Pavlarkis T and D v Kiama MC

[2004] NSWLEC 729

Land and Environment Court

of New South Wales

CITATION:

Pavlarkis T & D v Kiama MC [2004] NSWLEC 729

PARTIES:

APPLICANT
Tom Pavlarkis and
Dena Pavlarkis

RESPONDENT
Kiama Municipal Council

FILE NUMBER(S):

10932 of 2004

CORAM:

Bly C

KEY ISSUES:

Development Application :- Demolition of an exisiting single storey dwelling - Subdivision of land into two lots - Erection of two attached two-storey dual occupancy buildings - subdivision of dual occupancy sites - the character of the locality.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Kiama Local Environmental Plan 1996
Development Control Plan No. 8 - Building Height and Residential Amentiy
Development Control Plan No. 7 - Dual Occupancy Development

CASES CITED:

Deller Homes v Sutherland [2004] NSWLEC 66

DATES OF HEARING:

14/12/2004

DATE OF JUDGMENT:

12/23/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr M Mantei, solicitor
Kells the Lawyers

RESPONDENT
Mr P Moggach
Kearns & Garside

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

23 December 2004

10932 of 2004 Tom Pavlarkis and Dena Pavlarkis v Kiama Municipal Council

JUDGMENT

Introduction

1 This appeal relates to development application No 10.2003.526.1 which relates No. 21 Campbell Street Gerringong and involves:

• The demolition of an existing single storey dwelling
• The subdivision of the land into two lots
• The erection of two attached two-storey dual occupancy buildings; and
• The further subdivision of the dual occupancy sites.

2 The site comprises lot A DP 156993 being land located on the south-west corner of Parkes and Campbell Streets, Gerringong. It has an area of 1204 sq m.

3 The site is located towards the south-west corner of the Gerringong township. Allotments in the locality are quite large, commonly around 1000 sq m. The predominant form of development in this locality comprises single storey detached dwelling houses. There is a hotel and a motel situated a short distance to the north in Campbell Street.

Statutory controls

4 The site is zoned 2(a) Residential A under Kiama Local Environmental Plan 1996 ("the LEP). Subdivision and dual occupancy development are both permitted with development consent in this zone.

5 Also applicable are Development Control Plan No. 8 -- Building Height and Residential Amenity ("DCP 8") and Development Control Plan No. 7 - Dual Occupancy Development ("DCP 7").

6 The LEP and these DCP's contain applicable standards such as floor space ratio, setbacks and storeys and, apart from one minor non-compliance, these standards are all met by the proposal. The relevantly applicable objectives of these instruments which are not met are referred to later.

Advertising and Council's decision

7 The application in various forms was advertised and at least 20 objections plus several petitions were received. General Matters of concern raised in these objections include:

• Excessive tree removal from the site
• Traffic generation and associated impacts
• Insufficient building setbacks
• Problematical stormwater runoff
• Loss of privacy and overshadowing of 23 Campbell Street

8 Of greatest concern to these residents was that the proposal would be out of character in this locality because of its two-storey scale, its medium density housing form and its excessive density and would destroy the country atmosphere of the street.

9 Following its consideration of a council officer's report that recommended approval the council decided to refuse the application for the following reasons:

1. The proposal is not sympathetic to the existing character of the locality as described in DCP 8, Section 9 and DCP 7 Section 2 (b)
2. The proposal does not protect the residential amenity of the existing residents as required in DCP 7, Section 2 (b); and
3. The proposal will have an unreasonable impact on the solar access of the dwellings to the south.

The evidence

10 Expert town planning evidence was given by the Court appointed architect and town planner Mr S. Layman.

11 Whilst on site evidence was given by:

• Mrs G Hall of 23 Campbell Street, Gerringong
• Mrs R Cronin of 19 Campbell Street, Gerringong
• Mr D Stevenson of 29 Campbell Street, Gerringong

The issues

12 Having considered all of the evidence and taken a view of the site and the locality, including neighbouring houses, the principal issue for the determination of the Court is whether the proposal would, in the light of the requirements of the LEP, DCP 8 and DCP 7, be so out of character with the locality that it should be refused.

