Proctor M & Anor v Marrickville Council
[2007] NSWLEC 453
•17 July 2007
Land and Environment Court
of New South Wales
CITATION: Proctor M & Anor v Marrickville Council [2007] NSWLEC 453 PARTIES: APPLICANT:
Mark & Marisa Proctor
RESPONDENT:
Marrickville CouncilFILE NUMBER(S): 10356 of 2007 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Alterations and additions to dwelling
Visual impact and
Privacy of neighboursLEGISLATION CITED: Marrickville Local Environmental Plan, (MLEP)
Marrickville Development Control Plan No 35 – Controls for New Houses and Alterations and Additions to Existing Houses, (DCP35)
Environmental Planning and Assessment Act 1979, ss 79C and 97.DATES OF HEARING: 17/07/2007 EX TEMPORE JUDGMENT DATE: 17 July 2007 LEGAL REPRESENTATIVES: APPLICANT:
Mr A P Gough, solicitor
SOLICITORS:
Storey and GoughRESPONDENT:
Mr G Christmas, Principal Solicitor
SOLICITORS:
Marrickville Council
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Watts C
17 July 2007
10356 of 2007 - Mark & Marisa Proctor v Marrickville Council
JUDGMENT
1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 against the decision of the Marrickville Council (the council) to apply certain conditions to a development consent in respect of a proposal to alter and add to an existing dwelling house at Lot A, DP 315543, being No 6 Fishers Reserve, Petersham.
2 The applicant has appealed against deferred commencement Conditions 1 and 3.
3. The windows in the northern (rear) external wall of the second storey addition are to be provided with privacy screening that will prevent the windows providing a line of sight into the 'principal open space' of adjacent dwelling house, including the dwelling houses fronting Brighton Street at the rear. Details of the method of complying with this condition are to be submitted to and accepted by Council.1. The first floor addition being reduced by one (1) metre in length to provide a first floor setback of one (1) metre to the ground floor rear (northern) elevation. Amended plans complying with this condition are to be submitted to and accepted by Council.
Reason: To confirm the terms of Council’s approval and reduce the visual bulk of the proposed addition.
Reason: To maintain the existing amenity of the adjoining dwelling house in respect to privacy.
3 I visited the land in company with the parties on the morning of the on-site hearing and heard from two local residents.
4 I have concluded that the visual impact of the proposal would be such as to overbear the rear yards of the neighbouring properties at Nos 4 and 8 Fishers Reserve. Also given the existence of a right-of-carriageway at the rear of the land and the constrained nature of the rear yard, that the proposal should be setback 1m further from the rear title boundary on both the ground and first floor. The applicant was not prepared to submit to such a condition and the application was dismissed.
The land
5 The land is situated on the northern side of Fishers Reserve. It is rectangular in plan with a frontage and rear northern boundary of 6.471m and side boundaries of 26.35m/26.314m, giving an area of some 166m2. Erected on the land is a single-storey detached dwelling that is setback 1.245m from the western side title boundary and 162mm from the eastern side boundary.
6 The existing building is setback from the front alignment and the rear title boundary around 6m.
Relevant planning controls
Marrickville Local Environmental Plan 2001, (MLEP)
7 Under the provisions of the MLEP the land is zoned Residential 2(a) and the proposal is permissible with consent.
8 Under cl 7 MLEP the objectives of the plan are, [Note: Exhibit 3, p 2-1]:
(a) to consolidate and update planning controls in the area, and
(b) to create a land use framework which allows detailed provisions to be made in development control plans, and
(c) to enhance the quality of life and promote the well-being of the local community, and
(d) …
9 Under cl 55 of the MLEP matters to take into account in areas shown in distinctive colouring and edged heavy black on the map marked Marrickville Local Environmental Plan No 111, (Amendment No 1) include, [Note: Exhibit 3, p 6-5]:
(a) the pitch and form of the roof, if any; and
(b) the style, size, proportion and position of the openings for windows and doors, if any; and
(c) whether the colour, texture, style, size and type of finish of the materials to be used on the exterior of the building are compatible with those of the materials used on existing buildings situated on the land within the area.
