Mirvac Homes (Nsw) Pty Ltd v Parramatta City Council
[1999] NSWLEC 38
•03/04/1999
Land and Environment Court
of New South Wales
CITATION:
Mirvac Homes (Nsw) Pty Ltd - V - Parramatta City Council [1999] NSWLEC 38
PARTIES
APPLICANT:
Mirvac Homes (NSW) Pty LtdRESPONDENT:
Parramatta City Council
NUMBER:
10511; 10512; 10513; 10514. of 1998
CORAM:
Lloyd J
KEY ISSUES:
:- heritage issues - merit considerations - solar access
LEGISLATION CITED:
heritage issues - merit considerations - solar access
DATES OF HEARING:
02/10/1999; 02/11/1999; 02/12/1999; 02/15/1999; 02/16/1999
DATE OF JUDGMENT DELIVERY:
03/04/1999
LEGAL REPRESENTATIVES:
RESPONDENT:
APPLICANT:
J Bingham (s)
Solicitors: Norton Smith & Co
W R Davison SC
Solicitors: Storey & Gough
JUDGMENT:
1. These are four appeals under the Environmental Planning & Assessment Act 1979 (“the Act”), s 97, against the deemed refusal by the respondent of four development applications relating to land at Marsden Road, Carlingford known as the Dalmar Estate. The four appeals were heard together and are as follows:
10511 of 1998 - SA 98/36, for a subdivision of Lot 1 in DP 739215 into two lots (proposed Lots 11 and 12) and to create certain easements over other lots in the same Deposited Plan
10512 of 1998 - DA 98/224, for housing development comprising 75 dwellings on Lots 2 and 4 in DP 739215 (known as Precinct 1).
10513 of 1998 - DA 98/223, for the demolition of existing buildings and for housing development comprising 39 dwellings (since amended to 38 dwellings) on part of Lot 1 in DP 739215 and being the proposed Lot 12 of the application for subdivision (known as Precinct 2).
10514 of 1998 - DA 98/222, for housing development comprising 28 dwellings on Lot 5 in DP 739215 (known as Precinct 3).
2. The whole of the land has an area of 77,056 square metres. The whole of the land was until recently owned by the Uniting Church of Australia and formed part of the Dalmar Children’s Home, which operated as part of the church’s Wesley Central Mission. The land which is proposed to be developed for housing, Precincts 1, 2 and 3, have been sold to the applicant.
3. Precinct 1 is in the south western part of the Dalmar estate. It has a frontage to Marsden Road and has an area of 30,447 square metres. Precinct 2 is in the north western part of the estate. It has a frontage to Cottee Crescent and has an area of 17,350 square metres. Precinct 3 is in the north eastern part of the estate. It has a frontage to Freeman Place and has an area of 7117 square metres.
The proposed subdivision will result in one of the proposed lots (Lot 12) being used for housing as Precinct 2 and the other proposed lot (Lot 11), having a frontage to Dalmar Crescent and a proposed right of way through Precinct 1 to Marsden Road, and having an area of 19,670 square metres being retained by the Church and used for its existing function as the Dalmar Child & Family Care Facilities.
Planning Controls
4. The whole of the subject land was zoned for residential use by Parramatta Local Environmental Plan No 52 , which commenced on 19 March 1984, having been previously zoned Special Uses - Institution. On 8 October 1985 the respondent adopted a development control plan under s 72 of the Act called “Dalmar Development Control Plan”. It provided, inter alia , that development of the Dalmar site shall be carried out in accordance with the “Dalmar Concept Map” prepared by Jackson Teece Chesterman Willis & Partners dated October 1984.
5. Parramatta Local Environmental Plan No 52 was repealed on 2 July 1993 and replaced by Parramatta Local Environmental Plan 1993 (Dundas Ward), which is the environmental planning instrument which presently applies to the land. The land is zoned 2(b) (“Residential B”) under the current local environmental plan. The objectives of the 2(b) zone are as follows:
“(a) to encourage residential development; and
(b) to provide for other types of development which are compatible with a residential environment and are of a similar scale and character to permitted residential development.”
The following uses are permissible with development consent within the 2(b) zone:
“Boarding houses; child care centres; community facilities; dual occupancy dwellings; dwelling houses; educational establishments; home occupations; hospitals; medium density housing; places of public worship; recreation facilities; utility installations (other than gas holders or generating works); villa homes.”
6. The subject land is also subject to the Parramatta Development Control Plan Dundas Ward (“the DCP”), which became effective on 21 July 1993. Section 13 of the DCP applies to the Dalmar land. It applies the same controls to the Dalmar land as the 1985 Development Control Plan, including a requirement that development shall be generally distributed as indicated on the “Dalmar Concept Map”, defined as being a map prepared by Jackson Teece Chesterman Willis & Partners Pty Ltd dated October 1984.
