Marinic International P/L v Sutherland SC

[2005] NSWLEC 122

Land and Environment Court

of New South Wales

CITATION:

Marinic International P/L v Sutherland SC [2005] NSWLEC 122

PARTIES:

APPLICANT
Marinic International Pty Limited

RESPONDENT
Sutherland Shire Council

FILE NUMBER(S):

11281 of 2004

CORAM:

Hussey C

KEY ISSUES:

Development Application :- demolition of existing structure and construction of six 2-storey attached dwellings - streetscape - character of the neighbourhood - height - parking - landscaping.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Sutherland Shire Local Environmental Plan 2000 (LEP)
Development Control Plan for Townhouses and Villa Houses (DCP)
Draft Sutherland Shire Local Environmental Plan 2004 (DLEP)

DATES OF HEARING:

21/01/2005 and 25/02/2005

 
DATE OF JUDGMENT: 

03/30/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr P. Clay, barrister

RESPONDENT
Mr C. Mathieson, solicitor
of Sutherland Shire Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

30 March 2005

11281 of 2004 Marinic International Pty Limited v Sutherland Shire Council

JUDGMENT

Background.

1 This appeal was lodged against council's refusal of a development application for the demolition of existing structures and the construction of six 2-storey attached dwellings, with garages and located at 89/91 Willarong Road, Caringbah. In the initial application, each dwelling contained three bedrooms and the second level of the dwellings is located within the roof as an attic type arrangement.

2 For the appeal, Council identified the following issues:

• impact on streetscape and character of neighbourhood,
• excessive height of rear buildings,
• vehicular access and parking ,
• landscape area,
• matters raised by objectors.

The site.

3 The subject site is known as Lot B, DP 415362 and Lot E DP 375350 Willarong Road, Caringbah. The land has a total frontage of 33.598 m to Willarong Road and a total area of 2048 sq m.

4 There are free standing dwelling houses adjacent to the sites northern and southern boundaries. To the west of the site are the grounds of the Caringbah High School. To the south is the Caringbah Bowling Club and further to the north and northeast is an industrial area.

Planning Controls.

5 Sutherland Shire Local Environmental Plan 2000 (LEP). Under this LEP, the site is zoned 2(a1) Residential and the proposal is permissible with consent. The LEP contains a number of objectives to achieve a stated residential environment.

6 Clause 30, of the LEP details certain matters that must be taken into consideration, on the basis that consent must not be granted unless the consent authority is satisfied that those matters have been adequately addressed.

7 Clause 32, contains provisions regarding bushland considerations.

8 Clause 41, addresses matters concerning limits on development and refers to an associated development control plan.

9 Development Control Plan for Townhouses and Villa Houses (DCP). This DCP came into effect on 20 Dec 2001, with the purpose of ensuring that townhouse and villa house developments are compatible with other housing in the locality and meet community expectations and the objectives of the 2(a1) and 2(a2) zone.

10 Clause 10, has controls affecting where townhouses and villa houses can be located. The objectives of this clause are:

1. That the predominantly single dwelling house character of designated neighbourhoods in the Shire are preserved by limiting the capacity of each neighbourhood for villa and townhouse development.
2. Minimise congestion or overloading caused by villa and townhouse development on residential public roads by pedestrians, traffic, parking and other service providers.
3. Minimise change to the single dwelling house scale, character and amenity of cul-de-sacs.
4. Streetscape is characterised by predominantly 1 and 2 storey residential buildings on single allotments within a landscape setting on each side of the road.

11 The relevant controls in clause 10 are:

Clause10.1 - multiunit dwellings in each locality to be no more than 10% of all dwellings.

Clause10.3 - the number of single dwelling house is on each side of a viila and townhouse development must be at least equal to the number of dwellings in the villa house and townhouse development .

12 The site is within the Caringbah North Precint. Clause 12.2, states that two-storey development is only permitted at the front of an allotment. Two-storey development may extend to a maximum of 50% of the depth of the site if there are no adverse impacts on adjoining land in terms of privacy, solar access to recreational areas or facilities, or primary views.

