Sada International Pty Ltd v Hurstville Council
[2012] NSWLEC 1246
•30 August 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: SADA International Pty Ltd v Hurstville Council [2012] NSWLEC 1246 Hearing dates: 27 August 2012 Decision date: 30 August 2012 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. The appeal is dismissed.
2. Development Application No 11/DA-430 for the demolition of the existing dwelling and construction of a new detached dual occupancy development is refused.
3. The exhibits, other than exhibits 4 and C, are returned.
Catchwords: DEVELOPMENT APPLICATION: Demolition of existing dwelling, construction of dual occupancy detached dwellings, Torrens title subdivision, character and streetscape. Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979Cases Cited: Zhang v Canterbury City Council (2001) 115 LGERA 373 Category: Principal judgment Parties: SADA International Pty Ltd (Applicant)
Hurstville Council (Respondent)Representation: Mr Michael Mantei (Solicitor) (Applicant)
Mr Stuart Simington (Solicitor) (Respondent)
Solicitors
Planning Law Solutions (Applicant)
Lindsay Taylor Lawyers (Respondent)
File Number(s): 10574 of 2012
Judgment
COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 against the refusal of Development Application No. 11/DA-430 (the application) by Hurstville Council (the Council) to demolish the existing dwelling and construct two detached dual occupancy dwellings and carry out a Torrens title subdivision, at 35 Gungah Bay Road, Oatley (the site).
The appeal was subject to mandatory conciliation on 27 August 2012, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979. As no agreement was reached during the conciliation phase, the conciliation conference was terminated pursuant to s 34AA(2)(b) and the proceedings dealt with forthwith pursuant to s 34AA(2)(b)(i).
Issues
The Council's contentions in the matter can be summarised as:
- The proposal for a detached dual occupancy is not in keeping with the existing or desired character of the streetscape; and
- The proposal does not meet the design principles or relevant objectives for dual occupancy developments that might justify a departure from the development controls for dual occupancies.
The site and its context
The site is located on the eastern side of Gungah Bay Road, which is the high side of the street, between Acacia Street and Roberts Avenue. The site has a frontage of 20.115 m and an area of 1010.8 sq m. The site contains a one and two storey dwelling and a separate garage and carport. The site falls towards the street.
The local area consists of a mix of single storey modest dwellings; two storey dwellings and contemporary dual occupancy developments. The western side of Gungah Bay Road generally consists of lots that are 12 m wide and the lots on the eastern side of the street range between 10 m and 20 m.
The proposal
The proposal is described by the applicant in the Development Application to Council as follows:
"Demolish all existing buildings and proposed new detached dual occupancy and torrens title subdivision with a swimming pool for each house."
The proposal is described by the Application Class 1 to the Land and Environment Court of NSW as follows:
"Demolition of existing dwelling and construction of a new detached dual occupancy development, swimming pools and torrens title subdivision at lot 44 DP 4513, 35 Gungah Bay Rd, OATLEY."
The proposal is for two detached dwellings, side by side and they are virtually a mirror image of the other. The dwellings are setback 1m from the proposed shared boundary between the detached dwellings. They are each two storeys, with a tandem garage on the opposite side to the proposed shared boundary and living rooms adjacent to the garage and at the rear of the dwelling. The first floor of each dwelling consists of 4 bedrooms and a living area.
Planning Framework
The site is located within the Zone No 2 (Residential Zone), pursuant to Hurstville Local Environment Plan 1994 (LEP 1994) and the proposal is permissible with consent.
The objectives of Zone No 2 are as follows:
(a) to preserve and enhance the character and amenity of established residential areas,
(b) to allow a variety of housing types within existing residential areas,
(c) to encourage the conservation of residential areas which include individual buildings and streets of heritage significance,
(d) to encourage greater visual amenity by requiring landscaping and permitting a greater variety of building materials and flexibility of design,
(e) to enable redevelopment for medium density housing forms, including townhouses, villas, cluster housing, semi-detached housing, residential flat buildings and the like, where such development does not interfere with the amenity of surrounding residential areas, and
(f) to allow people to carry out a reasonable range of activities from their homes, where such activities are not likely to adversely affect the living environment of neighbours.
Clause 11A of LEP 1994 specifies the development standards for dual occupancy developments, as follows:
(1) Notwithstanding any other provisions of this plan, the objectives of this clause are to:
(a) prohibit the creation of a second detached dwelling within the backyard of an existing property, except in respect of corner allotments or sites which have rear lane or dual street access, and
(b) encourage the development of a second dwelling in the form of:
(i) first floor additions to an existing detached dwelling, or
(ii) new attached dwellings, and
(c) allow minor extensions to an existing detached dwelling to provide additional floor space required to create a second dwelling, and
(d) provide a minimum allotment size and width required for the development of dual occupancies so that:
(i) the pattern of subdivision in residential areas is retained as reflected in lot size, orientation and shape, and
(ii) allotments have a minimum size so as to provide landscaped areas that are suitable for tree planting, and
(iii) the scale and density of development is compatible with the existing streetscape.
