Pellegrini v Ryde City Council

[2007] NSWLEC 68

Land and Environment Court

of New South Wales

CITATION:

Pellegrini v Ryde City Council [2007] NSWLEC 68

PARTIES:

APPLICANT
Anthony and Alice Pellegrini

RESPONDENT
Ryde City Council

FILE NUMBER(S):

10812 of 2006

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Dwelling house, excessive bulk/scale, impact on neighbours tree, stormwater/drainage retention, revised BASIX Certificate

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Ryde Planning Scheme Ordinance

DATES OF HEARING:

13/02/2007 and 16/02/2007

 
DATE OF JUDGMENT: 

2 March 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr R. Creighton, agent

RESPONDENT
Mr A. Seton, solicitor
of Marsdens

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

2 March 2007

10812 of 2006 Anthony and Alice Pellegrini v Ryde City Council

JUDGMENT

Background

1 This appeal was lodged against council's refusal of a development application for the demolition of an existing house and construction of a new two-storey dwelling at 19 Waterview Street, Putney.

2 A number of issues concerning the bulk and scale and associated amenity impacts on adjoining properties were identified. The parties agreed to the appointment of Mr B Newbold as the Court-appointed expert for planning. Accordingly he prepared an initial assessment, which resulted in amended plans.

3 After further assessment of these amended plans, Mr Newbold supports the granting of conditional consent for the proposal. This course of action is not opposed by Council, subject to finalisation of the conditions of consent.

The site

4 This site is described as Lot 2, DP 611212 and it is located on the north-eastern side of Waterview Street, Putney. The site has an area of 664 sq m and of street frontage of 15.24 m.

5 The site contains a brick dwelling, two (2) outbuildings in north-western corner and fig tree in the north-eastern corner. A Chinese Nettle tree located on No. 17 Waterview Street adjacent to the common boundary partly overhangs the site.

The Proposal

6 This proposal is for a 2-storey dwelling over a basement car park for two (2) vehicles. The ground floor level contains entry, reception/dining room, kitchen and family room leading to an outdoor patio. The first floor level contains three (3) bedrooms, TV/lounge and bathrooms.

7 The proposal has a floor space ratio (FSR) of 0.495:1.

Planning Controls.

Ryde Planning Scheme Ordinance (RPSO);
under which the site is zoned Residential 2(a) and the proposal is permissible with consent. The following clauses in the RPSO relevant:
• Clause 34 - requires Council consider the visual impact of development to/ from waterways, reserves, main roads,
• Clause 41 - tree preservation order,
• Clause 46 - minimum the metre allotment size for the erection of dwelling houses.
State Environmental Planning Policy (Building Sustainability Index BASIX) 2004
Development Control Plan (DCP 2006);
This DCP came into effect on 26 July 2006 and applies to be subject development. The following matters have been identified and development for assessment the subject application:
• Section 3.3: Dwelling Houses and Duplex Buildings,
• Section 7.2: Waste Minimisation and Management,
• Section 8.2: Stormwater Management,
• Section 9.3: Car Parking,
• Section 9.4: Fencing.

The evidence

8 As noted previously, Mr Newbold undertook and an initial assessment of the proposal which resulted in substantial amendments. These amendments have resulted in a complying development, which Mr Newbold supports for conditional consent and this course is also accepted by Council.

9 With respect to the merit assessment of the proposal, Mr Newbold says:

“Issue One: Non-compliant FSR (DCP 3.2.1)

5.1 Further amendments dated January and February 2007 have reduced GFA in order to comply with the maximum FSR of 0.5:1:

• I calculate that GFA is 329m2, as defined by DCP 2006 and nett of the area that would be occupied by two parking spaces.

Issue Two: Unacceptable design, bulk + scale

5.2 Further amendments have substantially reduced scale and bulk of the proposed dwelling, and the amended design would be satisfactory when viewed from the street and adjoining waterway:

• I am satisfied that the further amendments respond adequately to the recommendations made by my Preliminary Opinion;
• Dimensions of the amended dwelling would comply fully with all applicable numeric controls that are specified by DCP 2006;
• The amended building conforms with all relevant design objectives and performance criteria that are specified by DCP 2006:
  Scale of that building would be compatible with existing neighbours;
  Articulation of the upper storey would distribute and disguise the building's bulk;
  Facades visible from public places would incorporate a more-coordinated composition of elements, and include "external" structures such as screened balconies plus pergolas that would disguise the visual impact of exterior walls;
  Balcony and pergola structures would disguise height of the street facade;
  Variation of side elevations would eliminate harsh visual impact of the former design;
  Further reductions in scale and bulk have been achieved by deleting the roof terrace and stair access.