Marrickville Development Control Plan No 35 – Controls for New Houses and Alterations and Additions to Existing Houses, (DCP35)
10 DCP35 is aimed at producing a higher standard of design, and at improving the overall environmental amenity and liveability of Marrickville’s residential areas. [Note: Exhibit 1, p1].
The proposal and its history
11 Development application No 200600133 was lodged with the respondent council on 24 March 2006 to alter and add to an existing dwelling on the land. The council approved the application and imposed conditions. Two of these conditions are appealed against and the application is to be considered afresh.
Notification
12 The application was notified to nearby owners and occupants and the council received two objections from residents living to the north in Brighton Street. Mr J Pinto, solicitor, wrote to the council on 12 April 2006 on behalf of Mr J R Anderson and Ms F L Peaston, the registered proprietor of the property at No 45 Brighton Street, Petersham. His clients objected on the grounds that, [Note: Exhibit 1, p 13]:
1. The proposed first floor addition has a number of windows facing out clients rear yard and will cause a serious loss of privacy.
2. The proposal is too bulky and out of character with the surrounding architecture which is predominantly single-storey.
3. The building has glass doors in close proximity to our client’s property so that there will be an increase in noise created by any activity in such property.
4. The proposed development is so large that only a very small rear yard (open space) remains. This will create an incentive to remove existing trees in such a small yard, which is again out of character and should not be allowed.
13 Ms F Bell, owner and resident of No 41 Brighton Street, wrote to the council on 13 April 2006 and expressed concern in relation to, [Note: Exhibit 1, p 14]:
· Loss of light in my courtyard.
· Loss of privacy due to the windows on the first floor and the glass doors on the ground level.
14 She also asked whether the proposal would be taller than No 4 Fishers Reserve that is a similar dwelling to the existing and with a first floor addition.
The council’s decision
15 By notice dated 13 November 2006 the council approved the application under delegated authority and imposed deferred commencement conditions and other conditions that would be activated upon the deferred commencement conditions being fulfilled to the council’s satisfaction.
The hearing
16 The appeal was filed on 26 April 2007 against deferred commencement Conditions 1 and 3 imposed 13 November 2006. There was no dispute that the matter came before the Court ‘de novo’.
17 At the hearing the court heard evidence on behalf of the respondent council from:
· Dr M Scoda, resident of No 8 Fishers Reserve, Petersham;
· Ms L Bell, resident of No 41 Brighton Street, Petersham.
18 Dr Scoda had recently attended an on-site hearing arranged by the council and despite not having formally objected, she was permitted to give evidence. She was concerned for the overbearing nature of the proposal and its impact on the enjoyment of her rear yard. She also said that she would lose the view of the sky to the east and daylight would be reduced.
19 As was agreed at the callover there were no statements of evidence and the parties agreed to attend with the owner and council officer present. Ms J Clark, Manager Development Assessment attended the on-site hearing on behalf of the council and the applicant in person did not attend.
The issues
20 On 6 June 2007 the applicant filed a statement of facts and contentions and the respondent on 20 June 2007 filed a reply. The principal contested issue was the visual bulk and resultant overbearing impacts.
21 The applicant contends that the deferred commencement Conditions 1 & 3 should be deleted for the following reasons:
Deferred Condition 3Deferred Condition 1
a) The rear of the first floor extension will not be visible from a public place.
b) The bulk of the proposed rear portion of the first floor addition is not visually dominating on adjoining properties to the side or rear.
c) The reduction in length of the first floor addition by 1m at the rear will not increase the quality of views from the habitable rooms or private open spaces of adjoining side properties. Views of the proposed work from the adjoining side dwellings will be at an oblique angle.
d) The reduction in length of the first floor addition by 1 metre will not decrease the visual bulk when viewed from the adjoining rear properties. The subject dwelling's bulk is perceived from these properties to the rear due to the height and width of the subject dwelling, not its length.
e) The reduction in length of the first floor addition by 1 metre will not increase the solar penetration into adjoining properties.
