Scotcon Builder and Developer v Hurstville City Council

[2004] NSWLEC 424

Land and Environment Court

of New South Wales

CITATION:

Scotcon Builder and Developer v Hurstville City Council [2004] NSWLEC 424

PARTIES:

APPLICANT
Scotcon Builder and Developer

RESPONDENT
Hurstville City Council

FILE NUMBER(S):

10244 of 2004

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Multi unit housing - character/mews development - building height - integration with park - solar amenity - public interest

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Hurstville Local Environmental Plan 1994

CASES CITED:

DATES OF HEARING:

21/07/2004

DATE OF JUDGMENT:

08/06/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr J Cole, solicitor
SOLICITORS
Abbott Tout

RESPONDENT
Mr G Griffiths, solicitor
SOLICITORS
Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

6 August 2004

10244 of 2004 Scotcon Builder and Developer v Hurstville City Council

JUDGMENT

Background

1 This matter involves an appeal against council's refusal of a development application for the demolition of an existing dwelling and construction of a multiple dwelling development comprising 3 detached dwellings, with strata subdivision, at 15 Ogilvy Street, Peakhurst.

2 For the appeal, a number of issues were initially identified, but following conferencing by the respective experts, the remaining issues generally concern the appropriateness of the design for the site, its bulk and scale, streetscape impact, compliance with the development controls and impact on neighbouring properties.

The site

3 The subject site is located on the western side of Ogilvy Street and has a street frontage of 15.24 m, a depth of 60.96 m and a total area of 928.9 sq m. The site falls from the street to the rear.

4 There is a single storey detached fibro dwelling house and garage on the site.

5 The site has a common boundary with an adjoining park to the north.

The proposal

6 This proposal initially involves the demolition of the existing dwelling house and garage. It is then proposed to erect 3 dwellings, which are 2-storeys in height, with the first floor partially contained within the roof space. The ground floor of each dwelling contains an open plan living/dining room, kitchen laundry and double garage. On the first floor of each dwelling, there are 3 bedrooms, a bathroom and en suite.

7 Access to each dwelling is proposed via a common driveway along the northern boundary of the property, which incorporates a landscaped strip, adjacent to the park.

8 The dwellings are proposed to have a front setback of 4.5 m, side setbacks of 2-3 m (southern side) and 4.15 - 5.51 m (northern side) and a rear setback of 7.8 m. The front dwelling has a height of 7.75 m, the second dwelling has a height 7.74 m and the rear dwelling has a height of 7.34.m.

Planning controls

9 The site is located within the Zone 2 (Residential Zone), under the provisions of Hurstville Local Environmental Plan 1994 (HLEP 1994). The proposal is defined as a multiple dwelling development and is a permissible use in this zone, with the consent of council.

10 Detailed development controls are contained in council’s Interim Residential Development Code, (Code), which divides the residential zones into different development areas. The site is located within Development Area C - Medium Density/2-Storeys, where mews type development is encouraged. The relevant controls in this Code include a minimum street frontage of 24 m and a density of 315 sq m of site area per dwelling, regardless of the number of bedrooms. It also requires consideration of existing landscape features and the provision of adequate solar access to both neighbouring properties and the subject development. The building height and form is controlled by a specified building envelope.

11 Other controls are contained in the Development Control Plan No 18 - Crime Prevention through Environmental Design. Also Development Control Plan No 2 - Car Parking, which specifies the dimensions for carparking spaces and access provisions. The carparking requirement for this development is 2 spaces per 3-bedroom dwelling.

The evidence

12 Detailed evidence on behalf of council was presented by Ms K Gordon, consulting town planner (Exhibits 4 and 5). For the applicant, evidence was presented by Mr S. Layman, consulting town planner (Exhibits F and G) and Ms N Sonter (Exhibit E).

13 In addition to this, the planners conferred and were able to narrow, but not resolve the outstanding design issues and the conference results are contained in Exhibits 9 and 10.

