Opidian Homes Pty Ltd v Willoughby City Council

[2005] NSWLEC 396

Land and Environment Court

of New South Wales

CITATION:

Opidian Homes Pty Ltd v Willoughby City Council [2005] NSWLEC 396

PARTIES:

APPLICANT
Opidian Homes Pty Ltd

RESPONDENT
Willoughby City Council

FILE NUMBER(S):

10171 of 2005

CORAM:

Bly C

KEY ISSUES:

Development Application :- Demolition of existing dwelling house - erection of two storey dwelling house - streetscape and character - setbacks - bulk and scale - overlooking - loss of privacy - overshadowing

LEGISLATION CITED:

Willoughby Local Environmental Plan 1995
Willoughby Development Control Plan No. 16 - Dwelling Houses in Residential Areas
Willoughby Development Control Plan No. 30 - Sustainable Development - Single Dwellings

DATES OF HEARING:

01/06/2005

 
DATE OF JUDGMENT: 

07/26/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr S Kondilios, solicitor
SOLICITORS
Maddocks

RESPONDENT
Ms H Irish, barrister
SOLICITORS
Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

26 July 2005

10171 of 2005 Opidian Homes Pty Ltd v
Willoughby City Council

JUDGMENT

The appeal

1 This appeal relates to Development Application No. 2004/203 which is for the demolition of an existing dwelling house and the erection of a new detached dwelling house at 24 Kooba Avenue, Chatswood (“the site”).

The proposal

2 The proposed 284 sq m two storey dwelling house is somewhat unusual in this locality because the principal outdoor living areas including a swimming pool are to be located in the front yard, being setback 10.5 m from Kooba Avenue and about 1 m from Greville Street. The house itself is setback about 17.5 m from Kooba Avenue and 3.0/2.1 m from Greville Street. The first floor element of the house is setback about 25 m. By comparison the existing house is setback about 12 m from Kooba Avenue essentially on the same building line as the house to the east at No. 22 Kooba Avenue (“No. 22”).

The site and the locality

3 The site is situated at the southeast corner of Greville Street. It has an area of approximately 697 sq m, a frontage to Kooba Avenue of about 15 m and a frontage to Greville Street of about 46 m. It has a fall of about 1.5 m in a north westerly direction.

4 The locality comprises a mixture of one and two storey dwelling houses in landscaped gardens. There are numerous canopy trees in the area. The adjoining No. 22 is developed with a single storey detached dwelling. To the south the site adjoins an existing access way between No. 22 and Greville Street.

5 The site is zoned Residential A under Willoughby Local Environmental Plan 1995 ("the LEP") and in this zone the proposal is permissible with development consent. Also applicable are:

• Willoughby Development Control Plan No. 16 - Dwelling Houses in Residential Areas ("DCP 16").
• Willoughby Development Control Plan No. 30 - Sustainable Development -- Single Dwellings ("DCP 30").

Advertising and council's decision

6 The application was advertised and seven letters of objection were received from residents in Kooba Avenue and Greville Street and nearby Kareela Road. Expressed matters of concern include loss of new mature trees from the nature strip and from the property itself; the excessive size of the house on a prominent corner site; potential noise from the swimming pool plant; loss of privacy; overshadowing; and adverse impacts on the Greville Street and Kooba Avenue streetscape.

7 A report was prepared by Ms J Dunkerley, a council development officer recommending that the application should be approved subject to a number of conditions. Notwithstanding this report the council issued a notice of determination on 16 March 2005 refusing the application for reasons involving:

• Non-compliances with DCP 16 in relation to bulk, scale, front setback, and private open spac
• Inconsistency with the streetscape;
• Adverse impacts on the privacy of the adjoining property at No. 22;
• The proposal would not be in the public interest because of the location of the pool, the second storey element and the public submissions.

8 The tendered Statement of Issues identifies five issues which in essence comprise:

• The proposal would be of character with neighbouring development and inconsistent with the desired future character for Chatswood West as identified in DCP 16 particularly in relation to streetscape, setbacks, swimming pool location and the positioning of the second storey element of the building.
• The proposal would have adverse impacts on the neighbouring dwelling at No. 22: an excessive bulk and scale particularly when viewed from the rear yard; overlooking and resulting loss of privacy; and overshadowing of the rear yard.
• The proposal does not provide appropriately located and dimensioned private open space as required by DCP 16.
• The concerns of the neighbours.

