Southern Highlands Planning Service v Queanbeyan City Council
[2006] NSWLEC 667
•10/07/2006
Land and Environment Court
of New South Wales
CITATION: Southern Highlands Planning Service v Queanbeyan City Council [2006] NSWLEC 667 PARTIES: APPLICANT
RESPONDENT
Southern Highlands Planning Service
Queanbeyan City CouncilFILE NUMBER(S): 10286 of 2005 CORAM: Bly C KEY ISSUES: Development Application :- Multi-dwelling housing development, inappropriate form of development in the locality, setbacks, loss of amenity for neighbours, excessive building bulk LEGISLATION CITED: Queanbeyan Local Environmental Plan 1998
Development Control Plan No. 46 - Multi-dwelling Housing
Development Control Plan No.1 – Carparking Policy
Development Control Plan No. 38 – Subdivision Policy
Development Control Plan No. 41 – Soil, Water and Vegetation Management Plans
Development Control Plan No. 42 – Landscape and PolicyDATES OF HEARING: 10/07/2006 EX TEMPORE JUDGMENT DATE: 07/10/2006 LEGAL REPRESENTATIVES: APPLICANT
Mr R Graham, solicitor
SOLICITORS
Abbott ToutRESPONDENT
Mr A Bradbury, solicitor
SOLICITORS
Minter Ellison Lawyers
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Bly C
10 July 2006
JUDGMENT10286 of 2005 Southern Highlands Planning Service v Queanbeyan City Council
This decision was given extemporaneously
and has been revised and edited prior to publication
1 This appeal relates to Development Application No. 335 of 2004 which involves the erection of a multi-dwelling housing development comprising three single storey and two, two storey detached dwellings and associated strata subdivision of the land at 9 Parr Place, in Karabar a suburb located a short distance to the south of the Queanbeyan Town Centre.
2 The site comprises Lot 6 in DP 1068793 and has an area of 1931 sq m. It is irregular in shape, having a frontage of just under 15 m at the end of Parr Place which is a cul-de-sac. The site is situated in an area predominately developed with single storey detached dwelling houses. Indeed the site is, apart from a two storey multi-dwelling development to the west, is surrounded by detached single storey dwelling houses.
3 The site is predominately zoned Residential 2(b) and partly zoned Residential 2(a) under Queanbeyan Local Environmental Plan 1998 (“the LEP”). Multi-Unit dwellings which are permissible in the 2(b) Zone and cl 67 of the LEP has the effect of permitting this form of development across the entire site including that part in the 2(a) Zone and within 20 m of the zone boundary. This is subject to the development being not inconsistent with the aims and objectives of not only the LEP but also the objectives of both zones.
4 The objectives of Zone 2(a) are relevantly:
a) to encourage small scale residential development, and
b) to encourage alterations, additions, or redevelopment which maintains or improves the amenity of existing residents and which provides good amenity for future residents.”
5 The objectives of the 2(b) Zone are, relevantly:
a) to encourage alterations, additions or redevelopment that results in well designed, dual occupancy housing, town houses and villas, and
b) to encourage alterations, additions or redevelopment which maintains or improves the amenity of existing residents and which provides good amenity for further residents.
6 Relevant to this application, cl 25 of the LEP sets the maximum number of storeys at two and requires that adequate provision be made in respect of privacy for dwellings within the development and any dwelling on adjoining land. Dwellings are also required to have appropriate access to natural light, servicing including sewage disposal and stormwater, landscaping and car parking.
7 Also applicable to the site are the following development control plans: Development Control Plan No. 46 - Multi-dwelling Housing, Development Control Plan No.1 – Carparking Policy, Development Control Plan No. 38 – Subdivision Policy, Development Control Plan No. 41 – Soil, Water and Vegetation Management Plans, Development Control Plan No. 42 – Landscape and Policy.
8 The application in several different forms was notified to neighbours on several occasions resulting in more than eight objections. These objections include concerns generally as follows: excessive residential density; two storey building height is excessive and out of character; overshadowing, noise and loss of privacy; inappropriate use of building materials; unsatisfactory internal amenity; traffic generation in the cul-de-sac and insufficient on-site parking; the possibility of stormwater impacts; non-compliance with various council controls; and precedent.
9 Whilst on the site the Court heard from the owners of two adjoining properties and one property to the west in Parr Place. Mr & Mrs Wade of 16 Hayley Crescent were concerned about stormwater drainage seeking to ensure that stormwater runoff that has entered their site in the past be mitigated. Mr and Mrs Low of 17 Binaburra Place explained that the impacts on their home that adjoins the site to the north involve the effect of the proposed two storey building that is to be positioned close to the south-western corner of their site. Whilst their concerns about overlooking have been predominantly resolved by the proposed window configuration, they continue to be concerned about the presentation of a two storey building in terms of height and bulk particularly given that this locality is predominantly single storey. Mrs Dore of No. 1 Parr Place, was concerned that the proposal does not provide sufficient on-site car parking and as a consequence demand for on-street parking will be exceeded.
