Valley Homes Pty Ltd v Port Stephens Council
[2004] NSWLEC 126
•04/01/2004
Land and Environment Court
of New South Wales
CITATION: Valley Homes Pty Ltd v Port Stephens Council [2004] NSWLEC 126 PARTIES: FILE NUMBER(S): 10965 of 2003 CORAM: Tuor C. KEY ISSUES: Development Application :- Attached dual occupancy and subdivision
SEPP 1- allotment size
residential amenity - sunlight access and privacyLEGISLATION CITED: Port Stephens Local Environmental Plan 2000
State Environmental Planning Policy No 1CASES CITED: DATES OF HEARING: 22/12/2003 DATE OF JUDGMENT: 04/01/2004 LEGAL REPRESENTATIVES: RESPONDENT
APPLICANT
Mr Conomos, solicitor
Pike Pike & Fenwick
Mr Gray, solicitor
Sparke Helmore
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
10965 of 2003
1 April 2004Tuor C
- Applicant
- Respondent
Introduction
1 This is an appeal against the refusal by Port Stephens Council (the council) of a development application for an attached dual occupancy development and a two lot subdivision at 42 Tomaree Road, Shoal Bay (lot 48 DP 20240).
The site and its context
2 The site is located on the eastern side of Tomaree Road, about 300m from the town of Shoal Bay. It has an area of 579.2 m2 with a frontage of about 15m to Tomaree Road, a depth of about 38m and a slope of about 5.5m from its eastern boundary to Tomaree Road. The site is vacant and has no significant vegetation.
3 Adjoining development to the north (No. 40) are 2 two-storey townhouses, to the south (No. 44) is a single storey house and to the rear is a dual occupancy development. Surrounding development in Tomaree Road is characterised by one and two storey, detached houses and a number of attached dual occupancies.
Background
4 A development application was lodged in 10 July 2002. The application was notified and council received two objections. Council refused the application on 3 February 2003. The reasons for refusal formed the basis of the issues in this appeal.
Statutory framework
5 The site is zoned 2(a) Residential under Port Stephens Local Environmental Plan 2000 (LEP 2000). The development is permissible with consent.
6 Clause 19 specifies a minimum site area of 300m per dwelling, a maximum floor space ratio (FSR) of 0.5:1 and a maximum hight of eight metres for a dual occupancy development in the Residential 2(a) zone. The development does not meet the site area standard and the applicant has lodged an objection under State Environmental Planning Policy No 1 (SEPP 1). This policy allows development standards to be varied provided their application is unnecessary or unreasonable.
7 Port Stephens Development Control Plan PSI - Urban Housing and Dual Occupancy Guidelines (the DCP) is also relevant. This provides objectives and performance criteria relating to a range of design elements including site analysis, planning and layout, building design and appearance, landscape design, security, services and site facilities.
Issues
8 The Statement of Issues before the Court contains six issues. The key issues are:
i. whether the SEPP 1 objection in relation to allotment size is well founded.
ii. whether the proposal will have an acceptable impact on residential amenity.
9 The following experts gave evidence:
· For the council
- Mr D Paine, town planner
· For the applicant
- Mr J. Lovell, town planner
Ms S Sonter, landscape and horticultural specialist
10 The Court also heard evidence from Mr R. Spain the owner of 44 Tomaree Road, Shoal Bay. His main concern was the impact of the development on his privacy and sunlight access to his windows and back garden.
SEPP 1 Objection – site area
11 The proposed development has a site area of 579.2m2, which it is proposed to subdivide into two allotments, each being 289.6m2. Clause 19 of LEP 2000 requires 300m2. The non-compliance is therefore 10.4 m2 or 3.5%. Clause 19 does not state its objectives. The experts disagreed on the objective for the minimum site area. Mr Paine’s opinion was that “the single objective of the minimum site area requirement is to control density, and specifically, the number of people (dwellings) that are accommodated on individual parcels of land”.
12 Mr Lovell in his SEPP 1 objection stated that the objectives include:
1. To ensure that sites are of sufficient size to accommodate an appropriate form of residential accommodation and associated facilities including usable open space and off street car parking.
- 2. To minimise the extent of potential impact generated by new development on the amenity of surrounding land.
- 3. To contribute to the variety of housing stock in well serviced localities, and on appropriately zoned land.
13 In Mr Lovell's opinion, the development met these objectives as it was of a bulk and scale consistent with other buildings in the streets, provided sufficient open space and setbacks, had minimal impact on adjoining properties and was in an appropriate location.
14 Mr Dixon agreed that the proposal would be compatible with the streetscape the following reasons:
· proposed front and rear setbacks form a transition from Number 40 to the north and Number 44 to the south of the site.
· The proposed building height forms a transition from Number 40 to 44 Tomaree Road
· The roof of the first floor is well setbacks from the front building line. It will be only partially in view from the verge of the Western site of Tomaree Road.
15 Mr Dixon concluded that:
The proposal will also make a positive contribution to the existing streetscape as it will not be overbearing in terms of height, bulk and scale. As it is within the prescribed building height plane, setbacks, and has an articulated roof form that aids in the modulation of the proposal.
