O'Neill v Greater Taree City Council
[2012] NSWLEC 1206
•10 July 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: O'Neill v Greater Taree City Council [2012] NSWLEC 1206 Hearing dates: 9 July 2012 Decision date: 10 July 2012 Jurisdiction: Class 1 Before: Brown ASC Decision: 1. The appeal is upheld.
2. DA No. 85/2012/DA for alterations and additions to an existing dwelling at 343 Saltwater Road, Wallabi Point is approved subject to the conditions in Annexure A.
3. The exhibits are returned with the exception of exhibits 1, 6 and A.
Catchwords: DEVELOPMENT APPLICATION; alterations and additions to an existing dwelling for a garage and pergola - non compliance with side setback - impact on streetscape - bulk/scale - loss of daylight Legislation Cited: Environmental Planning and Assessment Act 1979
Greater Taree Local Environmental Plan 2010.
Land and Environment Court Act 1979Category: Principal judgment Parties: Chris O'Neill (Applicant)
Greater Taree City Council (Respondent)Representation: Ms L-M Saw, barrister (Applicant)
Mr S Seton, solicitor (Respondent)
- (Applicant)
Marsdens Law Group (Respondent)
File Number(s): 10336 of 2012
Judgment
ACTING SENIOR COMMISSIONER: This is an appeal against the refusal by Greater Taree City Council (the council) of DA No. 85/2012/DA for alterations and additions to an existing dwelling at 343 Saltwater Road, Wallabi Point (the site).
The alterations and additions involve;
1. the construction of a garage measuring 3.25 m by 3.35 m, within the northern side setback, and,
2. the construction of a pergola roof in the rear yard, measuring 4.8 m by 5.39 m.
The contentions raised by the council relate only to the proposed garage and relate to;
1. the breach of the 900 mm side setback requirement
2. the impact on the established streetscape by the breach of the side setback requirement.
3. the unacceptable bulk and scale on the amenity of the adjoining residential property at 341 Saltwater Road.
4. the undesirable precedent.
The appeal was subject to mandatory conciliation and arbitration under s 34AA of the Land and Environment Court Act 1979. As no agreement was reached the conciliation conference was terminated pursuant to s 34AA(2)(b) and the proceedings dealt with forthwith pursuant to 34AA(2)(b)(i) and on the basis of what occurred at the conciliation conference pursuant to s 34AA(2)(b)(ii).
Relevant planning instruments
The site is located within Zone R1 General Residential under Greater Taree Local Environmental Plan 2010. The proposed development is permissible in this zone.
Greater Taree Development Control Plan 2010 (DCP 2010) applies. Part H3.2, provides requirements for building setbacks, including side setbacks. The relevant objectives of this part are;
Integrate new dwellings, alterations and additions within the established streetscape character through consistency in street boundary setbacks;
Ensure that new dwellings, dwelling alterations and additions and associated larger structures (that is garages and sheds) are set back from side and rear boundaries, minimise the bulk scale and amenity impacts on adjoining properties.
The relevant performance criteria of this part are;
3. Side and rear setbacks are to be a minimum of 900 mm for single. storey development.
.
5. Where site conditions warrant and provided that there is no unreasonable adverse impacts on the privacy or solar access of adjoining properties and is consistent with the existing streetscape of the locality, council may allow side or rear walls without windows to be built to the boundary (zero lot line).
6. Projections permitted into setback areas include: eaves, sunhoods and vertical sun screens, gutters, downpipes, flues, light fittings, electricity or gas meters and aerials. These can project 450 mm (where the setback is 900 mm) or to the boundary whichever is less.
The proposal
Following the submission of further survey data, the application was amended to indicate more accurate setbacks from the side boundary. The front of the proposed garage is setback 1.8 m from the existing garage, 481 mm from the side boundary at the front of the proposed garage and 279 mm from the side boundary at the rear of the of the proposed garage.
The existing side setbacks of the dwelling are 3.231 m and 3.029 m at the location of the proposed garage.
The evidence
Expert town planning evidence was provided by Mr Kerry Nash for the applicant and Mr Drew Roberts for the council. Evidence was also provided by the owner of the adjoining property who opposed the application because of,
1. non-compliance with the 900 mm side setback,
2. loss of sunlight,
3. loss of privacy, and
4. loss of value to his property.
The contentions
The expert evidence
Mr Roberts states that while pt H3.2 of DCP 2010 contemplates a nil setback for walls without windows, it is qualified by reference to site conditions; being no adverse privacy or solar access impacts, and there being no inconsistency with the existing streetscape. In his opinion. there are no circumstances in this case that warrant the departure from the 900 mm setback based on the performance criteria in pt H3.2 of DCP 2010.
