Sukkar v Strathfield Municipal Council

[2007] NSWLEC 183

Land and Environment Court

of New South Wales

CITATION:

Sukkar v Strathfield Municipal Council [2007] NSWLEC 183

PARTIES:

APPLICANT
David Iahoud Sukkar

RESPONDENT
Strathfield Municipal Council

FILE NUMBER(S):

11062 of 2006

CORAM:

Hussey C

KEY ISSUES:

Development Application :- 2-storey dwelling house over basement, bulk and scale, impact on neighbours, access/traffic

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Strathfield Planning Scheme Ordinance, 1969

DATES OF HEARING:

07/03/2007

 
DATE OF JUDGMENT: 

13 April 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr M. Arch, solicitor
of Concordia Pacific

RESPONDENT
Mr T. O'Connor
of Houston Dearn O'Connor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

13 April 2007

11062 of 2006 David Iahoud Sukkar v Strathfield Municipal Council

JUDGMENT

Background.

1 This appeal was lodged against council's refusal of a development application for the demolition of the existing dwelling and construction of a new 2-storey dwelling over basement car-parking area at 27 Wallis Avenue, Strathfield.

2 For the appeal a number of issues were initially identified and after conferencing between the parties, the following issues were outstanding:

• excessive size and bulk of the proposal in its environmental context,
• incompatible with existing and future developments,
• adverse amenity impacts on neighbouring properties by way of overshadowing and overlooking,
• adverse impact on streetscape,
• unsatisfactory access and traffic impacts.

3 The parties agreed to Mr C Hallam being the Court-appointed expert for traffic and he prepared a detailed assessment, which became Exhibit 3.

The Site.

4 No 27 Wallis Avenue is described as Lot 122 in DP 11856. It is situated on the south western corner of Wallis Avenue and Ada Street and has a total area of 766 sq m. The site has a 50.6 m frontage to Ada Street and a depth of 15.24 m.

5 At present, there is a masonry rendered dwelling with tiled roof on the site, which is oriented towards Ada Street, including its existing double garage and main street access.

6 A roundabout has been constructed at the intersection of Wallis Avenue and Ada Street.

The proposal.

7 This proposal is to demolish the existing dwelling and construct a 2-storey, 5 bedroom dwelling with basement garage, swimming pool and front and side fencing.

8 The proposed vehicular access to the new dwelling is at the lower point of the land in Wallis Avenue, adjacent to the neighbouring property No 29 Wallis Avenue. This access leads to the basement garage, which allows parking for 4 vehicles and a turning area for vehicles to exit the property in a forward direction.

9 The proposed height of the 2-storey dwelling is 8.8 m above natural ground level at the main street frontage. The proposed building setbacks are:

Front; 10.3 m to the eastern boundary (the main street frontage), Wallis Avenue frontage;

Side; 2 m to the northern boundary, Ada Street (the secondary street frontage) and 1.05 m to the southern boundary (i.e. total 3.05 m).

Planning controls.

10 Strathfield Planning Scheme Ordinance, 1969. (SPSO). Under which the land is zoned Residential 2(a) and single dwellings are permissible in accordance with the provisions of cl 22.

11 A single dwelling may be erected on an allotment, which has area of not less than 560 sq m. In considering development applications in the 2(a) zone, Council is to be satisfied that:

(a) any proposed building will be compatible with other development that is proposed or likely to be carried out in the vicinity; and…
(c) any proposed building will be unlikely to adversely affect the amenity of existing residential development by way of overshadowing, overlooking, noise, hours of operation or otherwise.

12 Draft Strathfield Local Environmental Plan, 2003. Under which the site is in the Residential 2A zone and single dwellings are permissible pursuant to the provisions of cl 15. This draft LEP also requires consideration of whether developments are compatible with the character of existing surrounding developments and the scale of likely future development in the locality.