(2) Unless otherwise provided for in this plan, this clause applies to all land within the local government area of the City of Hurstville.
(2A) The minimum allotment size for the creation of a dual occupancy on land within Zone No 2 is 630 m2 and the allotment must have a width of at least 15 metres.
(2B) Any development application relating to the creation of a dual occupancy on land within Zone No 2 that was lodged, but not finally determined, before the commencement of Hurstville Local Environmental Plan 1994 (Amendment No 50) is to be determined as if that plan had not been made.
(3) The council must not consent to the erection of a second detached dwelling in the backyard of a dwelling house except in respect of corner allotments or sites which have rear lane or dual street access.
(4) The council may consent to the creation of a second attached dwelling at the rear of an existing dwelling house if:
(a) any additional floor space to be created does not constitute more than 20% of the total site area, and
(b) the length of any building extension does not exceed 25% of the shortest perpendicular distance measured from the rear alignment of the existing dwelling to the rear boundary of the allotment, and
(c) such an addition is of single storey construction.
(5) For the purposes of this clause, an attached dwelling means a dwelling attached to another dwelling by a common wall, where the dwellings maintain the appearance of a single integrated building. Dwellings are not attached dwellings for the purposes of this clause where they are connected by breezeways, carports or the like.
Clause 5 of LEP 1994 provides the following relevant definitions:
dual occupancy means two dwellings on a single allotment of land.
dwelling means a room or number of rooms occupied or used, or so constructed or adapted as to be capable of being occupied or used, as a separate residence.
The proposal is subject to the provisions of Hurstville Development Control Plan 1 (DCP 1).
Clause 1.10 of DCP 1, How can a Favourable Result be Achieved?, states:
The building envelopes aim to promote a high level of variety. In order to meet the objectives in some sections of the DCP, you should comply with the building envelope controls as well as meet council's design principles. Council will, however, consider a variation to the envelope only where an applicant can demonstrate that such a variation better satisfies the relevant design principles.
Clause 1.11 of DCP 1, Variations to the Criteria, states:
If there are circumstances when it is not relevant to comply with the controls in this Plan, applicants must provide a written submission clearly demonstrating compliance with the objectives of this Plan, and detailing the reasons why the control/s should be varied. The proposed variation must result in a better outcome and meet all objectives of this plan, and demonstrate that it will result in better outcomes. The submission must also clearly demonstrate the reasons why the variation sought will not adversely impact on the local amenity.
Section 4.2 of DCP 1 provides development controls for dual occupancy developments. Clause 4.2.1.2 of DCP 1, Basic Idea Behind this section, includes the following:
Under this Section, dual occupancy development is generally only allowed in the form of single buildings containing attached dwellings (one or two storeys). This may include two dwellings side by side attached by a common wall or a two storey dwelling with one dwelling above the other. The only exceptions are for corner sites and sites with dual street or rear lane access, where a second detached dwelling can be built.
Clause 4.2.1.3 of DCP 1, Aims, provides the physical outcome sought for dual occupancy housing, as follows:
(a) Develop a variety of housing forms that are appropriate for dual occupancy;
(b) Ensure all dwellings receive natural light, solar access, ventilation and privacy;
(c) Ensure that future dual occupancy development allows for off street parking and the creation of vegetation corridors at the rear of sites;
(d) Create a coherent street character;
(e) Ensure all dwellings have proportioned facades that are appropriately scaled and emphasise vertical and horizontal elements; and
(f) Retain significant trees, provide opportunities for substantial new landscaping and require at least one established tree in the front yard of every new dual occupancy.
Clause 4.2.2.1 of DCP 1 provides the building envelope and site requirements for dual occupancy housing. The objectives of these controls are:
To ensure a more certain building outcome while creating:
a coherent and attractive streetscape;
off-street parking and vegetation corridors at the rear of sites; and
better opportunities for natural light, ventilation and privacy.
The design principles of the building envelope and site requirements include:
(a) Dwellings are private and allow adequate natural light into living areas.
(b) Windows are provided in all rooms and allow for cross ventilation.
(c) Dwellings minimise overlooking to adjoining dwellings, and orientate the main living areas to the front and rear, rather than the side boundary.
(d) Designs include attractive open space that is private, receives sunlight and allows for rainwater infiltration.
(e) Designs allow for areas of landscaping and retain significant trees.
(f) Dwellings provide off-street parking for two cars (one garage and one driveway space) and other site services without compromising the above criteria.
(g) Designs highlight corner sites and relate to both street frontages.
