Towndrow Design Pty Ltd v Lake Macquarie City Council

Case •

[2006] NSWLEC 371

•

22/06/2006

No judgment structure available for this case.

Land and Environment Court


of New South Wales


CITATION: Towndrow Design Pty Ltd v Lake Macquarie City Council [2006] NSWLEC 371
PARTIES:

APPLICANT
Towndrow Design Pty Ltd

RESPONDENT
Lake Macquarie City Council
FILE NUMBER(S): 11402 of 2005
CORAM: Hussey C
KEY ISSUES: Development Application :- Heritage area, construction of dual occupancy, streetscape, internal amenity
LEGISLATION CITED: Environmental Planning and Assessment Act
Lake Macquarie Local Environmental Plan 2004
DATES OF HEARING: 22/06/2006
EX TEMPORE JUDGMENT DATE: 06/22/2006
LEGAL REPRESENTATIVES:

APPLICANT
Mr C Shaw, solicitor
SOLICITORS
Shaw Reynolds Lawyers

RESPONDENT
Mr G Long, solicitor
SOLICITORS
Grant W Long


JUDGMENT:

THE LAND AND
ENVIRONMENT COURT


OF NEW SOUTH WALES

Hussey C

22 June 2006

      11402 of 2006 Towndrow Design Pty Ltd v
      Lake Macquarie City Council

      This decision was given extemporaneously. It has been revised and edited prior to publication.

      Background
      1 This appeal was lodged against council’s refusal of a development application for the demolition of an existing dwelling and construction of a detached dual occupancy development at 3 Renwick Street, Toronto.
      2 For the appeal, the following issues were initially identified:
          • Heritage impacts, in terms of proposals compatibility with the character of the Toronto Heritage Precinct and Renwick streetscape,
          • Internal amenity, in terms of the solar access, privacy and private outdoor areas,
          • Compliance with the BCA,
          • Impacts on significant Norfolk Island Pine, located in the front setback area,
          • Public interest.

      3 Following conferencing between the parties, significant amendments were made to the proposal, resulting in the parties’ agreement to consent orders. The objectors were notified of this outcome and Mr Philipson from 10 Renwick Street attended the view, and expressed his concerns about the suitability of the proposal within a conservation area context, and also some detailing aspects of the proposal.
      4 The details of the site, development proposal and planning controls are contained in the Statement of Basic Facts, on which I rely.
      The site

      5 Number 3 Renwick Street, Toronto, is described as Lot 2, in DP 206138. It is situated on the western side on Renwick Street, to which it has a 22.86 m frontage. The total site area of the site is 999.1 sq m.

      6 There is an existing dwelling, carport and established landscaping on the site. Adjoining the site to the north is a 2-storey brick dwelling, containing a church and residence.
      7 The site is situated approximately 800m north of the Toronto town centre, within a residential area comprising mainly single storey, weatherboard dwellings of mixed styles and ages.
      The proposal

      8 This proposal involves the demolition of the existing single storey weatherboard dwelling and attached carport.

      9 The proposed detached, dual occupancy is for each new dwelling to be 2 storeys, which are separated by a 2.8 m wide central driveway. Each dwelling contains, a family room (off which is a courtyard), dining/lounge room (off which is a front deck) and kitchen on the ground floor. Upstairs there are 3 bedrooms and bathrooms.
      10 Car parking for the dwelling is to be provided at the rear of the new dwellings, in the form of an adaptable open car space and garage for each dwelling.
      Planning Controls
      11 Under this LEP, the site is zoned 2(1), Residential and the proposed dual occupancy development is permissible with consent. The LEP in cl 16 requires consideration to the Lifestyle 2020 Strategy - Vision, Values and Aims . Clause 14 provides the following relevant aim:
      (h) manage the City's heritage and economic resources in a way that protects the value of these resources and enhances the City's character, and …


      12 The heritage provisions are contained in Pt 6 of the LEP. In particular cl 54 Development in Heritage Conservation Areas:

          1. Before granting consent for the erection of the building within a heritage conservation area, the consent authority must be satisfied that the features of the proposed building will be compatible with the heritage significance of the heritage conservation area, having regard to the form of, and materials used in, buildings that contribute to the heritage significance of the heritage conservation area.


          2. In forming that opinion, the consent authority must consider, where relevant:

              (a) the scale, bulk and form, including detailing and articulation, of the building, and

              (b) the pitch and form of the roof, and

              (c ) the style, size, portion and position of the of the openings for windows or doors, and

              (d) the colour, texture, style, size and type of finish of the materials to be used on the exterior of the building, and

              (e) any other matter that the consent authority considers relevant to the assessment of the application.

Development Control Plan No. 1 - Principles of Development.


      13 This DCP contains various performance criteria and acceptable solutions to deal with design factors. The following are relevant in this matter:
            Section 2.7.1: Streetscape and local character, with the intent to achieve the enhancement and creation of attractive, pleasant and safe streetscapes.