13 There were no internal amenity impacts of concern but Mrs Hall of No. 23 Campbell Street explained her concerns regarding overshadowing, overlooking and noise from having three new backyards and for houses adjacent to her side boundary. I have considered these concerns and do not accept that the resulting overshadowing would be unsatisfactory given the compliance with the requirements of the DCP. As for overlooking this is also not of concern given the extent of separation and that the only possibly offending windows are bedrooms. I accept that there would be some noise impacts but again I do not believe that these would be of such significance to warrant refusal of the application.

Residential character

14 In dealing with the issue of residential character the provisions of the relevantly applicable planning instruments are to be taken into account. The Court again recognises the compliance with the standards in the LEP and DCP 8 and DCP 7 and this must be a strong indication of the acceptability of the proposal, but it is not determinative. What must also be taken into account is whether a development that so complies would be appropriate for this particular site, taking into account the nature and form of existing development in the locality and its likely future character as indicated by the planning instruments.

15 Clause 4(2)(j) of the LEP contains the following objective:

To ensure that new developments are well-designed and complement the character of the surrounding land and Council's area.

16 Clause 9.0 of DCP 8 provides for sympathetic development as follows:

To maintain and, where appropriate, improve the existing amenity and environmental character of residential zones, council will only approve of new dwelling houses/additions where they are compatible with the existing and environmental character of the locality and have a sympathetic and harmonious relationship with adjoining development.

Unsympathetic development will disrupt the streetscape or the unity of a group of buildings and spoil the existing character. These buildings may not only cause a loss of built heritage and/or environmental amenity but may also interview with adjoining owners' privacy and sunlight.

New buildings do not have to imitate the architecture of those nearby. However they should repeat the scale, form, orientation etc of buildings in the street.

17 DCP 7 contains the following relevant aims:

(b) To establish minimum standards for new development to assist in:
• maintaining the existing quality and character of Kiama's urban and rural living areas
• protecting the residential amenity of existing residents

18 Clause 8 of DCP 7 contains the design standards and includes the following provisions:

(a) All buildings whether conversion of existing dwelling houses or the establishment of new buildings shall have an external appearance as appropriate to the local streetscape. In this regard, the same or similar external building materials, colours, windows and roof pitches shall be incorporated into the design of each dwelling. Buildings are to address the street having regard to window and door location and roof and gable design.
(e) Consideration will need to be given to the height and bulk of a building particularly in relation to adjoining development and streetscape. High bulky buildings have potential to overshadow and reduce privacy to adjoining properties. To assist in the reduction of such impacts, intricate designs are necessary incorporating split level broken roof lines and imaginative floor layouts.

19 In taking these requirements into account Mr Layman considered the character of the existing surrounding built form and noted that it varied according to the age of the development. Consistent elements include uniform street setbacks, pitched roofs, brick and weatherboard construction, and street facing garages. The proposal is responsive to these. Whilst he acknowledged that the predominance of built form in the locality comprises single storey detached dwellings the broader context is not without buildings larger and longer than these.

20 Mr Layman was of the opinion that there is no unifying theme or character, there being a range of dwelling styles and development densities in the locality and within the residential component of the township of Gerringong. Despite this the general form and character of the proposal is complimentary to the existing character taking into account its materials, roof form, mode of address to the street and setting. More particularly the proposal provides appropriate setbacks, bulk and massing, roof forms and materials to provide a streetscape that is not inconsistent with the surrounding developments.

21 Mr Layman also explained that the development is complimentary to Council's urban strategy for the local government area. He also concluded that the proposed development is consistent with the development controls applicable to the site.

22 In May 2003 the final report of the community participation process for the development of Residential Strategies for the Future Growth of Gerringong and Gerroa (“ the Wiggins Report”) was published although it is to be noted that the council has not adopted the report. It recognises the need for Gerringong and Gerroa to make a contribution towards the State Government's housing strategies by increasing housing stock by urban consolidation

23 The Wiggins Report also recognises that redevelopment potential exists in the old town central area for medium density and mixed-use developments. It also notes that there is some scope for in-fill buildings and development on larger lots occupied with older houses and on the fringes of the old town boundaries.