7. The subject land, described as “Dalmar Children’s Home - Lots 1-4 DP 739215” is identified as a heritage item of state or regional significance in Schedule 1 of the Parramatta Local Environmental Plan 1996 (Heritage & Conservation) . It is thus immediately apparent that Precinct 3 is excluded as a heritage item. St Paul’s Cemetery, which lies partly between Precinct 1 and Precinct 2 is identified as a heritage item of local significance. The aims of this local environmental plan are:
“(a) To conserve the environmental heritage of the area of the City of Parramatta; and
(b) to integrate heritage conservation into the planning and development control processes; and
(c) to provide for public involvement in the conservation of environmental heritage; and
(d) to ensure that any development does not adversely affect the heritage significance of heritage items and heritage conservation areas and their settings; and
(e) to consolidate environmental planning controls relating to heritage conservation in a single comprehensive plan.”
8. Clause 11(1) of this instrument requires development consent for, inter alia , the demolition or alteration of a heritage item, or the erecting of a building on or subdividing land on which a heritage item is located. Clause 11(3) sets out matters which a consent authority must take into consideration when determining a development application required by the clause. Clause 12 requires the giving of notice of certain types of applications affecting heritage items. Clause 13 requires applications affecting heritage items to be referred to the Heritage Council for comment. Clause 15 requires cognizance to be taken of the effect of development on the heritage significance of items in the vicinity of the proposed development.
9. The respondent exhibited a draft environmental planning instrument, Draft Parramatta Local Environmental Plan (Housing) 1997 in October 1997. The subject land was identified as land zoned 2(c) Residential under that draft instrument. Dwelling houses, villas and town houses are permissible with development consent in the 2(c) zone under the provisions of this draft local environmental plan.
10. The respondent also exhibited with the Draft Parramatta Local Environmental Plan (Housing) a draft development control plan known as Draft Development Control Plan - Multi-Unit Housing. The Draft Development Control Plan applies to all land zoned 2(a), 2(b), 2(c) and 2(d) in the Draft Parramatta Local Environmental Plan (Housing) 1997. The aims of the Draft Development Control Plan include:
“A1 To encourage hiqh quality urban design and residential amenity housing development;
A2 to promote wider housing choice and more affordable housing in Parramatta City;
A3 to set appropriate environmental criteria for solar access, privacy, noise, vehicular access, parking and open space;
A4 to ensure that the impact of housing proposals on the amenity of adjoining properties is a prime and initial consideration of applicants when preparing their development applications.”
11. The respondent has since resolved not to proceed with either the Draft Parramatta Local Environmental Plan (Housing) 1997 or the Draft Development Control Plan - Multi-Unit Housing .
12. The parties initially identified a large number of issues, most of which were resolved either before or during the hearing. It becomes necessary to consider the remaining issues, which are discussed below.
Heritage
13. As noted in paragraph 7 above, the “Dalmar Children’s Home - Lots 1 - 4 DP 739215” is identified in the Parramatta Local Environmental Plan 1996 (Heritage and Conservation) as a heritage item of State or regional significance; and St Paul’s Cemetery is identified therein as a heritage item of local significance.
14. Clause 11(3) of the Parramatta Local Environmental Plan 1996 (Heritage and Conservation) sets out matters which must be considered by a consent authority when determining a development application for the erection of buildings on or subdividing land on which a heritage item is located. That sub-clause is as follows:
“(3) When determining a development application required by this clause, the consent authority:
(a) must take into consideration the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage items or heritage conservation area; and
(b) must not grant consent until it has considered a statement of heritage impact that identifies and assesses the impact of the proposal on the heritage significance of the item and its setting, or of the heritage conservation area; and
(c) may refuse consent until it has considered a conservation plan to enable the consent authority to assess the impact of the proposal on the heritage significance of the item and its setting, or of the heritage conservation area. … “
15. Evidence on the heritage issue was given on behalf of the respondent by Mr R A Moore, an architect and conservation consultant specialising in heritage and conservation work. Evidence on this issue was given on behalf of the applicant by Mr G L Brooks, an architect and heritage consultant with a similar practice to that of Mr Moore. Mr Brooks had also carried out a conservation analysis and had prepared a conservation plan for the Dalmar Children’s Home as required by clause 11(3)(c) of the Parramatta Local Environmental Plan1996 (Heritage and Conservation) . The views of both the National Trust and the New South Wales Heritage Office were also adduced in evidence.