10 The application was, notwithstanding supporting recommendations of council officers refused for reasons relating to: the inappropriateness of this form of development in the area; inadequate setbacks; loss of amenity for neighbours particularly in relation to loss of privacy; and excessive bulk associated with the two storey building. A s 82A reconsideration was also rejected.
11 Following the appeal a joint town planning expert Ms D Laidlaw was engaged by the parties as the Court-appointed expert. Ms Laidlaw examined the proposal in the light of the planning controls and in her preliminary report she identified the number of problematical aspects of the proposal that required modification. The application has, for the most part been amended accordingly. In her final report dated February 2006 she recommended a number of further modifications including the relocation of certain windows and the provision of a skylight, the provision of additional landscape planting and a fence. Subject to those changes she concluded that the proposal warrants approval.
12 In reaching this conclusion Ms Laidlaw considered the issues identified by the council and the relevant planning controls. These issues firstly comprise aspects of internal amenity and external amenity. The internal amenity concerns relate to matters such as private open space, access to daylight and sunlight, landscaping and privacy and subject to the changes that she recommended these matters were or are now satisfactory and I accept her conclusion here for the reasons she has given.
13 In relation to external amenity Ms D Laidlaw makes reference to matters of bulk, scale and character, privacy and overshadowing. She notes that given the relationship of the site to the surrounding properties, no problematical overshadowing arises, particularly as the properties that might be affected are principally to the north, west and east. As for the matter of neighbour privacy, she notes that all of the living rooms in the development are at ground floor level and that the only possible opportunities for overlooking are from bedrooms and/or utility rooms or are the subject of window configurations that minimise if not totally exclude overlooking opportunities. In terms of aural privacy, she considered the fencing arrangements and setback distances. Again I agree with the conclusions she has reached for the reasons she gives in relation to these matters.
14 Regarding bulk and scale the only real concerns involve the two storey buildings. As Ms Laidlaw notes, the proposed development has a floor space ratio of 0.4:1 which is significantly lower than the 0.7:1 maximum allowed for multi-dwelling development and lower even than the 0.5:1 permitted for integrated housing. Taking this into account together with the fact that two storey housing generally speaking is not, as a matter of principle unacceptable, the two storey arrangement here proposed is satisfactory.
15 I again agree with Ms D Laidlaw notwithstanding that this locality is predominantly developed with single storey dwelling houses. It also must be recognized that this development is predominantly situated within a zone that anticipates a higher density form of development and that in this zone two storey development is not unreasonable. In this context I also recognise her carefully reasoned analysis in relation to the setback requirements of the DCP.
16 One of the remaining issues in the case involves the adequacy of landscaping and again subject to the additional conditions that Ms Laidlaw recommended and which are now accepted by the applicant, I accept that the landscaping arrangement that is depicted in the drawings and subject to the additional conditions is acceptable.
17 The final substantial issue raised by the council involved traffic and car parking. In this regard I agree with Ms Laidlaw that the additional traffic generated by this development even in the context of the cul-de-sac location, will be quite low. As for on-site car parking, I understand that the proposal meets the requirements of the DCP that was applicable when the application was lodged and as Ms Laidlaw argues, this is indicative of a sufficiency of car parking and that the provision of parking for visitors is relatively generous. On balance I have seen no reason that would indicate that any overflow parking from this site would so affect the amenity of the cul-de-sac that if the application should be rejected.
18 Overall, and taking into account that this development for the most part more than complies with council requirement and otherwise meets the objectives of the zones and taking into account that the council now invites the Court to approve the application, I have concluded that this development is entirely reasonable and should be approved.
19 There were concerns expressed by residents that such a consent would indicate an inappropriate precedent. I do not accept this proposition. This application has been considered on its own merits and warrants approval. If that is considered to be a precedent then so be it, but I do not accept that it would be an adverse precedent, particularly taking into account what I have said about compliance with the council’s controls.
20 Therefore the Orders of the Court are:
1. The appeal is upheld.
2. Development consent application No. 335 of 2004 for the erection of a multi-housing development comprising three (3) single storey and two (2) double storey townhouses and strata subdivision at 9 Parr Place, Karabar, is determined by the granting of development consent subject to the conditions in Annexure “A” hereto.
3. Exhibits A and 3 are retained.
21 The Court notes the parties agreement that there be no order as to costs.
___________________
- T A Bly
Commissioner of the Court
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