            A1.2 identifies the building elements that are to be addressed to achieve the intended outcome.
            Section 3.4.4: Solar access, where the intention is to achieve a quality living environment by ensuring appropriate levels of solar access to new housing and safeguarding solar access to adjoining housing.
            A1.4 requires the minimum "identified" private outdoor area should receive at least 4 hours of sunlight between 9 a.m. and 3 p.m. on June 21 over 50% of the area.

            Section 3.4.5: Privacy, where the stated intent is to maximise visual and acoustic privacy for the occupants of new and existing housing.

            Section 3.4.6: Private outdoor areas, where the intent is to ensure occupants are provided with practical, usable and well located outdoor living environments.
      The evidence

      14 In order to address of the primary issue of heritage impacts, the parties agreed to Mr D Logan being the Court appointed-expert. He undertook an initial assessment of the proposal, relative to the heritage controls and reviewed the applicant's Heritage Impact Statement. From this, he expressed general satisfaction with proposal and commented that the proposed development pattern due to the subject lot width and depth would be just within acceptable limits and not be out of character with other dwellings in this heritage neighbourhood.

      15 However, he recommended the front of the buildings be amended to achieve a wider street presentation and there be a slight reduction in the roof pitches.
      16 These amendments have been undertaken by the applicant, so that the front balconies have been widened, dwelling 1 setback at further 2-3 m, the roof pitches reduced and wider eaves incorporated in the design.
      17 I understand from the evidence, that Mr Logan is now satisfied that the heritage impacts are acceptable. This is consistent with council’s heritage assessment, because this issue is no longer pressed. Accordingly, I accept that the amended proposal satisfies the relevant heritage considerations and will be compatible with the heritage significance of heritage conservation area.
      18 The other issues concerned, the internal amenity of the dwellings, particularly dwelling 1, because of its proximity to the adjoining church building. However, the amendment to shift this dwelling approximately 2-3 m westerly, allows better solar access to its family room and courtyard area.
      19 An amenity impact assessment was provided by Mr B Gibson, council’s, town planner. With respect to the DCP controls in Section 3, he says that:
            · The additional 2-3 m setback and relocation of the garage behind dwelling 1, results in the family room and rear courtyard, receiving adequate solar access,

            · Adequate privacy will be achieved with the inclusion of the battened screening fence and maintenance of mature vegetation,

            · The BCA matters have now been addressed and are covered by condition of consent,

            · The concerns about possible impacts on the Norfolk Island Pine has been satisfactorily addressed by relocation of the proposed stormwater drainage, away from the trees root area,

            · the energy efficiency considerations and other authorities, requirements have been satisfied and covered by condition to consent.

      20 Accordingly, Mr Gibson is satisfied that proposal, then demonstrates reasonable compliance with the LEP and DCP controls to merit, conditional consent.
      21 In regard to the public interest considerations, I note that a number of objections were made by neighbours against the original proposal. However, I understand these objections had been generally satisfied with the amended proposal. Notwithstanding this, Mr Philipson expressed concerns about the inappropriateness of the smaller dual occupancy dwelling in this heritage neighbourhood. He did not consider more intense use of the land for this form of development, maintained the heritage character, and furthermore, the approval of the development would be an undesirable precedent for other development of similar larger allotments in this neighbourhood.
      Conclusions

      22 Having considered the evidence, the submissions and undertaken a view, I am satisfied that the amended proposal demonstrates reasonable compliance with provisions of the LEP and DCP to merit the consent orders being granted. I particularly note that the heritage considerations have been adequately addressed on the basis of the Heritage Impact Statement , which has subsequently resulted in some minor amendments to the proposal to satisfy the Court appointed expert, Mr Logan. Accordingly I accept council submissions that there are no outstanding heritage issues with the proposal.

      23 Insofar as these amendments resulted in the heritage issue being satisfied, I have nevertheless considered Mr Phillipson’s concerns that the proposal represents excessive development for the subject site, in the context of conservation area. However, the LEP permits appropriate, dual occupancies with consent on the subject land. The associated controls allow such dual occupancy on allotments with a minimum area of 600 sq m and also a maximum site coverage 30% to which the proposal complies with.
      24 As the subject proposal comfortably complies with the relevant planning controls, I consider the public interest considerations are adequately addressed by the approval of the development. If more restricted types of development is preferred in this heritage area, this can be effected by way of changes to the LEP and DCP.
      25 For these reasons then, I am satisfied that the consent orders should be granted.
      Court orders
      26 By consent the Court orders:
          1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.

          2. Development application No. 4108/2004 lodged with the respondent council on 5 April 2004 to demolish the existing dwelling and to construct a dual occupancy on Lot 2 in DP 206138 and known as No. 3 Renwick Street, Toronto, is approved subject to Conditions 1 to 36 in Annexure “A”.

          3. The exhibits be returned except 1, 2, 5, 7, 8, A ,B and C.

___________________

      R Hussey
      Commissioner of the Court
      rjs
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