9 These became the issues for the determination of the Court. It is be noted however that the issue of privacy in relation to No. 22 has been resolved by changes to the design.

The evidence

10 Expert town planning evidence was provided by Ms K Gordon the Court-appointed expert. Mr H Sanders provided limited additional town planning evidence on behalf of the council. As indicated above, a number of residents also gave evidence

11 A number of the resident objectors gave evidence on the site, elaborating on their concerns. Of particular relevance was the evidence given on behalf of the owner of No. 22 in relation to overshadowing of that property's rearyard and the visual bulk of the proposed house resulting from its rearward positioning on its site. Building bulk was also of concern to other neighbours in relation to its presentation and visual impact in Greville Street, the house being much larger than existing houses opposite. This impact is exacerbated by the elevated nature of the site. Also the swimming pool in the front yard would be out of character.

The private open space

12 As described above the proposed principal private open space is to be provided in the front yard. Including the swimming pool, paved areas and soft landscaped areas the open space has an area of about 180 sq m. The rear yard, which appears to be more of a service area, will have an area of about 94 sq m.

13 I understand that because of the north-south orientation of the site the principal private open space has been provided in the north facing front yard because the available solar access is far better than in the south facing rear yard. The open space will be directly accessible from the main living areas in the house, which also benefit from a northern orientation. Clearly, by themselves, these are good design outcomes.

14 Conversely significant parts of the rear yard would be substantially overshadowed by any reasonably sized building on the site and any associated living areas in the house would be similarly disadvantaged.

15 Clearly, as argued by Ms Gordon this outcome is consistent with that required by DCP 16. This is a quiet locality and the private open space should not suffer unreasonably from noise. Privacy for the occupants of the house can be accommodated by the provision of appropriate landscaping.

16 Mr Sanders suggested an alternative design with the private open space at the rear and with living areas extending from the front of the house to the rear and with the two-storey element moved towards the front of the building. This would he said provide a satisfactory outcome for the residents and would not have the disadvantages to the wider community that arise as a consequence of the excessive setback that is not characterised by landscaping and informal plantings.

17 Clause 4.7(5) of DCP 16 requires that private open space should not be located within the front street set-back unless the immediate locality is characterised by fencing capable of providing an acceptable level of privacy to the subject area. Clearly this locality is not characterised by front fences that provide privacy to front yard areas. Nor does the proposal. Instead privacy is to be provided by the use of landscaping including existing and proposed hedges.

18 In terms of its appearance I agree with Ms Gordon that the private open space including the pool and paved areas, whilst being different to other front garden areas in the street and subject to appropriate landscaping would result in an acceptable streetscape presentation to both Kooba Avenue and Greville Street. In this context it is especially relevant to note that the swimming pool and the paved areas are setback more than 10 m from Kooba Avenue and this setback area, like other front setback areas in Kooba Avenue is able to be landscaped. However, in my view the need to provide landscaping in the form of the existing and proposed formal hedges to achieve reasonable privacy for this open space would be uncharacteristic of the streetscape.

19 I do not agree with Mr Sanders that the consequences for the community resulting from the provision of private open space in front setback area are necessarily critical to the application. It might be possible for proposal to satisfy the relevant requirements of DCP 16 and the provision of open space generally in the manner proposed, particularly taking into account the significant setback of the pool from Kooba Avenue. However, I am concerned about the formal enclosing landscaping arrangement to provide privacy, which is not characteristic of the open front yards in the locality. It will be essential for privacy to be provided but this may be difficult given the need for an open landscaped front setback area.

20 In relation to character and streetscape the following provisions of DCP 16 are relevant:

4.3I Performance Criteria (Character, Design and Streetscape) - Street Landscaping - Provision must be made for landscaping within the front setback to compliment landscape features of the street and to integrate the new development into the street. The site and context analysis should be used to determine if the continuity of street trees and landscaped front setback areas create the primary character of street and if the houses are secondary components of the streetscape.

4.4B Building Height Planes and Setbacks - Performance Criteria - Front Setbacks - Dwellings will be consistent with the setback of adjoining development.

4.4(2) Building Height Planes and Setbacks - Controls - Front/Street Setback - New buildings or alterations to existing buildings should reinforce the streetscape character by ensuring the front setback of building line is consistent with that of adjoining development.

