Pambris v Marrickville Council

[2005] NSWLEC 764

Land and Environment Court

of New South Wales

CITATION:	Pambris v Marrickville Council [2005] NSWLEC 764
PARTIES:	APPLICANT Sam Pambris RESPONDENT Marrickville Council
FILE NUMBER(S):	10544 of 2005
CORAM:	Hoffman C
KEY ISSUES:	Development Consent :- Section 96 amendment - bulk - height - privacy - shadows
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Marrickville Local Environmental Plan Marrickville Development Control Plan No. 35
DATES OF HEARING:	19-20/12/2005
EX TEMPORE JUDGMENT DATE:	12/23/2005
LEGAL REPRESENTATIVES:	APPLICANT Dr S Berveling, barrister Instructed by: Mr P Kapetas, solicitor Of: Landerer & Co. RESPONDENT Mr G Christmas, solicitor Marrickville Council Legal Branch

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

23 December 2005

10544 of 2005 Sam Pambris v
Marrickville Council
JUDGMENT

1 This is a class 1 appeal No. 10544 of 2005 between Pambris and Marrickville Council in regard to the refusal of a s 96 application to amend development consent 2003 00601 dated 3 October 2004 in regard to the restoration and extension of a heritage item stone house and the erection on the same property of nine townhouses above basement carparking at 114 Ewart Street, Dulwich Hill.

2 The heritage item is known as Gladstone Hall. The property had been used as a rehabilitation clinic. During that time extensions to the house and a large accommodation block had been present where the proposed townhouses and heritage house extension are located. The earlier accommodation block and the previous house extension had been demolished at the time of the hearing and the basement excavation was completed.

3 The changes to the approved plans now sought by the applicant are in Exhibits A, C, G and H. They show, inter alia:

(a) A gate and entry ramp to the front garden of the heritage house so that residents of the townhouses can use it for communal recreation.
(b) Conversion of four townhouses in the western end of the site to be changed into three larger townhouses covering about the same area.
(c) One of the four townhouses was two storey with a master bedroom on the third half level in the original consent. That third half level is not repeated in the amended design so that component of the building is lower. However due to a site constraint the three new larger townhouses are up to about half a metre higher to the second storey eaves level than the original consent.
(d) To retain the number of townhouses at the originally approved nine there is a new two storey townhouse at the east end of the building. It occupies in part a space in the original approval for a one storey component. There were no issues or objections in regard to this part of the development.
(e) The basement carpark remains the same as approved. Each townhouse and the heritage house have separate garages in the basement with separate stairs for each dwelling up from the basement level.
(f) There were no issues in regard to the restoration and extension to the heritage item Gladstone Hall.
(g) The landscape plan amendments had also led to changes to the hydraulic drainage plans to move underground pipes away from both existing trees and proposed new trees and to delete masonry boundary fences to protect neighbours’ trees.

4 The parties had negotiated before the hearing and the plans had been further modified and exhibited for neighbours to comment. The amended issues in the appeal were:

Issue 1: had been deleted.
Issue 2: the proposed modification would result in the southern elevation of the townhouses being both higher and longer than currently approved which would have an adverse impact on the adjacent properties by way of bulk, scale and overshadowing.
Issue 3: was deleted.
Issue 4: Having regard to the configuration of the site the proposed modification would result in an unacceptable level of floor space and density which constitutes an overdevelopment of the site.

5 The parties had agreed that the Court should appoint Ms D Laidlaw, town planner, as the joint expert. She had prepared three reports in August, October and November of 2005 after each round of negotiations and changes to the plans. The council had resolved on 6 December 2005 not to oppose the s 96 application in this appeal.

6 The objectors were notified of this and two chose to give evidence. They were:

§ Miss R Vern, resident and owner of 13 Ness Avenue, and
§ Mr S Bender, resident and owner of 15 Ness Avenue.

7 These properties were south of the proposed row of townhouses and towards its western end. The concerns of the objectors were in summary:

(a) bulk and height,
(b) shadows, and
(c) privacy.

8 In regard to privacy the applicant showed, and Miss Laidlaw was satisfied, the second storey bedroom windows of the townhouses were the only ones which could overlook the properties of the neighbours. All of these windows in the townhouses had screening devices that would prevent persons in the bedrooms from looking down into the rear yards of the houses.

