S & J Yarham v Ryde City Council [2003] NSWLEC 334

> Land and Environment Court of New South Wales

CITATION : S & J Yarham v Ryde City Council [2003] NSWLEC 334 revised - 26/03/2004 APPLICANT S & J Yarham PARTIES : RESPONDENT Ryde City Council FILE NUMBER(S) : 10691 of 2003 CORAM: Hoffman C KEY ISSUES: Development Application :- Erection of four villa homes - drainage easement - manoeuvring on narrow driveway - elevated drive overlooking neighbours - noise from driveway - streetscape Ryde Plannning Scheme Ordinance LEGISLATION CITED: Development Control Plan 37 Development Control Plan 21A CASES CITED: DATES OF HEARING: 17, 18 and 19/11/2003 EX TEMPORE JUDGMENT DATE : 12/24/2003

APPLICANT Ms M Tzannes, barrister

LEGAL REPRESENTATIVES: RESPONDENT Mr R Graham SOLICITORS Abbott Tout

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10691 of 2003

Hoffman C

24 December 2003 S & J Yarham Applicant v Ryde City Council Respondent Judgment 1 This was a class 1 appeal 10691 of 2003 between S and J Yarham and Ryde Council in regard to the refusal of consent for four villa homes at 100 Agincourt Road, Marsfield. The area was predominantly detached dwellings dating from about the 1950s but with some new houses. 2 The site sloped down from the road and there was a retaining wall on the front boundary with a drop of about 1 m. The site had a larger width than most lots in the vicinity. It was 28.3 m with a depth of 46 m and an area of 1302 m2. Beyond the retaining wall the land sloped down about 4 m from front to back. 3 On its east side was an easement for local drainage and there was a council pipe laid beneath the ground that took water to the next street downhill being Wilga Place. The pipe was in damaged and in heavy rain surcharged overland through the lower part of the site and the house lots below. The neighbours downhill were anxious that this problem be fixed. Council wanted to have a bigger pipe installed. There were negotiations going on between the applicants and council in this regard during the hearing. There were also difficulties with car on-site manoeuvring and driveway gradients. The drive was partly in the easement. 4 During the hearing, the drawings had changed without objection from the respondent, and at the end of the hearing the Court noted there were no clear final drawings that could be the subject of any consent, and the draft conditions on several aspects had not been updated to coincide with the changed drawings. 5 The matter was adjourned for the parties to deal with these matters and, upon resumption, updated plans that amended the building and the driveway and drainage were tendered in Exhibits R and T, and updated conditions in Exhibits 13, 14 and 15 for incorporation into Exhibit 6. In part they required deferred commencement consent to enable drainage works in a widened easement to be carried out prior to the development. 6 The applicant also proposed in Exhibits M and N a western boundary fence of part obscured translucent material to reduce shadows cast by the fence into the private courtyards of each villa. The courtyards were well-oriented to catch the sun but had the disadvantage of having an existing retaining wall on the western boundary to the uphill neighbour at 98 Agincourt Road. 7 The issues were: 1. Whether the proposed development can be or should be approved having regard to the topography and nature of the site in the absence of a development application and the material lodged therewith of, 1.1 Full construction details of the on-site detention tank showing cross-sections of the tank as specified in accordance with the requirements of council's DCP 41 stormwater management; 1.2 Hydraulic analysis of the existing drainage system for storm events up to the one in one hundred year ARI flow down to Wilga Place. This should pay particular attention to the requirement that there be no adverse impact on downstream properties and to critical points within the road such a driveways. All design details are to be to the council's requirements; 1.3 Sufficient levels to accurately determine the cross-fall grades. The driveway and car parking area levels require checking by contour grading of the driveway with particular attention being given to the area in front of the garages; 1.4 The connection details to council's stormwater system and details of the capacity of the pipeline and easement as required in DCP 41; 1.5 An assessment of the impact of the proposed development upon significant trees on the subject property and the absence of an arboricultural assessment, particularly having regard to the location of the buildings upon the land and their proximity to the significant trees, the location of retaining walls, drainage pits and all other construction impacts. 2. Whether the development should be approved having regard to the proposed location of the on-site detention tanks and the relationship of the proposal with the drainage easement through the property. 3. The absence of a layout plan with longitudinal section of council's pipeline including all structures between the pit in Agincourt Road and the pit in Wilga Place prepared to AHD levels. 