Mr Moore
16 . The respondent’s heritage expert Mr Moore describes the Dalmar site as “an undeveloped parcel of former farmland which, as open green space dating back to the rural settlement of the district, is now rare within its context”.
17. Mr Moore states that the Main Building was “obviously very consciously sited and designed for maximum impact upon approach views, and the open paddocks of its foreground in view from the main road have an essential role in this presentation”. He concludes that if the proposed development is undertaken the setting of the main building back from the main road access across open fields will be totally removed and there will be a major loss of character and significance from both the site itself, and from its district.
18. According to Mr Moore’s statement of evidence the loss of land in Precinct 1 and 2 will severely compromise the interpretability of the heritage significance of this site and its district, with regard to all the periods of its occupation.
19. In respect of the proposed demolition of buildings in Precinct 2, in particular the Grace Cottage and CT Newman building, Mr Moore states that redevelopment of those sites will compromise the settings of the supposedly retained and conserved principle elements.
20. Mr Moore concludes that the Council has received a proposal which is in direct conflict with the advice flowing from its recent endeavours to identify and protect what remains of its environmental heritage and as such the proposed development should not be allowed.
The National Trust
21. The National Trust in a letter dated 17 June 1998 registered its “strong objection to the proposed development that includes the demolition of some of the buildings known as the Dalmar Children’s Home.” The National Trust states that the “site is at the very least of Regional Significance”.
22. The National Trust felt that “the close proximity of the proposed development to historic St Paul’s Cemetery should be sufficient to ensure the rejection of this Application”.
23. The Dalmar Children’s Home is not classified by the Trust. However St Paul’s Church of England Cemetery Conservation Area is classified by the Trust. The Trust describes the St Paul’s Cemetery as an “attractive rural cemetery of historical importance”.
24. The Trust is particularly concerned with the loss of the existing curtilage of the site, the original Marsden Road entrance driveway and the C T Newman Building, one of the original 1923 buildings.
NSW Heritage Office
25. The Heritage Council Conservation Management Plan Committee concluded that the site is of “Regional Cultural Significance”.
26. The Committee further comments as follows:
“The prominent entry and tree lined drive is a strong element in the existing layout and should be preserved. Lots should be replanned to address the drive with service access to the rear via the existing lanes which would allow for retention of the strong visual qualities of the entrance drive.”
*A sufficient buffer zone around the drive could also be provided.
27. The Committee concluded that the proposed development “will have a major irreversible impact on the significance of the heritage item”.
28 . The Heritage Office emphasised the importance of the grounds of the Home as they demonstrate the working nature of the Home in training boys in particular in rural pursuits.
29. The C T Newman Memorial house was ranked as medium heritage significance in the Heritage Conservation Analysis prepared by Mr Brooks. This ranking, however, was not supported. The Heritage Office concluded that the building is capable of adaptive reuse and is considered to be of high heritage significance.
Mr Brooks - Conservation Analysis and Conservation Plan
30. Within the Conservation Analysis prepared by Mr Brooks a set of Guidelines for the Conservation Management of the Dalmar Children’s Home Site are outlined.
31. Under the Guidelines for the site generally Mr Brooks states that the Driveway, circular carriageway and associated trees and under planting should be retained together with an appropriate setback to reduce the impact of any future development. He further stipulates that the Driveway should not be used as a primary vehicular access to any future development of the site.
32. Mr Brooks also states that the Marsden Road frontage including the mature trees should be retained; new buildings close to the Main House should be restricted to two storeys in height; all existing pedestrian links through the property should be retained and fenced lanes should be discouraged.
33. According to Mr Brooks the buildings of high significance to the Dalmar complex including the Main House should be retained and conserved. However, buildings of lower significance including the Grace Cottage and the C T Newman Memorial Home may be demolished.
34. Under the Guidelines for the Dalmar Precinct (the proposed lot 11 of the subdivision to be retained by the Church) the visual and functional relationship between the significant buildings is to be retained, the flagpole should be reconstructed in the central circular lawn, new buildings in this precinct should not be constructed within the area defined as having primary spatial significance and there should be no fencing between the Dalmar Precinct and Precinct 2 (described as Precinct 3 in the document).
35. Of particular importance in Precinct 1 is the retention of the existing fence and mature trees along the Marsden Road boundary and the mature trees along the Driveway. Mr Brooks states that to maintain the “visual vistas” across the precinct any proposed buildings should be limited to two storeys. In addition, Grimes Lane should be retained as a pedestrian link.