The principle open space of adjoining properties is not adversely impacted upon by the proposed first floor addition due to the nature of the additions, the proximity to the principal open spaces of adjoining properties, the setback from the rear boundary and existing vegetation.
The row of dwellings in which the subject residence exists does not have a consistent or significant rear building line. The proposed rear setback of the first floor addition is similar to other rear setbacks in the locality.
a) The window on the first floor addition for which screening is sought is a window to a bedroom. The predominant use of this bedroom would be during the night, when the-private open space areas of adjoining properties would not be in use.
b) Any overlooking of adjoining properties 4 and 8 Fishers Reserve would be at an oblique angle and only possible when standing in close proximity to the window.
c) The proposed window is 5m from the rear boundary of dwelling houses fronting Brighton Street and more than 12m from the rear of a dwelling houses fronting Brighton Street.
d) Existing screen planting will hinder the attainment of views to the rear, ensuring that visual privacy on adjoining properties is reasonable.
22 The respondent contends that the above conditions should be maintained for reason that:
- Deferred Condition 1
(a) Agreed only in relation to visibility from a public place. However, the site is located in a precinct characterised by a dense form of one and two storey single dwelling house development on small lots. This density arises from the fact that there is a high ratio of building footprint compared to unbuilt upon area. Views into the site from any public place are therefore limited. Notwithstanding this, the rear of the first floor extension will be visible from adjoining and nearby premises to the rear and side, namely Nos 4, 8 and 10 Fishers Reserve and Nos 37, 39, 41, 43 and 45 Brighton Street.
(b) Disagree. The proposed rear portion of both the ground and first floor elements of the addition are visually dominating and overwhelming in bulk and scale due to:
Deferred Condition 3(c) Disagree. The additional setback of 1 metre will increase the views of the sky from the private open space of the adjoining side dwellings.
(d) Disagree. The suggested 1 metre setback for the first floor arose from a site inspection following deferral of the application by Council's Development and Environmental Services Committee at its meeting on 7 November, 2007. The application was originally recommended for refusal by Council officers. The 1 metre setback was intended to reduce the visual bulk of the first floor at the rear by introducing a step in the vertical alignment of the building, recognising the existence of a similar style of first floor addition already built at 4 Fishers Reserve, albeit under different planning controls. It is relevant to note that the first floor addition at No. 4 was approved by way of a building application in 1994. This was prior to the adoption of Development Control Plan No. 35 - Urban Housing Volume 1 in 2001, which contains Council's current planning controls for dwellings. C25, which refers to the location of the building bulk for alterations and additions states "any new work that is visible from the front of a period building shall be kept to a minimum. Generally any alteration that modifies a roof form is not favoured". This setback has the impact of reducing the bulk of the proposal at the rear when viewed from the private open spaces of the adjoining premises and also from those adjacent buildings to the rear with frontages to Brighton Street. At ground floor level, the proposed rear extension extends between im beyond the existing footprint of the building (on the western side) and 1.8m (on the eastern side), which further exacerbates the impact of the proposal in terms of its visual bulk when viewed in the context of the neighbours' buildings and private open spaces.
(e) Disagree. Any reduction in length of the first floor of the building must have an associated reduction in shadows cast. Council has not raised this as an issue as the proposal complies with Council's solar access provisions under Development Control Plan No 35 - Urban Housing Volume 1.
(f) Disagree. The proposed first floor addition will be visible from the principal open space of the adjoining dwellings at Nos 4, 8 and 10 Fishers Reserve and Nos 37, 39, 41, 43 and 45 Brighton Street. Due to the close proximity of the rear elevation of the proposal to the side and rear boundaries (152mm from No 4; 1.245m from No 8 - being the width of the right-of-way; 3.6 m from the rear boundary exclusive of the right-of-way) and its height of two (2) storeys, there will be vantage points to the proposal from the rear yards of adjoining properties, irrespective of the presence of vegetation. The only existing vegetation in the rear yard of No. 6 Fishers Reserve (a Bottlebrush) has been approved by Council for removal to facilitate the construction of the proposal.
