RAD 1 Holdings Pty Ltd v Burwood Council

Case •

[2017] NSWLEC 1618

•

03 November 2017

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: RAD 1 Holdings Pty Ltd v Burwood Council [2017] NSWLEC 1618
Hearing dates:1 November 2017
Date of orders: 03 November 2017
Decision date: 03 November 2017
Jurisdiction:Class 1
Before: O’Neill C
Decision:

1. The appeal is upheld.
2. Development Application No. BD.2015.165 for the construction of a two attached dwellings and the retention and part demolition of a heritage item, at 31 Conder Street, Burwood, is approved, subject to the conditions of consent at Annexure A.
3. The exhibits, other than exhibits 2 and A, are returned.

Catchwords: DEVELOPMENT APPLICATION: construction of two townhouses; retention of a cottage identified as a local heritage item; front setbacks; height of front fences; solar access to rear private open spaces.
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Cases Cited: Nil
Texts Cited: Nil
Category:Principal judgment
Parties: RAD 1 Holdings Pty Ltd (Applicant)
Burwood Council (Respondent)
Representation:

Counsel:
Mr I Hemmings SC (Applicant)
Mr S Schneider, solicitor (Respondent)

  Solicitors:
Landerer & Company (Applicant)
Houston Dearn O’Connor Lawyers (Respondent)
File Number(s):2017/66225
Publication restriction:No

judgment

  1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. BD.2015.165 for minor alterations and additions to an existing dwelling listed as a local heritage item and construction of two townhouses over a basement carpark (the proposal) at 33 Conder Street Burwood (the site) by Burwood Council (the Council).

  2. The appeal was subject to mandatory conciliation on 21 June 2017, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act. Leave was granted for the applicant to rely on an amended proposal by the Court on 15 August 2017.

Issues

  1. The Council’s remaining contentions, following the amendment of the proposal (exhibit A), can be summarised as:

  • The 5m ground level front setback of the townhouses fronting Norwood Street does not comply with the requirement for a 6m front setback.

  • The 1.5m high front fence, required for privacy within the north facing courtyards in the front setback, is inconsistent with the desired future character of Norwood Street.

  • The south facing rear setback of the townhouses does not receive adequate solar access on the winter solstice.

  1. No heritage contentions were raised by the Council following the agreement of heritage experts retained by the parties as to the amended proposal’s suitability in relation to its impact on the heritage significance of the existing cottage on the site.

The site and its context

  1. The site is on the south-western corner of Conder and Norwood Streets, Burwood. The site is rectangular, with a site area of 735.9sqm and a frontage of 18.29m to Conder Street and 40.235m to Norwood Street.

  2. The site contains a single storey timber clad cottage with a corrugated iron roof, fronting Conder Street.

The proposal

  1. The proposal is to construct two townhouses fronting Norwood Street, with basement parking for 6 cars accessed via a driveway from Conder Street, to the south of the existing cottage.

  2. The townhouses have a front setback of 5m at ground level and 3.9m at first floor level to the face of balconies overhanding the front elevation. The townhouses are two-storeys, with living areas on the ground level and bedrooms on the upper level.

  3. The proposal includes minor alterations and additions and conservation works to the existing cottage.

  4. The agreed conditions of consent include a requirement that the schedule of works for the existing cottage, titled, “Scope of Conservation Work” prepared by Weir Phillips Heritage and dated November 2015 (exhibit D, tab 6), be carried out under the guidance of a suitably qualified heritage professional, prior to the issue of an Occupation Certificate for the development.

Planning framework

  1. The site is zoned R1 General Residential pursuant to Burwood Local Environmental Plan 2012 (LEP 2012). The objectives of the R1 zone, to which regard must be had, are:

• To provide for the housing needs of the community.

• To provide for a variety of housing types and densities.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

  1. The site is listed as a local heritage item (schedule 5 LEP 2012, item 50 “workman’s cottage”) and the terms of cl 5.10 of LEP 2012 are a relevant consideration.

  2. The Burwood Development Control Plan Amendment 3 (BDCP) relevantly includes the following objectives and provisions for Multi Dwelling Housing:

4.3.2.1 Site Planning

Objective

O1 To ensure new development responds to the scale and form of the existing context (streetscape and adjoining properties) and site elements (landscaping and services).

Setbacks

P1 The front setback of a building is to be a minimum of 6m.

4.3.2.3 Site and Building Amenity

Objective

O1 To ensure the design of internal and external amenities is functional and enhances the quality of the environment for occupants

Private Open Space

P1 Private open space is to have a northerly aspect where practicable.

