Thomlinson v Warringah Council
[2006] NSWLEC 602
•22/09/2006
NEW SOUTH WALES LAND AND ENVIRONMENT COURT
CITATION: Thomlinson v Warringah Council [2006] NSWLEC 602
PARTIES:
APPLICANT
Sharon Joy Thomlinson
RESPONDENT
Warringah Council
CASE NUMBER: 10293 and 10284 of 2006
CATCH WORDS: Development Application
LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Warringah Local Environmental Plan 2000
CORAM: Tuor C
DATES OF HEARING: 4, 5 and 22/09/2006
DECISION DATE: 22/09/2006
LEGAL REPRESENTATIVES
APPLICANT
Mr Larkin, barrister
Solicitors
Robinson Legal Solicitors
RESPONDENT
Mr Hudson, solicitor
of Wilshire Webb Solicitors
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESTuor C
22 September 2006
10284 of 2006 Sharon Joy Thomlinson v Warringah Council
10293 of 2006
JUDGMENT
Commissioner: These are two appeals against the refusal by Warringah Council of two development applications under the Planning and Environment Assessment Act 1979 (the Act) for the demolition of an existing house and the erection of two new houses at 18 Eric Street, Harbord, being lots 8 and 9 DP 8502 (the site).
Appeal No. 10284 of 2006 refers to the DA for lot 9, 18 Eric Street, Harbord (DA 2003/336).
Appeal No. 10293 of 2006 refers to the DA for lot 8, 18 Eric Street, Harbord, (DA 2003/337)
The parties agreed that the appeals could be heard together. On 4 September 2006 I provided preliminary findings, which required the submission of amended plans. This judgement sets out the reason for my decision and addresses whether the amended plans meet these concerns.
The site and its Context.
A description of the site, its context, the history of the application and the planning controls are in the Statement of Basic Facts.
The site is located at the western side of Eric Street. It comprises two allotments (lots 8 and 9) each with an area of about 405sqm, a frontage to Eric Street of about 10m and a depth of about 40.2m. The rear of the site adjoins Jacka Park.
A single storey house is built over lots 8 and 9. There is a large Lilli Pilli in the rear of lot 8 and vegetation around the boundaries of the site.
The surrounding development is a mixture of one and two storey houses on similar size allotments. There are some three storey residential flat buildings nearby. The houses at the western side of Eric Street have a similar set back to the street and to the park.
Planning Framework
The site is in the H1 – Freshwater Beach locality under Warringah Local Environmental Plan 2000 (LEP 2000). The proposal is Category One development. The Desired Future Character Statement for this locality relevantly states:
The Freshwater Beach locality will remain characterised by detached style housing in landscaped settings interspersed by existing apartment buildings and a range of complementary and compatible uses.
Future development will maintain the visual pattern and predominant scale of existing detached housing in the locality except for the Harbord Diggers Club. The streets will be characterised by landscaped front gardens and consistent from building setbacks.
Clause 12 of LEP 2000 provides:
12 What matters are considered before consent is granted?
(1)Before granting consent for development the consent authority must be satisfied that the development is consistent with:
(a)any relevant general principles of development control in Part 4, and
………
(2)Before granting consent for development, the consent authority must be satisfied that the development will comply with:
……
(b) development standards for the development set out in the Locality Statement for the locality in which the development will be carried out.
(3)In addition, before granting consent for development classified as:
(a) Category One, the consent authority must consider the desired future character described in the relevant Locality Statement.
Clause 18 of LEP 2000 provides:
(1)Built form will be controlled in accordance with the general principles of development control, the desired future character of the locality and the development standards set out in the Locality Statement.
(2)Strict compliance with development standards, however, does not guarantee that the development is consistent with either the general principles of development control or the desired future character of the locality.
The main general principle in dispute between the parties was cl 63A - Rear Building Setback which provides:
63A Rear building setback
In localities where a rear building setback applies, the objectives of the rear building setback controls are:
To create a sense of openness in rear yards, and
To preserve the amenity of adjacent land, and
To maintain the visual continuity and pattern of buildings, rear gardens and landscape elements, and
To provide opportunities to maintain privacy between dwellings, and
In medium density areas, to minimise the visual effect of podiums and to control the density of development, and
To provide opportunities for the planting of substantial native trees.
The Harbord locality statement specifies a minimum front and rear building setback of 6.5m.
The proposal provides a rear building setback of 6.58m. The parties agreed that this met the numerical control but disagreed as to whether it met the objectives in cl 63A.
Issues
The Amended Statement of Issues contained 6 issues. The key issue related to the rear setback of the building. The difference in opinion centred on the interpretation of cl 63A.
The Court heard expert evidence from Mr N Dickson, architect and planner for the Applicant, and Ms R Ezzy, planner for the council. Residents also gave evidence on site and raised particular concerns about the impact of the proposal on their property in addition to the issues raised by Council.
Rear setback
As I understand the evidence of Mr Dickson and the submission of Mr Larkin, for the applicant, the objectives in clause 63A relate to the rear building line standard. Inherent in the establishment of the standard is the assumption that if the standard is met the objectives will be achieved.
In setting the standard at 6.5m the controls anticipate that a sense of openness in rear yards will be achieved, the amenity of adjacent lands will be preserved and the visual continuity of pattern of buildings, rear gardens and landscaped elements will be maintained.
Council’s submission was that the construction of LEP 2000 requires a consideration of both the general principles and the specific controls for each locality. Compliance with the specific control does not necessarily mean compliance with the general principle.