13 Strathfield Consolidated Development Control Plan 2005, (CDCP). This CDCP came into force on 3 May 2006, and it specifies Councils minimum standards for development. The following provisions, as summarised are relevant in this matter:

Part A Section 2.2 – Streetscape and general appearance where the objectives are;
To improve the quality of existing streetscapes by enhancing positive elements and promoting changes to negative elements.
Part A Section 2.6.1 –Floor space ratio (FSR).
To encourage designs which maintain and enhance the character of the built environment, and to maintain adequate separation between buildings on adjacent sites and retain a feeling of openness and space between built elements, which provide opportunities for landscaping and vistas.
Maximum FSR of 0.55:1 is specified.
Part A Section2.6.2 - Side and rear setbacks.
To achieve the stated objectives for density, bulk and scale combined sites setbacks of 25% of the width of the block, with a minimum setback of 1.5m to the secondary street frontage and 1m to the other side boundary.
Part A Section 2.6.3 - Building envelope.
The CDCP provides for dwellings to be contained within the building envelope and this includes a maximum ridge height of 9.5 m.
Part A Section 5.2 – Driveways. The overall objectives for vehicular access and parking are :
a. To provide visually unobtrusive car parking and driveway facilities that are conveniently located for residents.
b. To minimise on street parking.
The following driveway provisions apply:
1. The location of existing driveways (that is, where they cross the footpath) must be incorporated into the design of new development. However, the location of an existing driveway may be varied in the following circumstances:
(a) where a relocation would improve solar access to the property and/or adjoining properties;
(b) where the amenity of any adjoining residences would not be unduly affected (with particular regard to sleeping areas) by a relocation; and
(c) where a relocation would not detract from the appearance of the streetscape (especially in regard to the effect of the loss of the street tree).

The Evidence.

14 In addition to Mr Hallam's (CAE) evidence on traffic and access, other expert evidence was presented by Mr R Walker (council’s town planner) and Mr B Goldsmith (consulting town planner). They conferred and produced joint reports designated Exhibits 2 and 12.

15 Mr N White (consulting town planner) provided an opinion on the impacts of the proposal on the neighbouring property (No 29) owned by Ms Mascolo.

16 Other evidence was presented by a number of residents and this was considered in conjunction with the submissions contained in Councils bundle of documents, Exhibit 1.

17 This appeal was conducted by way of an on-site hearing where all the evidence was presented. As this was concluded relatively late in the day, consequently the parties were directed to file written submissions. This included written submissions from Ms Hill representing the neighbour from No 29 Wallis Avenue. This process resulted in a pall of submissions/correspondence from the parties, which created somewhat of a haze over the evidence presented on-site.

18 Nevertheless, it is apparent to me from the evidence that the issues can be characterised as suitability of the site for this proposal, firstly in terms of its bulk and scale impacts in its locational context and secondly its access arrangements. These issues are consistent with those raised by the residents.

19 In considering the evidence and submissions, I note that a number of submissions have been made about the evolution of the planning controls. This includes councils relatively recent adoption of the CDCP in May 2006. This CDCP has the effect of imposing more restrictive controls on basement garages, so their protrusion above the natural ground level is limited to 500 mm above the street frontage level. The objective being to reduce the visual impact of new dwellings so they maintain an appearance and scale (i.e. 2-storey maximum height), which is compatible with the desired future neighbourhood character.

20 With respect to this first issue, the CDCP specifies the current residential development controls. In this matter, a critical aspect concerns the effect of the basement garage, particularly its contribution to the observable height of the building and associated streetscape impacts. According to the DCP "basement" means:

a space located beneath a dwelling house, where the finished ground floor level does not exceed more than 500 mm above natural ground level at the main street frontage and does not exceed more than 1200 mm above natural ground level and any other point. A basement can only be used as car parking space, storage space or cellar…

21 During the passage of this development application consideration, a number of amendments were undertaken. The latest amendments (Exhibit 12) reduce the floor level of the study, which is located over the basement entrance, to RL 32.10. As the natural ground level at the Wallis Street frontage is in the order of RL 31.23, this results in the proposal now being 0.87 m above the street frontage level, resulting in a non-compliance of 0.37 m with the height restrictions for a basement level.