In terms of streetscape, Mr Roberts states that the prevailing pattern of 900 mm side setbacks along Saltwater Road, in the vicinity of the site, will be unacceptably interrupted because of the proposed encroachment. In his opinion, and even taking into account the wide road reserve in front of the site, the reduced side setback will be inconsistent with the existing residential development in the area and will be noticeable.
Mr Nash takes a different view. He states that DCP 2010 clearly contemplates the potential for a nil side setback through the specific controls for zero lot lines in part H3.2. In terms of the specific criteria that allow zero setbacks to be utilised, Mr Nash states that the proposed garage creates no solar access issues; being located to the south of the adjoining residential development, has no windows to impact on privacy, is located 1.8 m behind the existing dwelling setback and consequently has no streetscape or visual bulk issues.
When considered in the context of existing development in the vicinity of the site, Mr Nash notes that there is a considerable variety in the orientation of dwellings to the street, dwelling form and street setbacks. The proposed 1.8 m setback from the existing alignment of the dwelling, together with the proposed roof form, will complement the existing dwelling and will not have any adverse visual impacts when viewed from the public domain.
Findings
With a benefit of the site inspection I am satisfied that the proposed garage is acceptable for a number of reasons, but with some minor modifications.
First, I accept that DCP 2010 does not necessarily impose strict compliance with the 900 mm side setback, given the specific provisions relating to zero lot lines and encroachments or projections as identified in pt H3.2 of DCP 2010, although I accept that that zero lot line provisions are less relevant in this case, than the encroachment provisions.
Second, and given the reasonable approach of Mr Roberts who limited his concerns on streetscape to the setback that can be viewed from the street (and not the setback at the rear of the proposed garage), I do not accept that the setback of 481 mms is unacceptable when considered in the context of the streetscape of the area. While Mr Nash accepted that the side setbacks in the area comprised almost exclusively of 900 mm or more, I am not convinced that the proposed encroachment disrupts the streetscape to any significant or meaningful degree. Streetscape is made up of a number of factors, particularly building design, front setback and landscaping. In this case these factors are unchanged with the proposed application.
I agree with Mr Nash that the proposed garage has been designed to minimise any impact on streetscape through the pitched roof that integrates with the existing roof form, a setback of 1.8 m from the existing front setback of the dwellings and the use of an identical garage door to the existing garage door on the dwelling.
I have little trouble in concluding that any person, without a specific knowledge of the site, would be unlikely to notice the reduced side setback, given the form of the garage and the other building elements that are consistent with the other building elements in the area.
I am also mindful that DCP 2010 provides the opportunity for encroachments into the 900 mm setback by up to 450 mms, and while the exemptions are relevantly limited to eaves, I am satisfied that the proposed garage provides a better urban design and streetscape solution than a carport structure with security gates that would potentially be allowable under part H3.2 of DCP 2010.
For these reasons the proposed garage satisfies the relevant objectives in part H3.2 of DCP 2010.
Third, I am satisfied that the southern wall of the proposed garage adjoining 341 Saltwater Road creates an unacceptable impact due to its proximity to this property although this is not fatal to the application. The wall adjoins the en suite window of the main bedroom and part of the window for the second bedroom, and while there was agreement that there are no direct solar access impacts, these windows are south-facing and already have limited access to sunlight. I see no reason why this already limited access to sunlight should be exacerbated.
The deletion of the wall and the rear door was discussed at the hearing and while it was not the applicant's preferred position, it was an amendment that was considered acceptable to the applicant and can be imposed by way of a condition. In my view the removal of the wall will be beneficial for the adjoining property as it will provide greater access to daylight, remove the potential problems of maintenance because of the reduced setback, and remove the bulk of the garage when viewed from the adjoining windows.
Fourth, and on the question of precedent, and accepting that precedent can be a valid planning consideration, I do not accept that it is a matter that could lead to the refusal of the application. Matters such as encroachment into setbacks must be considered on their individual merits and given the specific characteristics of this case and the opportunities available in DCP 2010 for amendments to the specific side setbacks; I do not accept that the proposed encroachment provides any precedential value.
Orders
The orders of the Court are:
1. The appeal is upheld.
2. DA No. 85/2012/DA for alterations and additions to an existing dwelling at 343 Saltwater Road, Wallabi Point is approved subject to the conditions in Annexure A.
3. The exhibits are returned with the exception of exhibits 1, 6 and A.
___________
G T Brown
Acting Senior Commissioner
Decision last updated: 30 July 2012
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