4. Non-compliance with the floor to ceiling height for villas being 2.7 m as prescribed in DCP 21A urban housing, and the resultant non-compliance with the height limits for each villa of 4 m. 5. Whether the amenity of future residents of the villas proposed would be acceptable having regard to the non-compliance with the required height limit of 4 m and floor to ceiling levels of 2.7 m. 6. Whether the proposed height of villas 2 and 3 is considered acceptable in terms of bulk and scale of the development, the height being exaggerated by the floor levels in bedroom one of each villa being raised between 1.3 m and 1.6 m above natural ground level, and the failure of the development to respond to the natural topography of the site. 7. Whether the proposed design of the development is acceptable in its presentation to the street with the front dwelling appearing to have a width of over 20 m, which is considered excessive and beyond the scale of a normal dwelling house. 8. Non-compliance with council's DCP 21A requirement that the frontage of the buildings and their entries are to be readily apparent from the street and to convey a sense of address, particularly in respect of villas 2, 3 and 4. 9. Non-compliance with the requirement of council's DCP 21A that garages and other parking structures and car parking spaces are sited and designed not to dominate the site and the dominance of garage openings within the development. 10. Whether the proposed driveway is considered to be acceptable in terms of its visual gunbarrel appearance, the lack of any articulation or areas of landscaping along its length, and the excessive amounts of hard paved surfaces associated therewith which are considered unacceptable in terms of the adverse visual impact they create both internally and externally to the development. 11. The requirement for substantial retaining walls to be constructed along the southern boundary in the absence of any information to assess the impact of the raising of the ground level in these locations. 12. Whether the proposed construction of the driveway is considered acceptable having regard to the likely impact upon council's stormwater pipe and easement along the southern boundary, the impact of the retaining wall on the easement and pipe and the resultant need to relocate the driveway, which will narrow the driveway within the front setback and introduce a bend near villa one, which is considered unsatisfactory for safety reasons. 13. Whether the proposed window treatment in the development is considered acceptable from a privacy point of view and particularly the potential for future occupants of the villas proposed to overlook the adjoining dwellings to the south. 14. Whether the location of the visitor car parking spaces is considered acceptable, given that it will be raised more than 1 m above natural ground level and will overlook the private open space of the adjoining dwellings at 104 Agincourt Road and 10 Wilga Place. 15. Whether the extent of cut along the northern boundary of the site is considered acceptable, particularly in regard to the adverse impact upon a large part of the courtyard to villa two in terms of solar access and the necessity for the construction of an 850 mm retaining wall for a large section of its length with a 1.8 m high timber paling fence above the retaining wall, resulting in inadequate solar access for the courtyard to villa two during winter months and the lack of any alternative private open space. 16. Whether the topography to the site prevents the proposed development providing an accessible path of travel from the street to the front door of the development and to all internal and external parts of each dwelling, particularly having regard to the need for access for disabled. 17. Non-compliance with the requirements of DCP 45 in relation to ESD principles and the reduction of energy consumption. 18. Whether the proposed density of the development is considered acceptable having regard to the density of the development on adjoining and surrounding properties. 19. Matters raised by reason of the objectors. 20. Circumstances of the case. 21. Public interest. 22. Matters raised by the New South Wales Police Department by way of a safety by design assessment, namely: 22.1 The position of the garages is not considered acceptable given their setback in the design of the villas and from the boundaries thereof, which design does not permit any natural surveillance for the garage given the setback into the building design creates a potential area of entrapment; 22.2 The location of all living areas towards the rear of the proposed villas does not permit natural surveillance for the entry, garages and driveways of the development. 8 At the conclusion of the hearing, issues 1 to 6 were resolved by conditions including the amended document in Exhibit 15. 9 That being the case, issues 11 and 12 were resolved by the driveway being lowered down to avoid boundary retaining walls adjoining 104 Agincourt Road and 10 Wilga Place. The only retaining wall would be at the street boundary where the driveway had to rise up to the footpath level as it did for 104 Agincourt Road. 10 The south boundary stated in issue 11 was really the east boundary as the natural slope of the ground was not to be disturbed along the south boundary.