36. Under the guidelines for Precinct 2 it is stated that no future development should adversely impact on the significance of the circular carriageway and no additional access, apart from the driveway to Grace Cottage, should be constructed. In addition the mature trees along the boundary with the Cenetery should be retained. The guidelines state that the existing pedestrian link to Kay Street should be maintained, the retention of the mature trees within the precinct should be considered and the view from the Main Building down to Cottee Place should also be retained through the use of appropriate setbacks.
37. Finally in Precinct 3 (described as Precinct 5 in the document) Mr Brooks states that the existing pedestrian link through the precinct (Grimes Lane) should be retained and not fenced off and any future development should follow the existing topography.
Mr Brooks
38. In his evidence the applicant’s heritage expert Mr Brooks concludes that the proposed subdivision and development will have an acceptable level of impact on the heritage significance of the Dalmar property and no adverse impact on St Paul’s Cemetery.
39. In considering the impact of any proposed development on the present semi-rural character of the site, Mr Brooks notes that the semi-rural nature of the site is not regarded as a major feature of its cultural significance. He concludes that the inevitable loss of a semi-rural character is, to some extent, an unavoidable result of the general process of urban consolidation that has taken place in the locality since the beginning of the 20th century.
40. Mr Brooks states that the proposed development will have a minimal impact on the heritage significance of the St Paul’s Cemetery. The cemetery is located on a crest. The proposed development will be located down the sloping topography and therefore no run-off from the development will affect the Cemetery. New Dwellings are to be cut into this sloping terrain, thereby reducing their overall height in relation to the Cemetery. Mr Brooks concludes that the Cemetery is “simply an area of historic graves that is surrounded by modern suburban development”: and any new development to the south of the Cemetery will have no additional adverse effect on the heritage significance of that site.
Conclusions
41. In considering this issue one must not lose sight of the manner in which the subject site is zoned. The land was re-zoned from Special Uses - Institution to Residential 2(c3) on 19 March 1984. That zoning allowed ( inter alia) residential flat buildings with development consent. On 2 July 1993 the Parramatta Local Environmental Plan 1993 (Dundas Ward) commenced, under which the land was zoned Residential 2(b). That zoning, which continues to apply, allows medium density development such as dual occupancy dwellings, medium density housing and villa homes. Medium density housing includes residential flat buildings. It is an express objective of the zone “to encourage residential development”. On 21 February 1996 the Parramatta Local Environmental Plan1996 (Heritage and Conservation) commenced, under which the Dalmar Children’s Home is identified as an item of State or regional significance and St Paul’s Cemetery is identified as an item of local heritage significance. It is significant that in making the 1996 local environmental plan no attempt was apparently made to change the zoning of the land. Moreover, at no time since the heritage significance of the land was identified in the 1996 local environmental plan has there been any attempt to change the zoning.
42. In considering this issue I have also had regard to the views expressed by local residents, some of whom gave evidence. Most of the residents accepted the likelihood of some residential development on the Dalmar site given the zoning. The residents nevertheless expressed a concern about the density of the proposal and the consequent traffic which would result therefrom. Again, however, I have observed that the density of the proposed development is allowed by the zoning, the zoning has effectively been in place since 1984 and there is no evidence of any proposal on foot to change the zoning. I refer in paragraphs 72 and 74 below to the consideration of increased traffic.
43 . The fact of the zoning does not negate the provisions of the 1996 Heritage and Conservation Local Environmental Plan which nevertheless requires consideration to be given to the matters which I have set out in paragraph 14 above. It is in the context of the zoning together with the objectives of the zone, however, that the considerations set out in paragraph 14 must apply.
44. A further consideration, amounting to a circumstance of the case, is the fact that the respondent granted consent to the subdivision of the Dalmar site in 1986. The subdivision was registered in November 1986 as DP 739215. Lots 2 and 4 of that subdivision (known as Precinct 1 in this application) and which comprises the open green space between the main heritage buildings and Marsden Road was subsequently sold to the applicant. Lot 5 of that subdivision (known as Precinct 3 in this application) was also sold to the applicant. Mr Moore would prefer to see no development on Precinct 1. That would impose an unfair burden on a landowner who has no interest in the adjoining land on which the main Dalmar buildings are situated. In consenting to the subdivision the respondent must have known that the new lots would be sold and for the likely purpose of being developed in a manner consistent with zoning. To effectively prohibit the use of Lots 2 and 4 (that is, Precinct 1) would be too severe a restriction when a development of the land could be carried out which preserves the essential heritage characteristics of the site in the manner suggested by Mr Brooks.
