Wilax Developments Pty Ltd v Blue Mountains City Council

[2006] NSWLEC 565

Land and Environment Court

of New South Wales

CITATION:

Wilax Developments Pty Ltd v Blue Mountains City Council [2006] NSWLEC 565

PARTIES:

APPLICANT
Wilax Developments Pty Ltd

RESPONDENT
Blue Mountains City Council

FILE NUMBER(S):

10064 of 2006

CORAM:

Tuor C

KEY ISSUES:

Development Application :- Demolition of existing dwelling house and garage, erection of multi unit housing
development density, height, car parking, character of the area
impact on solar access of adjoining house.

LEGISLATION CITED:

Blue Mountains Local Environmental Plan No. 4
Blue Mountains Local Environmental Plan 2005
State Environmental Planning Policy No. 1 - Development Standards

DATES OF HEARING:

22-23/08/2006

EX TEMPORE JUDGMENT DATE:

08/23/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr M Fragar, agent

RESPONDENT
Mr A Seton, solicitor
of Marsden Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

23 August 2006

10064 of 2006 Wilax Developments Pty Ltd v
Blue Mountains City Council

JUDGMENT

1 This is an appeal against the refusal by Blue Mountains City Council (the council) of a development application for multi-unit housing at 9 Edwin Lane, Katoomba (the site).

2 The application was lodged on 9 December 2004 and originally proposed six dwellings in four buildings with two access driveways. This application was refused by council and the Applicant lodged an appeal. The application was subsequently amended in response to the preliminary comments of the Court-appointed experts; Mr D Chestman, planning, and Mr C Hallam, traffic and parking. The amended application reduced the number of dwellings to five in four buildings with a single central driveway. The amended drawings resolved the issues between the parties.

3 The application and its amendments have been notified, and a number of submissions were received. The Court heard from the following objectors on-site:

· Mr and Mrs Sinfield, 15 Edwin Lane,

· Mrs D Wigg, 19 Dora Street, and

· Mr S Taverner, 16 Dora Street.

4 The main concerns of the residents were that the proposal is out of the character with the area, particularly the two-storey dwellings and the number of dwellings on the site. The residents were also concerned about the number of parking spaces to be provided on site which they consider to be inadequate given that Edwin Lane is very narrow and steep, and unsuitable for on-street parking or increased traffic numbers.

5 Mr and Mrs Sinfield were concerned about the loss of solar access to their side windows and rear sunroom, and the increase in water runoff likely to be generated by the development.

6 The site, its context, the history of the application and the planning controls are outlined in the Statement of Basic Facts, and the report to council dated 12 April 2006.

7 The application was lodged prior to the gazettal of Blue Mountains Local Environmental Plan 2005 (LEP 2005). Clause 6(4) - Savings and Transitional Provisions of LEP 2005 requires an assessment under the provisions of Local Environmental Plan No 4 (LEP 4) with consideration to be given to LEP 2005 as if it was an exhibited draft plan.

8 The site is zoned Residential 2(b) under LEP 4. Class 1 residential flat buildings are permissible with consent. The proposal complies with the relevant provisions in LEP 4 with the exception of cl 19 - Density, and cl 20 - Car Parking. The applicant has submitted an objection under State Environmental Planning Policy No 1 (SEPP 1) to these clauses.

9 The site is zoned Village Housing under LEP 2005. Multi-unit housing is permissible with consent. The amended application, subject to conditions, complies the requirements of LEP 2005 and the provisions of the Better Living Development Control Plan (Better Living DCP) and Development Control Plan No. 29 – Car Parking (DCP 29).

10 Mr Langavard, the council planner, considered that the proposal was consistent with the planning approach in LEP 2005. Further he stated that despite the non-compliance with density and car parking controls in LEP 4 the proposal met the objectives of these controls and that the SEPP 1 objections were well founded.

