Willis v City of Ryde Council

[2009] NSWLEC 1103

Land and Environment Court

of New South Wales

CITATION:	Willis v City of Ryde Council [2009] NSWLEC 1103
PARTIES:	APPLICANT Ken Willis RESPONDENT City of Ryde Council
FILE NUMBER(S):	10006 of 2009
CORAM:	Brown C
KEY ISSUES:	DEVELOPMENT APPLICATION :- convert an existing dwelling house to a duplex building - categorisation of use - impact on conservation area - streetscape - car parking - private open space - solar access
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Ryde Planning Scheme Ordinance City of Ryde Development Control Plan 2006
DATES OF HEARING:	27/03/09
EX TEMPORE JUDGMENT DATE:	27 March 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr D Williams, solicitor SOLICITORS Whitehead Cooper Williams RESPONDENT Mr J Strati, solicitor SOLICITORS City of Ryde Council

JUDGMENT:

- 1 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

27 March 2009

10006 of 2009 Ken Willis v City of Ryde Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by the City of Ryde Council (the council) of Local Development Application No. 100/2008 to convert an existing dwelling house to a duplex building at 9 Clive Road, Eastwood (the site).

2 The proceedings were originally to be heard as a Court Hearing however the parties agreed that the proceedings could be conducted as an On Site Hearing. The judgment reflects the relevant parts of the Statement of Facts and Contentions and the reasons given on-site in determining the appeal.

3 The issues raised by the council relate initially to the question of permissibility, in that the proposal does not does not satisfy the definition of a duplex building. In the event that the Court does not accept the permissibility argument, the council maintains that the proposed development is also unacceptable because of inadequate car parking, lack of private open space and inadequate solar access.

4 The council approved alterations and additions to the existing dwelling on the site on 31 May 1984. Some time after this approval, the dwelling was converted and used as two separate dwellings without the consent of council. The development application is to regularise the existing use of the site for two dwellings. Generally, one dwelling (Dwelling 1) is to occupy the majority of the existing dwelling (prior to the alterations and additions) and the other dwelling occupies the area created by the alterations and additions (Dwelling 2). This dwelling is two storeys and located behind the original single storey dwelling.

5 The site is located within Zone 2(a) Residential under the Ryde Planning Scheme Ordinance (the RPSO). A "duplex building" is a permissible use within this zone. Clause 3 of the RPSO provides the following definition:

"duplex building" means a single building up to two storeys in height that contains not more than 2 dwellings:
(a) which are attached to one another; and
(b) each of which is designed so that its front door faces a street with which the allotment on which the building is erected has a boundary.

6 The site is also located within the Eastwood House Estate Conservation Area (the conservation area) and the existing dwelling is a contributory item in the conservation area. Clause 85 provides objectives for Part IX - Heritage Conservation. Objective(d) states:

(d) to ensure that development does not have adversely affect the heritage significance of heritage items and heritage conservation areas and their settings, and

7 Clauses 86(5)(b) and 92 provide specific matters to be included in the consideration of development in a conservation area.

8 City of Ryde Development Control Plan 2006 applies. Part 3.3 of the DCP - Dwelling Houses and Duplex Buildings (the DCP) applies. The relevant areas of the DCP are Front setbacks (Pt 2.8.1), Car parking (Pt 2.10 .1) and Daylight and sunlight access (Pt 2.13 .1). Part 5.2 of the DCP addresses the Eastwood House Estate Conservation Area. The relevant area is Desired Future Character (Pt 5.5.3).

Is the proposed development permissible?

9 Mr Strati, for the council, submits that the proposed development is more appropriately categorised as a "residential flat building". This is a use that is prohibited in the zone. The proposed development cannot be categorised as a duplex building as both dwellings do not have a front door that faces the street. While Dwelling 1 satisfies this requirement, Dwelling 2 has a door that faces the rear of Dwelling 1. Further, it could not be said that Dwelling 2 has been "designed so that its front door faces the street". The proposed development is the conversion of an existing dwelling.

10 Mr Williams, for the applicant, submits that the words in the definition are clear and that the front door of Dwelling 2 faces the street although only part of the door is visible from the front boundary.

11 On the categorisation issue, I accept the submissions of Mr Williams. There is no doubt that the front door of Dwelling 2 faces the street. It is largely inconsequential whether it was specifically designed to achieve such a purpose or it occurred by chance. The fact that the door faces the street, notwithstanding most of the view from the street is largely blocked by Dwelling 1, is enough to satisfy the definition of "duplex building". On this basis, the proposed use is permissible with consent.

