Sheree Waks v Marrickville Council

[2003] NSWLEC 308

>

Land and Environment Court

of New South Wales

CITATION:	Sheree Waks v Marrickville Council [2003] NSWLEC 308
PARTIES:	APPLICANT Sheree Waks RESPONDENT Marrickville Council
FILE NUMBER(S):	11042 of 2003
CORAM:	Bly C
KEY ISSUES:	Development Application :- three attached two-storey dwelling houses - refusal Flooding - urban design including streetscape - provision of garages - amenity impacts - solar access - subdivision
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Marrickville Local Environmental Plan 2001 Development Control Plan No. 35 - Urban Housing, Volume 1 Council's Stormwater and On-Site Detention Code
CASES CITED:
DATES OF HEARING:	13 November 2003
DATE OF JUDGMENT:	11/24/2003
LEGAL REPRESENTATIVES:	APPLICANT S. Waks in person RESPONDENT G. Christmans, solicitor instructed by Marrickville Council

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

11042 of 2003

Bly C

24 November 2003

Sheree Waks

Applicant
v

Marrickville Council

Respondent

Judgment

Introduction

1 This appeal relates to Development Application No. 200300491 which is for the demolition of an existing dwelling and the erection of three attached two-storey dwelling houses at No. 10 Davis Street, Dulwich Hill. In addition the land is to be subdivided into three lots coinciding with the three new dwellings.

2 The site which is situated on the northern side of Davis Street at the end of a cul-de-sac has an area of about 591 square metres and a frontage of about 16 metres. It has a cross fall of about 2.5 metres from the south-east to the north-west towards a concrete stormwater drain referred to as the Hawthorn Canal. beyond this canal is the railway line that runs between Dulwich Hill and Rozelle.

3 The cul-de-sac is developed with dwelling houses on its northern side with the opposite side comprising an extensively planted road embankment. The adjoining dwelling house on the south eastern side of the site is a single storey brick and tile cottage. Adjoining the site to the rear are two industrial buildings which have frontages to Nelson Road. The locality generally comprises a mixture of 1 and 2 storey attached, semi-detached and detached dwelling houses of various styles.

Statutory provisions

4 The site is partly zoned Residential 2 (a) and partly Special Uses 5 (b) under Marrickville Local Environmental Plan 2001. The proposal is permissible with development consent. Whilst it was not raised in any of the issues it is to be noted that the exhibited Draft Amendment No. 25 to the LEP includes the site within the Victoria Street Conservation Area.

5 Also applicable is Development Control Plan No. 35 - Urban Housing, Volume 1 ("the DCP")which contains provisions relating to building design and streetscape including building height and set-backs, streetscape and general appearance, car-parking and garaging, visual and acoustic privacy, solar access and subdivision. also applicable is Council's Stormwater and On-Site Detention Code ("the stormwater code").

Background

6 Council's refusal of a previous application for an almost identical proposal was the subject of an unsuccessful appeal to the court (10234 of 2003 - 4 March 2003). In that case the issues related to subdivision pattern, streetscape and side set-backs, although Commissioner Watts concluded that the salient issues were twofold - subdivision pattern and the length of the side wall which has a nil setback. Flooding was not raised as an issue.

7 In his judgment Commissioner Watts was satisfied with the proposed subdivision would meet the controls in the DCP. However whilst he was satisfied with the nil setback of the side wall he was so concerned at the length of this wall that the application should be refused. In this regard he pointed out that the proposed boundary wall would extend at the first floor level too far from the street towards the rear and should be cut back on the first floor to a position that had been indicated on the site around the rear building line of No. 8 Davis Street.

8 This revised proposal is identical to that which was refused by the Court with the exception that the boundary wall has now been shortened by 1.25 metres in response to the concerns of the Court. This has been achieved by reducing the size of dwelling 3.

Advertising

9 The current application was advertised and no submissions were received. The application was refused by the council for reasons relating to bulk and scale, side set-backs, overshadowing, streetscape and flooding.

Issues and evidence

10 A statement of issues was provided to the applicant and the Court identifying issues relating to potential flooding of the site, urban design aspects including streetscape and the provision of garages and amenity impacts on the adjoining property at No. 8 Davis Street.

11 Expert town planning evidence was provided on behalf of the respondent Council by Miss N Harras and on behalf of the applicant by Mr M George. Expert engineering evidence was provided on behalf of the respondent Council by Mr J Bertacco.

12 Mr George and Miss Harras met and discussed the issues. In their joint report they agreed that the proposed development is capable of being approved. They also agreed that the changes to the plans have satisfactorily addressed the main concern raised by the court in its previous judgment. There was nevertheless no agreement on the appropriateness of the subject development for the site .

13 Mr George was of the opinion that nothing material has changed about the context and the proposal continues to be reasonable.