4.4(4) Building Height Planes and Setbacks - Controls - Corner Allotments - On corner sites, new dwellings should be setback from the primary street address in conformity with adjoining buildings in the primary street address.

21 Ms Gordon summarised the desired future character for Chatswood West as found in cl 2.4.2 of DCP 16 as follows:

• Maintain the pattern of existing streetscape of moderately deep setbacks and the pattern of setback from the side boundary;
• Sensitive siting of buildings with regard to the topography and maintain the proportion of open space to built form in the locality;
• Integrate infill development of harmonious scale, form, massing and materials;
• Minimise obstruction of views;
• Maintain a streetscape of low or palisade fencing;
• Retain significant trees and areas of natural vegetation and plant locally indigenous trees and dense vegetation within the site and street frontage;
• Avoid imposing building forms of high wall facades, particularly close to the street; and
• Avoid large areas of driveway and paved surfaces at street frontages.

22 According to Mr Sanders an analysis of dwellings on the southern side of Kooba Avenue to the east of the subject site display setbacks from their respective street alignment that, at some 12 m, are generally consistent with each other, including the building on the site. He was concerned that being setback about 18 m the proposed house would be inconsistent with this streetscape characteristic. The resulting incongruity of the setting of the proposed dwelling by comparison with the present pattern of development will be reinforced by the fact that the site is a corner allotment. The house will appear as an incongruous and intrusive element in what is otherwise a harmonious streetscape characterised by buildings of a very much smaller scale. Taking into account the height and scale of surrounding houses a more sensitive approach is required.

23 Ms Gordon was of the opinion that the proposed house would maintain the setback pattern of Kooba Avenue. Whilst she acknowledged that the setbacks on the south side of street were essentially as described by Mr Sanders she argued that, taking into account the irregular setbacks on the north side of the street, the proposed setbacks would not be out of character. She also noted that views are not affected and that fencing and landscaping will be responsive to the requirements of DCP 16. In particular she said that the landscaping (including existing and proposed canopy trees) would maintain the dominance of the landscaped character of the street frontage in Kooba Avenue. The proposed dwelling house will certainly not be imposing and the area of the driveway off Greville Street is to be minimised. Overall the proposal would be consistent with the desired future character for Chatswood West as required by DCP 16. As for the presentation of the development to Greville Street, whilst accepting that the use of hedges is not common in the street, the continuation of the existing hedge around the frontage of Greville Street will present an attractive landscape design within the streetscape.

24 Ms Dunkerley noted in her report that the proposal complies with the applicable floor space ratio and landscaped area requirements of DCP 16. Whilst it does not comply with the setback requirements for Kooba Avenue it complies with the setback requirements for Greville Street.

25 This site has a combination of differing characteristics, by comparison with surrounding sites, being in an elevated prominent location on a street corner. As a consequence any development of it with a building and landscaping needs to be especially sensitive. Whilst DCP 16 requires that new dwelling houses on corner sites should be setback in conformity with adjoining buildings, I do not accept that a setback exceeding that of the adjoining dwelling houses is necessarily inappropriate. However this must be subject to the proposed dwelling house being sensitive to existing surrounding dwelling houses, especially in terms of height, bulk and scale and its landscaped setting.

26 In relation to character and streetscape, I have two concerns. Firstly, I have already concluded as the formal enclosing landscaping arrangement for the front yard area and extending across part of the Greville Street elevation would not be consistent with the character of the streetscape, notwithstanding the existence of a substantial hedge in Kooba Avenue. Similarly this landscaping arrangement being uncommon in the streets would not provide for a continuity of landscaped front setback areas as effectively required by DCP 16.

27 Secondly, whilst the proposed dwelling house could, in terms of its presentation to Kooba Avenue, be satisfactory I have reached the opposite conclusion in relation to its presentation to Greville Street. I accept that the building complies with council's building envelope controls but despite this, taking into account the bulk and scale of surrounding buildings this presentation is problematical, particularly taking into account the position of the building relative to the Greville Street boundary and the elevated nature of the site. The general absence of appropriate softening landscaping opportunities between the building and the Greville Street boundary does not assist.

