Richardson v Lake Macquarie City Council

[2004] NSWLEC 744

Land and Environment Court

of New South Wales

CITATION:	Richardson v Lake Macquarie City Council [2004] NSWLEC 744
PARTIES:	APPLICANT Paul Richardson RESPONDENT Lake Macquarie City Council
FILE NUMBER(S):	11497 of 2003
CORAM:	Hoffman C
KEY ISSUES:	Development Application :- What weight should be given to the new statute gazetted in 2004 - inadequate documentation - privacy of neighbours - streetscape - impacts were accentuated by site being a narrow allotment.
LEGISLATION CITED:	Lake Macquarie Local Environmental Plan 1984 Lake Macquarie Local Environmental Plan 2004
CASES CITED:
DATES OF HEARING:	17/12/2004
EX TEMPORE JUDGMENT DATE :	12/17/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr A McKelvey, solicitor SOLICITORS Sparke Helmore RESPONDENT Mr G Long, solicitor SOLICITORS Lake Macquarie City Council Legal Section

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

17 December 2004

11497 of 2003 Paul Richardson v
Lake Macquarie City Council


JUDGMENT

1 This was a class 1 appeal, No. 11497 of 2003, between Paul Richardson and Lake Macquarie City Council in regard to the refusal of DA 2003/0607 for five villa homes and townhouse style dwellings at No. 24 Kenibea Avenue, Kahibah. The site was rectangular and had frontage of about 20 m and depth of 106 m, giving a total area just over 2000 sq m. There were a few trees on the allotment. The existing house at the street front was to be demolished.

2 The land sloped up from the road to the brow of a hill so that it became more level towards the rear. At the rear was the back yards of houses fronting Kahibah Road. The land was oriented approximately north-west to south-east, with the north-west end being the street frontage.

3 On the north-east side was No. 22 Kenibea, a lot of about the same size as the proposal, with a house on the street end and a large stand of trees on the rear half of the land. On the south-west side was No. 26, and along the street, Nos. 28 and 30. These lots were only about half the length of No.24, and behind them were villa homes accessed by a driveway at No. 32 Kenibea. These villas were excavated into the hill and built with concrete slab on ground. In places, due to the excavation, there were 2 m high retaining walls at the boundary with the proposal with 1.8 m high colorbond fence on top.

4 The proposal, by contrast, adopted a minimal excavation design and lightweight construction. The five units were lined up along the length of the lot. Units 1 and 2 were single storey; units 3, 4 and 5 at the rear were two storey. Each had a double car garage separating one unit from the next. The turn-in off the driveway to each garage provided a visitor car space for each unit. The driveway adjoined Nos. 26 and 32. The living rooms of the units faced at an angle towards No. 22.

5 The units had been designed quite well to be at an angle to the length of the lot in order to get good solar orientation. Each living room had an external deck directly off the living room. Due to the slope at the street front, units 1 and 2 had their street side floor level about 1.5 to 2 m above ground, as did the existing houses on Nos. 22 and 26. The decks, as a result, were at about the same elevation.

6 Due to the orientation towards No. 22, all decks had privacy screens on that side, ostensibly to prevent overlooking. There was also a border hedge of Lilli Pillies to be planted along the boundary with No. 22 that would eventually further reduce overlooking.

7 There was an amended drawing AD01 that further extended the privacy screens and added screened fences and planting in the front setback.

8 There were a number of other clarifications of the plans and amendments during the hearing. The issues were:

(1) Privacy


The development overlooks adjoining properties. The deck on unit 2 overlooks onto No. 22 Kenibea Avenue. The living room and bedrooms of units 3, 4 and 5 overlook No. 22 Kenibea Avenue. The bedrooms of the upper level of units 3 and 4 overlook No. 32 Kenibea Avenue.

The screening proposed on elevated decks on units 1 and 2 is unreasonably confining to its users and is only required because the decks are elevated.

The design does not take into account the amenity of the occupants of the neighbouring buildings. (DCP No. 19 cl 19).