45. Accordingly, in view of the circumstances which I have discussed in paragraph 41-44 above I prefer the views of Mr Brooks in this case. The proposed development of Precinct 1 will preserve the prominent entry and the tree-lined driveway. According to Mr Brooks an appropriate buffer is to be provided along each side of the driveway. The buildings to be erected beyond the buffer have their service access off separate service roads at their rear as suggested by the Heritage Office (noted in paragraph 26 above).
46. I am reinforced in the adoption of the views of Mr Brooks by an inspection of the site which was undertaken in the presence of representatives of the parties. The “open paddock” comprising Precinct 1 described by Mr Moore no longer comprises a foreground to the main Dalmar buildings, which cannot be seen from Marsden Road. It is not until one leaves Precinct 1 that the main Dalmar buildings become visible. Those buildings are set within their own open space, which is intended to be preserved.
47 . I am equally satisfied that the views of Mr Brooks can be accepted in relation to the proposed subdivision and the development of Precinct 2. The area around the main Dalmar building is to be kept clear of development. This is to be achieved in part by a restrictive covenant over part of the land within Precinct 2 so as to prohibit the erection of any fences or buildings adjacent to the circular drive in front of the main Dalmar building.
48. I am also satisfied that there will be no adverse impact of the development upon St Paul’s Cemetery. I am again reinforced in this view by the inspection of the site to which I have referred. None of the proposed buildings will unduly impose themselves on the Cemetery’s surrounds and the existing and proposed tree planting will screen the development from the Cemetery to a large extent.
49. I have referred (in paragraphs 4 and 6) above to the Development Control Plan, first adopted by the respondent on 8 October 1985 and again adopted by the respondent on 21 July 1993, which requires development on the Dalmar site to be carried out generally in accordance with the ‘Dalmar Concept Map”. The proposed development departs from the Dalmar Concept Map. Areas designated on the map as “child care or two-storey garden units” are to be occupied by single courtyard dwellings. Part of the area designated on the map as “child care and ancillary uses, community centre” is also to be occupied by courtyard dwellings. The area of Precinct 3 is designated on the map as “retirement village”, but is to be occupied by courtyard dwellings.
50. It is clear that the Dalmar Concept Map which was prepared in October 1984, is now obsolete. Children who were formerly housed at Dalmar are nowadays no longer institutionalised. Moreover, the present use of the main Dalmar buildings by the Wesley Central Mission for administrative purposes appears to be a use which is not only contrary to the Concept Map but prohibited under the zoning. It is at least arguable that the uses shown on the Dalmar Concept Map are contrary to the zoning and thus contrary to s 72(3) of the Act, which requires a development control plan to generally conform with the provisions of the local environmental plan. Accordingly, I do not think that determinative weight should be given to the development control plan in this case. The uses proposed in this development application are consistent with the zoning and provide a density of development which is not dissimilar to those which are shown on the Dalmar Concept Map.
51. Finally, I should refer to the question of whether two of the Dalmar buildings, the Grace Cottage and the C T Newman Memorial Home, should be demolished. Mr Moore opposes the demolition of those buildings. Mr Brooks is of the view that they may be demolished. The Grace Cottage was erected in 1954. My inspection of this building in the presence of representatives of the parties confirms that it is an undistinguished 1950s building of no great heritage value other than the fact that it is part of the setting for the main heritage buildings. The C T Newman Memorial Home is one of the original buildings erected in 1923. It is in poor condition, has been much altered from its original state and has not been used as a home for children for many years. I accept the view of Mr Brooks that both of these buildings may be demolished but that any replacement buildings should retain their scale and setback from the circular driveway.
Merit issues
52. Expert evidence on planning and merit issues was given by Mr G W Smith on behalf of the respondent and by Mr N Ingham on behalf of the applicant.
Mr Smith
53. Mr Smith identifies a number of concerns which I now briefly describe. In Precinct 1 Mr Smith identifies the following aspects of the development which cause him concern:
(i) whether the use of Grimes Lane for vehicular access is satisfactory, as there is no provision for vehicles to turn at the end of that part of the lane which is proposed to be paved;
(ii) whether concentrating the traffic from 71 dwellings into Mulyan Avenue is satisfactory;
(iii) whether on an undeveloped site of this size it is acceptable to have dwellings with living areas unlikely to receive any, or very limited, amounts of sunlight;
(iv) whether the Church Property Trust and the owner of the Cemetery have agreed to works being undertaken in those properties;
(v) whether sufficient consideration has been given to the design of some of the proposed dwellings given the extent of excavation or filling which will be required;
(vi) whether there should be greater provision made for parking for residents and visitors; and
(vii) how garbage and other waste and mail deliveries are to be handled.