22 Even though this reduction improves the visual impact arising from the basement garage, nevertheless this non-compliance consequently requires the basement floor area to be included in the FSR calculations. This results in the proposal having an FSR in the order of the 0.78:1, relative to the DCP’s maximum allowance of 0.55:1.

23 The CDCP also includes a comprehensive set of controls, which defines the allowable building envelope as specified in cl 2.6.3, which includes a maximum ridge height of 9.5 m. Also specified are the boundary setback controls.

24 Reference then to the application of this building envelope control indicates that the amended proposal with the proposed basement garage substantially complies, with minor exceptions on the eastern elevation of the southern parapet and the northern roof/eaves. I note that the maximum height comfortably complies with the maximum ridge height of 9.5 m.

25 The other controls involve the building setbacks. The proposal has a side boundary (southern) setback of 1050 mm and a setback to the secondary street (Ada Street) of 2000 mm. The CDCP requires a combined setback 25% of the width of the block (3.81 m), with a minimum setback of 1.5 m to the secondary street frontage and 1 m to the other side boundary. The proposal results in a non-compliance of 0.76 m with the overall CDCP setback controls.

26 In so far as the CDCP objectives are to achieve compatibility of dwellings in the residential neighbourhoods, reference was made by the planners to other buildings of similar design with basement car parking. However, it seems that some of these dwellings were approved/constructed under previous development controls and therefore I do not rely on their existence as representing the desired future character of the residential area. Instead, I give greater weight to the provisions of the CDCP, which now imposes more restrictive controls on basement garages.

27 In the light of the disparate opinions expressed by the planners and objectors, my impressions on the bulk and scale impacts are as follows:

• There are no numerical limits to the amount of on-site parking specified in the DCP and accordingly I accept that 4 spaces can be provided in a basement carpark, subject to the site having adequate area to allow satisfactory access and the proposal results in satisfactory environmental impacts.
• The proposal for these 4 car spaces necessitates the access to the basement garage being relocated into Wallis Avenue, mainly because the restricted width (15.24 m) of the allotment precludes a satisfactory access gradient from Ada Street. This however is contrary to the intent of cl 5.2 of the CDCP, which provides that ‘the location of existing driveways must be incorporated into the design of new development’. I note that there are exceptions allowed, which I deal with separately. Nevertheless, I consider this non-compliance with the primary intent of cl. 5.2 is a negative aspect of the proposal.
• As a consequence of this basement entry location, the basement protrudes approximately 400 mm above the desired CDCP level as stated in cl. 2.6.1. This then requires the basement area to be included in the FSR calculation, resulting in the proposal having an FSR in the order of 0.78:1, which significantly exceeds the specified maximum FSR of 0.55:1. Whilst I accept that the visual impacts of the basement entry are mitigated to some extent, nevertheless its represents a significant non-compliance with the CDCP FSR controls and is an indicator of the overdevelopment of the site in terms of the CDCP provisions and a further negative aspect of the proposal.
• The location of the basement entry is constrained by the width of this corner allotment, so that it achieves an acceptable separation distance of 6 m from the intersection, to obtain satisfactory sight and traffic safety conditions. However, this driveway location then compromises the southern side boundary setback to No. 29 Wallis Avenue.
• According to the CDCP 2.6.2 provisions, a 2-storey development requires combined side setbacks equal to 25% width of the block with a minimum setback of 1 m, i.e. a total setback of 3.81 m. The controls are qualified in respect of east west orientated blocks (such as the proposal) in that;
"The larger side setback, must be provided between the southern side of the building and boundary in order to maximise opportunities for solar access to the adjoining property. Note other requirements within Part A must also be met in relation to solar access."
• However, in the subject proposal, a smaller side setback of 1.05 m is provided to the southern boundary and a larger setback of 2 m to the northern boundary, adjacent to Ada Street. This non-compliance is due in part to the narrow width of the corner allotment, which restricts an increased setback on the southern boundary, because this would shift the basement driveway closer to the intersection and compromise access and road safety. Consequently, the solar access to the adjoining properties study window is reduced, albeit marginally. Therefore, the proposed southern side setback does not maximise opportunities for solar access to this adjoining property, as stipulated in the CDCP and accordingly this non-compliance with the side setback provisions is a negative aspect of the proposal, in my assessment.

