Provincial Planning Pty Ltd v Warringah Council
[2004] NSWLEC 249
•05/14/2004
Land and Environment Court
of New South Wales
CITATION: Provincial Planning Pty Ltd v Warringah Council [2004] NSWLEC 249 PARTIES: APPLICANT
RESPONDENT
Provincial Planning Pty Ltd
Warringah CouncilFILE NUMBER(S): 11141 of 2003 CORAM: Tuor C. KEY ISSUES: Development Application :- construction of dwelling houses
Exemption to density standard - whether development relates favourably to existing pattern scale and landscape character
Consideration of desired future character described in Locality StatementLEGISLATION CITED: Warringah Local Environmental Plan 2000 CASES CITED: DATES OF HEARING: 06/04/2004, 07/04/2004 and 14/05/2004 EX TEMPORE
JUDGMENT DATE :05/14/2004 LEGAL REPRESENTATIVES:
APPLICANT
Mr P McEwen SCSolicitors
Peter Prior and CoRESPONDENT
Solicitors
Mr P Clay, Barrister
Wilshire Webb
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
11141 of 2003
14 May 2004Tuor C
- Applicant
- Respondent
Introduction
1 This an appeal against the refusal by Warringah Council (the council) of a development application for the demolition of three existing houses and the construction of sixteen houses and basement car parking at 78-80 Forest Way and 82-84 Prince Charles Street, Frenchs Forest.
The site and it context
2 The site is an amalgamation of a five allotments being: lot 7 DP 21872 (84 Prince Charles Street); Lot 8 DP 21872 (82 Prince Charles Street); lot 27A DP 39368 (76 Forest Way); lot 27B DP 393680 (rear of 72 Forest Way) and lot 28 DP 23407 (80 Forest Way). It has an area of approximately 6381m2, with a frontage of about 35.66m to Forest Way and about 36.57m to Prince Charles Street. The land falls about 5.5m towards the south east. The site has three single storey houses and associated structures. Vegetation is mainly areas of grass with scattered tress and shrubs.
3 There are two storey houses, dual occupancy developments and medium density housing in the locality but the surrounding development is predominantly single storey houses on large allotments with landscaping.
Background and Proposal
4 The development application was lodged on 22 July 2003 and was notified to adjoining residents. A number of objections were received. The original application for 20 dwellings was refused by council on 9 December 2003. The application before the Court was for 18 dwellings, which was subsequently amended to 16 dwellings and was renotified to adjoining residents and further objections were received.
- Statutory framework
5 Under Warringah Local EnvironmentalPlan 2000 (LEP 2000) the site is located within Locality C1-Middle Harbour Suburbs Locality. The development is permissible with consent.
6 Clause 12(1) of LEP 2000 requires that consent must not be granted unless development is consistent with relevant General Principles of Development Control in Part 4 of the LEP 2000. These principles include matters such as: access to sunlight; private open space; privacy and conservation of energy and water. Clause 12(2) requires that the development must comply with the development standards set out in the Locality Statement, which include: density; height; setback and landscaping standards. Under cl 12(3) the desired future character described in the Locality Statement must be considered.
7 Clause 18(2) states that:
- Strict compliance with development standards, however, does not guarantee that the development is consistent with either the general principles of development control or the desired future character of the locality.
8 The desired future character is relevantly described as:
- The Middle Harbour Suburbs localities will remain characterised by detached style housing in landscape settings interspersed by a range of complimentary and compatible uses…….
- Future development will maintain the visual pattern and predominant scale of existing detached houses in the locality. The streets will be characterised by landscaped front gardens and consistent front building setback. Unless exemptions are made to the housing density standards in this locality statement, any subdivision of land is to be consistent with the predominant pattern, size and configuration of existing allotments in the locality.
9 The density standard for housing is specified as one dwelling per 600 square metres of site area. This standard does not apply where:
- (b) on land equal to or greater than 3000 square metres in area, where the land area per dwelling may be reduced provided the buildings are sited and designed and landscaping is used to ensure the development relates favourably to the pattern, scale and landscaped character of the street and surrounding development,
10 The Statement of Issues filed by the council contained 9 issues. As a result of the amended plans and joint conferencing between the experts, these issues were largely resolved, with the exception of residents’ concerns and the key issue of whether the density and basement car park satisfies the Desired Future Character and favourably relates to the pattern, scale and landscaped character of the area of the street and surrounding development.
11 The Court heard evidence from a number of residents and had the advantage of a site visit. The amended plans, although generally recognised as an improvement, did not satisfy the residents’ concerns, with the exception of the adjoining owner Mr and Mrs Hannah, at 74 Forest Way, Frenchs Forest, who fully supported the amended scheme.
12 The main issues raised by the other residents were:
· The impact on privacy and overshadowing.
· The impact of traffic and parking.
· The proposal is an over development of the site and is out of character with the area.
13 The planning experts, Mr H Sanders, for the council and Mr Vescio, for the applicant agreed that the amended plans complied with the numerical controls in LEP 2000 and that the privacy and overshadowing impacts were acceptable. Traffic was not raised as an issue by council and no contrary expert evidence was presented to the Court on traffic or parking.
14 Mr Sanders and Mr Vescio held contrary views on whether the proposal met the Desired Future Character and the exemption to the density control. The key difference in opinion was that Mr Sanders considered that the existing character of the area was predominantly single dwelling houses on large allotments. Whereas Mr Vescio considered the area to be more mixed with no predominant building form or subdivision pattern. Mr Vescio also placed weight on the development complying with the numerical controls in the LEP and thereby relating favourably to the area.
15 I accept that the predominant character of the area is single dwelling houses but not the conclusions that Mr Sanders has drawn. Nor do I accept the assumption that compliance with the numerical controls would automatically meet the Desired Future Character or the test in the density control.