Issue Three was deleted previously

Issue Four: Unacceptable + unnecessary excavation

5.3 I do not consider that the extent of proposed excavation is either unacceptable or unnecessary:

• This position was stated by my Preliminary Opinion:
  Excavation would be contained within the building's footprint;
  I did not consider that the extent of excavation which was required for basement parking would result in a development that was incompatible with the scale of surrounding buildings, or scenically-inappropriate as a backdrop to the waterway;
• Further amendments have reduced the extent of basement excavation:
  The proposed building does not exceed the maximum FSR specified by DCP 2006;
  Height of the building is fully-compliant with DCP 2006 in terms of storeys and dimensions; Height of the building due to elevation above the basement has no adverse amenity impact upon neighbouring properties, and does not result in a building with a scale that would be incompatible with neighbouring structures.

Issue Five: Overshadowing of No 21 Waterview

5.4 My Preliminary Opinion considered that overshadowing of the neighbour would not be unreasonable nor contrary to the purpose of DCP 2006:

• I calculated that the west-facing kitchen window would receive two and a half hours sunlight during midwinter:
  That window currently receives four hours sunlight;
• The amended proposal has not increased height of the proposed building, or altered siting of that building, to an extent that would alter my Preliminary Opinion;
• Solar impacts of the proposed dwelling would be acceptable due to the following reasons:

  Performance criteria in DCP 2006 refer to "overshadowing of main living area windows"; Living areas at number 21 are oriented primarily in a south-westerly direction toward the waterfront, and consequently have limited solar access during midwinter;
  The window affected is a kitchen, which is not commonly-defined as a living area;
  I estimate that three hours’ sunlight or more would be received by this window for ten to eleven months of the year (ie the extent of "less-than-optimal" sunlight would be negligible for a service room);
  Also, I observe that living areas at number 21 include a corner balcony that would receive early morning midwinter sunlight for up to two hours along its length (that balcony faces a driveway and consequently is not overshadowed by a neighbouring structure).

Issue Six: Privacy impact upon No 21

5.5 The amended development proposal improves visual and acoustic privacy:

• The roof terrace was a likely source of acoustic impact, and it has been deleted;
• Design of the amended eastern elevation promotes visual privacy by:
  Screening of the upper storey balcony and ground floor living room windows;
  Sills of windows in the ground floor dining room and upper storey media room are raised 1.2m above their respective floor levels, and the glazed width of those windows is limited to only 750mm;
  Sill of the new master-bedroom window is raised 1.8m above floor level;
• Privacy is also provided by width of proposed setbacks from the common boundary: Horizontal separations are between 4m and 5.5m which substantially exceed the 1.8m which is typical between neighbouring detached dwellings; Actual distances between neighbouring windows are substantially greater from upper storey vantage points where vertical separation also occurs.

Issue Seven: Impact on neighbouring Chinese nettle tree

5.6 The further amended proposal has reduced, but has not eliminated, likely impacts upon that neighbour's tree:

• I have estimated likely impacts according to the arborist's report that was prepared on behalf of the applicant;
• The increased upper storey setback would reduce the extent of canopy pruning necessary to construct the proposed dwelling;
• However, the further amendments do not indicate an alternative footing design as recommended by my Preliminary Opinion:
  Low impact footings, for example "pier and beam", should be used across at least the defined critical root zone of the tree;
• This issue could be resolved by conditions attached to any consent that the Court might contemplate:
  I do not consider that this deficiency provides sufficient reason for refusal of consent.

Issue Eight: Removal of a fig tree

5.7 I consider that the ficus is not a satisfactory residential tree, and that it should be removed and replaced by more-appropriate plantings:

• The tree currently does not display an abundant or extensive canopy, and neither contributes substantially to neighbourhood character nor the amenity of any property;
• The tree is located less than one metre from a common boundary, and if left to mature is more-than-likely to become a major nuisance in relation to boundary fencing, drains and sewers;
• I consider that it should be replaced by two indigenous canopy trees that would provide effective privacy screening between neighbouring properties as well as a shady backdrop to backyards;
• I consider that this issue could be resolved by an appropriate condition of consent.