11 Mr Chesterman considered the amended proposal addressed his concerns and was acceptable.

12 The issues raised by the residents were similar to those initially raised by council. In relation to density, under LEP 4, 3.8 dwellings are permissible and 900 sq m of landscaping is required. LEP 2005 permits a maximum floor space ratio (FSR) of 0.6:1, and provides numerical requirements for private open space and criteria for landscaped area.

13 The proposal has five dwellings in four buildings. The dwellings are relatively small being two x one-bedroom plus study of about 78sqm to 92sqm, and three x two-bedroom plus study of about 113sqm to 130sqm. Council has imposed a condition that dwelling three be reduced in size to 125 sqm, the applicant has agreed to this condition. The proposal has an FSR of 0.38:1, which is well below the requirement in LEP 2005.

14 I accept that the objectives of cl 19 of LEP 4 are met, and that the density is consistent with the character of the area, in that it provides for four smaller buildings on the site.

15 In relation to height, the proposal complies with the requirement in LEP 4 and LEP 2005. From the street the proposal is single storey, the two buildings at the rear of the site have two storey components but these are set back from the lower floor to reduce the bulk of the buildings. The two storey buildings will be visible from certain vantage points in the area but their overall height and appearance will not be out of character with the area. Although the majority of buildings in the area are single storey, due to the slope of the land, they often have two storey components such as storeys over garages. The proposal is not inconsistent with this character.

16 In relation to landscaping, LEP 4 requires 900sqm, the proposal provides approximately 381sqm. LEP 2005 does not provide numerical requirements for landscaping, however cll 65 and 66 provide criteria that the landscaping must satisfy which aim to achieve buildings in garden settings. The landscape area is well below that required by LEP 4. The objectives of this standard are not stated in LEP 4, however, it is reasonable to assume that the objectives are similar to those of the criteria for landscaping in LEP 2005.

17 Mr Chesterman and Mr Langavard considered that the landscape area, if carefully designed, would provide a landscape setting for the buildings consistent with the character of the area and meet the objectives of cl 19 in LEP 4, and cll 65 and 66 in LEP 2005. I accept this opinion and that the SEPP 1 objection is well founded. However, the area proposed is sufficient to provide some small canopy trees and an understorey of planting, in my opinion it is at the lower end of what is required to provide a landscape setting in an area that is characterised by small houses on large allotments.

18 In relation to car parking and access, Mr Hallam initially raised issues about the dual driveway access of the proposal. This was redesigned to address his concerns by providing a single driveway. The parking, with the condition requiring reduction in the size of dwelling three, complies with the requirements of LEP 2005 and DCP 29. The proposal does not comply with cl 20 of LEP 4, but the evidence before the Court is that even before the gazettal of LEP 2005, council had effectively abandoned the numerical requirements in cl 20 of LEP 4, and parking was assessed under DCP 29.

19 The purpose of cl 20 of LEP 4 is not stated but can be assumed to be that it is to ensure that the demand for parking likely to be generated by development is provided on-site. This is particularly relevant in a narrow street where on street parking would be inappropriate. DCP 29 provides the relevant numerical control for parking to meet the demands of the development. The proposal complies with this control. The proposal, therefore meets the objectives of LEP 4 and the SEPP 1 objection is well founded.

20 In relation to overshadowing, the proposal will reduce solar access to the east facing windows of 15 Edwin Lane between about 9am and 11am midwinter. This results from the single storey component of the proposal, which is set back about 1.5 m from the common boundary. The two storey part of the proposal impacts on solar access to the laundry and part of the sun room at the rear of 15 Edwin Lane. While there will be a reduction in solar access that is of concern to the residents, the proposal complies with the controls in the Better Living DCP, and the loss of solar access is not unreasonable or beyond that anticipated by the planning controls which permit development of the type proposed on the site.

Orders

21 The orders of the Court are:

1. The appeal is upheld.
2. The development application for multi-unit housing at 9 Edwin Lane, Katoomba, is approved subject to the conditions in Annexure A.

3. The exhibits, except Exhibits 1, 9, B, C and D may be returned.

___________________

Annelise Tuor
Commissioner of the Court
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