S and J Yarham v Ryde City Council

[2003] NSWLEC 334

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Land and Environment Court

of New South Wales

CITATION:	S & J Yarham v Ryde City Council [2003] NSWLEC 334 revised - 26/03/2004
PARTIES:	APPLICANT S & J Yarham RESPONDENT Ryde City Council
FILE NUMBER(S):	10691 of 2003
CORAM:	Hoffman C
KEY ISSUES:	Development Application :- Erection of four villa homes - drainage easement - manoeuvring on narrow driveway - elevated drive overlooking neighbours - noise from driveway - streetscape
LEGISLATION CITED:	Ryde Plannning Scheme Ordinance Development Control Plan 37 Development Control Plan 21A
CASES CITED:
DATES OF HEARING:	17, 18 and 19/11/2003
EX TEMPORE JUDGMENT DATE :	12/24/2003
LEGAL REPRESENTATIVES:	APPLICANT Ms M Tzannes, barrister RESPONDENT Mr R Graham SOLICITORS Abbott Tout

JUDGMENT:

10691 of 2003

Hoffman C

24 December 2003

S & J Yarham

Applicant
v

Ryde City Council

Respondent

Judgment

1 This was a class 1 appeal 10691 of 2003 between S and J Yarham and Ryde Council in regard to the refusal of consent for four villa homes at 100 Agincourt Road, Marsfield. The area was predominantly detached dwellings dating from about the 1950s but with some new houses.

2 The site sloped down from the road and there was a retaining wall on the front boundary with a drop of about 1 m. The site had a larger width than most lots in the vicinity. It was 28.3 m with a depth of 46 m and an area of 1302 m2. Beyond the retaining wall the land sloped down about 4 m from front to back.

3 On its east side was an easement for local drainage and there was a council pipe laid beneath the ground that took water to the next street downhill being Wilga Place. The pipe was in damaged and in heavy rain surcharged overland through the lower part of the site and the house lots below. The neighbours downhill were anxious that this problem be fixed. Council wanted to have a bigger pipe installed. There were negotiations going on between the applicants and council in this regard during the hearing. There were also difficulties with car on-site manoeuvring and driveway gradients. The drive was partly in the easement.

4 During the hearing, the drawings had changed without objection from the respondent, and at the end of the hearing the Court noted there were no clear final drawings that could be the subject of any consent, and the draft conditions on several aspects had not been updated to coincide with the changed drawings.

5 The matter was adjourned for the parties to deal with these matters and, upon resumption, updated plans that amended the building and the driveway and drainage were tendered in Exhibits R and T, and updated conditions in Exhibits 13, 14 and 15 for incorporation into Exhibit 6. In part they required deferred commencement consent to enable drainage works in a widened easement to be carried out prior to the development.

6 The applicant also proposed in Exhibits M and N a western boundary fence of part obscured translucent material to reduce shadows cast by the fence into the private courtyards of each villa. The courtyards were well-oriented to catch the sun but had the disadvantage of having an existing retaining wall on the western boundary to the uphill neighbour at 98 Agincourt Road.