28 The next substantive issue concerns the access and traffic impacts likely to be created by the approval of this development. From his assessment of the proposal, Mr Hallam says that the location of the existing driveway in Ada ‘Avenue’ is safer than the proposed driveway, because driveways are better located on the departure side of intersections. The current driveway is about 40 m away from the intersection roundabout, whereas the proposed driveway is very close and is adjacent to the 6 m "prohibited locations" of AS2890.1 – 2004.

29 In assessing the suitability of the proposed driveway, Mr Hallam considered the traffic flows in Wallis Avenue, which is a typical Collector Road. He says that even though the traffic flows result in a slowing down of cars entering the roundabout at the junction of Wallis Avenue and Ada Avenue and some minor queuing occurs, nevertheless he does not consider the proposed driveway location so unsafe as to warrant refusal of consent, providing access can be confined to left turn in and left turn out, with all movements in a forwards direction and fence height and landscaping limited in the front setback area.

30 To achieve this, Mr Hallam suggested some expansion of the basement area to enable on-site turning and restrictions on the use of this area. He also agreed that it is desirable for a median strip to be extended from the roundabout past the proposed driveway, so as to prevent any right turn movements into and from the proposed driveway.

31 In summary, Mr Hallam agreed that depending on the relative weight given to the various controls, the location of the driveway was marginal in terms of satisfying the council controls and AS2890.1 provisions and that the proposal could be conditioned for consent.

32 The objections lodged by the local residents concern their experience with the traffic flows along Wallis Avenue, which they consider are of such magnitude in peak times to warrant refusal of the proposal. This is based on their concerns about the basement driveway access location, in such close proximity to the intersection and roundabout, which is subject to regular traffic problems and minor accidents, from their experience in the area.

33 The objections lodged by and on behalf of Ms Mascolo concern:

• The reduced side (southern) boundary setback increases shadowing on the only window (study) on her dwellings northern elevation, which reduces rather than enhances solar access to her property.
• The inclusion of the basement garage increases the perception of the bulk and scale of the new dwelling from her property and the rear, first floor level family room will allow overlooking into the back yard and pool area, thereby reducing privacy.
• The combination of the reduced setback and basement garage location increases the risk of structural damage to her property, because the proposal does not comply with s 7.2.4 of the CDCP that provides:
All areas of excavation shall be setback from property boundaries in accordance with the building setbacks require the intersection 2.6.2 -Front Setbacks and Side and Rear Setbacks. No cut shall be made to the ground within the required setbacks.
• The proposed location of new driveway in Wallis Street will require the relocation of the existing power pole and reconnection of her electricity supply. This will likely involve significant pruning of the existing Street tree, which will detract from the streetscape.
• If the median strip is extended as suggested by Mr Hallam, this will restrict and cause inconvenience for access to her property.

Conclusions.

34 Having considered the evidence, the submissions and undertaken a view I am satisfied that the controls allow the form of residential development proposed, including a basement garage, which can accommodate 4 vehicles, providing it results in satisfactory environmental impacts. It appears however, that the current controls have been revised recently to restrict the form of basement garages, so that they are compatible with the existing landform and neighbouring properties and also require new development to enhance the character of the built environment.

