Paci v Canterbury Council

[2005] NSWLEC 613

Land and Environment Court

of New South Wales

CITATION:

Paci v Canterbury Council [2005] NSWLEC 613

PARTIES:

APPLICANT
Daniel Paci and Rosanne Paci

RESPONDENT
Canterbury Council

FILE NUMBER(S):

10807 of 2005

CORAM:

Brown C

KEY ISSUES:

Development Application :- alterations and additions to the existing dwelling and the construction of an additional attached dwelling to create an attached two-storey dual occupancy development - streetscape - setbacks - lot width - private open space -overlooking

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Canterbury Local Environmental Plan No. 138

DATES OF HEARING:

31/10/05

EX TEMPORE JUDGMENT DATE:

10/31/2005

LEGAL REPRESENTATIVES:

APPLICANT
Ms S Duggan, barrister
SOLICITORS
Arraj Lawyers

RESPONDENT
Mr D Baird, solicitor
SOLICITORS
Marsdens

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

31 October 2005

10807 of 2005 Daniel Paci and Rosanne Paci v Canterbury Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Canterbury Council (the council) of Development Application No: R722/03 for alterations and additions to an existing dwelling and the construction of an additional attached dwelling to create an attached two-storey dual occupancy development at 17 Ayr Street, Ashbury (the site).

2 The proceedings were conducted as an On Site Hearing and the judgement reflects the details in the Statement of Basic Facts and the findings given on-site.

3 The site has a frontage to Ayr Street of 12.19 metres, including a 2.5 metres splay, a rear or western boundary of 14.03 metres, a side or northern boundary of 41.96 metres and a southern boundary with a frontage to Roslyn Street of 40.96 metres, providing a total area of 590 square metres.

4 The site slopes from the northern boundary towards the corner of Ayr and Roslyn Streets. No significant vegetation exists on-site and the existing improvements consist of a single storey dwelling. The locality consists of medium sized lots that have been developed primarily with low scale residential development of single and two-storey construction. Some recent attached dual occupancy developments also exist within the locality.

5 The site is zoned Residential 2(a) under Canterbury Local Environmental Plan No. 138 - Canterbury Precinct (LEP 138). The proposed development is permissible with consent within this zone. LEP 138 contains no relevant development standards.

6 Canterbury City Council Development Control Plan No. 14 - Dual Occupancy Development (DCP 14) applies. The relevant controls provide for a minimum site width of 15 metres (cl 5.1(b)), a second floor front setback of 4.5 metres (cl 5. 6), a side ground floor setback of 1 metre (cl 5. 6), a rear setback of 5 metres (cl 5. 6), landscaped private open space at a rate of 50% of the gross floor area of the dwelling (cl 5. 8(b)) and a 5 metre minimum dimension for landscaped private open space for 80% of the area (cl 5. 8(c)).

7 In considering the application of DCP 14, cl 1 states:

The purpose of this Plan is to establish objectives and provide design requirements for dual occupancy developments. These objectives have been established so that dual development:

• is of a high standard of design
• provides an attractive streetscape
• offers a choice of accommodation for residents, and
• enhances and protects the amenity of residential areas.

The design requirements provide suggestions on how the objectives might be achieved in most cases

8 The council filed a Statement of Issues containing 6 individual issues and a number of sub-issues. These can be grouped into following main areas:

1) whether the departure to the second floor front setback to Roslyn Street creates an unacceptable streetscape impact,
2) whether the departure from the side ground floor setback is acceptable,
3) whether the landscaped private open space for each dwelling is acceptable, considering the rear setback requirements and the proposed dimensions,
4) whether the departure to the minimum width requirement is acceptable.

9 Mr Lindsay Fletcher, a town planner provided evidence for the applicant and Mr Andrew Hargreaves, a town planner provided evidence for the council.

10 The issue of streetscape was limited to the impact on the Roslyn Street frontage brought about by the non-compliance with the second floor front setback. The proposed setback varies from 3 metres to 4.2 metres whereas cl 5. 6 of DCP 14 provides for a 4.5 metre setback.

11 The experts disagreed on the impact with Mr Fletcher stating that the proposal would be consistent with the variety of age, design and scale of dwellings in the streetscape. He also places some emphasis on the existing street trees to minimise the visibility of the proposed dwelling. Mr Hargreaves maintains that strict compliance with the DCP 14 requirement was necessary to maintain an acceptable appearance in the streetscape.

12 With the benefit of the site view, I agree with the conclusions of Mr Fletcher. Even putting aside the existing street trees, I not convinced that the variation is significant and has any noticeable impact on the streetscape. In coming to this conclusion I have given some weight to the fact that the setback was only 3 metres in the version of the DCP that applied when the development application was lodged.