Issue Nine: Adequacy of proposed landscaping

5.8 The proposed landscape plan remains unsatisfactory:

• The current plan relates to the original development proposal:
  It does not describe dimensions of garden areas that are currently-proposed;
  It indicates features that have been deleted from the current proposal such as a paved driveway along the eastern boundary and a carport at the site's north-eastern corner;
• The plan is not consistent with commitments listed by the BA SIX Certificate or performance criteria of DCP 1006:
  The area that would be densely-planted is less than the 180m2 specified on the BA SIX Certificate;
  There is no indication that proposed species are indigenous to the Ryde LGA as required by the BA SIX Certificate and as desired by the DCP;
• Number, location and scale of proposed trees do not satisfy performance criteria of DCP 2006:
  Hard materials would not be visually-softened;
  Screening and privacy would not be provided for neighbouring dwellings;
• I consider that this issue could be resolved by an appropriate condition of consent.

Issue 10: Inadequacy of BASIX responses

5.9 Generally, the amended development proposal lists all commitments required by the BA SIX Certificate at the DA stage:

• Plans show the following:
  Sunshading hoods above windows, as specified;
  Specifications regarding windows and insulation;
  Commitments regarding plumbing fittings, rain water tanks, water and space heaters;
• However, the plans do not adequately describe landscaping commitments:
  Area of dense plantings are less than required, and it is not indicated whether proposed plantings are indigenous to the Ryde LGA;
• Also, the 5000 litre stormwater tank is not identified on any plan;
• I consider that this issue could be resolved by appropriate conditions of consent.

Issue 11: Unacceptable waste management plan

5.10 I do not consider that the proposed excavation is excessive, or that any failure by the waste management plan to nominate means of disposal for excavated material provides sufficient reason for refusal of consent:

• Due to reduction in area of the basement, it is likely that the majority of excavated material could be retained on site within the sub-floor area:
  It could be retained as "lost formwork" where the ground floor slab would be elevated above existing ground level;

• I consider that this issue could be resolved by an appropriate condition of consent.

  Issue 12: Inadequate stormwater drainage

  5.11 Evaluation of the stormwater concept is outside my area of expertise:
  
• However, I note that connections to the proposed rain water tank are not indicated;
• Also, I note that the 5000 litre stormwater tank required by the BA SIX Certificate does not appear to have been provided, and that the pollution control pit required by Council at the front boundary has not been identified;

• Nevertheless, I consider that this issue could be resolved by an appropriate condition of consent.

  Issue 13: Inadequate architectural plans

  5.12 Further amended plans have corrected all errors that were identified in preceding versions:
  

• I consider that plans dated January and February of 2007 provide a satisfactory basis for any consent that the Court might contemplate, and that they generally conform with Schedule B of the Court's Practice Direction No 17.

  Issue 14 was deleted previously

  Issue 15: The public interest

  5.13 Further amended plans have achieved satisfactory compliance with all elements of the local planning controls, and I consider that the proposed development can no longer be considered contrary to the public interest:
  
• The amended development proposal satisfies all numeric controls specified by DCP 2006;
• The amended proposal satisfies all qualitative considerations:
  Its appearance from the waterway would be satisfactory, and therefore the proposed development would meet the intent of clause 34.(1) of the Ryde PSG,
  In terms of form, scale and bulk, plus architectural design, the proposed dwelling would be compatible with neighbouring buildings as well as the surrounding streetscape, and therefore it would satisfy performance criteria for the more-significant design elements in DCP 2006;
  Siting and design would not impose significant adverse amenity impacts upon any neighbouring property;
• Subject to minor further amendments that can be achieved by way of conditions, documentation of the current development would provide a reasonable foundation for any development consent that the Court might contemplate.”

10 In recommending this proposal for approval, Mr Newbold says that specific conditions of consent should be imposed which deal with specified building footings adjacent to the Chinese nettle tree, required for its protection. Also, arrangements for the rainwater/drainage control tanks and revision of the Basix Certificate to ensure compliance for the amended proposal.

11 The applicant agreed to make these further amendments.

Conclusions

12 Having considered the evidence and undertaken a view of satisfied to rely on the assessment and conclusion of the Court appointed expert Mr Newbold that this amended proposal reasonably satisfies the relevant objectives and controls to merit consent.

13 In this regard, I note that the further amendments arising from matters discussed at the On-site Hearing, involving the rationalisation has been made, which Council now finds acceptable. Therefore the following Orders are made:

Court Orders

1. The appeal is upheld.
2. Development consent is granted to DA 442/2005 for the demolition of an existing dwelling and construction of a new dwelling at 19 Waterview Street, Putney, subject to the conditions in Annexure A.
3. The exhibits may be returned except for A, B, C and 2.

___________________
R Hussey
Commissioner of the Court
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