Scouts Australia Pty Ltd v Ryde City Council

[2004] NSWLEC 269

Land and Environment Court

of New South Wales

CITATION:	Scouts Australia Pty Ltd v Ryde City Council [2004] NSWLEC 269
PARTIES:	APPLICANT Scouts Australia Pty Ltd RESPONDENT Ryde City Council
FILE NUMBER(S):	10085 of 2003
CORAM:	Tuor C.
KEY ISSUES:	Development Application :- Villa Homes Impact on heritage item and streetscape solar access loss of trees and landscaping residential amenity
LEGISLATION CITED:	Ryde Planning Scheme Ordinance
CASES CITED:
DATES OF HEARING:	01/12/2003 to 02/12/2004
DATE OF JUDGMENT:	05/28/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr D Parry Solicitors Pike Pike & Fenwick RESPONDENT Mr P Rigg Solicitors Deacons

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10085 of 2003

Tuor C

28 May 2004

SCOUTS AUSTRALIA

Applicant
v

RYDE CITY COUNCIL

Respondent

Judgment

Introduction

1 This is an appeal against the refusal by Ryde City Council (the council) of a development application (895/2002) to construct villa homes at 72 Agincourt Road, Marsfield.

The site and its context

2 The site (being lot B DP 416681) is located on the western side of Agincourt Road, about 300m south from its intersection with Balaclava Road. It is hatchet shaped with an area of 4066m2. The front part of the site has a 14.9m street frontage to Agincourt Road, which extends at this width for a depth of about 42m. The site then widens to a maximum width of about 42.4m along its rear western boundary. Its overall depth from Agincourt Road to the rear boundary is about 130.7m.

3 The front of the site is developed with a concrete scout hall and a shed. The remainder of the site is undeveloped with a number of trees mostly around the perimeter.

4 Development adjoining the northern boundary is a two storey house, 70 Agincourt Road, and vacant land around a water reservoir. Development adjoining the southern boundary is the former town hall, 74 Agincourt Road, which is a heritage item, and four two storey houses off Diane Street. Further to the south, along Agincourt Road are two single storey shops built to the street alignment. To the west are three houses off Summit Close. Surrounding development is characterised by detached houses. The houses are predominantly single storey with some recent two storey houses, of a variety of heights and styles.

Background

5 A development application was lodged on 11 September 2002. The application was advertised and council received 7 submissions. The applicant lodged an appeal against the deemed refusal of the application on 28 January 2003. Council refused the application on 20 May 2003. Amended plans were lodged in July 2003. These were readvertised and three further submissions were received. The main issues of concern related to: the impact on privacy of adjoining neighbours; inadequate setbacks; overshadowing; loss of trees and landscaping; lack of variation and the extent of the roof form; the proposal being out of character with the street and the heritage item.

The Proposal

6 The proposal is to demolish the existing buildings on the site and to construct 11 three bedroom villa houses each with a double garage plus three visitor spaces, a total of 25 spaces.

Statutory framework

7 The site is zoned 2 (a) Residential under Ryde Planning Scheme Ordinance (RPSO). “Villa homes” are permissible with consent. Cl 56A includes requirements for villa homes relating to site area, landscape area, height and parking. The proposal complies with these numerical requirements.

8 The adjoining building, 72 Agincourt Road, is identified as a heritage item under RPSO. Cl 88 requires the consent authority to “assess the impact of the proposed development on the heritage significance of the heritage item and of any conservation area within which it is situated.”

9 The Urban Housing Development Control Plan (DCP) is also relevant. This includes the following objectives for villa homes:

a) ensure that the urban housing is designed to the highest possible aesthetic standard.
b) preserve and enhance the existing residential amenity of the City.
c) ensure that the scale of urban housing developments is related to the character of the area.
d) achieve a dispersal of urban housing development throughout the city.
e) ensure maximum privacy and sunlight, both within and outside the site.
d) ensure adequate provision is made for the parking of residents and visitors vehicles within the limits of the site.
e) ensure that designs promote security and safety of residents.

10 The DCP includes requirements for minimum frontage and site area (cl 2.2), private open space (cl 3.6), side and rear setbacks (cl 4.3), overshadowing and access to sunlight (cl 4.8) and landscaping (cl 4.12).

Issues

11 The Statement of Issues before the Court contains 10 issues. The key issues are whether:

i. the proposal has an acceptable impact on the significance of the adjoining heritage item.

ii. solar access to the proposed villas and private open space is acceptable.

iii. the removal of trees and replacement trees in proximity to the villas is acceptable.

iv. the proposal will have an acceptable impact on the amenity of adjoining residents.