9 In regard to bulk and height the two storey building with the third storey half level was moved back from the southern boundary even further than the council had approved in October 2004. The third storey half level was on the north side of the building so that it did not appear as a full three storey high building to the neighbours on the south side.

10 During the hearing it was discovered the roofline of the stairwell was larger than needed in each of the townhouses 4, 5 and 6 that contained the third storey and the roofs were set back further northwards, again reducing visual bulk.

11 The new layout of the three larger townhouses was set back 4 m from the south boundary and this complied with the council’s requirements under its development control plan.

12 The neighbours said their main concern was that the previous rehabilitation accommodation block had not extended so far west, and that component of the proposal should not be there at all.

13 Miss Laidlaw was satisfied that, given the additional setback from the south boundary and compliance otherwise with the council’s controls for that component, and the fact that the council had already approved townhouses at the western end of the site, the amendments were probably better in terms of visual bulk than the original approval.

14 The floor space ratio of the development was now 0.65:1 when 0.7:1 was permissible therefore the issue in regard to floor space and density could not reasonably be pressed given the acceptable impacts. Also Units 4 and 9 of the original consent were three storeys and they were now both lowered to two storeys. Miss Laidlaw held the opinion the visual bulk and height was acceptable.

15 The neighbours were also concerned about shadows in mid-winter. They value their solar access, as is reasonable.

16 In looking at the plans on shadows and the survey in Exhibit F the houses to the south of the proposal appeared to be drawn too close to the common boundary. The setbacks of 13 and 15 Ness Avenue were measured during the hearing on site, and it was found they were considerably further away from the common boundary with the subject development than had been shown on the plans.

17 Miss Laidlaw drew additional sun diagrams with the corrected house locations to show the correct solar access. It meant in effect that even with the new building and the townhouses on the west end, the shadows on the southern neighbours were about the same, although increased a little in some places and decreased in others, as had been the shadows from the previous accommodation block of the rehabilitation clinic, and as had been the case resulting from the October 2004 consent by the council.

18 This conclusion was in regard to the 9 am mid-winter sun on or about 21 June. Both Nos. 13 and 15 would, at 9 am, have sun to the north-facing windows of their enclosed verandahs but their yards would be in shadow. The other houses at numbers 1 to 11 would have sun to 50 per cent or more of their back yards at 9 am and of course to their houses. Numbers 17 and 19 had shadow to their back yards and also to the back of the houses at 9 am.

19 By midday mid-winter Nos. 13 to 19 would have sun to about half their back yards as did Nos. 3 to 11, and full sun to the houses.

20 By 3 pm mid-winter Nos. 13 to 19 would have either full sun or about two-thirds of their back yards to full sun and full sun to the houses. Numbers 1 to 5 would have shadow to their back yards and rear windows. Numbers 7 and 9 would have sun to about half their back yards and full sun to the houses.

21 Miss Laidlaw said the council’s controls had the minimum requirements of two hours of sun mid-winter to the north-facing windows or principal living areas and principle open spaces of adjoining dwellings. She said all of the southern neighbours would have three and a half to four hours of sun to those areas mid-winter and that was very acceptable.

22 Due to this evidence and the council’s resolution not to oppose the appeal, the parties had prepared short minutes of orders in Exhibit E nominating the revised architectural, hydraulic, and landscape plans.

23 Having considered the evidence of Miss Laidlaw and the submissions I have concluded there is nothing sufficient for refusal of the proposed amendments to the council-approved development.

24 Therefore the orders of the Court are:

1. The appeal is allowed.

2. The consent granted on 6 July 2004 by the Respondent Council to development application 2003 00601 for alterations and additions to heritage item and construction of 9 townhouses on Lot a DP 320681, 114 Ewart Street, Dulwich Hill, is modified as set out in Annexure “A” hereto.

3. Exhibits, with the exception of Exhibits 3, 4, 5, 6, 7 and Exhibits A, C, E, G, H, J and K may be returned to the parties.

By consent no order as to costs.

___________________
K G Hoffman
Commissioner of the Court
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