24 The town is, for the purposes of the report, divided into three character areas: Gerringong Town Centre; Gerringong East; and Gerringong West. The site of this application is included in Gerringong West.

25 The Wiggins Report identifies the relevant desired future character for Gerringong West as:

Residential development in Gerringong West will maintain a mix of lot sizes and building forms, style and materials. The sense of space provided by the dominant vistas of the escarpment, wetland, rural views and open sky will be maintained by wide streets, minimal front fencing, space between buildings, grass verges and landscaped setbacks and the scale of buildings.

Redevelopment proposals will be a mix of single and double storey dwellings, with varied and non-obtrusive building forms and a relative bulk that respects the existing scale, preserves the space between dwellings and use of the surrounding countryside. Landscaping will be promoted as a unifying element.

26 The Court's attention was drawn to the principle in Deller Homes v Sutherland [2004] NSWLEC 66 where Roseth SC considered the impact of a proposal on the streetscape in a street that has been zoned for redevelopment. This principle provides that the scale of existing development is of secondary importance where the street has been identified for transformation. However, this principle is not applicable in this case.

27 Dual occupancy development, being one form of urban consolidation contemplated by the Wiggins Report, is permissible in the 2(a) zone being the common residential zone throughout Gerringong. Whilst some change is to be anticipated in this locality neither this street nor this locality are identified for transformation. Nor is it an area in transition. The stated desired future character which, whilst referring to a mix of single and double storey buildings, refers to non-obtrusive building forms that respect of the existing scale. This speaks of sensitive change rather than transformation.

28 The planning controls in the LEP and the DCP's anticipate change and direct its form and character. There are essential elements in these controls which require that new development to be responsive to and compatible with the form and character of existing development. New development must be appropriately responsive to these requirements but despite its compliance with the applicable standards the proposal does not do this. It fails mainly because it has a bulk and scale significantly out of character with that of the existing surrounding development. This comes about because each other proposed buildings is two stories high and larger than buildings typical of this locality. Moreover there are two of these buildings on the site which is not much larger than surrounding lots. Also these buildings when viewed from the corner of Parkes and Campbell streets will read together, compounding the impact. The appropriate use of materials, roof form and street presentation do not overcome these more fundamental concerns.

29 Whilst the Court does not accept the entirety of the detailed written submissions provided by Mr Stevenson and Ms Cronin one can understand their wish to maintain the low-density detached single storey dwelling house character of their neighbourhood. However even this relatively homogenous locality, which can be distinguished from other parts of Gerringong, cannot be isolated from change to higher density development. Despite this and consistent with the applicable planning controls, any new development must maintain the existing character especially in terms of building bulk that must respect existing scale. The proposal does not do this.

30 The objectives of the 2(a) zone include the need to reduce the consumption of land for residential purposes and provide housing choice. In this regard there is no reason why this large site should not be developed for medium density housing in the form of dual occupancy development as recognised in the Wiggins report. This will involve a larger building by comparison with what presently exists on the site and in the locality. Such a building could and indeed must be sensitive to, but need not necessarily have the same form and scale as that of surrounding development.

31 However the Court has concluded that these two relatively large buildings would have an excessive bulk and scale which fails to respect the existing scale and character of surrounding development as required by the planning controls. The application should therefore be refused.

32 The orders of the Court are:

1. The appeal is dismissed.
2. Development application No 10.2003.526.1 which is for:
• The demolition of an existing single storey dwelling
• The subdivision of the land into two lots
• The erection of two attached two-storey dual occupancy buildings; and
• The further subdivision of the dual occupancy sites,
at lot A DP 156993 being No 21 Campbell Street Gerringong is determined by the refusal of development consent.
3. Exhibit E (the reduced scale plans) is retained.

__________________________

T A Bly

Commissioner of the Court

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