12 The following experts gave evidence:

· For the council

Mr C Young, town planner

Mr M Robinson, heritage architect

Mr P Stacy, landscape architect
Mr P Wood, engineer

· For the applicant

Mr A Rowan, town planner
Mr S Pittendridge, landscape architect

13 The Court also heard evidence from the following residents:

Mr M Hollier, 12 Diane Street, Marsfield
Mr K Chan, 9 Diane Street, Marsfield

Impact on heritage item

14 Villa 1 is the only part of the development that will be viewed in the same context as the heritage item, 74 Agincourt Road. From the details of the development application, the impact of villa 1 on the adjoining heritage item is difficult to assess. Villa 1 is about six metres wide and is setback about 21 metres from the front boundary, with a 1.8 m high fence setback about 15 metres from the front boundary. This fence is necessary to provide privacy to the front courtyard of villa 1. Three evergreen trees and screening shrubs are provided within the setback area.

15 From Mr Rowan's evidence, the logic of setting back villa 1 is to re-establish the “visual presence” of the former town hall in the streetscape and to enable it to be viewed “in the round”. The demolition of the existing scout hall will remove an intrusive element from the setting of heritage item. He stated that “ the setting of the heritage item will be visually enhanced, the new development opening up the existing vistas to the building from the north, and providing a landscaped foreground in which to appreciate its presentation in the streetscape.”

16 Mr Robinson agreed with this design approach but considered its resolution to be unsuccessful and reliant on villa 1 being screened to such an extent that could barely be seen from the street. In his opinion, for a development to not have an adverse impact on the heritage significance it would need to meet the following objectives:

· It needs to be ‘recessive’ to ensure that it does not impact visually on and dominate the relatively diminutive heritage item

· It needs to achieve a satisfactory design relationship with the heritage item in terms of its scale, character and architectural language

· It needs to provide an appropriate transition in scale, form and character between the heritage item in the relatively large two-storey houses at Nos 68 and 70.

17 Mr Robinson considered that the proposal generally met the first objective but not the other two objectives. He stated that villa 1 “would not relate well to either the heritage item or the house at No 70 or provide an appropriate transition between the two”.

18 Mr Young shared these views and considered that villa 1 did not “complement and enhance the existing streetscape of the locality” as required under cl 3.1 of the DCP as it was significantly out of character with the existing streetscape because of its relatively narrow width, lower height and greater setback.

19 The removal of the scout hall has the potential to improve the setting of the heritage item, however, the proposed development does not achieve this. While it opens up vistas of the heritage item these are largely screened by the proposed landscaping. The acceptability of villa 1 relies on it being setback, smaller and substantially screened so that it is largely not visible from the street. This does not result in an acceptable streetscape or an acceptable relationship between the proposal and the heritage item. Although recessive, the villa will still be seen from the street, as will the fence around its courtyard and other parts of the development will be viewed up the driveway, this will not provide an appropriate setting for the heritage item or an appropriate transition between it and the houses to the north.

Frontage

20 Clause 2.2 in the DCP requires a minimum frontage of 20m and a minimum site area of 600 square metres. The site has a frontage to Agincourt Road of about 15m, which is below this frontage requirement. The site area of 4066 square metres well exceeds the minimum site area requirement. The site is clearly appropriate for housing development and the constraints of the narrow frontage would be similar whether the site were to be developed for single dwellings or for medium density development as vehicle access can only provided off Agincourt Road. This frontage must therefore accommodate a driveway width and a suitable setback to the heritage item and adjoining houses.

21 Mr Young’s evidence was that:

the reasons for the minimum width requirement is to ensure that there is sufficient room for the erection of a reasonably sized dwelling (the scale of which is compatible with the streetscape), with appropriate side boundary setbacks in compliance to the DCP and also the provision of a driveway to service other units within the development.

22 In Mr Young’s opinion the frontage of the site could not provide a suitable dwelling, driveway and setbacks. Mr Robinson said that the driveway should be along the southern boundary of the site thereby also providing a greater setback to the heritage item. Mr Rowan considered that the frontage was adequate and the resultant development was consistent with the streetscape.