14 Ms Gordon's main concerns are that the proposal does not have adequate regard to the mews provisions in the Code and the rear dwellings are too bulky. Also, she does not consider that the proposal adequately satisfies the setback and streetscape provisions, or that it has a satisfactory relationship with the adjoining park.

15 Against this, Mr Layman, says that some relaxation of the mews elements is appropriate in this case, because of the reduced frontage of the site. Notwithstanding this, he notes that the proposal complies with the building height envelope and therefore considers the proposal appropriate for conditional consent.

16 It is apparent from the evidence that the planners have referred to the Codes reference to mews type development for the site. But they have interpreted these limited controls quite differently.

17 Interestingly the Code has evolved from 19 July 1995, when council adopted the Draft Multi Unit Residential Development Control Plan as its interim Residential Development Code (Code). This designated a number of development areas comprising: “A”, “B”, “C” and “D”, as shown on the Residential Development Control Map, where different development outcomes were envisaged.

18 However the Code does not contain any definition or particulars for mews development, except in the Building Setback section, where it is stated:

Where a Mews type development is proposed with dwellings fronting a public access way, consideration be given to a reduction in the street and rear and side boundary setback provisions.

19 Then the Development Area C statement, makes following reference to Mews development:

Within the Hurstville Local Government area there are a large number of parks which have a very large proportion of their frontage along backyards. A significant opportunity exists to have mews type development which open up access points to these parks. This provides a very large benefit to both the residents of new development and the community in general. Site planning must attempt to create this type of development.
In general, mews development must be small in scale with appropriate scaled buildings, a personal atmosphere and streets with narrow shared zones with pedestrian priority.

20 Even though the Code contains some small, scale diagrams showing general building configurations and the building setback provisions, there is still uncertainty about the ultimate building form envisaged. Reference to the following Macquarie dictionary definition of mews also provides little assistance in this regard:

"a set of stables or garages usually with living accommodation attached, around a yard, court, or alley. 2. a street, yard, or court lined by buildings originally used as stables and servants quarters”.

21 It is apparent that whatever the envisaged form of Mews development is, it must be compromised to some extent on this lot because of its 15.24 m frontage, which is a below the designated minimum frontage of 24 m. Therefore both planners agree in this case, that it is reasonable to consider the development of the subject site alone because recent development on neighbouring property makes site amalgamation unlikely. i.e. the site can be considered as an "orphan" site.

22 Accordingly, the planners indicate that the positive elements of mews type suitable for the site are:

• two storeys at rear of the site addressing the park (in attic form),
• compatibility with character and streetscape of area while allowing a variety of housing forms,
• provide direct access from site to park, shared driveway, single point access, together with areas of private semi private open space areas,
• opportunity to create new character adjoining park edge land;
• two storeys,
• front onto and provide sense of enclosure to park.

23 With regard to the current proposal, the main difference between the planners is the position of the access way. Ms Gordon prefers it to be on the southern side of the lot, adjacent to the common boundary of No 17A because it will allow more openness to the park, together with better privacy of the individual courtyards. However, Mr Layman considers that the proposed access way along the northern boundary is more appropriate because it allows better presentation to the park, together with improved amenity for the residents.

24 From these disparate opinions, it seems to me that the critical element, relative to this orphan lot, is to focus the development towards the park, so as to avoid repetition of the existing, unattractive high-paling fences currently bordering the park.

25 Accordingly, I rely on Mr Layman's approach that the proposal is generally acceptable because:

• The proposed two-storey form of dwelling is permitted, especially where it incorporates attic rooms, as this form contributes towards "bordering" the central park. In this regard, I note Ms Gordon's concern that the building height is excessive, but I give greater weight to the fact that it complies with the designated building envelope, notwithstanding it does not comply with the side building setbacks in the Code. Insofar as this building form introduces some amenity impact on neighbouring properties, I deal with that subsequently.

• The proposed access way on the northern boundary results in some additional setback to the park of the front dwelling, which then allows a more open, splayed view into the park from the street.