13 The objectives require the setback to be "compatible with the setbacks in the existing streetscape". I accept that the proposed development satisfies this objective. The objectives also require adequate separation between buildings in relation to "overshadowing", "solar access", "visual and acoustic privacy" and "areas of open space". There was no dispute between Mr Fletcher and Mr Hargreaves that the proposal satisfactorily addresses these matters.

14 The non-compliance with the side ground floor setback relates to the proximity of the proposed garages to the boundary with the adjoining property at 15 Ayr Street. The proposed setback is 0.59 metres whereas cl 5. 6 of DCP 14 provides for a 1 metre setback.

15 Mr Fletcher states that compliance with the DCP 14 requirement is possible however it is unnecessary as the garages adjoin an existing garage on the adjoining property. Mr Hargreaves states that compliance is necessary as it provides the opportunity for maintenance.

16 Again and with the benefit of the site view from 15 Ayr Street I accept Mr Fletcher's conclusions. The proposed setback to the single storey garages is consistent with the relevant objectives relating to "overshadowing", "solar access", "visual and acoustic privacy" and "areas of open space".

17 The owner of the property at 15 Ayr Street, Mr Zumbo, provided evidence on-site and indicated a concern over the elevation of the adjoining garages to his property that he described as being any order of 6 to 7 metres in height. On further questioning, it became obvious that Mr Zumbo’s concerns related to a previous version of the proposal. While asking for further time to consider the most recent plans, I understand his concerns to be largely addressed. Mr Zumbo also expressed concerns over potential overlooking however I accept the evidence of Mr Fletcher and Mr Hargreaves that because of the acute viewing angle and distance of the proposed bedroom 3 in the dwelling on Lot 1 any loss of privacy would not be an issue.

18 The owner of the property at 25 Roslyn Street, Mr Baeza, expressed a similar overlooking concern. His property was inspected on the site view and I agree with the evidence of Mr Fletcher and Mr Hargreaves that the building separation of some 15 metres at the upper level is sufficient to address any overlooking concerns from bedrooms 2 and 3 on Lot 2.

19 The non-compliance with the landscaped private open space for each dwelling relates to the minimum dimension requirements in DCP 14. There was no dispute that the proposed dwellings satisfy the required quantum of private open space of around 71 square metres. The applicant provided a plan showing the areas available for landscaped private open space for each dwelling.

20 Mr Fletcher acknowledged that the minimum dimension requirements were not satisfied however the departure was not that significant that the objectives were not satisfied. Mr Hargreaves stated that the non-compliance with the minimum dimension requirements was symptomatic of the amount of development proposed on a site and the non-compliance with the minimum width requirement in DCP 14.

21 Lot 1 has a landscaped private open space area of 74 square metres and a minimum dimension of 4.87 metres rather than 5 metres. Lot 2 has a landscaped private open space area of 96 of square metres and has an area of 5.6 metres by 8.8 metres (49 square metres) representing 69% of the landscaped private open space area with a 5 metre minimum dimension rather than the DCP 14 requirement of 80%. Additional areas are available with minimum dimension of 3.9 metres and 3.64 metres.

22 The objectives of the Open Space design element seek "to provide adequate and usable open space for residents" and "to ensure that private open space areas related to the living areas of dwellings".

23 On this issue, I agree with Mr Fletcher. The departures from the DCP 14 requirements are minor at best, particularly for Lot 1. The departures from the DCP 14 requirements for Lot 2 are more than adequately compensated for by the additional area. In both cases, the departures do not impact on the ability of the areas "to provide adequate and usable open space for residents".

24 The minimum site width was an issue raised by Mr Hargreaves because it was seen that the non-compliance was, in part, responsible for the departures from the other requirements in DCP 14.

25 The minimum site width requirement has an objective "to allow dual occupancy development on sites that can provide a good living environment for occupants and neighbours". For the reasons in the preceding paragraphs, the departures to the DCP 14 requirements are justified and can be supported. The departures, in my view, do not impact on the ability of the proposed dwellings to provide a suitable environment for future residents or impact on the adjoining neighbours or the wider community in any substantive way.

26 The Orders of the Court are:

1) The appeal is upheld.
2) Development Application No: R722/03 for alterations and additions to an existing dwelling and the construction of an additional attached dwelling to create an attached two-storey dual occupancy development at 17 Ayr Street, Ashbury is approved subject to the conditions in Annexure A.
3) The exhibits are returned with exception of exhibits 5, A and B.

___________
G T Brown
Commissioner of the Court