(g) Disagree. The group of similar cottages that No. 8 forms part of is characterised by consistent front and rear setbacks (Nos. 2, 4, 6, 8 and 10 Fishers Reserve). The variation of rear setback between each of these dwellings and its adjoining neighbour within this group does not exceed 1 metre.
(a) Agreed.
(b) Agreed.
(c) Disagree. If the right of way is excluded, the proposed window is only 3.6 metres from the rear boundary (which approximates the rear fence line). The distance from the rear dwelling houses fronting Brighton Street is 10 metres, not 12 metres as stated.
(d) Disagree. The proposed window is 2190mm in length and provides opportunities for overlooking into the adjoining principal open space areas of Nos. 4 and 8 Fishers Reserve and Nos 37, 39, 41, 43 and 45 Brighton Street. The approximate area of glazing is 2.8 sqm. The window is elevated 4.8 metres (being on the first floor) above the natural ground level (measured to the sill) and in circumstances where principal open space areas are. very compact, the level of overlooking afforded by this window is unacceptable and therefore screening is required. The existing Bottlebrush in the rear yard of No 6 Fishers Reserve is to be removed to facilitate the proposal. Therefore, the outlook from this window towards Nos: 37 and 39 Brighton Street is completely unscreened. Minimal screening is provided by existing outbuildings at Nos. 41 and 43 Brighton Street towards these premises. The existing Jacaranda in the rear yard of No. 8 Fishers Reserve provides a degree of filtering of the outlook to No 45 Brighton Street. Council's deferred commencement Condition 3 states:
- The windows in the northern (rear) external wall of the second storey addition are to be provided with privacy screening that will prevent the windows providing a line of sight into the principal open space' of adjacent dwelling house, including the dwelling houses fronting Brighton Street at the rear. Details of the method of complying with this condition are to be submitted to and accepted by Council.
Reason: To maintain the existing-amenity of the adjoining dwelling house in respect to privacy
Deferred Commencement Condition 1 – First floor setback
23 The council in its deferred commencement Condition 1 sought to require amended plans to show the first floor addition reduced by 1m in length to provide a first floor setback of 1m to the ground floor rear northern elevation. The setback from the rear title boundary if the wall on the first floor were setback 1m further would be around 5.8m when scaled off the drawing in Exhibit A.
24 Dr Scoda who lives next door at No 8 Fishers Reserve stressed the overbearing nature of the proposal and its adverse impact on the enjoyment of her north facing rear yard. She supported the council’s position and asked that the deferred commencement condition remain.
25 Mr Gough, for the applicant, submitted in respect of Condition 1 of the deferred commencement and the 1m reduction in the first floor level that cl 7(c) of the Marrickville Local Environmental Plan 2001, (MLEP), was relevant and that the council in its objective sought “…to enhance the quality of life and promote the well-being of the local community.” The land, he submitted is constrained with an area of some 166m2 and the existing dwelling has and proposed dwelling would have small rooms and that the applicant sought to make the dwelling more habitable. To achieve this, the applicant sought to provide on the first floor a bedroom with walk-in-wardrobe with linen closet and submitted that without these, storage would be restricted. He submitted that the reduction in the first floor by 1m would reduce these storage facilities and that these areas are needed to comply with cl 7 of MLEP.
26 He submitted that the proposal would comply with the numerical controls and would satisfy the merit assessment controls of the MLEP. He referred the Court to the conclusion of the council’s town planner’s report at p 50, and that the proposal complies with the zone objectives under the MLEP.
27 He submitted that the council’s heritage advisor considered the proposal to be superior to the first floor extension at No 4 Fishers Reserve and that the development would be acceptable when viewed from the street, [Note: Exhibit 1, Bundle, p 54].
28 He submitted that the application would comply with the council’s open space requirements and referred to the planning report, [Note: Exhibit 1, Bundle, p 54]. He submitted that the assessing planner was satisfied that the 30m2 provided would be acceptable when the site area is 166m2, [Note: Exhibit 1, Bundle, p 54].