• This location of the driveway then allows the more attractive front elevation of the houses to be oriented northward, to the park. As the access way will be the main activity area for the residents, it will provide better opportunities for integration with the park, rather than alternative, rear service corridor approach. As such, I consider this orientation more readily complies with the mews concept diagram in the Code, which shows houses aspected towards a common access way and open space. This contributes towards the objective to “open” up access to the park and create a personal atmosphere.

• As the proposal allows for lower landscaping between the park and driveway, which then transitions to the private courtyards adjoining the buildings in the proposal, I consider this better satisfies the element of integrating the development with the park.

26 In addition to this, it also appears to me that the position of this driveway demonstrates better compliance with the objectives of the Crime Prevention DCP by allowing more open observation of activity within the development and the adjacent park, without compromising unduly privacy of the residents.

27 An associated issue concerns the building setbacks. In particular this relates to front setback and the other side boundary setbacks, where there are differences with the provisions of the building envelope control.

28 With respect to the front setback, the Area C setback control states that it "shall be determined by the existing streetscape and general building alignment with a minimum of 4.5 m." In this case the proposal achieves the 4.5 m setback but Ms Gordon says that it is inadequate because it does not have sufficient regard the existing setbacks in the street. However from my observations on the view, I do not consider that Ms Gordon's preferred setback of 6 m would result in much improvement in the streetscape of the proposal, taking into account the variable setbacks of other developments in this street and this is consistent with Mr Layman's evidence.

29 Apart from this, the other substantive issue raised by Ms Gordon concerns the solar amenity of the new units. This apparently arises due to her distinction of primary and secondary areas of the courtyards, parts of which do not receive the minimum 4 hours sunlight, as specified in the controls. However, I accept Mr Layman's evidence on this matter that the controls do not make this distinction and therefore the courtyards of the units do comply with the solar access provisions. In any case, it appears to me that shape and orientation of the courtyards to the north, will allow for a reasonable degree of flexibility for the use of this space, which adequately complies with the controls.

30 A number of objections to the proposal were lodged and they generally refer to in adequate compliance with the controls, loss of outlook and privacy. The loss of outlook was raised by the owners of No. 17, due to the roof height of the proposed westernmost unit. However from my observations on the view and taking into account that a two-storey form of dwelling can be erected, I do not consider that the degree of loss of outlook from the relatively narrow upstairs balcony is sufficient to warrant rejection of the application.

31 The neighbour from the northern side of the park expressed concerns about loss of privacy and noise from the proposed driveway on the northern side of the development. However as the separation distance between the properties across the park is in the order of 30 m, and there will be intervening landscaping, I do not consider this sufficient to warrant rejection of the proposal. Likewise, any noise disamenity from the driveway is only likely to be marginally offset by relocation of the driveway along the southern boundary and I do not consider this reasonable considering the previously mentioned aspects of integrating the development with the park.

Conclusions

32 Having considered the evidence, the submissions and undertaken a view, I consider this application merits conditional consent.

33 It is apparent from the evidence, that the relevant controls are contained in the Interim Residential Development Code, which has been in place for some time. However its status as initially a draft Development Control Plan, which was adopted the residential Code, allows some discretion in its application, in my assessment.

34 Notwithstanding this, it presents the notion of mews type development for this "orphan " lot. In the ultimate, I am satisfied that the proposal incorporates some of the relevant elements of this form of development and taking into account its restricted width, it then achieves reasonable integration with the park and also provides reasonable amenity for future residents.

35 In reaching this conclusion, I have also considered the detailed assessment of the proposal by the council assessment officer, who recommended conditional consent. In the circumstances of this case, I consider this reasonable and for conditional consent to be granted.

36 Therefore the orders of the Court are:

1. The appeal is upheld.
2. Development consent is granted to Development application No. 20020979 for the demolition of the existing dwelling and erection of a multi unit development comprising 3 units at 15 Ogilvy Street, Peakhurst, subject to conditions in Annexure A.
3. The exhibits may be returned except for Exhibits 1, 4, 8, 9, 10, A, C, D, F and J.

_______________________

R. Hussey
Commissioner of the Court
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