Windon v Kogarah Council

[2005] NSWLEC 319

Land and Environment Court

of New South Wales

CITATION:

Windon v Kogarah Council [2005] NSWLEC 319

PARTIES:

APPLICANT
Barry Windon

RESPONDENT
Kogarah Council

FILE NUMBER(S):

11132 of 2004

CORAM:

Nott C

KEY ISSUES:

Development Application :- to build a dual occupancy and to subdivide the land into two lots - streetscape - noncompliance with development standard re the width of the lane on a corner lot - privacy - loss of outlook - traffic and parking

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979, s 97
Kogarah Local Environment Plan 1998
State Environmental Planning Policy No.1 - Development Standards
Better Home Design Guide Residential Development Control Plan

DATES OF HEARING:

31/05/2005 and 01/06/2005

EX TEMPORE JUDGMENT DATE:

06/01/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr B. Goldsmith, agent
of BT Goldsmith Planning Services

RESPONDENT
Ms C. Schofield, solicitor
of Pike Pike & Fenwick

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Nott C

1 June 2005

11132 of 2004: Barry Windon v Kogarah Council

JUDGMENT

1 This is an appeal against the council’s refusal of a development application to demolish an existing dwelling-house at 39 Lynwood Street, Blakehurst, to erect a dual occupancy and to sub-divide the land into two lots.

1. The subject land has an area of 748.4 sq m. It has a frontage on the south to Lynwood Street of 15.24 m. Its western side boundary is Lynwood Lane. Lynwood Lane near its intersection with Lynwood Street is a grassed area for pedestrian access only. Partway down the western side boundary of the subject land, the lane turns into a trafficable route. The width of the lane is 6 m.

3 The proposed dual occupancy is shown on the amended plans, exhibit 9. The unit that faces Lynwood Street, known as unit 1, is two storeys as seen from most places in Lynwood Street. Because of the slope of the land downward from that street, there is an understorey area which is in fact used as a garage so that at the rear, the building contains three storeys. In order to have this garage, some excavation is also needed. The other dwelling proposed as part of the dual occupancy, unit 2, is two storeys in height.

4 The surrounding development is predominantly single storey, although there are larger two-storey houses including the house immediately to the west on the other side of Lynwood Lane at 41 Lynwood Street.

5 The issues raised by the council are set out in a statement of issues filed in the proceedings. The main issues appear to relate to: the non-compliance with a development standard concerning the width of Lynwood Lane, which would require 8 m, whereas the width of the lane is 6 m; privacy for adjoining neighbours; and access along Lynwood Lane.

6 For the reasons, which I will elaborate on, I have concluded that it is appropriate to grant development consent subject to conditions.

7 The hearing commenced with a view of the site and adjoining properties after which the proceedings were adjourned back to court to hear further evidence. At the request of the parties, I heard evidence at the site from the adjoining neighbours, Mr S Fulfer and Ms J Hennessy of 41 Lynwood Street. The main concerns of these neighbours related to privacy, loss of outlook and narrowness of Lynwood Lane.

1. Present at the time of my inspection were two council officers, Mr G Andonski and Mr Latta who had prepared or approved a report to the council recommending the granting of development consent. Mr S Harding, whom the parties had agreed should be the Court-appointed town-planning expert, also gave evidence.

1. Prior to the hearing, Mr Harding had recommended certain changes to the proposed development to reduce its impact on adjoining neighbours and the applicant had amended the plans to accord with Mr Harding’s recommendations.

2. The council apparently was not satisfied with Mr Harding’s recommendations and engaged consultant town planner Mr K Nash to prepare a report. Although the applicant’s representative, Mr B Goldsmith opposed it, I granted leave for evidence to be presented from Mr Nash. Mr Nash’s evidence was of assistance in that he endorsed certain further changes that I suggested might be desirable to further reduce the impact of the proposed development. On behalf of the applicant, Mr Goldsmith subsequently agreed to these additional changes that are reflected in condition 1A of the conditions that will be imposed.

11 Condition 1A provides:

1A. The following amendments to the design of the proposed development are to be made, namely:

(i) The erection of a privacy screen 1600 mm high is to be located along the western and southern sides of the first-floor balcony off bedroom 4 of dwelling 1. The privacy screen is to be of toughened obscure glazing.

(ii) The western façade of dwelling 2, including both the ground and first floor is to be set back 4.5 metres from the Lynwood Lane boundary; and the ground-floor porch and balcony to bedroom 2 shall not project more than 900 mm to the outside face.