The excavation of those parts of the land to be occupied by the development other than garages to a depth of 1 m may be a solution to the impacts of living rooms of units 3, 4 and 5 and decks of units 1 and 2. The upper level bedrooms may be addressed with the addition of louvred screening devices over the windows.
(2) Streetscape
The facade of Dwelling 1 is poor in the streetscape and the elevated deck and privacy screening in the front setback also detracts from the streetscape. If the deck were replaced with a ground level courtyard, then the proposed fencing and landscaping would provide adequate privacy. The addition of a window in the front wall of the bedroom would also overcome the design deficiency of the facade in the streetscape.
Landscaping 2 m wide needs to be provided on both sides of the driveway for a distance of 10 m from the front property boundary so as to overcome the visual dominance of the driveway accessing the units.
The issue may be overcome by the imposition of a condition or amendment of the plans.

(3) Vegetation management

The development proposal is, in part, for two storey development in a neighbourhood of predominately single storey dwelling houses. The retention of trees is required to ensure that the visual impact that the development would otherwise have, absent the trees, is ameliorated. Trees are able to be removed within 5 m of dwellings and the respondent is concerned that although trees are shown retained on the plans, they may be removed. An arborist’s report should be submitted to demonstrate that the retention of the trees on the land is achievable. If the trees in the vicinity of the two storey development are not capable of retention, then the development should be redesigned.

The respondent agreed that this issue could be resolved by a condition.

(4) Deleted
(5) Deleted
(6) Overland stormwater flows
The application does not demonstrate that overland stormwater flow has been investigated and will be managed. The respondent understands that stormwater flows over the rear boundary of the land. This issue is capable of satisfaction if a revised stormwater plan is submitted that deals with the water by piping it to the street system off-line of the stormwater system dealing with the developed plans.
An amended drainage plan was submitted during the hearing that the respondent said was satisfactory.

(7) Deleted

(8) The proposed development will cause unnecessary increased overshadowing to the villas, No. 32 Kenibea Avenue, Kahibah adjoining the south during the morning hours of mid-winter’s day about 11.30 am. While these dwellings will still have at least three hours of solar access on their northern elevations and elsewhere, the detrimental overshadowing impacts are directly attributable to the excessive and unnecessary height of the two storey portions of the development.

9 The Court heard oral evidence on site from:

§ Mr Thomas of No. 22 Kenibea;
§ Mrs Dickson of No. 26 Kenibea;
§ Mrs Rugg of unit 6, No. 32 Kenibea; and
§ Mr and Mrs Darcy of unit 9, No. 32 Kenibea.

10 There were written objections tendered in the hearing from those and other persons.

11 The expert evidence was heard from:

· Mr G Vickas, architect for the respondent;
· Mr Pollard, architect for the applicant, but not the designer of the proposal; and
· Mr G Warnes, town planner for the applicant.

12 The land was zoned Residential 2(2) under the Lake Macquarie Local Environmental Plan 2004. The proposal was permissible with consent. There was a question about the applicability of Development Control Plan No.1, as cl 11 of the Local Environmental Plan referred to development applications, such as this, lodged before its gazettal and that they should be determined as if the Local Environmental Plan was exhibited only.

13 The applicant claimed Development Control Plan No.1 could not therefore apply. Following the submissions of the respondent, it seemed to the Court that cl 11 of LEP 2004 was silent on Development Control Plan No.1. It could be considered, although it was obvious that the Medium Density Residential Development Control Plan No. 9 under the prior Lake Macquarie Local Environmental Plan 1984 had the greater weight.

14 Overall, the parties summarised the principal issues as overlooking of neighbours and streetscape. Mr Pollard and Mr Warnes believed the proposal had excellent aspects and that the few adverse impacts could be ameliorated such that it could be approved.

15 Mr Vickas agreed the design had excellent aspects but the adverse impacts needed such amendments that partial redraw of the plans was needed, and the current drawings could not be given conditions of consent to adequately fix the detailed designs needed.

