Sheree Waks and Borivoj Maksimovic v Marrickville Council
[2003] NSWLEC 305
•09/25/2003
>
Land and Environment Court
of New South Wales
CITATION: Sheree Waks and Borivoj Maksimovic v Marrickville Council [2003] NSWLEC 305 PARTIES: 1st Applicant
Sheree Waks2nd Applicant
Respondent
Borivoj Maksimovic
Marrickville CouncilFILE NUMBER(S): 10226 of 2003 CORAM: Hussey C KEY ISSUES: Development Application :- to demolish existing dwelling and construct two new houses - consistency with subdivision pattern - privacy - landscape area - solar access LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Marrickville Local Environmental Plan 2001CASES CITED: DATES OF HEARING: 24/09/2003 EX TEMPORE
JUDGMENT DATE :
09/25/2003LEGAL REPRESENTATIVES: Respondent
Applicant
Mr S Waks
in person
Mr G Christmas, solicitor
instructed by Marrickville Council
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
10226 of 2003
25 September 2003Hussey C
- Applicant
- Respondent
1 This is an appeal against council’s refusal of the development application for a 2 lot subdivision and subsequent erection of 2 x 2 storey dwellings on each of the new lots, which is located at 39 Myra Road, Dulwich Hill.
The site
2 The site is rectangular in shape, having a 26.1 frontage to Myra Road and a depth of 13.46 m and it adjoins Myra Lane. It has a site area of approximately 352 m2. There are other dwelling houses adjoining the property with No. 24 Myra Road sharing its side boundary with the subject property and No. 22 shares the rear boundary of the subject property.
The proposal
3 This proposal involves the demolition of the existing house and the subdivision into two allotments comprising Lot A with an area of 170.7 m2 on the corner and Lot B with an area of 181.6 m2.
4 The proposed dwelling houses are 2-storey with open plan living and living and kitchen on the ground floors and three bedrooms on the first floor.
5 The proposal is to be rendered with weatherboard finishes to the Myra Road elevation and each house includes a single garage with a first floor and open space courtyard area.
Planning controls
6 Marrickville LEP 2001: Under this instrument the property is zoned Residential 2(A) and the proposed development is permissible with consent.
7 Development Control Plan No. 35, Volume 1 Urban Housing: This DCP came into effect with LEP 2001 and of relevance in this matter are guidelines A1 Solar Access, B2 Building Setbacks, B3 Streetscape General Appearance, C1 Visual and Acoustic Privacy, C3 Landscape and Open Space and 3A Subdivision.
The evidence
8 The evidence from council comprises:
- Ms N Harris, a town planner with Marrickville Council. Her report is exhibit 2.
- Ms R Rath, architectural draftsperson, her report is exhibit 4.
9 The evidence from the applicant comprises:
- Mr M George, consulting town planner, his report is exhibit B.
10 The council’s position in this matter is that the proposal does not demonstrate reasonable compliance with a number of the controls in the DCP. Insofar as a number of the issues identified were subsequently addressed by the applicant, the outstanding issues then concern:
- the subdivision configuration and impact on neighbours,
- the open space provisions,
- overshadowing of internal courtyards and neighbouring properties,
- privacy impacts and
- setbacks.
11 From her assessment of these issues Ms Harris concluded that the restricted area and shape of the existing lot results in an unsatisfactory proposal which she considers is an overdevelopment of the site and should therefore be refused.
12 Against this Mr George says that when the amenity of the area is considered and the discretion available in the DCP is exercised, this proposal represents a reasonable outcome.
13 In light of these disparate positions I have considered the evidence on the following basis:
a The subdivision configuration
14 Part 3A of DCP 35 includes subdivision controls which includes that new lots be of a size and dimension to enable the siting and construction of dwelling and ancillary buildings that:
- minimise impact on neighbour’s amenity including access to sunlight, daylight and privacy and views;
- provide useable outdoor space; and
- provides activity areas for recreation, relaxation, outdoor dining and children’s play areas.
15 According to Ms Harris, the existing 350 m2 area of the lot is significantly below the surrounding lots which have an average size of 500 m2. Consequently when this corner lot is subdivided into essentially square lots with depths of about 13.5 m, it severely restricts adequate private open space behind the building lines and necessitates buildings being built closer to the boundaries than the adjoining properties.
16 This in turn results in unacceptable impacts on privacy, shadowing and provision of open space. However, Mr George considers these impacts are not unreasonable and the subdivision configuration is not unexceptional.
17 In my assessment of this aspect it is apparent that in this immediate Residential A neighbourhood there is a predominance of longitudinal allotments with narrower street frontages. This results in the house orientation with frontage to the street and private open space in the rear areas.
18 This proposal alters the established configuration by introducing smaller lots of a different general shape which impacts on the privacy of the adjoining lots.
19 I do not consider this proposal is consistent with objective 01 which is to retain the prevailing subdivision and building pattern or that it reinforces the predominant subdivision pattern of the street location as required by the DCP Pt 3A.
