Toner Design Pty Ltd v Newcastle City Council
[2004] NSWLEC 720
•12/17/2004
Land and Environment Court
of New South Wales
CITATION: Toner Design Pty Ltd v Newcastle City Council [2004] NSWLEC 720 PARTIES: APPLICANT
Toner Design Pty LimitedFILE NUMBER(S): 10997 of 2004 CORAM: Brown C KEY ISSUES: Development Application :- demolition of existing dwelling - erection 4 x 2 storey town houses - character of area - streetscape - height - drainage.
LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Newcastle Local Environmental Plan 2003CASES CITED: DATES OF HEARING: 17/12/2004 EX TEMPORE
JUDGMENT DATE :12/17/2004 LEGAL REPRESENTATIVES:
APPLICANT
Mr P Hines, solicitor
SOLICITORS
Paul Hines SolicitorRESPONDENT
Mr B Glendinning, solicitor
SOLICITORS
Harris Wheeler Lawyers
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESBrown C
17 December 2004
JUDGMENT10997 of 2004 Toner Design Pty Ltd v Newcastle CC
1 This is an appeal against the refusal by Newcastle City Council (the council) of Development Application 03/2313 for the erection of an existing dwelling and erect four two-storey detached dwelling houses at 274 Park Avenue, Kotara. The appeal was conducted as an On Site Hearing.
2 The site is known as Lot 101 DP 829254. It has a frontage of approximately 20.245 m and side boundaries of approximately 65.82 m giving a total area of 1356 sq m. It is a rectangular shaped allotment and contains a storm water channel running parallel to Park Avenue and crossing the middle of the site. The land initially falls from the street to the storm water channel and then rises towards the rear of the site.
3 Existing development on adjoining site comprises of single storey detached housing on each side and medium density development at the rear. The general form of development in the immediate area consists of a mixture of one and two storey older style dwelling houses and more recent medium density development.
4 The site is zoned Residential 2(a) under the provisions of Newcastle Local Environmental Plan 2003 (the LEP). The proposal is permissible within that zone. Also relevant are the Lower Hunter Urban Housing Code and the Development Control Plan 50 dealing with drainage.
5 The council filed a Statement of Issues containing five issues and a number of sub issues. These can be grouped into the following main areas:
§ the impact of the character of the area and the streetscape, and:
§ impacts on the amenity of adjoining properties.
6 The issue of traffic was largely overcome by amendments to the plans that denied access to an adjoining medium density development at the rear of the site. I note that council’s traffic engineer supports the proposal, subject to the additional conditions that are not opposed by the applicant. While there will be additional traffic using the site than currently exists, I accept that the additional levels of traffic generation are not likely to impact on the amenity of nearby residential properties.
7 The parties agreed to the appointment of Mr Paul Grech as the Court appointed town planning expert.
8 On, the site is located within a district centre area under the Newcastle Urban Strategy and the zoning allows for dwelling types such as semi - detached dwellings, townhouses, row or terrace houses and residential flat buildings up to three storeys. The Residential 2(a) zone also has an objective to provide “a diversity of housing forms”.
9 In considering the issue of character and streetscape, I accept that the proposed development will be different to the majority of the existing residential development, however the future desired character cannot be ignored in any assessment of the impact on the character of the area. Mr Grech correctly describes this change as an “inevitable consequence associated with the transition of the area’.
10 An issue was also raised over the proposed construction materials. As I understand, the council’s concerns relate to the modern design and the inclusion of brick walls that were seen to be inconsistent with the predominate fibro sheeting construction of the area. In my view, this concern must be rejected. It is a new building and should refect this fact. It is unrealistic to attempt to prolong a characteristic of the existing dwelling stock that does not reflect the desired future character of the area. Similarly, an argument that the dwelling should be retained because it is consistent with the existing dwelling should be rejected for the same reason.
11 Also, I do not accept that it can be reasonably argued that the dwelling should be preserved on ESD principles, as it is unlikely to reflect the future building form. I acknowledge that the dwelling may have some personal significance to some local residents, however this is not a sufficient reason for it to be retained.
12 The site was also viewed from other residential properties on the opposite site of Park Avenue and an estimate made of the proposed height and location. The proposed two-storey dwelling fronting Park Avenue has a similar footprint to the existing single storey dwelling. I agree with Mr Grech that a two storey construction in this location is not necessarily out of character or will adversely impact on the streetscape as there are other dwellings that have a two storey form located on the opposite side of Park Avenue. A two-storey form is also likely to be consistent with the desired future character of the area as set out in the councils planning instruments. I understand that the proposed dwelling satisfies the council’s 7.2 m height limit.
13 Overall, I concur with the conclusions of Mr Grech and find that the erection of the proposed development on the character of the area and the streetscape could not support the refusal of the application.
14 On the issue of amenity impacts, the property of Mrs Eade that adjoins the subject site to the south was inspected. She raised concerns over the height and impact of the proposed dwelling close to her boundary. As explained to the Court, the height is largely a function of the flooding requirements in DCP 50 to address the creek that traverses her property and the subject site. Even with the filling required to satisfy the 1:100 year flood level and the free board requirements, the proposal satisfies the 7.2 m height requirement. The 4 m setback will allow some landscaping to minimise the impact of the proximity of the proposed dwellings on Mrs Eade’s property. Again, some consideration must be given to the fact that the proposed dwellings represent the desired future character of the area. I also note the further amendments made at the hearing that further reduce the potential impact on the adjoining properties by reducing the building height and retaining walls of Unit 2 by 300 mm and Unit 3 by 200 mm. For these reasons, I accept that height of the building is reasonable.
15 While Mrs Eade raised concern over the potential flooding, the Court had the benefit of a report from council’s engineering staff that concluded that the proposal was satisfactory based on a flood study that was submitted with the application. While the need to raise the levels to satisfy the requirements of the flooding has resulted in some of the concerns expressed by Mrs Eade, it would be irresponsible not to adopt these requirements.
16 With recent amendments made at the hearing I accept that reasonable attempts have been made to minimise the amenity impacts on the adjoining properties.
17 For the foregoing reasons the Orders of the Court are:
1. The appeal is upheld.
3. The exhibits, with the exception of Exhibit 1 are retained.2. DA 03/2313 for the demolition of an existing dwelling and the erection of four townhouses at 274 Park Avenue, Kotara is approved subject to the conditions in Annexure “A”.
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