Parking

12 The DCP requires one space maximum for each dwelling (Pt 2.10.1.a). The proposed development provides a single garage within Dwelling 2. Access to the garage is along with the eastern boundary via a single vehicle width driveway.

13 Mr Young, the councils a town planning expert maintained that only one space has been provided for the proposed development. The use of the driveway to the existing garage is inappropriate as a second parking space as it would create a stacked parking space. This is unacceptable for two separate dwellings. The use of the setback area, either for a hard stand area or a carport structure, is also inappropriate from a streetscape point of view according to Mr Young. Mr Willis, the applicant’s town planning expert, proposed a carport structure adjoining the access driveway. He stated that the design of the carport could be improved to provide a design more sympathetic to the heritage context of the site.

14 On this issue, I agree with the evidence of Mr Young. It is inappropriate and unworkable to consider stacked parking when the proposed development seeks approval for two individual dwellings. Also, the use of the setback area for car parking, either as a hard stand area or a carport structure is inconsistent with the general streetscape of Clive Road and even more problematic when considered in a heritage conservation area context. An inspection of the properties in Clive Road did not reveal any parking structures within the setback area or areas of hard paving that have been set aside solely for the purposes of a vehicle car parking space.

15 I can comfortably conclude that the proposed development cannot provide adequate parking in accordance with Pt 2.10.1.a of the DCP. The use of the setback area for car parking would be inconsistent with objective (d) in cl 85, in that it would adversely impact on the heritage significance of the conservation area and Desired Future Character of the Eastwood House Estate Conservation Area (Pt 5.5.3.9). The inadequacy of the car parking facilities and the unsuitability of using the front setback area is a sufficient reason in itself to refuse the development application.

Private open space

16 The DCP, under the heading of Landscaping, requires the provision of useful outdoor spaces for liveability by coordinating the design of private open space, external living areas….. with the design of the dwelling (Pt 2.12, Control c).

17 Mr Young states that the proposal to use part of the front setback area as the private open space area for Dwelling 1 is unacceptable as this area should be kept as an open and landscaped setting. The proposal for some of the rear yard area to be made available for Dwelling 1 is not suitable because there is no direct connection between Dwelling 1 and this part of the yard. Mr Willis states that an enclosed area could be provided within the front setback area and adequate privacy could be achieved through advanced hedge planting of this area. He notes other screen hedge planting within the front setback area in Clive Road. Alternatively, the rear yard could be split to provide outdoor areas from each of the dwellings with access provided via a path on either side of the dwellings.

18 On this issue I agree with Mr Young. If a second dwelling is to be approved, it is a fundamental requirement that the dwelling should have ready and convenient access from that dwelling to an area of private open space and ideally from the living areas of the dwelling. I do not accept that the configuration of the dwellings, in this case, allows this to occur. It is inappropriate that access to private open space to the rear yard from Dwelling 1 should be in such a circuitous and convoluted manner. Similarly, I do not accept that the use of the front setback area is appropriate given the conservation area context in which it is located. While the front balcony area may be used for some recreational purposes, it is limited or unsuitable in its use for matters such as more active recreation and clothes drying. While I acknowledge that some hedge planting had occurred in the street, there was no evidence to suggest that this was used as the only area of private open space for the dwellings in question.

19 The lack of useful outdoor spaces for liveability, the inability to readily access private open space and the unsuitability of using the front setback area for private open space is a sufficient reason in itself to refuse the development application.

20 Solar access

The DCP, under the heading of Daylight and sunlight access, has the objective of maximising sunlight and daylight access (Pt 2.13.1, Objective 1).

21 Mr Young states that as Dwelling 1 has a southerly orientation and has poor access into the living rooms of the dwelling. Mr Willis disagrees and says that solar access is acceptable because it is an existing situation and would be replicated in all dwellings on the same side of the street.

22 With the benefit of the site view, I accept that as the living room of Dwelling 1 also has windows in the northern and eastern elevation as well as the southern elevation, it is likely that good levels of sunlight will penetrate the living room. For this reason, a lack of solar access would not be a reason to refuse the development application.

Orders

23 The Orders of the Court are:

1. The appeal is dismissed.
2. Local Development Application No. 100/2008 to convert an existing dwelling house to a duplex building at 9 Clive Road, Eastwood is refused.
3. The exhibits are returned with the exception of exhibits 1 and A.

____________
G T Brown
Commissioner of the Court