16 The objectors, it was interesting to observe, had a common theme. They were not opposed to medium density development of the site but they felt it created too many privacy problems and overshadowing and they did not like the look of the buildings.

17 Dealing with some of those concerns, all the experts agreed that the shadow diagrams illustrated the proposal did not create unacceptable shadow on its south-western neighbours, who were the only ones who could be affected. In mid-winter the tall stand of trees on No. 22 created the shadows at 9.00 am and up until about 11.00 am. Even if the trees were not there, the excavated nature of No. 32 and the high boundary fence created shadows on itself. The proposal contributed little.

18 On No. 26, only the single storey units, Nos. 1 and 2, adjoined it and cast little shadows when the width of the driveway and boundary fence shadows were taken into account. Also, No. 22 had its own driveway and garage adjoining the proposal, so any shadow impact was minor. The Court agrees with the experts on this matter.

19 In terms of appearance, all the experts agree the design concept in terms of outward appearance of the proposal was contemporary, as opposed to the 1950’s and 1960’s style of the existing houses. But, the design of the units was attractive and fresh, yet of domestic scale that would be, with some reservations in regard to streetscape, acceptable.

20 The streetscape concern was the juxtaposition of unit 1 along the street front, and Mr Vickas put those reservations.

21 Some of the objectors commented that the villas at No. 32 were a better design because they were single storey, and excavated, and behind a high fence, and thus did not create privacy impacts at all for the neighbours.

22 The experts did not put No. 32 forward as necessarily good design. It was a very conventional development of single storey concrete slab on excavated ground, and it did not necessarily provide either sustainable design principles, nor such good living spaces for the residents as the proposed units on No. 24.

23 One of the considerations was that the site of the proposal was a narrow one. Council normally required 25 m width, and where this was not available, amalgamation was required. Mr Thomas’ objection was in part that Nos. 20, 22 and 24 should be amalgamated and developed as one. The respondent did not press this, as Nos. 20 and 22 had the substantial trees on their rear halves and the trees needed to be preserved. It limited their potential for development.

24 In both parties’ opinions, Nos. 20 and 22 would remain single house lots, or perhaps not more than two or three houses per lot. Numbers 26, 28 and 30, being on small lots, would also remain single house lots in both parties’ opinions.

25 Going through the two principal issues, the Court has come to the following conclusions.

26 On streetscape, the proposal projects its front wall to within 8 m of the front boundary when the adjoining houses are 8 m and 9 m. The deck comes to 7 m from the front boundary and the privacy wall in front of it, that is about 2 m or slightly more in height, comes to as close as 4 m to the front boundary, with the side fence coming down to meet it at a matching height.

27 The council controls set 5 m as minimum front setback, but provide where existing houses have a further setback, then that dictates the requirement. The proposal, therefore, will project considerably forward of existing houses that both parties agree are unlikely to be redeveloped, and if they were, it would be at the existing established front setback. It seems to the Court that even though the experts agree the design style of the proposal is good, Mr Vickas’ opinion about its inappropriate dominance in the streetscape is well founded.

28 Mr Vickas suggested in units 1 and 2, the front half of each, including the living, dining room, kitchen and deck, could have its floor level lowered by about 800 mm by simply lowering the floor height without excavation. The units would become split level. This would reduce privacy impacts on No.22 at the critical locations adjacent the existing house, but would not solve the streetscape impact of the proposal.

29 Turning to privacy issues, the decks of units 3, 4 and 5 extended right up to the side boundaries, and would have privacy screens on the boundaries up to about 2.4 m high at the fence line, this being caused by the decks at the downhill end being 600 mm above ground. This did not seem reasonable in Mr Vickas’ opinion in the first place, and it seemed an unusual fence height to impose, notwithstanding that No. 32 must have ended up with a fence height above the retaining wall totalling over 3 m.

30 The applicant suggested setting the decks back 900 mm on the proposal and allowing the hedge to pass between the deck and the boundary. This would probably work once the vegetation had grown, although Mr Vickas still felt that from the high side of the decks, overlooking into No. 22 would occur, and since the house was downhill, overlooking would be towards the house.

