O'Neill v Kempsey Shire Council

[2005] NSWLEC 158

Land and Environment Court

of New South Wales

CITATION:

O'Neill v Kempsey Shire Council [2005] NSWLEC 158

PARTIES:

Applicant:
Raymond O'neill

Respondent:
Kempsey Shire Council

FILE NUMBER(S):

11657 of 2004

CORAM:

Roseth SC

KEY ISSUES:

Development Application - Dual Occupancy :-

DATES OF HEARING:

07/04/2005 and 08/04/2005

EX TEMPORE JUDGMENT DATE:

04/08/2005

LEGAL REPRESENTATIVES:

Applicant:
Mr V Conomos, solicitor of Pike Pike & Fenwick

Respondent:
Mr G Underwood, barrister instructed by Ms N Doney of Howard Sheridan Cooney Harvey

JUDGMENT:

- 7 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

8 April 2005

11657 of 2004 Raymond O’Neill v Kempsey Shire Council

JUDGMENT

1 Senior Commissioner: This is an appeal against the refusal by Kempsey Shire Council (the council) of a development application to erect two detached dual occupancy dwellings on lot 2 DP 622642, known as 75 Gregory Street, South West Rocks.

The site

2 The vacant site has an area of 611m2 and a frontage of 17m to a 3m-wide access road off Gregory Street. To the rear is a public reserve. The site falls 5m from front to rear. To the north the site adjoins a property with a small single-storey house. To the south is a development called Chaminoix Village. Two of the units in the village share a common boundary with the site. On the other side of Gregory Street is the South West Rocks Public School.

The proposal and its history

3 The applicant proposes to erect two detached dual occupancy dwellings on the site. Vehicular access is along the southern boundary, with a 700mm landscaped strip separating the driveway from the fence line. Each dwelling has a single garage. A visitor’s parking space is provided in the 5m front setback.

4 The applicant lodged the development application in January 2003. The council referred the application to the Local Traffic Committee, which expressed concerns about internal manoeuvring arrangements. The applicant submitted amended drawings in November and December 2003 and in February 2004. Following notification of the amended plans, the council received six objections. In March 2004 the council did not accept the recommendation of its planning staff and refused the application. The applicant lodged the appeal in December 2004.

Relevant planning controls

5 Kempsey Local Environmental Plan 1987 (the LEP) zones this site Residential 2a. The zone permits dual occupancies with consent. Development Control Plan 22 – Local Housing Strategy (DCP 22) sets out standards for residential development. Development Control Plan 24 – Access and Mobility, Development Control Plan 31 – Energy-smart Homes, and the Kempsey Shire Parking Code are also relevant to the application.

The issues

6 The council submitted a Statement of Issues containing eleven issues. However, at the beginning of the hearing the council’s planning expert, Ms M Chapman, re-stated the issues that remained in relation to the amended plans. The issues were:

· Exit from Garage 2 is not possible in one movement.

· Entry into Garage 1 is not possible in one movement.

· The setback of the driveway from the boundary is 700mm, rather than 1m as required by DCP 22.

· The visitor’s parking space intrudes into the 5m front setback. DCP 22 requires parking to be behind the 5m line.

· The deck of Unit 1 overlooks the property adjoining to the north.

· The solar access to Unit 2 is inadequate.

· Unit 2 is set back 1m from the side boundary, not an average of 1.8m, as required by DCP 22. As a consequence Unit 2 overshadows the private open space of the adjoining property to the south.

Movement in and out of garages

7 The Court heard the evidence of Mr R Varga, a traffic engineer retained by the applicant. In Mr Varga’s view the exit out of Garage 2 as well as the entry into Garage 1 could be accomplished in one movement. Mr Varga relied on widths for parking bay and apron suggested in Australian Standards AS2890.1. Ms Chapman disagreed. She relied on the imposition of turning templates on the plans. The applicant submitted a report by a second traffic engineer, Mr G Pindar, that suggested that the entry into Garage 1 could be accomplished in one movement, but the exit out of Garage 2 required multiple manoeuvring. Mr Pindar was not available for cross-examination.

8 Mr Varga said that the templates that Ms Chapman applied were not intended for domestic parking arrangements where the residents are familiar with the layout and drive slowly. I accept his evidence in respect of Garage 1. However, it appears that the door of Garage 1 can be widened to 3m without any difficulty. Given that the arrangement is tight enough to require the opinion of two traffic engineers, the widening of the garage door to 3m would be beneficial, so that less competent drivers can also enter in one movement.

9 In respect of Garage 2, Mr Pindar’s opinion was closer to Ms Chapman’s than Mr Varga’s, so it appears that here the arrangement is even tighter than for Garage 1. In my opinion, the number of manoeuvres required to exit from Garage 2 will depend on the skill of the driver, and only the most skilful will be able to exit in one movement if they drive a large car. However, less competent drivers may compensate by driving a smaller car, which is easier to manoeuvre. While I accept that the arrangement is marginal, it is acceptable.