Solar Access and Natural Ventilation

P19 Dwellings within the development site and adjoining properties are to receive a minimum of 3 hours direct sunlight in habitable rooms and in at least 50% of the private open space between 9am and 3pm on June 21.

Fences and Walls

P35 The design and materials of fences and walls must be sympathetic to the streetscape, visually attractive and complement landscape elements.

P36 The height (as measured from the public footpath side) of the front fencing must be:

• Not higher than 1.2m above ground level (existing), and with a maximum solid base component of 0.9m high.

• Not higher than 1.5m above ground level (existing) if the fence follows a sloping site and is stepped to accommodate the fall in the land), and with a maximum solid base component of 1m high.

Expert evidence

  1. The applicant relied on the expert planning evidence of Mr Neil Kennan and the Council relied on the expert planning evidence of Mr Phillip Johnston.

Consideration

  1. The issues raised by Mr Johnston in his evidence are that the proposal has a 5m front setback at ground floor instead of 6m; the front fence at 1.5m is inconsistent with the streetscape and should be 1.2m; and that the private open space at the rear of each dwelling does not receive at least 3 hours of direct sunlight in at least 50% of the private open space between 9am and 3pm on the winter solstice.

The front setbacks

  1. Norwood Street is a secondary street when compared to Conder Street, as all the existing dwellings in the same block of Norwood Street present a side elevation and a narrow side setback to Norwood Street. Notwithstanding this, it is Council’s position that the proposed townhouses will have their front setback to Norwood Street and the proposal should present to Norwood Street as a front, and not a side, setback. I accept the Council’s view regarding the front setback to Norwood Street and I am satisfied that the proposed 5m front setback on the ground floor, coupled with the design and layout of the proposal and the front fence, achieve the desired character of a frontage to the street that the Council is seeking. It is not necessary in all of the circumstances of this site, particularly given the immediate context of narrow side setbacks fronting Norwood Street, to provide a 6m front setback in order to meet the objective of ensuring that new development responds to the scale and form of the existing context.

Solar access to the rear private open space and the height of the front fences

  1. The experts agreed that the proposal meets the required area for private open space and rear setback provisions in BDCP and I accept their agreement.

  2. The proposal provides an area of private open space for each townhouse at the rear and a larger, secondary private open space in the form of a courtyard in the front setback of each dwelling, directly accessed from the living area.

  3. I accept that the orientation of the new dwellings is dictated by the constraints of the site, particularly the presence and position of the existing cottage. As such, the most sensible solution to the provision of private open space on this site is to provide a private courtyard at the front of each dwelling, as these courtyards orientate to the north and are directly accessed from the living areas of each dwelling.

  4. The proposed 1.5m high fence at the Norwood Street front of the proposal is appropriate to provide some visual privacy to the front north-facing courtyards and the living areas of the dwellings. For this reason, the 1.5m high fence proposed meets the BDCP objective of ensuring the design is functional and enhances the quality of the environment for occupants. The 1.5m fence is consistent with the height of the side fence to the existing cottage and the 1.8m high paling fences to side boundaries on both sides of Norwood Street. The design of the front fence, with a masonry base and timber slats and individual setback entries to each dwelling, will assist in articulating the fence and distinguishing it as a front fence to the two townhouses.

Conclusion

  1. On balance, considering the constraints and opportunities of this site and taking into consideration the agreed acceptability of the proposal’s relationship to the retained cottage identified as a heritage item; I am satisfied that the positioning of the proposal on the site and the location of the secondary private open space at the front of each dwelling is an appropriate response to those constraints and opportunities presented by the site.

  2. I am satisfied that the proposal provides adequate internal amenity for the future occupants of the townhouses; that it sits comfortably within the existing streetscape and context; and that it relates appropriately to the retained cottage and provides for its conservation. Consequently, it is appropriate to exercise the flexibility afforded by s 79C(3A)(b) of the EPA Act with regard to those aspects of the proposal that do not comply with the numerical provisions of BDCP, because the proposal achieves the relevant objects of those standards.

Orders

  1. The orders of the Court are:

  1. The appeal is upheld.

  2. Development Application No. BD.2015.165 for the construction of a two attached dwellings and the retention and part demolition of a heritage item, at 31 Conder Street, Burwood, is approved, subject to the conditions of consent at Annexure A.

  3. The exhibits, other than exhibits 2 and A, are returned.

____________

Susan O’Neill

Commissioner of the Court

Annexure A (C) (281 KB, pdf)

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Decision last updated: 03 November 2017

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