McFarlane v Newcastle City Council

[2015] NSWLEC 1165

Land and Environment Court

New South Wales

Medium Neutral Citation:	McFarlane v Newcastle City Council [2015] NSWLEC 1165
Hearing dates:	5 May 2015
Decision date:	19 May 2015
Jurisdiction:	Class 1
Before:	Morris C
Decision:	Appeal upheld
Catchwords:	CONSENT ORDERS: dwelling house, matters raised by objectors, impact on adjoining properties
Legislation Cited:	Newcastle Local Environmental Plan 2012; Environmental Planning and Assessment Act 1979
Texts Cited:	Newcastle Development Control Plan 2012
Category:	Principal judgment
Parties:	Bruce McFarlane (Applicant) Newcastle City Council (Respondent)
Representation:	Solicitors: Mr G Long, Long Legal Pty Ltd (Applicant) Mr J Marshall, Newcastle City Council (Respondent)
File Number(s):	10172 of 2015

Judgment

1. Mr McFarlane lodged Development Application DA2014/0522 with Newcastle City Council on 13 May 2014 seeking consent to demolish a pool house building and erect a two storey dwelling, pool and cabana. The council refused consent and he is appealing that decision.

2. The issues between the parties have been resolved and they are seeking Consent Orders from the Court.

The site and locality

3. The application relates to land known as Lot 22 DP 1195074, No 15C Wrightson Avenue, Bar Beach. It is an elongated, wedge-shaped, battle-axe allotment with an area of 872sqm of which approximately 304sqm comprises an L-shaped access handle leaving a developable area of around 567.4sqm. The widest point of the site is at the entry off the handle and is approximately 18m and tapers to 8.17m at the rear. The side boundaries of the developable area are 44.345m (south-east) and approximately 43m (north-west).

4. The access handle also services a multi-unit housing development and a dwelling house (No 10B Wrightson).

5. The site is centrally located in a block bound by Wrightson Avenue, Memorial Drive and Parkway Avenue and adjoins a total of 10 residential properties. Those properties contain single storey dwelling houses ranging from older style single storey dwellings to large, recently constructed two and three storey dwellings.

6. Development in the vicinity of the site is similar and includes a number of residential flat buildings.

The planning controls

7. The site is zoned R2 Low Density Residential under Newcastle Local Environmental Plan 2012 (LEP). Dwelling houses are permissible with consent.

8. Clause 2.3(2) of the LEP requires the consent authority to have regard to the objectives of the zone when determining a development application. The objectives of the R2 zone are:

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To accommodate a diversity of housing forms that respects the amenity, heritage and character of surrounding development and the quality of the environment.

9. Part 4 of the LEP contains principal development standards and those relevant to the application are clause 4.3 Height of buildings and clause 4.4 Floor space ratio (FSR). The site is subject to a maximum height of 8.5m and FSR of 0.6:1. According to the council’s assessment report contained in Volume 2 of Exhibit 1, the building height is a maximum of 7.7m. The parties agree that the FSR is 0.58:1 and therefore the development is compliant with the relevant development standards.

10. The Newcastle Development Control Plan 2012 (DCP) applies to the site with Sections 3.02 (Single Dwellings), 5.01 (Soil Management), 7.03 (Traffic, Parking and Access), 7.06 (Stormwater), 7.07 (Water Efficiency) and 7.09 (Waste Management) particularly relevant to the application.

Background and the proposal

11. The application proposes demolition of an existing building and the construction of a two storey, 5 bedroom dwelling with attached double garage, swimming pool and cabana.

12. The dwelling would be constructed towards the centre of the site with the garaging in the eastern corner of the site. The garage would be setback 1.2m from the north-eastern and south-eastern boundaries and includes a roof terrace. A planter box approximately 1.2m wide and 1m high with an 800mm high privacy screen would be erected around those sides of the terrace to protect adjoining properties from potential overviewing.

13. The ground floor of the dwelling would be erected on varying setbacks to the side boundaries due to the articulation of the walls. A minimum of 1.2m and maximum of 1.9m is provided to the south-eastern boundary and 1.7m and 2.9m to the north-western. A minimum rear boundary setback of 9.12m is provided.

14. Increased setbacks are provided to the first floor with a minimum of 1.36m and maximum of 2.56m to the south-eastern boundary, from 2.9m to 3.06m to the north-west and 13.37m to the rear. A 10.15sqm deck opens off the main bedroom and is located 4.95m from the south-eastern and 2.9m from the north-western boundaries. A 1.8m high louvre privacy screen would be installed along the south-east side of that balcony screening it from the properties that front Memorial Avenue.

15. The council refused consent to the application on 17 February 2015 contrary to the recommendation of its staff. The reasons for refusal were inconsistency with the general aims and objectives of the DCP; non-compliance with the minimum landscaping requirements; excessive bulk and scale; unreasonable overshadowing and privacy impacts on adjacent premises and unsatisfactory impact on the amenity of numerous adjoining premises so the proposal is contrary to the public interest.