31 Mr Vickas said in the end he did not press excavation of units 3, 4 and 5, but he was concerned about the overlooking of No. 22’s private open space area, namely, its huge backyard, from both the deck and from the first floor bedroom of units 3, 4 and 5. This problem was emphasised because of the narrowness of the site and the proximity of the row of units along its entire length that would, in effect, borrow from No. 22’s amenity and privacy for the benefit of the proposal.

32 The applicant said a sun control device on the bedroom windows could be used to control privacy impact. Mr Vickas observed that two devices would be needed along the length of the windows of bedrooms Nos. 1 in units 3, 4 and 5, and that would still only control viewing down towards the house on No. 22. The obviously well used back yard of No. 22 under the grove of trees would still be directly overlooked.

33 Mr Warnes felt that overlooking from bedrooms was not a justification for refusal, quoting some principles espoused by past decisions of the Court.

34 He pressed this point on overlooking also from the bedroom 3 windows in units 3, 4 and 5 towards No. 32. On that side, due to the narrowness of the lot, the two storey units penetrated the envelope control and it was actually the bedroom 3 component that did so. As a result, it could be seen the bulk of units and the windows of those bedrooms would be very obvious from the private open spaces of units 7 and 9 of No. 32. Whilst it would be at a greater distance, it would also be obvious from unit 6 of No. 32 and the corresponding units at the lower levels.

35 The height pole erected on the site during the Court’s visit demonstrated the overlooking and bulk that would result, due in part to the envelope penetration and the excavation of units at No. 32. Once again, as on the north-east side the row of buildings and windows on the south-west side would have an impact. Mr Vickas noted that these were units for families in the proposal, particularly units 3, 4 and 5, and the second and third bedrooms would probably be occupied by children. In his family, the children lived in their bedrooms, doing homework, projects, talking to friends, et cetera, and they constituted living spaces from which overlooking would occur. He suggested moving the windows of the bedroom 3 components to the south-east walls of those units and that would resolve that concern.

36 It was also discovered the stairwell windows that were two storeys high clear glass also looked into the same direction to the south-west and would add to the impact on No. 32. There was clear glass also on the No. 22, side of the stairwells, and they were relatively close to the boundary. This could be resolved by obscured glass.

37 At one stage the Court contemplated conditioning any consent to resolve the privacy concerns, but throughout the hearing, the Court and the parties had experienced difficulty in understanding the details of the design due to its being at a 1 to 200 scale.

38 The clarifications made by the applicant during the hearing were cited by Mr Vickas as “design on the run”, which would leave much for interpretation up to any private certifier who might assess construction certificate drawings resulting from conditions of consent.

39 The respondent put that the drawings before the Court, although demonstrating many good principles, could not be considered adequate for any consent. The council’s controls on documents for development applications require that they be legible and consistent, and there were many instances where the subject drawings did not achieve this, notwithstanding any further changes that might arise due to any conditions of consent.

40 In the end, the Court has given the respondent’s evidence determinative weight. The principal issues had determinative weight under Lake Macquarie Local Environmental Plan 1984 and Development Control Plan No. 9, as well as they might under a draft Local Environmental Plan 2004, as exhibited, and Development Control Plan No. 1.

41 The respondent has agreed the subject lot is suitable for development without amalgamation. The controls, therefore, become more critical in ensuring a good planning outcome for both the future occupants of the development, as well as its neighbours.

42 The applicant has redesigned the original proposal seen in the appeal papers to evolve a much more promising design than the original, but it has failed to resolve important issues satisfactorily and to express its design in adequate documentation. These issues have become more important due to the narrow nature of the allotment.

43 Therefore, the orders of the Court are:

(1) The appeal is dismissed.
(2) The exhibits are returned to the parties, except Exhibits 1, 6, 10, 11, D, E, G and J.

_________________
K G Hoffman
Commissioner of the Court
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