20 In my opinion this is a negative aspect.
b Open space
21 The DCP requires dwellings to provide useable outdoor recreation space. The criterion for this is that it should be oriented so that the majority of the open space, at least 50%, receives adequate solar access. Also it serves as an extension of the dwelling where the main living area of the house opens onto this private open space area. A minimum area of 45 m2 is called for, together with minimum width dimension of 3 m.
22 It is apparent that the lot configuration and placement of the proposed building footprints limits the remaining open space opportunities. For Lot B, that is the internal lot, the courtyard is placed on the northern side, but its solar amenity is severely constrained by the proposed two-storey house on Lot A.
23 Insofar as Ms Harrison considered the placement of open space is unsatisfactory, she relies on the detailed area shown in exhibit 3. By reference to these diagrams, which were not challenged, I note that the respective open space areas are in tabular form, are:
Lot A Lot B Total Open space 82 m2 87 m2 Open space with some utility (According to DCP) 29 m2 47 m Open space suitable for recreation purposes 22 m2 35 m2 Open space area meeting minimum dimension requirement 9 m2 (Behind Building
alignment)35 m2 (Behind Building alignment) 38 m2 (Front Yard) 32 m2 (Front Yard) Open Space with adequate solar access 39 m2 (Front Yard) 33 m2 (Front Yard)
24 It is apparent from this tabulation that the provision of private open space is deficient in terms of the DCP controls. In particular the principal courtyard of Lot B receives little, if any, solar access. In this regard I have considered Mr George’s position, that due allowance should be given to the use of the front setback areas and that the proposal includes supplementary first level decks.
25 In my assessment, I am inclined to rely on the opinion of Ms Harris that the open space should preferably be connected to the living areas and that the front setback area is not regarded as private open space.
26 I also consider that the extensive shadowing of the northern terrace area, due to the proximity of the new dwelling on Lot A is unsatisfactory. Therefore I consider that the proposed proximity of the private open space is unsatisfactory in terms of the DCP controls because it does not allow reasonable private open space that has acceptable utility.
c Overshadowing
27 I have previously referred to the undesirable internal shadowing impacts. However, the proposal also generates additional shadowing onto the recreational space of No. 24 Myra Road. Whilst reference was made to the two sets of diagrams which indicates that the existing boundary fence likely cause a shadowing onto the rear yard of No. 25, I also consider it reasonable to consider the effect on the proposed deck area that has been approved to the rear of this house.
28 It seems to me that in mid-winter this deck will be substantially shadowed with more than 50% overshadowing at all time between 9 am and 3 pm as indicated by Ms Harris.
29 Accordingly, I consider the proposal increases the shadow to the rear deck area and reduces the limited amenity of the private open space area of No. 25, which reduces the solar access to less than the two hours prescribed in control C2 of the DCP.
30 I also rely on Ms Rath’s shadow diagrams which indicates that the shadowing is over the deck area and up the wall, rather than Mr George’s opinion, that the shadowing is confined to the floor area.
31 Therefore I consider this degree of overshadowing on adjoining properties is further negative aspect.
d Privacy
32 The main privacy concerns relate to the first floor level terraces. In this regard I accept Mr George’s evidence that appropriate screens could be placed on the building at Lot B. However, the privacy concerns on Lot A arise due to the proposed terrace above the garage which has zero boundary setback. Insofar as a planter box of approximately 400 mm width is proposed to restrict overlooking I am inclined to agree with Ms Harris that this allows a higher degree of viewing opportunities onto No. 23, which is undesirable and uncharacteristic of this neighbourhood.
e Setbacks
33 The restricted size of the new lots results in the garage on Lot B having zero setback. Similarly the garage on Lot A has zero setback and the 2-storey element has a l m setback adjacent to No. 22. But DCP 35 requires a 900 mm setback for single-storey dwellings and a 1.5 m for the two-storey elements.
34 Whilst I note the impacts of these walls have endeavoured to be reduced by eliminating windows to overlook neighbours, nevertheless it will result in visual impacts because of the closer proximity to the neighbouring properties than envisaged by the DCP.
35 In summary then, I accept Ms Harris’ conclusion that the introduction of these 2 two-storey dwellings in relatively close proximity will be visually intrusive and not characteristic of this part of the residential neighbourhood.
Conclusion
36 Having considered the evidence, the submissions and undertaken a view, I do not consider this application merits consent. It has a number of non-compliances with the recently adopted DCP in terms of reduced lot size and shape in this neighbourhood, which then results in a placement of dwellings with considerably reduced setback and compromised solar access to inadequate sized private open space areas, the cumulative effect of which I consider results in the application being refused.
37 In the ultimate I rely on the conclusion of Ms Harris that the proposal is an over-development of the site in terms of the DCP provisions and particularly that it does not adequately satisfy the aims and objectives, which are to minimise the impacts on the amenity of surrounding properties and streetscape and that is a prime consideration in the assessment of development applications.
Orders
38 The Court orders then are:
- The appeal is dismissed.
- Development Application 2002/00639 for a 2-lot subdivision and erection of 2 x 2 storey houses at 39 Myra Road, Dulwich Hill, is refused.
- The exhibits may be returned except for exhibits 2, 3, 9 and A.
____________________
R Hussey
Commissioner of the Court
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