28 As already described this locality comprises a mixture of one and two storey dwelling houses in landscaped gardens. More particularly the houses in this part of Kooba Avenue and Greville Street generally exhibit a smaller scale of house although there are some exceptions. In my view the presentation of the house to Greville Street in terms of bulk and scale is not responsive to this character. This is not to suggest that in terms of floor space a house of the size proposed is not possible for this site.

29 Whilst the house design is of good quality, its bulk and height need further consideration and a quality landscaped setting needs to be provided to reduce its dominance in the Greville Street streetscape. The heavy masonry fence between the garage entrance and the rear boundary is a further negative factor adding to building bulk but I expect that this could be easily rectified. Less easily resolved is the building's presentation to Greville Street although increased setting back at first floor level and the inclusion of some floor space in the roof might assist.

30 In its present form the proposed landscape arrangement in terms of its presentation to Kooba Avenue seems to be reasonable although the existing and proposed hedges are somewhat incongruous. In my view, however, the proposed landscaping does not provide the kind of setting appropriate for a house of this size and its manner of presentation to Greville Street. Whilst the proposed hedge arrangement will provide privacy, this is not the kind of landscaped setting typical of the locality.

31 Instead what is required in regard to the presentation of the development in Greville Street is a landscaped setting for this relatively large house, not only the west side of the house but also to the north and south. Substantive landscaping provided in place of the north-western corner of the covered veranda and the south-western corner of the garage would assist.

Impacts on No. 22

32 The impacts on No 22 resulting from the proposal are twofold: overshadowing of the backyard private open space; and the presentation and enclosing nature of the two-storey bulk of the building on the backyard.

33 As for overshadowing it is clear that the proposed dwelling house will introduce additional overshadowing of the rear yard at No. 22. Ms Dunkerley was of the opinion that the proposal complies with the DCP 16 requirement for three hours of solar access between 9 am and 3 pm at the winter solstice to be available. Ms Gordon agreed, recognising that the control does not require solar access to be retained for three hours to the whole open space area. In this regard she explained that the central grassed area of the backyard would retain solar access between at least 10:30 am and 1:30 pm ensuring three hours of solar access.

34 The shadow diagrams in Exhibit E were deficient in that they failed to show the extent to which the house at No. 22 overshadows its own backyard. These diagrams were supplemented by Exhibit B, which confirms that the three-hour test would be met by the proposal. Despite this the rear yard at No. 22 will suffer a significant loss of otherwise available sunlight from about 1:30 pm. Whilst this is of concern it is not, by itself, critical to the application.

35 At present the backyard private open space at No. 22 has an open outlook to the west and an outlook through trees to the southwest and south. It is clear that the two-storey element of the proposed dwelling house will significantly reduce the outlook to the west, producing a closed-in effect. This effect will be worsened by the fact of the rearward position of the existing two-storey dwelling house at No. 20 Kooba Avenue, which presently has an enclosing effect.

36 Ms Dunkerley did not believe this impact to be significant given that there would be no loss of views and that vistas of trees will remain. Similarly Ms Gordon accepted that the existing open outlook would change, being replaced by trees with a one and two-storey dwelling beyond. Such an outlook is not unreasonable in a suburban environment particularly given that the proposal complies with the rear and side setback controls set by DCP 16.

37 In my view the proposed dwelling house will have a significant effect on the open outlook available from the backyard of No. 22. It will also significantly change the character of the private open space by its enclosing effect. However, by themselves, these impacts are not critical to the application.

38 The backyard private open space at No. 22 presently has an open, sunny disposition and this will be significantly affected by the proposal. Despite the opinions of Ms Dunkerley and Ms Gordon in my view the combined impacts of overshadowing, reduced outlook and enclosure would have such an adverse impact as require significant changes to the proposal.

39 Had the proposal been more responsive to the existing typical front and rear building lines in Kooba Avenue, the openness of the rear yard at No. 22 would be less adversely affected although it must be acknowledged that, being a two-storey building, overshadowing would be somewhat worsened. However a lower building could perhaps mitigate this impact.

40 For the above reasons it is therefore the decision of the Court that the appeal should be unsuccessful. The orders of the Court are therefore:

1. The appeal is dismissed.
2. Development Application No. 2004/203 for the demolition of an existing dwelling house and the erection of a two storey detached dwelling house at 24 Kooba Avenue, Chatswood, is determined by the refusal of development consent.
3. Exhibit C is retained.

_________________

T A Bly
Commissioner of the Court
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