The issues

16. The council filed a submitting appearance and does not raise any contentions in the case. A number of objectors attended the view and the site was observed from a number of adjoining properties where the owners provided details of their concerns in relation to the application. The following is a summary of the issues raised:

• Bulk, scale and visual prominence of building;

• Privacy and noise impacts;

• Overdevelopment of the site;

• Non-compliance with DCP landscaping control;

• Stormwater runoff;

• View impacts;

• Adverse amenity impacts;

• Overshadowing of open space areas and pools;

• Development is out of character with the locality;

• Site has been filled and should be excavated to reduce impacts;

Conclusion and findings

17. Neither party relied on expert evidence. The council relies on its officer’s report (Tab 20, Exhibit 1) to address matters under s79C of the Environmental Planning and Assessment Act 1979.

18. Mr Marshall for the council advised the Court that, other than the issues raised by objector, there was no reason why consent should not be granted. He confirmed the council was satisfied that the proposed drainage design was satisfactory, that mine subsidence issues had been addressed and the development was compliant with the two relevant development standard in the LEP and the building height plane controls in the DCP.

19. Mr Long, for the applicant submits that consent should be granted because the development is compliant with the development standards for building height and FSR and in particular in relation to building height, it is some 800mm less than the maximum height and significantly outside the envelope envisaged under the DCP controls for building height plane as demonstrated on Drawing No DA05, Exhibit B. Appropriate measures have been incorporated into the design of the dwelling to address privacy concerns and view impacts, as also demonstrated on that plan have been minimised.

20. In regard to the non-compliance with the minimum landscaped open space control contained in the DCP, there is a shortfall of 51.36sqm. the council’s assessment report considers this deficiency and states:

The proposed overall site landscaping areas are considered usable for the occupants and the individual landscaping components are all considered to contribute to the open space structure of the site.

The proposed landscaping is also seen to provide relief from the building lines of the proposed dwelling structure, and allows for selective visual screening between the subject site and a number of adjoining properties…

Accordingly, given the design constraints of the battle-axe allotment and the number of adjoining properties abutting the site, the overall landscaping design has been assessed as satisfactory with respect to the relevant Objectives of Section 3.02.07 of the DCP.

21. Having regard to the evidence and the council’s planning controls, it is apparent that the building is less than permitted in terms of building height, FSR and building envelope. The setbacks from the side boundaries exceed those required under the DCP and windows in the side walls are minimised and incorporate privacy treatments or are setback to accord with the DCP controls. Accordingly, I am satisfied that the bulk and scale of the development is appropriate and consistent with the character of the newer buildings in the locality and that privacy impacts are satisfactorily addressed.

22. The solar access provisions contained in s3.02.10 of the DCP are in the following form:

Performance criteria

1. Development does not significantly overshadow living rooms and private open spaces of

adjacent dwellings.

Acceptable solutions

1. New buildings maintain at least three hours of sunlight to the windows of living areas that face north in existing adjacent dwellings between 9am and 3pm on 21 June.

2. The principal area of ground level private open space of adjacent dwellings receives at least two hours of sunlight between 9am and 3pm on 21 June.

3. Sunlight to any existing solar panels is not reduced to less than three hours between 9am and 3pm on 21 June.

23. The DCP defines Principal area of private open space for single dwellings as a 3m x 4m level area of private open space directly accessible from the main living area of the dwelling.

24. The shadow diagrams show compliance with these controls and the council is satisfied that the impact is satisfactory. I agree.

25. When considering the view impacts of the development, those views are to the north east from the rear of those dwellings that front Memorial Drive and are district views. It was apparent that the proposed dwelling would have a marginal impact on those views and that impact would be foreground views to the roofs of nearby dwellings rather that the district views. I consider that impact to be satisfactory, particularly having regard to the height of the building. I also find the visual impact of the dwelling to be acceptable having regard to the planning controls that apply to the site.

26. I am satisfied that the proposal is lawful and complies with the relevant provisions of the LEP. It is also compliant with the DCP controls with the exception of the landscape area control and in this regard, I am satisfied that the extent of non-compliance is appropriate.

27. There being no reason why the Consent Orders should not be made, by consent, the Orders of the Court are:

1. The appeal is upheld.

2. Development Application DA2014/0522 for demolition of an existing building and construction of a two storey dwelling, pool and single storey cabana at Lot 22 DP 1195074, No 15C Wrightson Avenue, Bar Beach is approved subject to the conditions in Annexure A.

3. The exhibits, other than exhibits 3 and B, are returned.

__________

Sue Morris

Commissioner of the Court

10172 of 2015 Morris (C) (52.9 KB, pdf)

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Decision last updated: 19 May 2015