13 Draft Sutherland Shire Local Environmental Plan 2004(DLEP). This DLEP generally follows the form of draft LEP 2003 which was exhibited from 18 February to 3 May 2003 and it was subsequently re-exhibited from 1 December 2003 to 18 January 2004. There is no substantive evidence to indicate the imminence and certainty of this DLEP.

The evidence.

14 For the appeal the parties agreed to Mr S Layman as the Court Appointed Expert (CAE) on planning. Accordingly, he presented a number of reports assessing the proposal and expressing his opinion that the proposal merit consent. At the on-site hearing (OSH), the Court also had the benefit of evidence from Mr G Hand, Councils town planner and Mr P. Anderson, Council’s Engineer.

15 Evidence was given by neighbours Mr C Goodier and Mr R. Hurlow.

16 For the applicant, evidence was presented by Mr I Rixon (Architect) and Mr R. Hand and Mr A. Corke.

17 Following consideration of Mr Layman's report, the applicant decided to amend the plans to incorporate his suggestions and the matter adjourned. These amendments are incorporated in Exhibit ‘E’ and include:

• adjustment and widening of the access driveway,
• the rear units ( Nos. 3-4 ) being reduced to 1 storey,
• the adaptable unit being relocated to the rear unit No. 4, and including a single car garage.

18 Notwithstanding, these amendments, Council still opposes the application principally on the grounds of non-compliance with its 10% distribution rule for multi unit development and consequential unsatisfactory streetscape impact. However, Mr Layman has given further detailed consideration to the amended application and in his opinion, it merits conditional consent.

19 With respect to the streetscape/character of neighbourhood issue, Mr Layman maintained his initial position that the proposal will not create unsatisfactory impacts. He notes that this issue is raised on the basis of the neighbourhoods capacity for multi dwelling development and separation distance requirements to existing multi dwelling development and consequential cumulative impacts. This is in the context that councils Urban Capacity Study 2001 shows that the total percentage of multi dwellings in the Caringbah North neighbourhood is 25.5%, considerably above the prescribed 10%.

20 However, Mr Layman's response is that the majority of these multi dwellings are clustered in the south eastern part of the Caringbah North neighbourhood, distant from and well outside the visual catchment of the subject site. In Willarong Road there is a 4 dwelling development separated by two lots, south of the subject site and a 5 dwelling development on the north-eastern corner of Coolabah Place. Furthermore, he says that the site is well suited to multi dwelling development in terms of its size, shape and topography, as well as its relationship with the adjoining high school.

21 Accordingly he considers that the objective of the neighbourhood capacity control is to preserve the predominantly single dwelling-house character of neighbourhood and consequently concludes that;

"The proposal would not be contrary to this objective having regard to existing development in the residential zone in Willarong Road and the broader context of Willarong Road and its visual catchment. The cumulative impact on the streetscape would not be significant in the context of the residential zone in Wilarong Road. Single dwelling-houses would still predominate there. Twenty five of the thirty lots fronting Wilarong Road in the vicinity of the subject site would contain single dwelling-houses and one would contain a dual occupancy."

22 In further support of his position, Mr Layman refers to the Director of Environmental Services report of 20 September 2004, which says that the 10% restriction on medium density housing is not supported by DIPNR. The report addresses neighbourhood capacity control and advises, with regard to the exhibition of the draft Sutherland Shire LEP 2004, "Removal of the provision relating to 10% Neighbourhood Capacity was a condition of the Department’s approval for the exhibition of the draft Plan".

23 Under these circumstances where DIPNR does not support this 10% restriction, I am inclined to give this requirement diminished weight. However, considering that the objective of this control is avoid concentrations of multi unit housing development, which create adverse streetscape and amenity impacts, I accept Mr Layman's opinion that this objective is reasonably achieved in this case, in a qualitative sense, considering the relative separation of other developments and the acceptable two-storey appearance of the street frontage dwellings. This accords with my observations on the view, which included an assessment of the visual impacts of this existing, mixed development neighbourhood.

