Parr v Sutherland S C

[2004] NSWLEC 136

Land and Environment Court

of New South Wales

CITATION:	Parr v Sutherland S C [2004] NSWLEC 136 revised - 07/04/2004
PARTIES:	APPLICANT K V Parr Pty Ltd RESPONDENT Sutherland Shire Council
FILE NUMBER(S):	11339 of 2003
CORAM:	Hoffman C
KEY ISSUES:	Development Application :- four units for the aged or disabled
LEGISLATION CITED:	Sutherland Shire Local Environmental Plan 2000 State Environmental Planning Policy No.1
CASES CITED:
DATES OF HEARING:	10, 11, 12/03/04
EX TEMPORE JUDGMENT DATE :	03/12/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr S Kondilios, solicitor SOLICITORS Maddocks RESPONDENT Mr C Mathieson, solicitor

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

11339 of 2003

Hoffman C

12 March 2004

K V Parr Pty Ltd
Applicant

v

Sutherland Shire Council
Respondent

Judgment

1 . This was a class 1 appeal, No. 11339 of 2003, between K V Parr Pty Limited and Sutherland Council in regard to the deemed refusal of a proposal for four units for the aged or disabled at No. 16 Percival Road, Caringbah South.

2 . The proposal was to demolish a house between two existing houses and erect the development with a two storey section containing two street front units and a joint entry lobby with the lower storey being a basement car park or a semi basement car park.

3 . Due to the slope of the land down from the street towards the east the basement came above ground level about half way along the length of the street front units and the two rear units were the continuation of the basement floor level in a single storey above ground level.

4 . The houses on either side were two storey at the rear also with the rear alignment being about the same as the two storey sections of the proposal. The driveway to the basement came down the northern side of the property and in through an angled door to the garages beside No. 14 Percival Road.

5 . The respondent’s evidence was heard from:

• Mr and Mrs P H and V G Simpson, objectors and residents of No. 14 Percival Road on the north side of the proposal;
• Mr and Mrs G and S Hall, objectors and residents of No. 18 Percival Road on the south of the proposal;
• Mrs J Brodbeck, objector and resident of No. 1 Percival Road;
• Mrs J Walsh, objector and resident of No. 2B Daphne Street, a cross street with Percival Road; also,
• Mr K Nash, consultant town planner and
• Mr P Anderson, engineering officer for council, but he was not required for cross examination.

6 . The applicant’s evidence was heard from:

• Mr D Crane, consultant town planner.

7 . There were expert reports in evidence from:

• Mr M Relf, aging and disabled access expert, and
• Mr C McLaren, Engineer, but they were not required for cross examination.


8 . The Sutherland Shire had recently gained exemption from State Environmental Planning Policy No. 5 due to the incorporation of similar provisions for aged and disabled persons housing being incorporated into the Sutherland Shire Local Environmental Plan 2000.

