Land and Environment Court of New South Wales CITATION : Slater v Bankstown City Council [2004] NSWLEC 110 APPLICANTS Philip and Marilyn Slater PARTIES : RESPONDENT Bankstown City Council FILE NUMBER(S) : 11481 of 2003 CORAM: Brown C Development Application :- demolition of existing buildiong construction of an attached dual occupancy and detached garages KEY ISSUES: minimum lot width overlooking safety and security Environmental Planning and Assessment Act 1979 LEGISLATION CITED: State Environmental Planning Policy No 1 Bankstown Local Environmental Plan 2001 CASES CITED: Winten Property Group v North Sydney Council (2001) NSWLEC 46 DATES OF HEARING: 19/03/2004 DATE OF JUDGMENT: 03/19/2004 APPLICANT Litigant in person LEGAL REPRESENTATIVES: RESPONDENT Mr A Seton, solicitor SOLICITORS Marsdens JUDGMENT: 5 IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 11481 of 2003 Brown C 19 March 2004 Philip and Marilyn Slater Applicant v Bankstown City Council Respondent Judgment 1. This is an appeal against the refusal by Bankstown City Council of DA 93/2003 for the demolition of an existing dwelling and the construction of an attached dual occupancy and detached garages at 1 Segers Avenue, Padstow. Access to the garages is obtained from Padstow Lane. While originally set down as a Court Hearing, the parties agreed that the proceedings could be conducted as an On Site Hearing. 2. The subject site is described as Lot 20 in DP 20572. It is rectangular in shape with a 14.325 m frontage and a depth of 43.61 m giving a total area of 624.7 m2. A single storey fibro cottage, carport, fibro garage, fibro shed and pergola are located on the subject site. Development in the area consists of predominantly residential dwellings up to two storeys in height to the north, south and west and commercial and residential buildings to the east. The subject site adjoins the western edge of the Padstow commercial centre with the Padstow Railway Station to the north-west. 3. The subject site is zoned 2(a) Residential A under Bankstown Local Environmental Plan 2001 (the LEP). The proposed development is permissible within this zone with consent. Clause 11(3) provides the consent may only be granted if the consent authority has regard to the general objectives of the plan and the zone objectives. Clause 45 provides the consent may be granted only if the proposed development is compatible with the character and amenity of existing and likely future buildings on adjoining land in respect of a number of considerations, including scale, bulk, design, height, siting, landscaping and privacy. Clause 46 sets out objectives and standards for the purpose of establishing core residential development standards. Relevantly, the LEP requires a 15 m minimum frontage, a 500 m2 minimum site area and a maximum floor space ratio of 0.5: It was agreed that the proposal satisfies these requirements with the exception of the minimum frontage. The lot is 0.675 m below the minimum frontage development standard. 4. Bankstown Development Control Plan No. 31 - Residential Development Standards (the DCP) also applies to the application. It was agreed that the proposal satisfies all relevant DCP requirements for primary ground and first floor setbacks, side setbacks, secondary setbacks, car spaces private open space and number of storeys. The DCP reiterates the requirements for a 15 m minimum frontage and also provides specific objectives. 5. Mr Paul Hume, a town planner provided evidence for the council and Mr Philip Slater provided a written statement addressing the concerns of the council. Mr Slater provided no expert evidence beyond his statement. 6. The issues in the proceedings relate to: 1. whether the SEPP 1 objection is well founded, 2. whether the siting and design of the garages eliminates reasonable opportunities for natural surveillance, 3. whether the removal of an existing tree is acceptable, 4. whether the proposal creates unacceptable privacy impacts, and 5. whether the proposal will create a precedent 7 . In relation to the SEPP 1 objection , cl 46(5) states that consent is not be granted for the purpose of an attached dual occupancy if the allotment has a width of less than 15 m at the front building line. As the proposed development is located on a lot with a width of 14.365 m, an objection pursuant to the provisions of State Environmental Planning Policy No. 1 - Development Standards (SEPP 1) was required and submitted with the application. The objection maintains that compliance with the standards is both unreasonable and unnecessary for a number of reasons. These include the aesthetic and attractive appearance with the garages located at the rear, improved streetscape, elimination of security issues, improve use of local amenities, lack of precedent, emphasis on landscaping and decreasing traffic flow around the nearby school. 