23 Clause 4.3 of the DCP requires side and rear setbacks to be a minimum of 4.5m from the boundary, which may be reduced to 3m for up to 50% of the wall of a villa. The setback of villa 1 is 2.88m from its southern boundary. Mr Young’s evidence is that the purpose of the setback requirements in the DCP which are greater than that required for a single dwelling house are:

because villa homes do not have the same access to private outdoor space (backyard) areas as the single dwellings. Villa homes also often have less distance between adjoining dwellings (both within and outside the development site), and therefore in order to preserve the overall amenity of villas (and adjoining developments), greater setbacks are required.

24 I accept this rationale where the setback is to be used as the open space area for a villa or where a number of villas, particularly their living areas, adjoin the boundary of an existing house. However, villa 1 could relate to the street in a similar manner to other houses in the street, with open space orientated to its street frontage or as rear back yard rather than to the side. In which case a lesser setback to the adjoining house at 70 Agincourt Road may be achieved if the driveway were moved.

25 On this site the non compliance with the street frontage requirement in the DCP is not a reason to prevent development, however the manner in which the development has responded to the street frontage is unsatisfactory. It is a result of the setback requirements and the constraints of providing a driveway and separation between the heritage item. Mr Robinson’s suggestion that the driveway be placed to the south has the advantage of separating the heritage item and the proposal. A setback consistent with single dwelling houses in the street could then be provided to the north.This would enable a dwelling to be provided of a width consistent with the width of the site and with other dwellings in the street.

26 The definition of villa houses requires that they be attached. However, for villa 1 this serves little purpose and prevents open space being provided as a rear yard. As stated above, the constraints for the design of villa 1 are primarily its relationship to the heritage item and to its streetscape. These constraints would best be addressed by providing sufficient setback from the heritage item and a scale of dwelling that relates to the scale of existing houses in the street, albeit not of the scale of the more recent dwellings such as 70, but as a transition between it and the heritage item.

Solar access and private open space

27 Clause 4.8 of the DCP states that the purpose of the standard is that:

Buildings must be sited and designed to maximise access to daylight to habitable rooms, as well as winter sunlight to ground level private open space of new and neighbouring dwellings.

28 The relevant standard is:

Sunlight to at least 50% of the principal area ground level private open space of adjacent properties must not be reduced to less than two hours between 9 am and 3 pm on June 21.

29 The standard does not specifically refer to open space within the development itself. However, it is also an appropriate criterion to assess whether the objective has been achieved for the private open space of the villas.

30 The overshadowing diagrams provided by the applicant do not show changes in level or shadowing as a result of fences. The experts estimated the solar access to the areas of private open space proposed in the development and those of adjoining houses to the south.

31 The proposed courtyards to the south of villas 3, 4, 5, 6 and 7 would receive little sun in midwinter. The landscape strip in these courtyards would receive morning sun but usable areas would be in shade throughout the day. Villa 7 has alternate open space to the north west which opens off its living area and receives sunlight.

32 The courtyard of villas 8, 9, 10 and 11 face north. Although, the courtyard of villas 8 and 11 open off bedrooms rather than living areas but these villas have alternate areas of open space which open directly off their living areas.

33 All courtyards comply with the minimum area of cl 3.6 of the DCP. The building setbacks and minimum width of courtyards range from about 4m to 4.6m. These setbacks while sufficient to provide separation between the villas and the adjoining houses to the south are not sufficient to provide solar access to the south facing courtyards.

34 As discussed above, setbacks may be reduced if not used as open space or if there are no privacy impacts. Conversely the minimum width of courtyards may need to be increased to achieve an appropriate level of solar access. Clause 3.6 of the DCP requires that private outdoor space should face north to gain the most advantage of winter sun. While this is the ideal orientation it may not be reasonable to achieve it for all dwellings, however, it is reasonable that the open space of all dwellings should achieve a minimum of two hours of sunlight in midwinter.

35 The proposed development is above the level of the adjoining houses is to the south. The retaining wall and the fence required for privacy are about 2.5m to 2.8m above ground level of 12 Diane Street and 3m to 3.4m above ground level of 9 Diane Street. These adjoining houses are built close to the common boundary and their principal areas of private open space face the development but also extend to the sides of these houses. The living areas of 12 Diane Street are approximately 3m from the common boundary. From the shadow diagrams the impact of the proposal cannot accurately be assessed, as they do not include the change in level, the retaining wall and the fence height and the experts did not agree on whether the proposal would satisfy the standard in cl 4.8.

36 Solar access to the development is poor. While the site is orientated east west, this does not mean that on such a large site, areas of private open space could not receive what is generally considered to be a minimum amount of sunlight. A single storey development should be able to satisfy the minimum requirement for solar access to the adjoining houses to the south, however, this cannot be confirmed from the information provided to the Court.