Flexibility in applying the building envelope and site requirements is provided, as follows:
New development should take the form of one of the six options set out in the Dual Occupancy Building Envelopes Summary Table, detailed and illustrated in Clause 4.2.13. Council will, however, consider a variation to the envelope only where an applicant can demonstrate that such a variation better satisfies the relevant design principles.
Clause 4.2.4 of DCP 1 provides objectives, design principles and controls for streetscape and building design. The design principles include:
(a) The front of the dual occupancy development improves the appearance of the street by incorporating articulated design and massing.
(b) Dual occupancy developments are designed and proportioned so that they don't appear bulky or overbearing.
(c) Garages do not protrude towards the street.
(d) Dual occupancy design responds to sunlight, breeze, privacy, noise and views.
(e) Living areas are linked to the private yard areas.
Clause 4.2.13 of DCP 1, Building Envelope Graphics provides six dual occupancy development options. Option no. 3 is the only possible option applicable to this proposal. Option 3 is for a 2 storey, semi-detached housing type, with a front setback of 5.5 m, side setbacks of 1.5 m and rear setback of 20 m (for sites greater than 50 m in length) and a rear second storey setback from the ground floor alignment of 3m. The maximum floor space ratio (FSR) for option 3 is 0.6:1, the maximum height to upper-most ceiling is 6.8 m, the maximum ridge height is 9 m and the maximum roof pitch is 25-30 degrees and the proposal is to provide a garage and driveway space. Option 3 is further described (as option 3 and option 3a) in diagrams following the table.
Public submissions
The neighbour at 37 Gungah Bay Road, to the south of the site, submitted an objection to the development application and while he was present at the site view, he did not provide evidence, however he did permit the parties and their experts to enter his house to see the windows in the northern elevation of his house and his rear porch.
Expert evidence
Expert planning evidence was provided by Mr Jeffrey Mead on behalf of the applicant and Mr Harvey Sanders on behalf of the Council.
Streetscape
The planners agree that the visual catchment of the local area includes both sides of Gungah Bay Road, bounded by Acacia Street and Robert Street. The experts agree that two storey developments are consistent with the existing and desired character of the local area, despite the lower side of the street being predominantly single storey, modest dwellings.
According to Mr Mead, the detached configuration of the dwellings is less bulky than attached dwellings would be, because there is a break between the buildings. In his opinion, the dual occupancy controls are designed for a 15 m wide allotment and as the site is 20 m wide, a wider attached building will appear to be very large and bulky in the context of the local area. He says a gap between the buildings is beneficial to the overall bulk and scale of the proposal.
Mr Sanders disagrees and says that the detached dwellings create a 'wider' building when viewed obliquely, as the gap between the dwellings is not evident.
Detached dwellings
According to Mr Mead, this application for detached dual occupancy dwellings relies on the 'flexibility' provision in clause 4.2.2.1 of DCP 1. In his opinion, the application satisfies the relevant design principles of DCP 1 and therefore a variation to the prescribed building envelope control for option 3 in clause 4.2.13 of DCP 1 should be permitted.
Mr Mead states that the building envelope control for option 3 in clause 4.2.13 of DCP 1 does not preclude the dwellings being detached, as a building envelope is a three dimensional form that sets the outer limits of a building and does not dictate the form of the building. Mr Sanders' interpretation is that the building envelope graphics in clause 4.2.13 are a 'typology' and are to be read in conjunction with their descriptions and diagrams. In Mr Sanders' opinion, option 3 is for attached dwellings only.
The planning experts agree that the relevant design principles are not limited to those within clause 4.2.2.1 (a) to (g), but include other relevant design principles in DCP 1.
In Mr Mead's opinion, the proposal for detached dwellings better provides for cross ventilation, as both dwellings have windows on their shared boundary side and the private open space of each dwelling is a better outcome than for attached dwellings. Mr Mead concedes that the proposal is not ideal in terms of maximising light, although other design options for the detached dwellings could address this issue. Mr Mead says that the design principles for dual occupancy developments should be considered as a whole and that the detached dwellings proposal is no worse in terms of the design principles than an attached dwelling arrangement.
According to Mr Sanders, the proposed detached dwellings do not better satisfy the design principle for cross ventilation when compared to attached dwellings, as the position of the tandem garage and arrangement of the ground and first floors prevents cross ventilation. Mr Sanders agrees with Mr Mead that screens and louvres can be added to address the visual privacy issues between the dwellings, however he says that this does not address acoustic privacy issues between the dwellings. In Mr Sander's opinion, the need to provide screens to address the visual privacy issues demonstrates that the proposal does not present a better outcome when compared to attached dwellings. According to Mr Sanders, the proposal does not represent a better outcome in terms of the design principles for dual occupancy, as required by clause 4.2.2.1 of DCP 1, for variations to the prescribed building envelope to be considered.