8 . Mr Hume considers the SEPP 1 objection is not well founded as it does not demonstrate that the development satisfies the underlying purpose of the development standard. In this regard, the LEP contains general objectives for the development standard as well as other development standards. Mr Hume considers the underlying objectives are to achieve a dwelling design sympathetic to the scale and character of the existing single dwelling development in the locality with adequate amenity provision through matters such as sufficient setbacks to adjoining residential development, private open space, driveway and manoeuvring areas and safety and security. 9 . The appropriate manner of dealing with a SEPP 1 objection is found in the judgment of Lloyd J in Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46, at par 26, where a number of questions are posed. 10 . Accepting Mr Hume's underlying objectives for the development standard and considering the variation to the development standard against these underlying objectives I find that the variation is acceptable. The variation is small in numerical terms and the proposed development will have little or no noticeable impact on the scale and character of development in the area. Incoming to this conclusion I have given weight to the proposals compliance with the relevant council requirements that have an effect on scale and character of a development and how it relates to its locality. The variation also has no impact on the internal amenity, having satisfied the relevant council requirements. 11 . I conclude that compliance with the development standard would tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the Environmental Planning and Assessment Act 1979 and that the proposal satisfies the underlying objectives of the development standard. Consequently, I find that compliance with the development standard is unnecessary in this instance and that the SEPP 1 objection is well founded. 12 . In relation to surveillance , Mr Hume notes that the subject site adjoins the blind aisle of a public carpark and is physically enclosed by buildings and fencing to the north, east and west. In his opinion, this provides poor natural surveillance and will present a serious risk in terms of the potential for criminal and antisocial activity. With the benefit of the view of the subject site and the surrounding area, Mr Hume's comments have some merit although I am not convinced that his concerns are sufficient to warrant the refusal of the development application for this reason The site adjoins a carpark and commercial properties. It is likely that this area will be frequented by patrons using these areas. Additionally, surveillance is available from a second storey balcony opposite the site. While it was put to the Court that there would be no surveillance after the commercial areas ceased trading. It is a not dissimilar to inner city residential areas with rear lane access. Adequate street lighting is provided in the carpark area and while surveillance of the garage from the proposed dwellings would be desirable, it is not essential for the application to be approved. 13 . The proposal seeks to remove one of the three existing trees on site. The tree in question is located in the north-eastern corner of the subject site and in close proximity to 3 Segers Avenue. Mr Hume states that the removal of the tree is unreasonable and unnecessary and an alternate design would allow for its retention. While the retention of the tree has some benefits, I do not accept that its retention is a sufficient reason for a redesign of the proposed development. As I understand, a landscaping plan has been submitted and provides further landscaping. 14. Loss of privacy was an issue from 3 Segers Avenue and 85 Havard Road from the first floor level. These properties were observed and an estimate made of the location of the windows in the proposed development. I accept the general agreement of the parties that this can be acceptably addressed through conditions. 15. The question of precedent was raised and while it is accepted that this is a relevant planning consideration, I am not convinced that the approval of the proposal will necessarily lead to similar applications. Each will need to be considered on their merits and will be subject to a SEPP 1 objection. In my view this matter could not substantiate a refusal of the application. 16. In considering the matters required by cl 11(3) of the LEP, the proposed development is worthy of approval. 17. The Orders of the Court are: 1. The appeal is upheld. 2. Development application DA 93/2003 to demolish an existing building and erect a dual occupancy development at 1 Segers Avenue, Padstow, is approved subject to the conditions in Annexure A. _______________ G T Brown Commissioner of the Court rjs DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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