Better Home Design Guide .
CASES CITED:	Zhang v Canterbury City Council (2001) 115 LGERA 373; .
DATES OF HEARING:	3 May 2004
EX TEMPORE JUDGMENT DATE :	05/03/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr C Maley, solicitor Maclarens RESPONDENT Mr Newport, barrister INSTRUCTED BY Abbott Tout

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

11244 of 2003

Moore C 3 May 2004

J F Building Pty Ltd
Applicant

v Kogarah Council
Respondent Judgment


1. This is appeal pursuant s 97 of Environmental Planning and Assessment Act1979 (the Act) against the refusal by Kogarah Council (the council) of a development application for 45 Carlton Crescent, Kogarah Bay (the site). The site is one which falls from the rear towards Carlton Crescent and from its boundary with No. 43 across the site to No. 47.

2. The application proposes extensive additions and alterations to an existing dwelling by the addition of major structures to the front of the existing dwelling.

3. The additions propose to demolish the existing 3 garages (including 3 separate garage door openings to Carlton Crescent) with the creation of a landscaping element replacing that and the erection of what amounts to an entirely new front to the existing dwelling closer to the street. The dwelling addition is proposed to be two residential levels with balconies at the front above garaging - with the balcony at the upper of the two residential levels set somewhat back from the balcony at what is described as the ground floor.

4. It was agreed between the parties that the application complies in its entirely with the numerical controls contained in the council’s Development Control Plan known as the Better Home Design Guide (the DCP). This is reflected in the statement of evidence of Mr A Ludvik, the applicant’s town planner, and a report to the council dated 14 July 2003 from the relevant council officer. This report, in addition to noting that the application is permissible with consent, also notes that, in the view of the author, the proposal meets the desired character of the locality as the dwelling has utilised architectural devices to relate to the scale and massing of existing buildings.

5. The applicant’s legal representative takes me to the general statement of philosophic objectives contained in the introduction to the DCP which says, under the heading Diversity, that the plan is designed to enable a wide range of housing types to be built reflecting the needs and aspirations and the diverse backgrounds and lifestyles of our residents.

6. The applicant’s representative also put the proposition to me that there is a wish of the applicant to satisfy specific housing needs both of his immediate and his extended family including both sets of in-laws and that is the reason why the bulk and scale of the proposed building is as it is. I do not accept that this statement adds significantly to or would facilitate noncompliance with any specific or more defined provision of the DCP.

7. In addition to the numerical controls contained in the DCP, it is clear from the introduction under the heading "You need to understand the way this document if written" that the council has established a specific proviso in that although there are "deemed to satisfiy" performance measures, the council specifically reserves to itself the right to consider, in some further detail, an application (even if it is numerically compliant) if the council considers the compliance will still lead to conflict or inconsistency with the desired outcomes as expressed in the objectives for those performance criteria.

8. As earlier noted, there is no dispute that the numerical performance criteria are achieved.

9. The dispute, however, relates to the objectives in the DCP as relevantly set out in Part 5.1 in relation to the Building Envelopewhere there are two specific objectives to which I have been taken by the respondent council. They are the fourth, which is to enhance the neighbourhood character by encouraging appropriate setbacks, height and visual bulk and the sixth, which is to reduce the appearance from the street of excessively bulky buildings.

10. Essentially, as was clear from the commencement of these proceedings, there is only one issue in these proceedings which is streetscape issue. Put simply, it is whether the building is too big and too far forward. I am satisfied that the answer to that question is "yes".

11. For the following reasons, I have concluded the application should be refused.

12. During the course of the site view, we had the opportunity to observe the height pole that was erected at 5 points on the site - these reflecting the upper points on either end of the proposed parapet; the upper level at the two extremities of the outer edge of the first floor balcony and the under eves point at the furthest point forward on the property adjacent to the next door property on the lower side, No. 43.

13. It was obvious from consideration in the streetscape sense that the upper portions, particularly adjacent to the uphill residence, No. 47, would have a visual appearance against that building (a building which is currently under construction and which is, itself, prominent in the streetscape) that was even higher and more dominant than that building. Number 43, the property on the downhill side, is also somewhat prominent in the streetscape. It was quiet clear from examination of the proposed parapet and the first floor balcony heights that a comparison of the adjacent buildings with that that is which is proposed on the present site was both dramatic and stark.

14. The height that is proposed in that corner of the building, as presently envisaged, would simply be unacceptably and totally dominant of the streetscape as it would be observed when travelling from Carss Park up the hill along Carlton Crescent.

15. I am satisfied that the range of matters of detail which were in dispute could have been (or, at least might well have been) able to be resolved. However, the fundamental issue of compliance with the two elements of the objectives of the DCP are not able to satisfied by amendment of the present proposal. In concluding thus, I am mindful of the strictures of the Court of Appeal in Zhang v Canterbury City Council (2001) 115 LGERA 373 that the DCP should be the focus (but not the absolute determinant) in my consideration of this appeal.

16. In this case, I consider that the appropriate basis for refusal - unacceptability in the streetscape - can properly be founded on the objectives in the provisions of the DCP itself

17. The orders of the Court, therefore, are:

1. The appeal is dismissed;
2. Development Application 2002/422 for additions and alterations to a dwelling at 45 Carlton Crescent, Kogarah Bay being Lot D DP 367760 pursuant to plans by Buildsolve is determined by refusal of development consent;
3. The exhibits, other than Exhibits A and B, are returned.

Tim Moore
Commissioner of the Court