16 Mr Pollard held the contrary view that due to the slope of the land, the building would appear as greater than two-storeys, particularly when viewed from the side. He considered the side setbacks to be minimal with limited opportunities for landscaping and that the front elevation was dominated by the two double garages and their driveways. In his opinion this contributed to the proposal being out of character with the overall streetscape and too large for its site. Mr Pollard stated that Unit two would achieve poor solar access and would “receive virtually no useful winter sun at all as it faces primarily south and is dug into the site at the east”. He considered that this was a result of bad planning of the site.
17 I do not accept that the purpose of the site area standard is solely to control density. Rather it is to ensure that the site is of sufficient size to accommodate an appropriate form of residential development. I accept Mr Lovell's and Mr Dixon's evidence that the proposed development adequately meets the objectives of the standard. The proposed development is large but this is consistent with other dual occupancies in the area and also with the scale of recent detached houses. It is consistent with the form of development envisaged by the planning controls. I note that the planning controls would permit a single dwelling on the site with the same FSR but of a greater height (9m) than that proposed for dual occupancy development.
18 The proposed development satisfies other numerical standards in the LEP and DCP including the height, FSR and building envelope control. It provides greater open space and greater front setback than required by the DCP. The garages dominate the ground level façade and is a negative feature of the proposal, however, the driveway is reduced in width to limit the area of paving and to allow landscaping. While I accept the solar access to unit two is poor this results from the east west orientation of the site and is not the consequence of the site area. Of itself it would not be a reason to refuse the application.
19 The proposed development has an acceptable impact on the amenity of adjoining neighbours, which I will discuss in more detail below. It contributes to housing choice that is clearly envisaged by the zone and its location, in close proximity to the shopping centre, is appropriate.
20 For the site to comply with the site area standard it would need to be 1.3 m more in depth or 540 mm more in width. An increase in the site by either of these dimensions would not make a perceptible difference to the development and how it is viewed in relation to its site and its context. I therefore accept that SEPP 1 objection is well founded and that compliance with the standard is not necessary or reasonable.
Impact on residential amenity
21 In relation to residential amenity, the main concern was the impact that proposed development would have on solar access to 44 Tomaree Road. The experts did not agree on the accuracy of the shadow diagram, but agreed that the margin of error was in the order of a 500mm increase in shadow length to that shown on the shadow diagram. I accept Mr Lovell's opinion that, even with this increase, the open space at No. 44 would achieve adequate solar access and would comply with the DCP control. The windows on the northern side of No. 44 currently receive unrestricted solar access as there is no development on the site at No. 42. Ms Spain stated that this sunlight was important to him as the windows were to his living area and kitchen. I accept Mr Lovell’s evidence that the loss of sunlight to these windows is acceptable as even a fence and a single storey development would reduce solar access to these windows due to their minimum setback from the boundary and the change in level.
22 Mr Spain was also concerned about privacy impacts on his property. The evidence of Mr Lovell was that the fence and proposed landscaping would assist in screening the development; the position of windows on the proposed development does not correspond to windows at No. 44; and overlooking from the second floor would be from the bedrooms.
23 In relation to privacy impacts on the dual occupancy development at No. 40, Mr Lovell’s evidence was that there are few windows that face the subject property and its driveway adjoins the northern boundary of No. 42. This boundary is to be screened with landscaping and any overlooking from the second floor of the proposal would be from bedrooms. In Mr Lovell’s opinion the privacy impacts on both Nos 40 and 44 were acceptable.
24 Mr Pollard raised concerns that there would be privacy impacts between the dual occupancy to the east of the site with the family room and courtyard and open space areas of the subject development. To address this issue Ms Sonter stated that the proposed native Frangipanis would grow to sufficient height to screen the two developments. She suggested a condition that these trees be planted at a minimum height of 3m to more quickly provide screening. Mr Pollard was also concerned about the number of upper level windows in both units that are located above the height of proposed hedge and fence. On the first floor these rooms include not only bedrooms but also the living room and side of the deck of both units.
25 I accept that the proposed development will generally have an acceptable privacy impact. However, the windows from the living room and side of the deck of both units overlook the adjoining properties and will not be screened by the proposed two metre high hedge. In relation to No. 40, this is acceptable because the overlooking is over a driveway and there is sufficient separation between the buildings. However, the separation between the proposal and the dwelling at No. 44 is only about 4.5m, building to building, and about 1.8m from the proposal to its boundary. The southern elevation of the deck and the three living room windows look directly into No. 44 above the height of the landscape screening. This is likely to have an unacceptable impact on Mr Spain's privacy and would also prejudice redevelopment of No. 44. These windows are secondary and the deck is orientated towards the street. I have therefore included a condition (1A) that these windows be deleted or obscured and that the side of the deck be screened to prevent overlooking.
Orders
1. The appeal is upheld.
3. The exhibits, except exhibits A, C and 4, may be returned.2. Development application No. 16-2002-1158-1 for an attached dual occupancy development and subdivision of Lot 48 DP 20240, known as 42 Tomaree Road, Shoal Bay, is determined by the grant of development consent subject to conditions as set out in Annexure ‘A’ and in accordance with plans numbered 1-3 of Job No. 10798 DA-Amendment 2, dated 11/12/2003 prepared by The Plan Centre, and Landscape Plan dated 05/12/2003 prepared by Narelle Sonter, Botanica.
____________________
Annelise Tuor
Commissioner of the Court
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