(iii) The two windows to bedroom 1 on the eastern façade of dwelling 2 are to be of obscure glazing.

(iv) The window to the staircase on the western elevation of dwelling 2 are to be of obscure glazing or similar.

(v) The deletion of the balcony off bedrooms 3 and 4 on the first floor of dwelling 2, and the windows to those bedrooms are to be standard windows with a sill height of 1200 millimetres.

(vi) The landscape plan shall be amended to show a fast-growing evergreen tree that will reach a minimum height of 5 metres at maturity, to be located between the driveway and front entry path of dwelling 2.

1. Brief evidence was given informally at the site from the two consultant town planners, Mr Harding and Mr Nash and I heard further concurrent evidence from them in court.

13 The subject site is zoned 2(a) residential, low density under Kogarah Local Environment Plan 1998. The two relevant objectives of this zone are:

(a) to provide for the housing needs of the Kogarah area, and

(b) to maintain the amenity and low density environment of areas predominantly characterised by detached dwelling houses.

1. Attached dual occupancies are prohibited by the zoning table in zone 2(a). However, such development is permissible in limited circumstances in accordance with cl 22A of the LEP. I incorporate in my judgment the objective and the relevant sub-clauses (1) and (10) of cl 22A:

   
   22A Development in Residential 2 (a) Zone

   
   Objective of provision
   To provide opportunities for a compatible mix of dwelling types in localities within the Residential 2 (a) Zone.

   Provision overrides remainder of plan
   (1) This clause has effect despite the other provisions of this plan.
   …
   Corner sites
   (10) A corner allotment of land within the Residential 2 (a) Zone (except within the foreshore scenic protection area or the waterfront scenic protection area) may, with the Council’s consent, be developed for the purpose of detached dual occupancy and the allotment may be subdivided so as to create separate land titles for each dwelling if:
   
   (a) the land is at least 650 square metres in area, and

   (b) each allotment resulting from the subdivision will be at least 12 metres wide at its street frontage, and

   (c) each building resulting from the carrying out of the development will face a public street that is at least 8 metres wide in front of the building, and

   (d) the site coverage of the proposed buildings, when considered both in total and for each of the separate dwellings on allotments to be created by a proposed subdivision under the Strata Schemes (Freehold Development) Act 1973, the Strata Schemes (Leasehold Development) Act 1986 or the Community Land Development Act 1989 , would not exceed 30% when calculated both in respect of the site area of the original allotment and in respect of the allotment proposed for each separate dwelling, and

   (e) where the Council has adopted a development control plan that applies to development for the purpose of single dwellings—the Council is satisfied that the carrying out of the proposed development will comply with the requirements of the development control plan.

2. An important part of cl 22A is sub-clause (1), the effect of which is that development may be carried out in accordance with cl 22A despite other provisions of the LEP. By way of comment, it was accepted in the present appeal that numerical requirements referred to in the council’s DCP relating to single dwellings (referred to in par (e) of cl 22A(10)) did not establish development standards and that an objection under State Environmental Planning Policy 1—Development Standards would not be required for a departure from a numerical requirement of the DCP.

16 The relevant development control plan is Better Home Design Guide Residential Development Control Plan . This DCP applies not only to single detached dwellings but also to other forms of residential development. Of particular relevance in the DCP is the locality character statement for Blakehurst South and ss 5.1 and 5.5.

1. In relation to the non-compliance with the development standard relating to the width of Lynwood Lane, the objectives of the development standard are not expressly stated. However, it seems that there is probably a twofold objective of the standard: (1) to ensure there are no unreasonable traffic and vehicular access difficulties, and (2) to provide adequate separation between dwellings. In relation to the non-compliance with the development standard relating to the width of Lynwood Lane, the objectives of the development standard are not expressly stated. However, it seems that there is probably a twofold objective of the standard: (1) to ensure there are no unreasonable traffic and vehicular access difficulties, and (2) to provide adequate separation between dwellings.

18 I have concluded that it is not necessary to comply with this development standard. In respect of traffic, very little traffic would use the lane, which is a dead-end lane. Between the cul­de­sac which is outside the side of the subject land and the closest cross-street, Walton Street, there is only one other house-property immediately to the north of the subject land, and there is another dwelling-house property on the other side of the lane, and each of these properties has a frontage to Walton Street. The other property that would use this stretch of the lane is the property at 41 Lynwood Street.