7 The issues were:

1. Whether the proposed development can be or should be approved having regard to the topography and nature of the site in the absence of a development application and the material lodged therewith of,
1.1 Full construction details of the on-site detention tank showing cross-sections of the tank as specified in accordance with the requirements of council’s DCP 41 stormwater management;
1.2 Hydraulic analysis of the existing drainage system for storm events up to the one in one hundred year ARI flow down to Wilga Place. This should pay particular attention to the requirement that there be no adverse impact on downstream properties and to critical points within the road such a driveways. All design details are to be to the council’s requirements;
1.3 Sufficient levels to accurately determine the cross-fall grades. The driveway and car parking area levels require checking by contour grading of the driveway with particular attention being given to the area in front of the garages;
1.4 The connection details to council’s stormwater system and details of the capacity of the pipeline and easement as required in DCP 41;
1.5 An assessment of the impact of the proposed development upon significant trees on the subject property and the absence of an arboricultural assessment, particularly having regard to the location of the buildings upon the land and their proximity to the significant trees, the location of retaining walls, drainage pits and all other construction impacts.
2. Whether the development should be approved having regard to the proposed location of the on-site detention tanks and the relationship of the proposal with the drainage easement through the property.
3. The absence of a layout plan with longitudinal section of council’s pipeline including all structures between the pit in Agincourt Road and the pit in Wilga Place prepared to AHD levels.
4. Non-compliance with the floor to ceiling height for villas being 2.7 m as prescribed in DCP 21A urban housing, and the resultant non-compliance with the height limits for each villa of 4 m.
5. Whether the amenity of future residents of the villas proposed would be acceptable having regard to the non-compliance with the required height limit of 4 m and floor to ceiling levels of 2.7 m.
6. Whether the proposed height of villas 2 and 3 is considered acceptable in terms of bulk and scale of the development, the height being exaggerated by the floor levels in bedroom one of each villa being raised between 1.3 m and 1.6 m above natural ground level, and the failure of the development to respond to the natural topography of the site.
7. Whether the proposed design of the development is acceptable in its presentation to the street with the front dwelling appearing to have a width of over 20 m, which is considered excessive and beyond the scale of a normal dwelling house.
8. Non-compliance with council’s DCP 21A requirement that the frontage of the buildings and their entries are to be readily apparent from the street and to convey a sense of address, particularly in respect of villas 2, 3 and 4.
9. Non-compliance with the requirement of council’s DCP 21A that garages and other parking structures and car parking spaces are sited and designed not to dominate the site and the dominance of garage openings within the development.
10. Whether the proposed driveway is considered to be acceptable in terms of its visual gunbarrel appearance, the lack of any articulation or areas of landscaping along its length, and the excessive amounts of hard paved surfaces associated therewith which are considered unacceptable in terms of the adverse visual impact they create both internally and externally to the development.
11. The requirement for substantial retaining walls to be constructed along the southern boundary in the absence of any information to assess the impact of the raising of the ground level in these locations.
12. Whether the proposed construction of the driveway is considered acceptable having regard to the likely impact upon council’s stormwater pipe and easement along the southern boundary, the impact of the retaining wall on the easement and pipe and the resultant need to relocate the driveway, which will narrow the driveway within the front setback and introduce a bend near villa one, which is considered unsatisfactory for safety reasons.
13. Whether the proposed window treatment in the development is considered acceptable from a privacy point of view and particularly the potential for future occupants of the villas proposed to overlook the adjoining dwellings to the south.
14. Whether the location of the visitor car parking spaces is considered acceptable, given that it will be raised more than 1 m above natural ground level and will overlook the private open space of the adjoining dwellings at 104 Agincourt Road and 10 Wilga Place.
15. Whether the extent of cut along the northern boundary of the site is considered acceptable, particularly in regard to the adverse impact upon a large part of the courtyard to villa two in terms of solar access and the necessity for the construction of an 850 mm retaining wall for a large section of its length with a 1.8 m high timber paling fence above the retaining wall, resulting in inadequate solar access for the courtyard to villa two during winter months and the lack of any alternative private open space.
16. Whether the topography to the site prevents the proposed development providing an accessible path of travel from the street to the front door of the development and to all internal and external parts of each dwelling, particularly having regard to the need for access for disabled.
17. Non-compliance with the requirements of DCP 45 in relation to ESD principles and the reduction of energy consumption.
18. Whether the proposed density of the development is considered acceptable having regard to the density of the development on adjoining and surrounding properties.
19. Matters raised by reason of the objectors.
20. Circumstances of the case.
21. Public interest.
22. Matters raised by the New South Wales Police Department by way of a safety by design assessment, namely:
22.1 The position of the garages is not considered acceptable given their setback in the design of the villas and from the boundaries thereof, which design does not permit any natural surveillance for the garage given the setback into the building design creates a potential area of entrapment;
22.2 The location of all living areas towards the rear of the proposed villas does not permit natural surveillance for the entry, garages and driveways of the development.

8 At the conclusion of the hearing, issues 1 to 6 were resolved by conditions including the amended document in Exhibit 15.