14 Miss Harras expressed the opinion that the proposal would be out of context and would not relate well to its immediate neighbours to the east, basing her opinion on new evidence and new controls which result in her conclusion that the application should be refused.

Solar access to No 8

15 The new evidence to which Miss Harras refers relates to the existing, neighbouring house at No. 8. The west wall of this house, including a living room window, will be subject to overshadowing from the proposal. At the previous hearing this room was thought to be a bedroom and such impacts were of little concern. However being a living room the solar access requirements in Section A1 of the DCP are now applicable.

16 The relevant objective is to protect solar access enjoyed by neighbours and the controls require that direct solar access to windows of principal living areas and the principal area of open space of adjacent dwellings must not be reduced to less than two hours between 9am and 3pm on 21 June. The applicant's shadow diagrams reveal that the affected living room window receives direct solar access between midday and 3pm and that this would be entirely lost as a result of the proposal.

17 Miss Harras in her separate report dealing with overshadowing noted that the DCP allows for consideration of the merits of the case in terms of site restrictions , exceptional circumstances and sunlight available in March and September. However she considered that there are no exceptional circumstances or site restrictions which make compliance with the controls unreasonable particularly taking into account the size of the site. As a consequence the proposal unreasonably impinges upon the amenity of the adjoining premises at No. 8 Davis Street.

18 Mr George did not accept that there would be any significant adverse impacts on the dwelling at No. 8 and that any loss of solar access would be offset by the reduction of buildings adjoining that property's rear yard thus allowing greater light and air to this north-facing area.

19 During the hearing I was shown the floor plans of No. 8 which reveal that the house has been extended by the addition of a north-facing family room area which adjoins the affected living room and opens out on to the rear yard area. Clearly this room and the rear yard would receive very good solar access all year . Taking this into account and noting the essentially north-south orientation of the two sites and the absence of any objection from the owners of No. 8 I have not been persuaded that this non-compliance with the DCP should be fatal to the application.

20 The new controls to which Miss Harras refers relate to the subdivision controls in Section 3A of the DCP. The actual change is within the controls section, comprising a new note associated with existing Control C1. The new note and the unchanged Control C1 are as follows:

C1 Proposed subdivision or amalgamation is similar to the prevailing subdivision and building character, in terms of block width, site dimensions and layout, and is consistent with the streetscape of the subject development.

NB 1. Council generally considers "streetscape" to apply to those adjoining and adjacent properties on either side of the subject site, fronting the same street, and the corresponding range of properties opposite. In most instances, it is appropriate to consider up to 10 allotments on either side of the subject site. Properties located in the surrounding streets do not usually form part of the streetscape context, and are therefore not taken into account.

21 In her analysis of the proposed subdivision in the context of streetscape Miss Harris in restricted her consideration to the properties on the north side of Davis Street between Victoria Street and the railway line, particularly Nos 2 - 10 Davis Street. In her analysis she noted that the proposed lots would be narrower than Nos 2, 6, 8 and 10 (the site) Davis Street and would have a similar width to No. 4 and concluded that the proposed subdivision would not be inconsistent with the prevailing subdivision character in the immediate streetscape. she was nevertheless concerned that the subdivision would result in an unsatisfactory built form.

22 Mr George agreed that the proposed subdivision is not inconsistent with the prevailing subdivision pattern in the immediate streetscape. He also pointed out that in this case the subdivision follows, rather than dictates the built form which is considered appropriate.

23 In these circumstances and having considered this issue during the site inspection I am satisfied that the proposed subdivision would be similar to the prevailing subdivision pattern in Davis Street. I am also satisfied that to the extent that control C1 refers to building character the proposal would not be inappropriate in the streetscape.

24 Notwithstanding her conclusion in relation to subdivision, Miss Harras argued that the subdivision will result in a building form that is inconsistent with the building character of the street. She explained that:

... the prevailing building character consists of dwelling houses appearing as single story with similar massing and scale and some setbacks to the side boundaries. There is a characteristic massing and spacing which creates a rhythm in the streetscape.
... the proposed development does not contribute to the dominant building pattern in the street, and this is partly attributable to the proposed subdivision pattern.

25 She was also concerned that the set-backs from the street frontage would be excessive and out of character with the street.

26 The remaining matters of concern to Miss Harris include the nil side set-backs to the common boundary and visual impacts associated with the imposing and obtrusive form of the building as viewed from the adjoining property at No. 8 Davis Street. She was also concerned at the provision of garages within the building and the effect of the access driveways which would be inconsistent with the applicable requirements of the DCP.

27 Mr George disagreed with Miss Harris in relation to building character. He said that the built form of the proposed development is appropriate and complies with the applicable objectives and controls in the DCP. In this context he referred to his report which dealt with the previous proposal where he examined in some detail matters such as building bulk, height and set-backs in conjunction with the design of the building including the use of garages and attic rooms. He did this particularly in the context of the locality generally and more particularly in relation to the four immediately adjoining residential properties in this section of Davis Street. He was able to conclude that the proposal would not have a significant impact on the streetscape because it does not involve any significant uncharacteristic building elements or any sense of visual surprise.