Trees

37 The site has 20 existing trees (two additional trees have died since the application was lodged) of which 11 are to be removed. The application was amended to retain, within the private open space of villa 2, a group of five angophoras, which are indigenous to the area and range from poor to good condition. A further four trees are to be retained in areas of private open space within about two to five metres of the villas. 22 new trees are proposed to compensate for the trees to be removed. Of these 12 (seven evergreen trees between 10 to15 m high and three deciduous trees between 3 to 8 m high) are within areas of private open space and the majority are about three metres from the building. The trees in the common areas are mainly around the visitor parking space and in the front part of the site.

38 No evidence was submitted to the Court on the significance or condition of the individual trees to be removed or retained. Mr Pittendrigh stated that an assessment had been undertaken and from his recollection all the trees to be removed were either in poor health or not native. Mr Stacey’s opinion was that, with the exception of the angophoras, the trees to be retained were not the significant ones on the site. He said that as all the existing trees, except for one, were located on the extremities of the site more trees could have been retained.

39 Mr Stacy’s opinion was that it was inappropriate for large existing or proposed trees to be located within small private courtyards, particularly if these were approximately three metres from the villas themselves. Mr Stacey said that trees less than three metres from a building were not covered by the council’s tree preservation order. He acknowledged that this could be addressed by a condition requiring retention, however, in his opinion trees that are close to buildings may become problematic. He said that large trees can result in structural problems, drop limbs or be a nuisance through dropping leaves and it may not be appropriate for them to be retained. He also considered that the amenity of the private open space with such large trees, particularly the open space that faces south, would be poor.

40 Mr Pittendrigh held the contrary view that the trees retained and proposed within the areas of private open space were appropriate and would not have an adverse impact on the amenity of these spaces or on the structural integrity of the villas or the retaining wall as their roots would adapt to the growing conditions and they would not grow their full height. In Mr Pittendrigh’s opinion the trees proposed in the common areas also compensated for those trees to be removed. He concluded that:

The landscape design maximises the retention of mature trees within the constraints and opportunities offered by the site planning design.
The landscape proposed is an appropriate response to the site design and proposed built form.

41 While trees are being retained and replacement trees are proposed, they are in response to the site design and the proposed built form. Rather than the development being a response to the constraints of retaining significant trees on the site and, where this cannot be achieved, providing suitable replacement tress. I accept Mr Stacey’s evidence that:

Given the extent of tree loss it has not been demonstrated (in the landscape plan) that suitable replacement tree planting has been allowed for. This is in part due to the density of the development, which includes small courtyards that do not provide sufficient space for the reasonable establishment of canopy trees, and replacement planting.

42 While a development of this density may be able to be achieved, the placing of large trees into small courtyards is inappropriate. These trees will compensate for the loss of trees and outlook for the existing residents to the south but they are likely to result in conflict between the amenity and use of the private open space by the future residents of the development. Adjustments to the layout of the villas to provide areas with greater setback or separation between buildings better suited to the trees proposed, with smaller trees being placed in the smaller courtyard spaces.

Impact on residential amenity

43 In addition to the overshadowing impacts, which I have already discussed, the residents were concerned about privacy impacts, particularly the proximity of the private open space areas to their back yards. The proposed fence and screen planting would prevent overlooking but the residents were also concerned about oral privacy. The controls in the DCP envisage the relationship of buildings and open space that is proposed. Both experts agreed that acceptable privacy; both aural and visual would be achieved.

44 The residents were also concerned about the bulk of the proposal, particularly the uniformity of the roof form. The proposal is single storey and even with the change of level it will have an acceptable bulk. The villas to the south of the site are grouped into three blocks: villas 5-7 are separated from villas 2-6 by about three metres and these villas are separated from villa 1 by two double garages. This assists in breaking up the development but on this elevation there are large expanses of un broken roof form which is a negative feature of the development.

Conclusion

45 The site is suitable for medium density development despite its narrow frontage. The development complies with the numerical standards for villa houses in the RPSO, however, it has important negative features, including its relationship to the adjoining heritage item, poor solar access and landscape resolution which result in a development that does not achieve the objectives of the DCP.

Orders

1. The appeal is dismissed.

2. Development Application No 895/2002 to construct 11 three bedroom villa houses at 72 Agincourt Road, Marsfield (lot B DP 416681), is refused.

3. The exhibits may be returned.



____________________
Annelise Tuor
Commissioner of the Court