54. In Precinct 2 the principal issues identified by Mr Smith of concern are:
(i) the failure to comply with the DCP (clause 13 subclause 2.6) and the 1984 concept plan in terms of land use and open space connections;
(ii) the undesirability of having a pedestrian right-of-way in favour of other property through Road No 7;
(iii) the adequacy of the narrower parts of the internal roads given that the issue of waste collection has not been resolved;
(iv) the failure to provide adequate opportunities for visitor parking;
(v) the failure to provide a sufficient level of safety for pedestrians who may move through the precinct;
(vi) the relationship between the Cemetery and the dwellings and “community facilities” on land adjoining the Cemetery which is an item of heritage significance; and
(vii) the proposal to provide landscape screening on the retained land.
55. Finally in Precinct 3 Mr Smith recognises the following merit issues:
(i) the provision of single garages in 8 dwellings is questionable when there does not appear to be the capacity to park another vehicle clear of the common accessway close to them;
(ii) no information is provided about how the courtyards are to be enclosed; and
(iii) the desirability of using accessways of 4.5 metres wide for moving and parked vehicles and pedestrians is questionable.
56. In addition to the above merit issues, Mr Smith identified some problems with a number of dwellings within each Precinct, particularly on the issue of solar access.
57. In Precinct 1 there is a retaining wall up to 1500 metres in height between dwellings 52-57 and dwellings 58-63, with a fence 1.8 metres high. This will cause considerable overshadowing on the rear courtyards of dwellings 58-63. The dwellings 9-14 and 42-56 have courtyards which would receive virtually no sunshine between 9 am and 3 pm at midwinter and apart from dwellings 10, 14, 53 and 55 those houses would receive no sunlight on any living room window. Those four dwellings would receive sunlight on a “living room”.
58. Turning to Precinct 2 dwellings 14-16 would receive no sunlight at midwinter to any living room window and they would receive limited sun on their yards. Dwellings 28-33 would receive no sun on their rear courtyards at midwinter but would receive sunlight on their lounge room windows. In addition there is a long retaining wall across the rears of dwellings 28-34 which will be up to 2 metres high.
59. In Precinct 3 dwellings 21, 22 and 23 would receive very little sun on their rear courtyards due to shadows from the 3 metre high wall along their rear boundaries. They would receive no sunlight on their living room windows. In regard to dwellings 12-17 these houses may receive a little sunlight on their rear yards in the morning but this is questionable. Another problem identified by Mr Smith in Precinct 3 concerns dwellings 21-24: their family room windows would be 3 metres from a retaining wall and fence having a combined height of over 3 metres.
Mr Ingham
60. In response to Mr Smith’s criticisms, particularly those related to solar access, Mr Ingham states that in a development the size of the Dalmar site “it is not rational to believe that every dwelling can face a direction where sun will stream into the house at mid-winter. Mr Ingham’s responses to each of the points raised by Mr Smith are outlined below.
61. Precinct 1 - Mr Ingham states that Mr Smith’s observations regarding the retaining wall between dwellings 52-57 and dwellings 58-63 is correct. However, there is likely to be a garden area located within the lower dwellings thus creating a stepping effect between the lower dwellings and the higher dwellings. Mr Ingham states that the total effect of this will remove Mr Smith’s concerns about the combined height of the retaining wall and fence.
62. With respect to dwellings 9-14 and dwellings 42-56 Mr Ingham states that Mr Smith’s assertions regarding solar access are wrong. According to Mr Ingham at 12 noon sun would penetrate into about half of the courtyard area of those dwellings and at 3 pm there would be no restriction on sun entering the courtyards of these dwellings. Mr Ingham indicates that each of the dwellings have a front yard which may be used “for entertaining sunlight in mid-winter” and he further states that “it is normal social behaviour that people don’t sit outside to any great extent in the middle of winter”.
63. In relation to dwellings 42-50 Mr Ingham states that their courtyards face north with the only overshadowing being created by the rear retaining wall, fence and vegetation on the adjoining cemetery property. These houses have living rooms facing north-east and according to Mr Ingham will receive sunlight through the vegetation during mid-winter.
64. In regard to dwellings 51-56 Mr Ingham asserts that they all receive sunshine in their rear courtyards from 12 noon and have constant sunlight tthroughout the day in their front yard.
65. Precinct 2 - According to Mr Ingham the retaining wall at the rear of dwellings 28-34 is on land “sloping from south towards the north so that the retaining wall will not impact upon the properties of the south” as asserted by Mr Smith.
66. Mr Ingham concedes that dwellings 14-16 do not receive sunlight in mid-winter to any living room window but states that “not every owner of a dwelling seeks sunlight throughout the year”. He adds that if people do seek sunlight during winter there is a common open family space to the rear of the properties which is exposed to sunlight.