1. The carriageway would permit a car to be parked and another car to pass. There may be occasions if there is a car parked in the street, that there would be difficulty servicing the proposed unit 2 with trucks. However, this is likely to be a infrequent occurrence. Although I have some reservations about the width of the carriageway, I have taken into account the opinions of the council officers who recommended the granting of development consent. I have not ignored the fact that Mr Nash considered that the lane width should be wider, but his main concern related to privacy. The Court-appointed expert was of the opinion that the proposed development should not be refused because of the non­compliance with the development standard.

1. As regards the separation between dwellings, it is true that an 8 m width of the lane would increase the separation between dwellings. However, the weight of the evidence is that a lane width of 6 m is adequate to separate the proposed dwellings from the dwelling on the opposite side of the Lynwood Lane, particularly taking into account issues of privacy. In relation to privacy, a separation of 9 m between habitable areas would generally be acceptable under the DCP. The proposed unit 2 is set back from the lane by approximately 4.5 m, although there is some variation to that setback with the garage and bedrooms above it set back a little further and there is a projection of a narrow balcony and entrance into the 4.5 m.

1. Because of my concerns to reduce the impact on privacy for No. 41, a larger balcony on the western side of unit 2 will be required to be deleted even though this balcony is 4.5 m from the lane alignment. In addition, the full-length glass doors to that balcony will be changed to windows with a sill height of 1.2 m. As well, there will be a requirement that the landscape plan be modified by the provision of a fast-growing evergreen tree which will grow to provide better privacy between the subject land and No. Because of my concerns to reduce the impact on privacy for No. 41, a larger balcony on the western side of unit 2 will be required to be deleted even though this balcony is 4.5 m from the lane alignment. In addition, the full-length glass doors to that balcony will be changed to windows with a sill height of 1.2 m. As well, there will be a requirement that the landscape plan be modified by the provision of a fast-growing evergreen tree which will grow to provide better privacy between the subject land and No. 41.

1. I took a view of the subject land from within the dwelling house at No. 41, and I am of the opinion that otherwise the proposed development is also acceptable, particularly in terms of privacy. In accordance with condition 1A(i) (quoted at par 11 above), a balcony to proposed unit 1 will have a privacy screen of obscure glazing to a height of 1.6 m erected around the side facing No. 41. Existing trees also provide screening between the two properties.

23 Allowing the departure in my opinion from the development standard in this case will not hinder the attainment of the objectives of the Act. And having regard to the evidence, I am of the opinion that the objection is well founded. I have taken into account the provisions of cl 8 of SEPP 1 and matters of precedent. It could be that in other circumstances a 6 m wide road for a corner lot would not be appropriate. But having regard to the perceived objectives of the development standard, the evidence in the present case does not persuade me to refuse the application.

1. The proposed development, in respect of each unit and in respect of the units combined, has a site coverage of 30% or less. In oral evidence both consultant town planners considered that the setbacks were reasonable and appropriate as regards the dwellings proposed vis-a-vis the side, rear and lane boundaries. I accept the opinion of the council officers that a non-compliance with the numerical requirement of 5.5 m setback for unit 1 from Lynwood Street is allowable and would be appropriate.

25 There will be some diminution in the outlook from No. 41 because of the proposed unit 2 being in the presently vacant rear yard of the subject land. However, there is a significant gap still between each proposed dwelling in the dual occupancy. As I mentioned, I have taken into account that council officers were in favour of the proposed development and I refer to the council report for the council meeting of 14 March 2005 at pp 115-128 of exhibit 4.

26 In all the circumstances and considering the matter generally under s 79C of the Environmental Planning and Assessment Act1979, I propose to grant development consent subject to the conditions.

27 The conditions will be those as set out in a document to be finally prepared for the minute of order being annexure A. Annexure A is to comprise the conditions in exhibit 1 as amended by the conditions in exhibit 12 and as further amended as disclosed in the transcript of today’s proceedings.

28 Accordingly, the orders of the Court are:

1. The appeal is upheld.

2. Development consent is granted for the demolition of the existing buildings, the erection of a detached dual occupancy and the subdivision of the land at 39 Lynwood Street, Blakehurst, subject to the conditions in annexure A.

3. The exhibits, other than exhibits 1, 7, 9, 11 and 12, may be returned.

______________
A J Nott
Commissioner of the Court
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