29 He submitted that the FSR and site coverage would be consistent with the council’s requirements, [Note: Exhibit 1, Bundle, p 52]. Finally, he submitted that the council had agreed to the removal of the Bottle Brush tree and considered that acceptable, which would otherwise restrict the rearward extension of the proposal, [Note: Exhibit 1, Bundle, p 92]. .
30 Addressing the issue of visibility, bulk and scale, he submitted that the proposed first floor extension would not be visible from the street or public places. The location of the works would be appropriate under DCP35 [Note: Exhibit 1, DCP35, p 42]. He submitted that control C21 of DCP35 requires that new development and alterations and additions should not overwhelm the existing and this concern is confined to the rear. He submitted that the proposed form is facilitated by DCP35 and the views from the side and from No 8 Fishers Reserve and the perception of bulk from the rear yard of Dr Scoda’s property would be limited and only could be obtained from standing in the rear yard and off to the side when standing at the rear door. He submitted that this is evidenced by the location of the seating in the rear yard of No 8 Fishers Reserve. The general considerations for setbacks of DCP35 are met, he submitted and would allow neighbours adequate access to sunlight and a share of views, [Note: Exhibit 1, DCP35, p 36]. . He submitted that the application complies and allows for a sharing of views.
31 He submitted that the concerns of residents of Nos 41 and 54 Brighton Street are not centred on bulk and scale and are more to do with privacy. The bulk of the subject is perceived by height and width when standing in the rear yard of No 41 Brighton Street and not its length, he submitted. Condition 1, he submitted, would not achieve a reduction of bulk and scale when viewed from the rear.
32 He submitted that there is no need for a reduction of 1m as the proposal achieves the articulation through architectural treatment and differing materials.
33 He submitted that the proposal continues the side setbacks of the existing dwelling and would be setback around 5.8m from the rear. He pointed to the applicant’s contention that the rear boundary is the most northernmost point of the RoW and the council says it is the southern part.
34 He submitted that there are no numerical controls for detached single dwellings and one must look to the objectives and merit controls as approved the development would achieve this [Note: Exhibit 1, DCP35, p 36], and the introduction of a 1m reduction does not further these considerations. He submitted that there is no requirement to maintain a rear building line. Whilst it might be a good planning principle it is not mentioned as a requirement in the DCP35. The first floor addition would be consistent with this requirement and this is acknowledged by the council officer, [Note: Exhibit 1, Bundle, p 56]. There are similar second-storey additions nearby that were seen on the site.
35 He submitted that the reduction by 1m, on the ground would not increase the visibility of the sky to any significant degree and to further reduce by 1m would not substantially increase the private open space (POS) for the site. He submitted that the assessing town planner on p 54 of the report considered the provision of 30m2 of POS acceptable.
36 The 1m reduction on the ground floor would result in a confined family and dining room in non-compliance with cl 7 of LEP 2001. Mr Gough submitted that the burden for the applicant would not outweigh the perceived benefits for the neighbours and the application should be approved as proposed.
37 Mr Christmas, for the council, submitted that this case is about reasonableness. He submitted it is a small allotment with a detached dwelling and DCP35 requires that on allotments of this size the development be considered on its merits. He submitted that the council’s officers have taken into account the context [Note: Exhibit 1, DCP35, p 31]. He submitted that what is relevant is to consider the impact on immediately surrounding properties. He submitted that the impact of the proposal would be alleviated significantly if the condition for a setback of a further 1m were upheld.
38 He submitted that notwithstanding non-compliance with the numerical requirements it is necessary to consider eight bullet points, [Note: Exhibit 1, DCP35, pp 31-2]. He submitted that it is reasonable bulk and coverage and he noted that the right-of-carriageway reduces the land area. He submitted that the fenced area defines the size of the lot and that is the area perceived to support the amount of floor space. The other factor, he submitted is the building setbacks. True no numerical controls but section C4 on p 36 DCP35 and this comes back to what is reasonable in the context of the site and adjoining properties. One of the objectives of DCP35 is to reduce the visual bulk of buildings and in this case it would ensure that a brick wall does not confront Dr Scoda. It is about looking at what is reasonable between Nos 4 and 8 Fishers Reserve. He pointed to the advisory note that states that the council may require buildings to be setback further, [Note: DCP35, p 37].