67. Precinct 3 - In so far as dwellings 21-23 are concerned Mr Ingham states that they will receive sunlight on their rear courtyards in the afternoon and the 3 metre high wall will not create any adverse sun impact due to the topography of the sites. These dwellings will receive sunlight from 12 noon to 2 pm in their family rooms.
68. Conclusions
Having considered the evidence of Mr Smith and Mr Ingham and having examined myself the development application drawings, including the shadow diagrams, I am satisfied that the proposed development retains the following unsatisfactory features:
Precinct 1
There will be no sunlight on the living room windows of houses 9, 11-14, 52, 54, and 56-57. The courtyards of houses 58-63 will be largely overshadowed.
Precinct 2
There will be no sunlight in mid-winter on living room windows in houses 14-16. The courtyards of houses 28-33 will have no sunlight in mid-winter.
Precinct 3
I am not entirely confident, having carefully examined the shadow diagrams, that the windows to the family rooms in houses 21-23 will receive 2 hours of sunlight in mid-winter as asserted by Mr Ingham. The courtyards to houses 12-17 will have no sunlight in mid-winter. The courtyards to houses 21-23 will have very little sunlight in mid-winter. I include as an unsatisfactory feature in this precinct the 3 metre high wall at the rear of the courtyards to houses 21-24.
69. These unsatisfactory features must be compared with the conventional standard of a minimum of 2 hours of sunshine on living area windows between the hours of 9 am and 3 pm in mid-winter. This is a “green fields” development with no particular physical constraint on the layout of the development or on the design of the proposed houses. In short, I accept the validity of the criticisms of Mr Smith relating to poor or non-existent solar access to the houses and the courtyards to those houses which he identifies. It would not, I think, be beyond the ability of competent architects to design a development which is able to overcome the shortcomings which Mr Smith has identified, particularly on a “green fields” site such as this.
70. I also agree with Mr Smith’s observation that it is not acceptable to design a housing project which lacks adequate solar access. Whilst it is possible that there may be some people who do not wish to have direct sunlight on their living room windows or to their courtyards, such people could readily erect awnings and the like to suit their needs. The reverse, however, would not apply if there is no solar access to start with.
71. These conclusions mean that there must inevitably be some redesign. This may involve redesigning those parts of the development to which these criticisms relate, or merely redesigning the houses to be erected thereon. In any event, it is apparent that this proposed development cannot be approved. Any redesign should first be submitted to and considered by the respondent.
Traffic
72. There are three unresolved issues relating to traffic. The first relates to objections by local residents of surrounding streets to increased traffic on those streets, particularly in Mulyan Avenue, Dalmar Crescent and Freeman Place. The traffic engineer who gave evidence for the respondent, Mr C E Hallam, states however that the increased traffic on those streets will be acceptable:
“The additional traffic would not result in any environmental capacity thresholds being exceeded.
At the ends of these cul de sacs the additional traffic would be noticed by current residents, who possibly bought their properties on the expectation that they would remain quiet cul de sacs.
Further from the site, the traffic impacts would become more diluted.
On traffic planning criteria, this impact on residential amenity would not be a reason for the refusal of consent.”
73. Similarly the traffic engineer who gave evidence for the applicant, Mr M B Colston, is of the opinion that the impacts on the existing roads are reasonable and well below the environmental goal for local roads.
74. A subsidiary issue raised by some local residents relates to the use of part of Grimes Lane for vehicular access to houses 3-7 in Precinct 1. As to this Mr Hallam (with whose views Mr Colston concurred) states:
”Apart from the need to prevent direct access to Marsden Road, I see no reason why the five dwellings should not have rear access to this lane.”
I have no reason to reject these opinions of Mr Hallam and of Mr Colston.
75. The second issue relates to roads 7 an 8 in Precinct 2. No turning areas are proposed at the end of those roads, so that service vehicles would have to reverse along them. In particular the reversing distance along road 8 would be up to 100 metres. According to Mr Hallam, the driver would be reversing down a very narrow carriageway, where there are no footpaths with narrow verges. There would be the potential for an accident with pedestrians or with cars leaving driveways. Mr Hallam further states:
“Should the development be approved, I recommend that road 7 be joined to road 8 and that a continuous carriageway width of 5.0 metres be provided. This would resolve the reversing issue and provide for on-street visitor parking. Substantial changes to the layout would be required, possibly reducing the number of dwellings.”