9 That being the case, issues 11 and 12 were resolved by the driveway being lowered down to avoid boundary retaining walls adjoining 104 Agincourt Road and 10 Wilga Place. The only retaining wall would be at the street boundary where the driveway had to rise up to the footpath level as it did for 104 Agincourt Road.

10 The south boundary stated in issue 11 was really the east boundary as the natural slope of the ground was not to be disturbed along the south boundary.

11 Issue 14, the lowering of the drive and the visitors car space overcame privacy issues for neighbours. The owner of No. 104, Mr Mifsud, said when the Court was on-site that he was not concerned about overlooking from windows. It was the original proposal for an elevated driveway that concerned him.

12 Issue 17 was resolved by the tendering of a natHERS assessment in Exhibit E showing that three units scored four stars and one scored three point five stars. All are acceptable.

13 The remaining issues could be summarised as bulk and scale of the building, density of development, streetscape appearance of the building including the long driveway, solar access to the private courtyards and design for security.

14 The Court heard the respondent’s evidence from:

• Mr P D Stacey, landscape architect,
• Mr T A Loveday, town planner for the council.

15 The applicant’s evidence was heard from:

• Mr J R Boers, town planner and horticulturalist,
• Mr P C North, architect, and
• Mr L Marshall, traffic engineer.

16 The land was zoned Residential 2(a) under the Ryde Planning Scheme Ordinance. Villa homes are permissible with consent. The proposal has 325 m2 of site area per villa and 126 m2 of landscaped area per villa. The Planning Scheme Ordinance requires 300 m2 of site area and 126 m2 of landscaped area, so the proposal complies, and issue 18, density, can hardly be an issue except as it may include bulk and scale.

17 The height requirement of the Planning Scheme Ordinance is one storey and a maximum wall height of 4 m. The proposal complies. However, with the raising of the room height as agreed by the parties in respect of issue 6, the non-compliance with the 4 m height limit was minor.

18 Draft Local Environmental Plan 129 does not strictly apply to the proposal but the proposal complies nevertheless with its numeric standards. Its associated Development Control Plan 21A for urban housing has been adopted by council. The non-compliances with it are encompassed in the issues. The council had determined however that applications lodged before the adoption of Development Control Plan 21A should be dealt with under the Development Control Plan for Villa Homes.

19 The amended proposal complies with all villa home development control plan provisions except for the rear setback. The villa DCP requires 7 m setback. The proposal has variable 3 m to 4.5 m rear setback. If the other matters are acceptable, the rear setback is not sufficient on its own for refusal.

20 The building is single storey and, as mentioned before, the wall height complies, and if the room heights are raised has only a minor non-compliance. The living room of the unit at the downhill end of the property is nearly at ground level with French doors into the courtyard. Overlooking to the neighbours downhill will be minimal and when boundary screen vegetation grows there will be no overlooking.

21 In regard to issue 7, the allotment has an unusual width which is wider than the other residential allotments nearby. It is virtually a double block and the width of the building reflects that, but the building is set down because the block slopes down from the road. It is a single storey building which is not out of place in the area. The roof and front facades are highly articulated and gives the street elevation, an appearance that is acceptable in the streetscape given that it is medium density development and other buildings are detached houses.

22 In regard to issue 8, Development Control Plan 21A only requires one villa to face the street, and plans were changed to include that, so the proposal now complies in that regard. It is logical to any observer that entry to the other units is down the driveway and that they have separate addresses.

23 In regard to issue 9, Mr Loveday agreed the garage doors are actually recessed and not seen from the street, so this issue appears to be irrelevant.

24 Issue 10 in regard to the gunbarrel driveway, Mr Loveday agreed the landscaping and existing trees to be kept along that side of the property will soften the driveway. Also using interlocking pavers and creating bulges in the southeast curve and garden bed will give a curved form that is softer than a gunbarrel appearance, and with the lowered driveway and the corners of the buildings splayed, it provides for garden beds on both sides of the drive, further enhancing the appearance. The splayed corners of the building also give better car manoeuvring, as shown in Exhibit T.