Both these submissions have merit but I accept Mr Larkin’s submission to the extent that the wording of cl 63A refers specifically to “areas where a rear building setback applies, the objective of the rear building setback controls are…..”. As such, the objectives relate to the numerical standard and in setting the standard it is reasonable to expect that the objectives will bet met through compliance with the standard in the majority of cases.
The standard refers to a minimum setback of 6.5m which the proposal complies with. However, I do not accept that in every case satisfaction of the minimum standard will automatically achieve the objectives of that standard. This is reinforced by cl 18(2) which states that:
Strict compliance with development standards, however does not guarantee that the development is consistent with either the general principles of development controls or the desired future character of the locality.
I do not accept Mr Larkin’s submission that cl 18(2) does not apply to cl 63A. Nor do I accept the submission that the objective “to maintain visual continuity” of setbacks is achieved by the application of the numerical standard through the redevelopment of sites which will over time achieve continuity without reference to the continuity that currently exists, particularly when existing setbacks are greater than the standard and the area is not one in transition. I find that the proposed 6.58m setback does not meet the objectives in cl 63A.
If I am wrong in this interpretation I have also considered the Desired Future Character Statement and merit considerations under s79C of the Act. The Statement does not envisage an area in transition but rather an area where “Future development will maintain the visual pattern and predominant scale of existing detached styled housing in the locality”.
The visual pattern and predominant scale in the area is one where detached houses are set in landscaped settings. Houses adjoining and near the site are generally setback from the rear boundary and the park achieving a degree of openness in the rear yards. There is a high degree of overlooking from the houses to the rear gardens and to maximise the outlook to the park.
Development within this rear setback area, even if single storey will not maintain the visual pattern of the area. Nor will it maintain the scale of development of which the relationship of built form to open space is an important component.
As such the rear building setback is not consistent with the Future Character envisaged for the area or with the objectives in cl 63A.
The evidence of both Mr Dickson and Ms Ezzy was that incremental amendments to the proposal could be made to increase the rear setback. Although Mr Dickson raised concerns that these changes would reduce the amenity of the proposal and its appeal to the market.
I do not accept Mr Dickson’s concerns the proposal provides three bedrooms, a study and both an upstairs and downstairs living area. Both the study and the upstairs living area can be used as bedrooms.
The proposal can be reduced in length while still providing reasonable accommodation suited to contemporary living standards.
As stated above, the application has been amended to address these concerns and increase the rear setback from 6.57m to 10.8m.
While the built form still intrudes further into the rear yards than surrounding houses, the set back is sufficient to maintain the visual pattern and predominant scale of development. It also achieves a degree of openness and maintains the visual continuity and pattern of buildings, rear gardens and landscape. As such it is consistent with the general objectives in clause 63A and is a form of development anticipated by the Future Character Statement.
Other issues
The other issues of concern are the roof, the front setback and impact on adjoining residents. The preliminary findings where that the skillion roof form is acceptable within the locality and meets the general objective of cl 67 that “roofs complement the local skyline”. While pitched roofs are predominant within the street, it is not a street which is consistent in either the roof form or style of building. As such the contemporary roof form, although different to other roofs will be compatible with the skyline and character of the street and meets the objective.
The parties agreed the built form complied with the front setback requirement of 6.5m. However, they disagreed about compliance of the parking as it marginally intrudes into the front setback area. Council was also concerned that the parking did not meet the general objective in cl 71 as it dominated the street frontage.
In my preliminary findings I stated that the proposal complied with the front setback requirement that:
the front building setback area is to be landscaped and generally free of any structures, car parking. On-site facilities other than driveways, letterboxes and fences
The car parking intrudes marginally into the setback area but the area remains generally free.
The amended plans have reduced the setback to about 4.2 m. The upper floor and the car parking consequently intrude into the minimum setback area. The proposal therefore does not comply with front building standard and a variation under cl 20 is required.
I find the variation to be acceptable on the basis that the built form is consistent with the alignment of adjoining properties. The building envelope of the proposal is smaller than that permitted under the controls and will appear less bulky than other recent development in the street with similar setbacks to this proposal. The car parking intrudes into the area but is largely screened by planting which is achieved through narrowing the driveway and central planting between the front setback area of lot 8 and 9. These factors ensure that the car parking, while visible from the street will not dominate the street scape (cl 71) and that the proposal is of a “visual bulk and architectural scale consistent with structures on adjoining or nearby land” (cl 66). The amended front setback satisfies the requirements of cl 20 in that despite the non-compliance with the development standard the proposal is consistent with the general principles and desired future character.
The evidence of Mr Dickson and Ms Ezzy was that the proposal had acceptable privacy and overshadowing impacts on adjoining properties. I am satisfied that with the amendments the proposal is of a bulk and scale consistent with that of houses in the locality.
Orders
For the above reasons the orders of the Court are:
In relation to Appeal No: 10284 of 2006
The appeal is upheld
The development application (DA 2003/336) for demolition of an existing house and construction of a two storey dwelling at lot 9, 18 Eric Street, Harbord, is approved subject to the conditions in Annexure “A”.
The exhibits, except exhibits H, J, L and 8, may be returned.
In relation to Appeal No: 10293 of 2006
The appeal is upheld
The development application (DA 2003/337) for demolition of an existing house and construction of a two storey dwelling at lot 8, 18 Eric Street, Harbord, is approved subject to the conditions in Annexure “A”.
The exhibits, except exhibits H, J, L and 7 may be returned.
___________________
Annelise Tuor
Commissioner of the Court
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