9 . The issues were:
(1) Allotment width : The allotment is too narrow for the proposed development, it fails to satisfy the minimum allotment width objectives and development standards in cl 38 of the Sutherland Shire Local Environmental Plan 2000 which requires a minimum allotment width of 25 m and as a consequence there will be unacceptable impacts on adjoining properties, the streetscape and future residents of the development. Further, whether an objection pursuant to State Environmental Planning Policy No. 1 should be upheld as regard to the non-compliance with the development standard.
(2) This was deleted.
(3) Building appearance and siting . The size, bulk, scale, design, setbacks and siting of the development is considered to be unacceptable having regard to the impacts on the adjoining properties, the streetscape and the character of the area and
(i) objectives 1(a) and (b) of the 2(a2) Residential Zone in cl 33 of the Local Environmental Plan.
(ii) objectives (b), (d) and (f) in cl 30 of the Local Environmental Plan
(iii) objective 3 in cl 2 of the Housing for Older People or People with a Disability, Development Control Plan No 9.1/07A Edition 1
(iv) clause 11(a) and (b) of the DCP.
(4) Landscaping : The proposed landscaped area does not comply with the objectives and development standards in cl 36 of the Local Environmental Plan and the distribution and effectiveness of the proposed landscaping is unsatisfactory, particularly having regard to objectives (e) and (f) in cl 30 of the Local Environmental Plan. Further, whether an objection pursuant to State Environmental Planning Policy No. 1 should be upheld as regards to the non-compliance with development standard.
(5) Impacts on Neighbours : The proposal is unsatisfactory having regard to its unacceptable impacts on the adjoining properties at Nos. 14 and 18 Percival Road, particularly in terms of privacy, amenity, both internal and external, overshadowing as regards No. 18, building bulk and proximity and noise and disturbance from the driveway and garage door operation as regards No. 14 and
(i) objectives (a), (d) and (e) in cl 30 of the Local Environmental Plan
(ii) cl 11(b), (c) and (d) of the Development Control Plan.
(6) Issue 6 was deleted.
(7) Issue 7 was deleted.
(8) Issue 8, Useability and appropriateness of the design : Whether the design of the proposal is acceptable for older people and people with a disability, particularly having regard to
(i) clause 9(c) and (w) in respect of access to common areas and common facilities including the garbage area and 11(d), solar access and design for climate, (f), crime prevention, and (g), accessibility, of the Development Control Plan;
(ii) Australian Standard 1428.1, access, and AS4299, adaptability in respect of the nominated adaptable unit, and areas required to be accessible including the car parking and pathways and access to the bus stop.
(iii) the inability for people in a wheel chair to access or egress the lower dwellings without using the lift or a motor vehicle.
(iv) the provision of private open space, particularly Unit 1, area and location, and Units 3 and 4, privacy and adequate area directly adjoining living areas, the lack of ease of access to the rear yard areas and the finished levels of those areas.
(v) The absence of external access to the rear yards of Units 3 and 4 for maintenance and the like. It is noted that the rear yard areas can only be accessed through each unit.
(9) Car Parking and Access : The car parking manoeuvring and access arrangements to the car parking area are considered to be unacceptable, particularly having regard to
(i) Australian Standard 2890.1 1993 and cls (9)(h) and (11)(g) of the Development Control Plan in terms of access and manoeuvring into the proposed car parking spaces and
(ii) cl 11(h) of the Development Control Plan in terms of the absence of a visitor parking space.
(10) Adequacy of Information : The applicant has not provided sufficient information to enable a proper assessment of the proposed development to be carried out, particularly having regard to the following:
(i) certification from a suitably qualified mechanical ventilation engineer demonstrating that the proposed means of ventilating the car parking area will comply with the requirements of the Building Code of Australia; a system of ventilation proposed that is natural or mechanical may have implications on building design and/or impacts on neighbours. The plans must detail the position and size of ventilation openings for natural ventilation and/or the location of the source motor and discharge point for any proposed mechanical ventilation system.
(ii), (iii) and (iv) were deleted.
(v) plans and documents demonstrating compliance with the requirements of Australian Standard 1428.1, access and mobility, and Australian Standard 4299, adaptable housing, including a 1:50 scale plan of the adaptable unit and details of the associated parking space and pathways and details of the pathway to the bus stop.
(vi) an amended landscape plan prepared in accordance with the requirements of the Development Control Plan for landscaping, No 9.3/10 edition 3, that is consistent with the architectural plans and accurately specifies the existing trees and shrubs on the site including species, size, height, canopy spread and location that are to be retained and removed and the additional planning is to be implemented. It is noted that the proposal places some reliance upon existing vegetation to retain a visual screen along the boundary adjoining No’s 14 and 18 Percival Road.

(11) Objections, matters raised by the objectors and;

(12) Over development, the development is an over development of the site having regard to the matters raised above.

10 . As a result of the slope of the land the single storey rear section of the proposal was adjacent to the backyard area of its neighbours. Due to the slope the living rooms and decks of the rear units which faced the east had their floor levels at about fence height. This was one of the main sources of objection from both neighbours as it enabled their backyards (regarded as private open space) to be overlooked. The applicant had provided obscured glass screens to prevent direct looking across the fences but angled view lines were still possible that would be interrupted by a screen vegetation if it was given time to grow. There was some existing vegetation on the boundary which would remain and provide some screening in some directions.