35 In my assessment, these revisions are fundamentally aimed at limiting this form of residential development, where the basement garage entrances are visible and detract from the residential neighbourhood and streetscape in particular. I therefore give diminished weight to the references as a precedent, to other 2-storey dwellings over basement parking, which may have been approved under previous planning controls. It seems to me that the CDCP controls seek to avoid the repeat of this form of development and reduce the bulk and scale of new residential dwellings in this neighbourhood.

36 In this case, the proposal demonstrates a number of non-compliances with the CDCP provisions, which considered separately may be acceptable when the discretion allowed in the CDCP is exercised. These non-compliances involve both qualitative and quantitative considerations, which in my assessment result in the following negative impacts.

37 The exceedence of height of the basement above the designated 500 mm street frontage level results in more of the basement level being seen within the streetscape context than proposed by the controls. The consequential resulting FSR of approximately 0.78:1 significantly exceeds the CDCP control of 0.55:1, indicating excess scale and overdevelopment of the site, in my assessment.

38 In order to achieve the desired on-site parking for 4 vehicles, it is necessary to relocate the driveway into Wallis Avenue. This driveway requires modification to the northern side of its footpath crossing to achieve the designated 6 m safe setback from the roundabout intersection and in my opinion, detracts from the much safer existing driveway location, some 40 m from the roundabout. This is consistent with Mr Hallams preferred driveway location, if a balanced planning outcome is to be achieved.

39 The relocation of this driveway, together with the basement setback of approximately 12.7 m to Wallis Avenue, results in a maximum allowable driveway gradient of 1:5, which limits sight distances for vehicles entering the roadway. Mr Hallam said that the use of this driveway would only be acceptable if the front fence and landscaping was restricted in height to ensure adequate, safe sight distances for vehicles leaving the property. Also, it would be desirable to extend the median strip from the roundabout past the proposed driveway to prevent right turn movements into and out of the subject property. In my opinion, these restrictions for a new driveway to accommodate up to 4 vehicles, are uncharacteristic of corner lot development in this neighbourhood and do not enhance the character of the built environment. Such restrictive conditions do not reasonably achieve the objectives of the CDCP, particularly than a relocated driveway should not detract from the appearance of the streetscape in my assessment.

40 With regard to this issue, I have considered the matters raised by the neighbours considering the significant traffic flows in Wallis Avenue and traffic congestion/queuing, bus usage at the roundabout and do not consider the public interest is well served by allowing the relocation of the driveway with a considerable reduction in safety.

41 It also seems to me, that the proposed driveway will require the relocation of the existing power pole in No 27, thereby requiring some pruning or alterations of the existing street tree in Wallis Avenue, so that electricity supply can be maintained to the neighbouring property No 29 Wallis Avenue. Whilst there was limited evidence on this aspect, I nevertheless I consider it is likely to result in a negative impact on the streetscape, rather than any enhancement, as stated in the CDCP.

42 For these reasons then, I am satisfied that the cumulative effect of the proposed location, size and scale of the new dwelling, together with the relocated driveway into Wallis Avenue, results in a number of negative impacts, which are excessive and do not reasonably achieve the objectives of the prevailing controls. In particular, I am not satisfied that the relocated driveway in close proximity to the existing roundabout, necessitating restrictions on the use of the front setback area of the property and provision of a central median strip to restrict movements in and out of this property results in a desirable level of safety and enhancement of the streetscape impact.

43 Accordingly, I do not consider this particular development is suitable for the site and the application should therefore be refused.

1. The appeal is dismissed.
2. Development consent for DA 0405/149 for the demolition of an existing dwelling and construction of a 2-storey dwelling over basement car parking, swimming pool and boundary fences at 27 Wallis Avenue, Strathfield is refused.
3. The exhibits may be returned except Exhibits 3, 11, 12 and N.

___________________

R Hussey
Commissioner of the Court
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