Driveway setback

10 DCP 22 requires driveways to be set back from side boundaries by 1m. The application shows a setback of 700mm. However, Mr Varga suggested that this could be increased to 1m for all but the first 6m of the driveway (see Figure 1 Exhibit L). If the application is amended in accordance with Mr Varga’s suggestion, in my opinion the issue is resolved.

Visitor’s parking space in front setback

11 The visitor’s parking space is located within the 5m front setback. Ms Chapman pointed out that this contravened the requirement that all parking should be behind the 5m-setback line. Mr Betros justified the location of the parking space in the front by the presence of an existing tree and by the proposed provision of landscaping.

12 It appears that there is no other possible location for the visitor’s parking space, not only with this proposal, but also with any dual occupancy proposal. It is therefore a matter of either accepting the arrangement or refusing the application. In my opinion, the location of visitor parking in the front setback is an indication of how tight this proposal is on its site; however, its impact is not so adverse to the streetscape that it would justify refusal.

Overlooking of northern neighbour from deck of Unit 1

13 In Ms Chapman’s opinion, the overlooking is a result of the elevation of the deck of Unit 1 above natural ground line and its proximity from the northern boundary, which is only 1m. In Mr Betros’s view, the overlooking of the neighbour’s rear yard would be at an acute angle and is therefore reasonable.

14 In my opinion, the level and location of the deck is insensitive in relation to the northern neighbour. There is no reason to build the floor level of Unit 1 so high above the ground, other than the applicant’s apparent desire to use pier and suspended timber floor construction. In my opinion, the level of the deck should be lowered to RL 9.5m, and the floor level of Unit 1 to RL 9.65m.

Solar access to Unit 2

15 According to Ms Chapman, the living area of Unit 2 should have a north-facing window. This would require a drastic re-design of the floor plan, since two bedrooms, rather than the living area, are located along the northern wall of the dwelling. Mr Betros pointed out that the Family Room has an opening facing to the northwest, and the deck of Unit 2 faces towards the north.

16 In my opinion, Ms Chapman’s suggestion has some merit for Unit 2; however, it could also lead to problems in the future if the adjoining site is redeveloped. This is because a north-facing window to a living area only 1m from a side boundary is in a vulnerable position. To retain solar access to it would be a serious constraint on the redevelopment of the adjoining site.

17 In the circumstances I find that the solar access to Unit 2 is reasonable, though not excellent.

Setback of Unit 2 from side boundaries

18 Unit 2 is set back 1m from the side boundary. DCP 22 requires an average setback of 1.8m. Ms Chapman interpreted the requirement as applying to each dwelling, while Mr Betros interpreted it as applying to both dwellings. Since Unit 1 is set back a considerable distance from the southern boundary, if Mr Betros’ method is applied, the average setback is more than 1.8m. However, I can see no justification for Mr Betros’ interpretation other than that it suits the applicant’s case. The only planning purpose I can think of for the “averaging” requirement is that it allows a side wall to be articulated, ie have sections closer than 1.8m and other sections further than 1.8m. I note that Mr Betros told the Court that the council’s planning staff relied on the same interpretation as he did. If that is the case, the council’s interpretation is inconsistent with a purpose-related reading of DCP 22. In my opinion, Unit 2 does not comply with the setback requirements of DCP 22.

19 In Ms Chapman’s opinion, the consequence of the reduced setback is that the open space of the adjoining property is overshadowed. Lowering the floor level of Unit 2 by 1m, to RL 7.9m, would reduce the impact. In my opinion, this should be required for several reasons, including the improved appearance of the building and the general design principle that on sloping sites it is desirable to build in sympathy with the topography.

Conclusions

20 While the area of the subject site is large enough to satisfy the density requirements of DCP 22, the dispute about vehicle movements, the inability to locate the visitor’s parking space behind the building line and the difficulty in providing a 1m landscaped strip along the driveway suggest that the proposal’s fit into the site is very tight. I do not think that in its current form the proposal is acceptable; however, the changes suggested above would bring it above the borderline.

21 The required amendments are:

· Lower the floor level of Unit 1 to RL 9.65m and the deck level to RL 9.50m.

· Lower the floor level of Unit 2 to RL 7.9 with a corresponding lowering of the eaves and ridge.

· Increase the width of the opening of Garage 1 to 3m.

· Increase the width of the landscaping strip along the southern boundary to 1m, except for the first 6m from the front boundary.

22

The drawings submitted with the application do not reach the standard that the Court expects or accepts. They do not adequately describe the application. Given that this judgment suggests amendments, the best course of action is to impose a deferred commencement condition that requires the applicant to submit more adequate drawings incorporating the required changes.

23 Since the parties agreed with the above course of action and provided the Court with agreed conditions, the appeal is upheld and the application approved subject to those conditions.

Orders

1. The appeal is upheld.

2. Development application to erect two detached dual occupancy dwellings on lot 2 DP 622642, known as 75 Gregory Street, South West Rocks is determined by the granting of consent subject to the conditions in Annexure A.

3. The exhibits are returned except Exhibits A and L.

__________________
Dr John Roseth
Senior Commissioner