16 LEP 2000 clearly envisages, for sites greater than 3000 square metres, a density of development will occur that is greater than that which exists in the area (about one dwelling per 800 square metres) and also greater than the one dwelling per 600 square metre density control. The proposal has an average density of one dwelling per 400 square metres. In allowing this reduction in allotments size the key question to be answered is whether the buildings are sited and designed and landscaping is used to ensure the development relates favourably to the pattern, scale and landscaped character of the area of the street and surrounding development.
17 In answering this question one must examine the existing pattern, scale and landscaped character of development in the street and surrounding area. While the control does not require that this be emulated or copied it does require that there be a favourable relationship.
18 The existing pattern relates not only to the size of allotments but to the manner in which the built form and open space relate to each other and to other developments. The predominant pattern in the street and the surrounding area is that of houses set back from the street with rear gardens and single driveways to garages. The rear garden of one house generally faces gardens at each side and the rear garden of houses in other streets. This means that a house normally has a neighbour on either side, in reasonably close proximity, and a neighbour to the rear, at some distance. Interspersed into this pattern are dual occupancy developments generally located in what was the rear garden, as well as some medium density development.
19 There was agreement between the parties that the houses in the southern part of the development (dwelling Nos 1, 2, 3, 11, 12 and 13) achieved a similar, favourable relationship, to the existing pattern of development. This was achieved as two to three dwellings in the proposal faced the adjoining house at 74 Forest Way or 80 Prince Charles Road.
20 In the northern part of the proposal there were three to four dwellings (dwelling Nos 1, 5, 6, 7, 8, 9 and 10) that faced the adjoining house at 80 Forest Way or 86 Prince Charles Road. Council's submission was that this resulted in "tension"and an unfavourable relationship. Council also considered the relationship between the attached dwellings (dwelling Nos 15 and 16) with the adjoining development at 70 Forest Way to be unsatisfactory.
21 As I understand council's submission, the key difference between a favourable and an unfavourable relationship is the number of houses which face existing houses. I consider this to be too simplistic. It is not only the number of houses but the spacing between them, their height and bulk, their orientation and importantly the separation from the common boundary of the existing adjoining house and whether this is the primary area of open space.
22 The amended plans provide less houses where they are to the north of adjoining existing houses. This reduces overshadowing impacts to these adjoining houses and their gardens. The spacing between these proposed houses is also greater which provides larger courtyard areas that will receive sunshine and are not reliant only on courtyards which face south. Conversely, the proposed houses to the south of adjoining existing houses have their courtyards facing north and therefore require less separation between each other.
23 The proposed houses are generally set back six or more metres from the common boundary with the existing houses. While technically these are not rear setbacks under the definition in LEP 2000, they serve a similar purpose. This separation is sufficient to provide an acceptable relationship between the existing houses and those proposed. While this is different to the predominant character it is responsive to it.
24 In relation to scale, the proposed development is a mixture of one and two-storey houses, with two houses that are attached. The gross floor area of the proposed houses ranges from 119 square metres to 185 square metres, which is a reasonable when compared to the size and their allotments and to other houses in the area. The scale of the development is therefore acceptable.
25 The proposed development provides 56.5% and landscaped area of which 43.1% is deep soil. There is sufficient set back and open space around the houses for them to appear as buildings in landscaped settings consistent with the landscaped character of the area.
26 In relation to Mr Sanders concern about the basement car park being uncharacteristic of the area, while there may be no other examples in the area, this is not the test, but rather whether it relates favourably. The basement car park provides benefits by freeing up open space and by restricting car movements on the site. The negative aspects of a basement car park are potentially where it extends beyond the building footprint or above ground, limits the amount of deep soil planting, does not follow the topography of the land and where it can be clearly viewed from the street down its driveway. The previous plans had a number of these features, particularly the car park slab was at one level which resulted in the courtyards of the northern houses being set down below ground level and potentially overshadowed and the southern houses and their courtyards being raised above ground level thereby increasing their impact on adjoining properties. The amended plans have eliminated this. While the car park does still extend beyond the floor plate of the building in some areas this is not above ground and is landscaped. There is sufficient deep soil landscaping proposed to not rely on landscaping above the car park slab. The driveway access has been narrowed and is curved which means that from the street the car park itself is not visible.
Conclusion
27 I find that the proposed buildings are sited and designed and landscaping is used to ensure the development relates favourably to the pattern, scale and landscaped character of the area of the street and surrounding development.
28 The buildings are of a scale that relates to their smaller allotments, they are set back sufficiently from their common boundary with adjoining houses and from each other to provide landscaping. They do not have adverse impacts on privacy or overshadowing on the adjoining neighbours and while the pattern of development is not the same it relates favourably to the street and the area.
29 In satisfying this test I consider that the proposal is consistent with the Desired Future Character of the area which envisages that it will remain characterised by detached housing in landscaped settings and that future development will maintain the visual pattern and scale of existing detached houses in the locality.
Orders
1. The appeal is upheld.
3. The exhibits, except exhibits F, G, H and 4, may be returned.2. Development Application No 2003/0905 for the demolition of existing dwellings and the construction of sixteen (16) dwellings, basement car parking area and associated landscaped area at lot 27B DP 393680 (72 Forest Way); lot 27A DP393680 (76 Forest Way); lot 28 DP 23407 (80 Forest Way); lot 8 DP21872 (82 Prince Charles Road); and lot 7 DP 21872 (84 Prince Charles Road), Frenchs Forest is determined by the grant of development consent subject to the conditions at Annexure “A”:
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Annelise Tuor
Commissioner of the Court
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