24 The next control concerns the separation distance to other mulit unit type development, as required by the DCP. Application of this control requires a separation of six lots rather than two. Mr Layman says that when the streetscape of the 2(a1) residential zone is considered, there are 30 residential allotments with frontage to Willarong Road, within which there are 27 lots with single dwelling-houses, one dual occupancy and two villa/townhouse sites.

25 Accordingly, Mr Layman considers that some discretion can be allowed, considering that the objectives are met because the predominantly single dwelling-house character would be preserved in the residential zone and its visual catchment. Also the development is unlikely to result in congestion or overloading of services and roads and it is not in a cul-de-sac, so the streetscape of this section of the 2 (a 1) zone remains predominantly single storey with some two-storey elements.

26 I accept Mr Layman's opinion in this regard, that the objectives of the zone are met and general character of the neighbourhood, as perceived from the subject site does not suffer from an unreasonable cumulative impact (LEP 2000 cl. 30), despite some numerical non-compliances with the DCP control. Therefore this issue is reasonably satisfied to allow consent.

27 The next issue concerned the height of the proposal because the DCP only permits two-storey development to extend to a maximum of 50% of the depth of the site. However this issue has been addressed in the amended plans because the rear dwellings (3 and 4) have been reduced to effectively single storey height.

28 In Mr Layman's opinion, this is now satisfactory and I also rely on his opinion in this regard, that the height of the amended proposal now demonstrates reasonable compliance with the intent of this control. The two storey presentation of the two street frontage houses is consistent with the streetscape presentation.

29 The initial issue concerning site access is now satisfied with the widening of the entry driveway to 5.5 m, as required by Council. As the adaptable dwelling has now been transferred to Dwelling 4, accordingly, its garage has been reduced to single width, which Mr Layman says it acceptable, subject to a condition requiring a minimum width of 3.8 m. I consider the imposition of such a condition is reasonable.

30 In addition to this, Mr Layman expresses some concern about the proposed 2500mm kerb radius between the visitors spaces and unit 2, because of the restricted manoeuvring area. He prefers that this be flattened to a minor extend to remove conflicts with landscaping. As this is a relatively minor matter, it can be adjusted in the Construction Certificate plans.

31 Another issue concerned provision of adequate landscape area. The development standard in cl. 36 of the LEP requires 45% landscape area. However, the amendment to reduce the size of unit 4 (Adaptable dwelling with single garage), now allows additional landscape area, which complies with the development standard. On the basis of this compliance, this issue is satisfied in my assessment.

32 Two objections were made to the initial proposal. They concerned the separation provisions in the DCP in some concerns with the composition of the proposed landscaping. I have dealt with the separation concerns above and now I consider that the proposed landscaping can reasonably accommodate the matters raised by the neighbours. I understand from the submissions that the neighbours no longer object to this amended proposal.

Conclusions.

33 I now satisfied that this amended proposal demonstrates reasonable compliance with the intent of the prevailing controls, as assessed by the CAE, Mr Layman, so as to merit conditional consent. Insofar as I have given consideration to the draft LEP 2004, there is no compelling evidence regarding its eminence and certainty. Instead it appears that reference to the 10% concentration of multiunit housing control will likely be required to be deleted. Under these circumstances, I give it diminished weight. Based on the evidence presented to the Court and observations on the view, I am satisfied that the special consideration listed in cl. 30 of LEP 2003 have been reasonably satisfied.

1 The appeal is upheld.
2 Development consent is granted to DA 03/0883for the demolition of existing structures and erection of 6 Villa Units with attics and subdivision into strata units at 89/91 Willarong Road, Caringbah, in accordance with the conditions in Annexure A.
3 The exhibits may be returned except for 1, 11, 12, A and E.

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