76. The applicant sought to resolve this problem during the hearing by incorporating a turning area in road 8 adjacent to house 18. In my view, however, it is likely that the turning area will be utilised in practice for the parking of visitors’ vehicles. I am not confident that the turning area will thus be available for use by large service vehicles. The solution suggested by Mr Hallam of providing a connection between roads 7 and 8 should be employed. As noted by Mr Hallam, this would involve changing the layout, including possibly reducing the number of dwellings by 1 or 2.
77. The third issue relates to the need for traffic signals at the intersection of Marsden Road and Mobbs Lane. Both of the traffic engineers who gave evidence agree that there is a present need for traffic signals at that intersection. The present need does not arise as a result of the proposed development. Nevertheless, the respondent seeks a monetary contribution from the applicant to meet the whole of the cost of the installation of traffic lights at that intersection on the basis that the additional traffic to be generated by the development will impose a threshold change.
78. It does not seem reasonable to me, however, to require the applicant to pay the full cost of the installation of traffic signals at the intersection. Traffic signals are needed at the intersection at the present time, absent the proposed development. In these circumstances it is appropriate that the applicant pay only a proportion of the cost, related to the proportion of traffic making use of the intersection which will be generated by the development. This is in the order of 10% of the total traffic flow and thus a contribution should be in the order of 10% of the cost of the installation of traffic signals at that intersection.
79. Finally, I note that agreement was generally reached by Mr Hallam and Mr Colston on the width of the roads within the development and the number of parking spaces provided for residents and visitors, thus satisfying the criticisms of Mr Smith in this respect.
The subdivision
80. Mr Smith states that the proposed subdivision of Lot 1 DP739215 is not appropriate. He accepts that the subdivision entails no works so that, of itself, it would not affect the character of the site. The real impact of the proposed subdivision is it implied that the two lots to be created would pass into different ownerships. According to Mr Smith, the integrity of the Dalmar Children’s Home site - a listed heritage item of regional significance - would be, at the least, eroded, although he defers to the opinion of Mr Moore on this question.
81. In Mr Smith’s opinion, the existing buildings on the proposed lot 12, together with the trees around them, constitute part of the visual character of the site and the locality. According to Mr Smith the problem is that once the first step of subdivision is taken, it could be exceedingly difficult, if not impossible, to halt the process that is thus commenced, leading to the partial destruction of an item of heritage significance. In Mr Smith’s view it would be desirable to ensure that the totality of what might be considered to be the “minimum desirable heritage curtilage” of the Dalmar Children’s Home be retained in the same ownership. The issue is not so much one of whether or not the land should be subdivided but one of whether or not the line of subdivision is appropriate.
82. The concerns of Mr Smith, however, can be met by the creation of a positive covenant over the proposed Lot 12 preventing the erection of any structure on or the use of any land lying within 35 metres of the centre of the circular driveway in front of the main Dalmar building. That would ensure that there will be in place a “minimum desirable heritage curtilage” to the main Dalmar building and its circular driveway. I have previously concluded, in the discussion under the heritage issue, that the existing buildings within the proposed Lot 12 are not of such significance that they must be retained. It follows that the proposed subdivision may be approved, subject to appropriate conditions.
Orders
83. For the abovementioned reasons I make the following orders.
10511 of 1998
1. Appeal allowed.
2. Development consent is granted for the subdivision of Lot 1 in DP 739215 into two lots in accordance with drawing No DA/8679DA (A3) dated 18 March 1998 prepared by Asher McNeill Niall, subject to the following conditions:
1. The creation of easements for drainage over:-
(a) Lot 5, DP739213 and
(b) Proposed Lot 12 of the subdivision of Lot 1, DP 7138215
in favour of proposed Lot 11 of the subdivision of Lot 1, DP 739215, at least 1.8 metres wide, adjacent to the boundaries of Lot 2, DP 739213 (Sunny Brook) for the purpose of conducting stormwater in pipes and by over land flow from Proposed Lot 11 to Freeman Place and Cottee Drive respectively.
2. The creation of a positive covenant over Proposed Lot 12 - binding in perpetuity or alternatively in the event that a Community Plan of Subdivision is approved, the Community Management Statement is to include a By-Law preventing the erection of any structure on or the use (other than for grassed lawn and landscaping approved by Councl) of, any land lying within 35 metres of the centre of the circular driveway in front of the main building of the Dalmar Children’s Home.
3. Section 94 contribution for open space recreation and community facilities payable on the basis of $5834 per additional created lot. The contribution shall be paid prior to the release of the Linen Plans of Subdivision.
10512 of 1998
Appeal dismissed.10513 of 1998
Appeal dismissed.10514 of 1998
Appeal dismissed.The exhibits, other than Exhibit “A”, may be returned.
AssociateI certify that this and the preceding 34 pages are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.
Dated: 4.3.99
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