25 In regard to issue 13, overlooking of Wilga Place has been dealt with previously in this judgment. In any case, the important matter for those neighbours was the drainage surcharge of the council’s pipe, and that is also to be remedied under issue 12. The Court does not see a need for frosted glass on the lower panes of windows of units facing towards the neighbours lower down the hill.

26 In regard to issue 15, solar access to units 2 and 3 courtyards. The house at 98 Agincourt is high above No. 100. There are shadow impacts from that. The retaining wall on the boundary is approximately only 600 mm to 1 m high and is not proposed to be raised. There is sun to the windows of the units.

27 Revised shadow diagrams were provided to the Court as the original drawings were not drawn according to true north. Exhibit 9 shows that from 9 am until 3 pm, Mr Loveday agreed people sitting in the courtyards would get sun. Any shadow at other periods was at the ground level. Units 2 and 3 are one-bedroom units so they are not intended for a family. With the fence detail in Exhibits M and N, the sunlight to the ground level of the courtyards meets the requirement. The Court sees this as acceptable provided the applicant pays the full cost of the fence and does not seek a share from No. 98.

28 In regard to clotheslines, the villa development control plan does not need them if dryers are provided in-house, and they are proposed in this development.

29 In regard to the paperbark trees on the north-western boundary adjoining 98 Agincourt, they do need pruning, and Mr Stacey said the roots may be affected by the garage and retaining wall on No. 98. They will need mulching and watering and some work on borers and dead wood, but all of these, both horticulturalists agreed, could be treated. The trees could be replaced if necessary later on. The condition in Exhibit 13 gave appropriate attention to protecting the trees.

30 In regard to issue 16, the accessible path of travel for disabled persons, Mr Boers tendered a letter from the Independent Living Centre and the standards in Development Control Plan 37. It says where possible disabled access to be provided. The letter indicated that the topography of the site exceeded the gradients necessary and disabled access could not reasonably be provided, and therefore there is no necessity to do so.

31 In regard to issues 19, 20 and 21, the objections, the circumstances of the case and the public interest, the Court is satisfied that the amended plans and conditions of draft consent deal with all these matters satisfactorily, and the public interest is best served by a proposal that is worthy of consent.

32 In regard to issues 20 and 21, there were drainage benefits of a wider easement provided to council, 50% of the cost of the new pipe to be paid by the developer, and the larger pipe would provide better local drainage to other residents of the locality. In Exhibit K, the terms of the easement show that council technically should be paying 100% of the pipe cost, so the volunteering by the applicant of fifty per cent of the cost is a real public benefit.

33 In regard to issue 22, the applicant asked for Constable Moran, the author of the police letter, to be present for cross-examination, but she did not appear. Her letter was concerned mainly about break-in and enter, and persons lying in wait for residents on their return home. In the amended development, unit 1 does face the street and can supervise the front yard area of the proposal. In regard to units 2, 3 and 4, the bedrooms overlook the drive, so it can be seen for supervision.

34 Overall there is general compliance with Development Control Plan 21A and almost total compliance with the Villa Home Development Control Plan, and all of the non-compliances are minor. Therefore the Court has concluded the development should be approved and therefore the orders of the Court are:

1. The appeal is upheld.
2. A deferred commencement consent is granted for the erection of four (4) villa homes at No. 100 Agincourt Road, Marsfield as shown in the drawings in Exhibit A being sheet Nos. 695 - 1, 2, 3, 4, 5 and 6 as modified by drawings in Exhibit T including drawing 1930-03A updated to 21/11/03 by Lyle Marshall & Associates in regard to drainage, driveway and the splaying of the corners of the villas to improve vehicle manoeuvring and as amended by Exhibits M and N in Regards, to fencing on the common boundary with No. 98 Agincourt Road, and the landscape plan in Exhibit L being drawing LP01A dated 10 August 2003 by Hortolus, all as further amended by and in accordance with the conditions in Annexure A hereto.
3. The exhibits be returned to the parties except the Exhibits 6, 13, 14, 15 and A, L, M, N and R.

__________________
K G Hoffman
Commissioner of the Court
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