Submissions
Mr Mantei submits that the application is for two dwellings on separate parcels of land (and not a for a second dwelling). He says that only subclause 11A(1)(d) and clause 11A(2A) of LEP 1994 are relevant to this application, as subclause 11A(1)(b) applies only to dual occupancy development created by the addition of a second dwelling, which contains an existing dwelling. Mr Mantei submits that the underlying purpose of the development controls for dual occupancy is to prohibit a second dwelling in the rear yard of an existing dwelling.
Mr Simington disagrees and says the application is for a dual occupancy development and while the proposal is not prohibited, the intent of clause 11A is to encourage attached dual occupancies (except in respect of corner allotments or sites which have rear land or dual street access) and that subclause 11A(1)(b)(ii) applies to this application. He says that the intent of clause 11A is further elaborated on by the controls for dual occupancy developments in DCP 1 and that detached dual occupancy developments are not encouraged.
Mr Simington further submits that Mr Mead's interpretation of the building envelope control for option 3 in clause 4.2.13 of DCP 1 as permitting detached dwellings is not a 'common sense' approach to interpreting DCP 1 and that detached dual occupancy dwellings are only permitted if the application gets over the hurdle of better satisfying the relevant design principles, when compared to attached dwellings.
Findings and Conclusion
I agree with Mr Mead that the proposal is visually compatible with the context, because the size of the dwellings and the allotment widths are consistent with the streetscape character of the local area.
I agree with Mr Sanders' that the building envelope graphics in the table in clause 4.2.13 of DCP 1 must be considered in conjunction with the description of the housing type in the table and the architectural design solutions diagrams in clause 4.2.14 of DCP 1. The 'housing type' description in the table describes option 3 as '2 storey semi-detached'. The definition of 'semi-detached' in the Concise Oxford Dictionary is 'a house joined to another by party-wall on one side only'. Furthermore, the diagrams for dual occupancy development, option 3 includes a section to demonstrate the height control and the section is drawn with a party wall in the centre of the two dwellings (Section 4, page 69, DCP 1). As the drawn section depicts the floors, walls, ceilings and roof, it is more detailed than a building envelope diagram, which only depicts the outer limits of a building. The drawn section anticipates attached dwellings. Consequently, I agree with Mr Simington that Mr Mead's interpretation of the building envelope control for option 3 in clause 4.2.13 of DCP 1 as permitting detached dwellings is not a 'common sense' approach to interpreting DCP 1 and that detached dual occupancy dwellings are permitted only by way of the flexibility provision in clause in 4.2.2.1 of DCP 1.
The emphasis to be given to a DCP is addressed in Zhang v Canterbury City Council (2001) 115 LGERA 373. Spigelman CJ, at par 75, raises three important propositions. First, and although the Court has a wide-ranging discretion, the discretion is not unfettered. Secondly the provisions of a DCP are to be considered as a fundamental element in, or a focal point to, the decision-making process particularly, if there are no issues relating to compliance with a local environmental plan. Thirdly, a provision of the DCP directly pertinent to the application is entitled to significant weight in the decisionmaking process, but it is not in itself determinative.
I therefore give significant weight in the determination of this appeal to the design principles for dual occupancy development and to clause 1.10 of DCP 1 and the 'flexibility' provision of clause 4.2.2.1, which permits the Court to consider a variation to the building envelope only where an applicant can demonstrate that such a variation better satisfies the relevant design principles.
The detached dwellings proposed have poor internal amenity, as the layout is awkward with little opportunity for cross ventilation and no consideration has been given to the orientation of the dwellings. The position of the tandem garages forces the living and dining areas of each dwelling to face the other, because they are orientated to the side, shared boundary. The design of the proposal causes significant privacy issues between the dwellings, which cannot be effectively dealt with by offsetting the windows and covering them with screens. I agree with Mr Mead that the proposal does little to maximise natural light to rooms. In my opinion, the design is unarticulated and expedient.
I am satisfied that this application, which proposes a variation to the building envelope of option 3 (clause 4.2.2.1 of DCP 1) by providing detached dwellings, does not better satisfy the relevant design principles when compared to attached dwellings and that the applicant has not demonstrated that such a variation is warranted for this application.
I note that the applicant's description of the proposal in the Development Application made to Council and the Application Class 1 made to the Court both describe the proposal as a dual occupancy development. I agree with Mr Simington that the proposal is subject to the provisions of clause 11A(1)(b)(ii) of LEP 1994.
Orders
The orders of the Court are:
1. The appeal is dismissed.
2. Development Application No 11/DA-430 for the demolition of the existing dwelling and construction of a new detached dual occupancy development is refused.
3. The exhibits, other than exhibits 4 and C, are returned.
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Susan O'Neill
Commissioner of the Court
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Decision last updated: 19 September 2012
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