Moderinn v Blacktown City Council

[2006] NSWLEC 101

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:      Moderinn  v Blacktown City Council [2006]  NSWLEC 101

PARTIES:
APPLICANT
Moderinn Group Pty Limited

RESPONDENT
Blacktown City Council

CASE NUMBER:      10411 of       2005

CATCH WORDS:     Development Application

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Blacktown Local Environmental Plan 1988

CORAM:       Brown C

DATES OF HEARING:        23/01/06, 02/03/06

DECISION DATE:     03/03/2006

LEGAL REPRESENTATIVES

APPLICANT
Mr C Gough, solicitor
SOLICITORS
Storey and Gough

RESPONDENT
Mr S Simmington, solicitor
SOLICITORS
Lindsay Taylor Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

2 March 2006

10411 of 2005     Moderinn Group Pty Limited v Blacktown City Council

JUDGMENT

1. COMMISSIONER: This is an appeal against the deemed refusal of DA-05-447 for the demolition of two existing brick buildings and the construction of 20 dwellings at 175 Flushcombe Rd, Blacktown.

1. The matter was heard as an On Site Hearing on 23 January 2006 although the proceedings were adjourned to allow the applicant to prepare amended plans.  The amended plans were filed on 7 February 2006 and the parties took part in a Telephone Mention on 9 February 2006 to address the amended plans. 

   The site

2. The site is Lot V in DP 4115618 and was formerly used as part of a Survey Office for Sydney Water.  It is irregular in shape with the main part of the lot generally square with an access handle to Flushcombe Rd and a street frontage to Swinson Street.  The total site area is 6348 square metres.

1. The site contains a number of brick buildings and associated outbuildings used in conjunction with its former use.  No significant trees exist on the site

1. The general area consists predominantly of low scale residential development with a school in the immediate vicinity and a group of four townhouses adjoining the site in Swinson Street.

   The proposal

2. The proposal involves the demolition of all the existing improvements and the construction of a medium density housing development comprising 20 dwellings.  The proposed dwellings consist of two x 2 storey 4 bedroom dwellings, six x single storey three bedroom dwellings and 12 x single storey four bedroom dwellings.

1. Access to the development is obtained from Swinson Street.

   Relevant planning controls

2. The site is zoned 2(a) Residential under Blacktown Local Environmental Plan 1988. The proposed development is permissible within this zone.

1. Blacktown Development Control Plan 1992 (DCP 1992) also applies. Clause 6.7 provides requirements for solar access. 

   The issues

2. The council filed an Amended Statement of Issues containing three issues.  The setbacks of the proposed dwellings (Issue 2) and the waste collection facilities (Issue 3) were addressed with further amendments and were accepted by the council.  The remaining issue is whether Units 1 and 2 have an unacceptable overshadowing impact on the dwelling at 177 Flushcombe Rd.

1. While not raised as an issue by the council, residents of Benaud St raised concerns over the additional traffic generated by the proposed development particularly considering the location near a school.

   The evidence

2. Mr Glenn Apps a town planner employed by the council provided evidence for the council and Mr Barry Cotton a town planner provided evidence for the applicant.

1. Local residents Mr and Mrs Gorman of 177 Flushcombe Rd, Mrs Goldsmith of 1 Benaud St and Mr Beck of 7 Benaud St also provided evidence on site.

   Solar access

2. Clause 6.7 of DCP 1992 provides that the "building design and site layout should ensure adequate sunlight access to internal living spaces of the proposed and adjoining developments".

1. There was agreement that adequate solar access was provided to the private open space area of the dwelling of Mr and Mrs Gorman.  The overshadowing impact was restricted to the dwelling on this property.  Units 1 and 2 are located directly to the north and overshadow the adjoining dwelling.  There is one window located in the northern elevation that provides direct solar access to the dining area and indirectly to the kitchen and lounge room.  There was no dispute that the proposed building would deny all solar access a midwinter to the dining-room window.  A laundry window is also located in this elevation however this would not be classified as an "internal living space" under DCP 1992.

1. The applicant offered to provide a skylight for the Gorman dwelling however this was, in my view, appropriately rejected.

1. The amended plans to seek to address the lack of solar access to the Gorman dwelling by reducing the overall height of Units 1 and 2.  While total solar access is not totally retained to this window the overshadowing impact of the proposed dwelling is limited to around 9.00 am with no impact from 10.00 am onwards.  In my view, this is consistent with the requirements in DCP 1992.  This was a conclusion accepted by Mr Apps.

   Traffic/parking

2. The additional traffic and on-street parking was an issue raised by Mrs Goldsmith and Mr Beck, particularly considering the proximity to a school. 

1. In addressing this issue the Court had the benefit of aTraffic and Parking Assessment prepared by Mr Craig Hazell, a traffic consultant.  The report indicated that the total traffic generation for the development is approximately 12 vehicle trips in peak hour.  In Mr Hazell’s opinion, this is likely to be considerably less than the previous Sydney Water use of the site.  The estimated additional traffic generation will not affect the efficiency of any nearby traffic intersections and is within the suggested desirable Environmental Capacity of the local streets.  On this basis there is no traffic grounds to support the refusal of the development application.

1. I also note that the proposed development satisfies the council requirements for off street parking, including visitor parking.

   Orders

2. For the foregoing reasons, the Orders of the Court are:

   1) The appeal is upheld.

   2) DA-05-447 for the demolition of two existing brick buildings and the construction of 20 dwellings at 175 Flushcombe Rd, Blacktown is approved subject to the conditions in Annexure A.

   3) The exhibits are returned with the exception of exhibits 2 and A.

   _____________

   G T Brown
   Commissioner of the Court