28 Other matters of concern to Miss Harris include the front setbacks, the nil side set-back to the common boundary and visual impacts associated with the imposing and obtrusive form of the building as viewed from the adjoining property at No. 8 Davis Street. She was also concerned at the provision of garages within the building and the effect of the access driveways which would be inconsistent with the applicable requirements of the DCP.

29 Apart from the matters of flooding, solar access and subdivision pattern, the matters which continued to be of concern to the respondent and which were pressed upon the court as being reasons for refusal are all matters which have been dealt with in the evidence made available to the court. These matters were also considered and determined by Commissioner Watts and having taken this evidence into account in the light of the site inspection I have not been persuaded that the conclusions that the Commissioner reached should be overturned. As I have already indicated the overshadowing of the adjoining property does not warrant refusal of the application and there was no dispute that the proposed subdivision would be inconsistent with the prevailing subdivision character in the immediate streetscape.

Flooding

30 Mr Burtacco gave evidence that the site is likely to be affected by a 1 in 100 year flood event and that in order to determine an appropriate floor level for this development a drainage catchment study needs to be carried out by the applicant. The request for such a study including the matters to be included therein were incorporated in a letter to the applicant dated 10th July 2003. The study has not be provided.

31 He explained that the site is located at a low point in the catchment and is adjacent to a large Sydney Water storm water channel. Because there is a risk of flooding on this particular site the council’s stormwater code requires the preparation of a flood study or drainage analysis of the catchment. The code requires that a freeboard of 0.3 m to 0.5 m be provided against channel or mainstream flows or in areas where significant overland flow occurs. Otherwise a minimum freeboard of 0.2 m is required.

32 The applicants engineer, Mr Duffell did not provide a report nor did he come to Court to give evidence although he did provide a letter outlining certain preliminary findings in relation to the site. He explained that he had inspected the site and carried out an analysis of the stormwater channel and the pipe which directs water into this channel.

33 His preliminary findings were that once the pipe meets its capacity, water would build up on the south side of Davis Street causing localised flooding. From his preliminary analysis he states that it would be foreseeable that water would reach the close by railway tunnel level and flow through to the north side of Davis Street.. Further investigation and survey data is needed to clarify it where the water would move after going through the tunnel during a larger storm events. He was nevertheless of the opinion that :

If the water is directed away from the development to the north side of the (railway) track, it would be practical to say that the flood level adjacent to the development would be minimal due to the downstream restriction being approximately the same size as the upstream restriction.

34 Having inspected the site and its environs and taking into account the evidence of the two engineers I suspect that Mr Duffell may be correct. However in relation to flooding matters it is appropriate to take a conservative approach and I have not been persuaded that the site would not be affected to some degree by a 1 in 100 year flood event. In the circumstances it is necessary for further expert investigations to be carried out so as to determine an appropriate floor level for the development of this site.

35 The applicant is prepared to accept a deferred commencement condition of consent (condition 1 of Part A in Exhibit 7), which requires the carrying out of a storm water drainage catchment study to answer this and other related questions. However Mr Christmas on behalf of the respondent submitted that such a condition could not be lawfully imposed pursuant to section 80(3) and section 80A(2) of the Environmental Planning and Assessment Act 1979.

36 Whilst I do not agree that a condition of this kind could not be imposed as a deferred commencement condition the suggested condition in it’s present form should nevertheless not be imposed because of it uncertainty. This is because such a condition would leave the question of the final height of the building at large.

37 Consequently, having not been satisfied that the proposed building would not be potentially affected by flood waters it would be appropriate for the appeal to be dismissed. However because this would be the only reason warranting the refusal of this application and bearing in mind what I have concluded in relation to Mr Duffell’s evidence, I have decided to defer the issuing of any orders, giving the applicant an opportunity to complete the necessary study. If the resulting study, subject to appropriate scrutiny by the council’s engineer, confirms that an appropriate freeboard between the estimated flood level and the proposed floor levels will be achieved I see no reason why, subject to appropriate conditions, the consent as sought could not be granted.

38 I have made this decision notwithstanding that the applicant has known for some time that a storm water drainage catchment study should have been provided. In this regard one can understand the applicant’s concern at having to expend a significant amount of money on such a study without being assured that otherwise the proposal is acceptable.

39 Finally in this regard I was surprised to discover that the council does not have any form of strategic management plan for this catchment to assist applicants in the preparation of development applications. The study, which the applicant is now required to complete will not only be to their own benefit but will also potentially be of benefit to others including the council. As a consequence it would be appropriate for the council to provide at its discretion constructive assistance towards the preparation of this study.

_______________________

T A Bly

Commissioner of the Court