39 He submitted that as proposed and as approved the ground floor does extend the least of the current row. It may well be that it should be brought back to the current setback of the existing dwelling. It would still be a three-bed dwelling. The condition would effectively remove the walk-in-wardrobe and still leaves a decent sized main bedroom. He submitted that there is a need to look at the proposal in the context of a 166m2 site. The applicant might not achieve a ‘grand mansion’ but the impacts on the adjoining properties it would be reasonable if the size of the building were slightly reduced.
40 He agreed with Mr Cough that the council has approved the removal of the Bottle Brush and if the rear wall on the ground floor were brought back 1m not sure of the impacts. It is a ‘tight’ back yard and there is a small courtyard next door at No 10 Fishers Reserve, and the proposal should be ‘chopped back’ so that the bulk and scale does not overwhelm that adjoining property. The recommendation of the officers was for refusal. The fact that other things got a tick and that is not disputed but the impact on adjoining properties remains important. The council decision should stand and the first floor should be setback 1m as required and question the setback on the ground floor should be considered on its merits.
41 The bullet points under C2 built form and character are worthy of consideration, [Note: Exhibit 1, DCP35, pp 31-2]. Despite the fact that the proposal would comply with the numerical requirements of allotment area, FSR, site coverage, the applicants are required to demonstrate that the bulk and relative mass of their proposal is acceptable in terms of:
· overshadowing and privacy considerations;
· streetscape considerations;
· building setbacks;
· parking and landscape requirements;
· visual impact and impact on existing views, in this regard the council encourages view sharing between surrounding residences;
· the existence of significant trees on site;
· the size, and shape of the allotment; and
· site topography.
42 I consider that the visual impact of the proposal would be such as to overbear the rear yards of the neighbouring properties at Nos 4 and 8 Fishers Reserve. On the site inspection I was able to stand in the rear yard of No 8 Fishers Reserve and imagined the impact of the proposal. Similar impacts are likely to result on the amenity of the occupants of No 4 Fishers Reserve. Dr Scoda gave evidence strongly contesting the applicant’s position to leave the rear wall where it was originally proposed. There was no evidence from the occupants of No 4 Fishers Reserve however, I consider it appropriate to take into account likely future impacts.
43 I am satisfied that cl 7(c) of the Marrickville Local Environmental Plan 2001, (MLEP), was relevant and that the objective “…to enhance the quality of life and promote the well-being of the local community,” applies equally to the enjoyment of the adjoining properties as it does to the subject land.
44 I am satisfied that the additional setback of 1m on the first floor, sought by the council, would increase the views of the sky from the private open space of the adjoining side dwellings and would reduce the overbearing impact of the proposal. I accept the evidence in this regard of Dr Scoda and the expert opinions contained in the council’s town planner’s report.
45 I also consider that the size, and shape of the allotment, having regard for the presence of the right-of-carriageway, predicates against the rearward extension of the existing dwelling in the manner proposed. Thus, I consider that given the constraints on the area of the backyard of the subject property, that the ground floor should also be setback, around 1m, so as to align with the northern wall of the former toilet structure attached to the rear of the dwelling. Also, this would enable the retention of the tree in the rear yard and allow for landscaping of the courtyard.
Deferred Commencement Condition 3 - Privacy screens
46 Ms Bell reiterated her concerns in regard to privacy of her rear yard and dwelling, however, was she satisfied that if the proposal were setback on the first floor as required by the council’s condition, privacy screens would not be required on the north facing first floor windows. I accept her stance and would not require a condition in that regard were I to approve the application.
47 I offered to amend the conditions of consent to reflect the above findings, however the applicant was not content with this and preferred that I refuse the application. For the above reasons, the appeal is dismissed.
Orders
48 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed.
2. Development application No 200600133 lodged with the respondent council on 24 March 2006 to alter and add to an existing dwelling at Lot A, DP 315543, being No 6 Fishers Reserve, Petersham, is refused consent.
3. The exhibits except for Exhibits A, B, C and 2 are returned.
S J Watts
Commissioner of the Court
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