11 . The neighbours were also concerned that the east facing upper decks of the street front units on the upper storey were the main private open space areas for those units with floor to ceiling glass doors and windows looking east. These decks also looked down over the neighbours. The applicant had again provided obscured glass screenings and planter boxes to prevent direct overlooking. But it would still be possible to look at an angle into the rear yards of the neighbours.

12 . The applicant put that these oblique angle views were at such a distance and in some places through existing and proposed vegetation that any privacy intrusion was equal to the normal suburban situation where neighbours could see portions of each other’s properties.

13 . The Court formed the opinion that the prospect from these east facing decks from both storeys was at such distances and/or through vegetation that the applicant’s evidence was reasonable. The main issues were elsewhere, namely, up at the area of close proximity of the proposed building to the adjoining houses.

14 . The council’s evidence was that the allotment required a 25 m width under the statute and it had 21.335 m. It was short by 3.665 m. The problems caused by this were evident on the plans because the driveway had zero side setback and was right on the common boundary of No. 14 Percival Road for most of its length. This was modified during the hearing to save an existing tree at the north-west corner of the lot by moving the drive entry over a little to create a small garden bed. This was done at the cost of the garden courtyard of Unit 1 that was within the front setback to the street.

15 . The courtyard was reduced proportionately. The same courtyard was further reduced later in the hearing by the provision of one garbage bin up at the street front for the disabled unit occupant. The other bins were in the basement and it was realised that access to and moving the bin up to the street for garbage collection would be very difficult for a disabled or even a frail aged person.

16 . The other result of the driveway having no side setback was the lack of buffering to No. 14 by way of boundary planting. In fact, existing boundary vegetation would have to be removed. This had implications for glare although not direct headlight beams from headlights, noise of cars going in and out to the master bedroom of No. 14 and the noise of the 6 m wide garage door going up and down an estimated twenty-three times (23) per day. The garage door was directly adjacent to the floor to ceiling window of the combined breakfast room/computer room and its adjoining kitchen in No. 14. The objectors and the council felt this was unacceptable.

17 . Whilst the design had located windows so that they were not directly opposite the windows of the neighbours, there was still proximity and the lack of boundary landscaping between the buildings which might have given, if present, a sense of separation and privacy to the neighbours.

18 . The statutory non-compliance with the minimum lot width required a State Environmental Planning Policy No 1 objection to be upheld if the proposal was to be approved.

19 . Another impact of the narrow lot was the fire escape from the basement car park and part of the southern basement wall that was above ground level adjacent to No. 18 Percival Road. It was directly on the southern boundary. The stairs up and the escape path to the street were also directly on the side boundary and would necessitate the removal of existing boundary vegetation.

20 . The applicant’s expert wanted to categorise the pathway as landscaped area. This and other evidence related to planter beds on top of building structure being eligible or ineligible to be counted as landscaping. This led to another non-compliance under the statute, namely, the minimum landscaped area.

21 . The experts on both sides disagreed on the amount of non-compliance, but they did agree that the proposal did not have 55% of the site area for landscaping as required in the Foreshore Scenic Protection Area of the statute.

22 . Another State Environmental Planning Policy No 1 objection was required to be upheld to enable the proposal to be approved.

23 . This is, in effect, a vacant site because the existing house is to be demolished. The overall purposes of having a minimum allotment width and minimum landscaped area is to enable medium density housing for aged and disabled persons to fit into a low density residential area. Fitting in is not just a streetscape issue. It does involve creating a reasonable juxtaposition with and minimising impacts upon neighbours. A narrower lot creates constraints that often necessitate less potential development for a site. It does not create a reason to justify a concession. The only reason this development ends up with sections of zero side setbacks and non-compliance with landscaped area and consequent impacts is because it was designed that way.

24 . The design does not recognise the fact that the site is narrower than allowed.

25 . The Court accepts the expert evidence of Mr Nash in that the consequences of the proposal extending in places right to the side boundaries on a narrow lot and not having enough landscaped area create unacceptable impacts on neighbours that defeat the purposes for which the standards were put in place, and therefore the proposal fails on the grounds of issues 1, 4 and 5.

26 . Therefore the orders of the Court are:

(1) The appeal is dismissed.
(2) The exhibits are returned to the parties except Exhibits 1, 2, A, G and J.

_________________
K G Hoffman
Commissioner of the Court
Nm/rjs