Land and Environment Court of New South Wales CITATION : Dowse Norwood Architects Pty Limited v Queanbeyan City Council [2006] NSWLEC 203 APPLICANT: PARTIES : Dowse Norwood Architects Pty Limited RESPONDENT: Queanbeyan City Council FILE NUMBER(S) : 10408 of 2005 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Not compatible with the neighbourhood - Other issues include privacy, streetscape, overlooking and overshadowing, and also the removal of trees on the site Queanbeyan Local Environment Plan 1998, (QLEP) Development Control Plan No 1 Car Parking, (DCP1) Development Control Plan No 41 Soil Water and Vegetation Management Plans, (DCP41) LEGISLATION CITED: Development Control Plan No 42 Landscape Policy, (DCP42) Development Control Plan No 46 Multi-Dwelling Housing, (DCP46) Development Control Plan No 50 Advertised Development and Public Notification, (DCP50) Development Control Plan No 52 Safe Design Guidelines for the City of Queanbeyan, (DCP52) Environmental Planning and Assessment Act 1979, ss 79C and 97 DATES OF HEARING: 28/03/2006 DATE OF JUDGMENT: 04/26/2006 APPLICANT: Mr A Galasso, barrister instructed by Mr M Saliba, solicitor SOLICITORS: LEGAL REPRESENTATIVES: Coleman & Greig, Solicitors and Notaries RESPONDENT: Mr A Bradbury, solicitor with Ms M Window, solicitor SOLICITORS: Minter Ellison Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Watts C 26 April 2006 10408 of 2005 - Queanbeyan City Council v Dowse Norwood Architects Pty Limited JUDGMENT 1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Queanbeyan City Council (the council) to refuse a development application to demolish the existing buildings; remove existing trees; erect six (6) townhouses and subdivide the land into six (6) strata title allotments at Lot 1, DP 1028157, being No 23 Allumba Street, Letchworth, Queanbeyan. 2 I visited the land in company with the parties on the morning of the hearing and heard from local residents. 3 I have concluded that the consent orders agreed by the parties should be made. The land 4 The land is situated on the southern side of Allumba Street and is a battleaxe allotment accessed from Allumba Street, and has an area of 2,648m2. The handle of the battleaxe, is on the northern end of the block, and has a width of 7.02m, and a length of about 21m. The main part of the allotment is trapezoidal. The eastern boundary is 90.61m, and the southern boundary is 42.88m, the western boundary, which has one change of direction, has a total length of around 55.79m, and the inner northern boundary, is 27.89m. 5 The land rises gently from the north, the Allumba Street access point, to the south. There are twenty-three (23) trees, including 19 Eucalypts, on the land giving a mature landscaped character. 6 Erected on the land is a two-storey flat-roofed, Pettitt and Sevitt-designed dwelling house, a garage and outbuilding, shed and wooden pergola. There is an in-ground pool enclosed by a steel fence, and there is no fence along the eastern side of the driveway. 7 The land is within an established residential area, characterised predominantly by single-storey detached dwelling houses. Single-storey dwellings abut the land on its western, southern, northern and part of its eastern boundary. All dwellings on the opposite northern side of Allumba Street are also single-storey. A small park is located to the east of the block, abutting the eastern boundary and the handle of the battleaxe. Relevant planning controls Queanbeyan Local Environment Plan 1998, (QLEP) 8 Under the provisions of the QLEP the land is zoned 2(d) Residential D, and the proposal as a multi-unit dwelling development is permissible with consent. Of relevance are Part 1, General Provisions; Part 3, Residential Zones; Part 12, Heritage Provisions; Part 13, Special Provisions; and Schedule 1. There are no specific development standards applying to multi-unit dwelling development. Development Control Plan No 1 Car Parking, (DCP1) 9 Clauses 1, 2, 3, 4, 5, 6 are relevant. Development Control Plan No 41 Soil Water and Vegetation Management Plans, (DCP41) 10 Items No. 1, 2, 3, 4, 5, 6, 7 9 of DCP41 are relevant. Development Control Plan No 42 Landscape Policy, (DCP42) 11 Parts 1, 2, 3 of DCP42 are relevant. Development Control Plan No 46 Multi-Dwelling Housing, (DCP46) 12 Parts 1, 2, 3, 5, 7 and 8 are relevant. Development Control Plan No 50 Advertised Development and Public Notification, (DCP50) 13 Items 1, 2, 3 and 4 are relevant. Development Control Plan No 52 Safe Design Guidelines for the City of Queanbeyan, (DCP52) 14 Clauses 1, 2, 3, 4.1, 4.2 and 5 of DCP52 are relevant. The proposal and its history 15 Development application No 395-2004 was lodged with the respondent council on 19 August 2004 to erect six (6) townhouses and to subdivide the land into six (6) strata title allotments. 16 The proposal is to: (a) Demolish all existing buildings and structures including a two-storey dwelling house, garage, external pool, shed and other outbuildings. (b) Remove all existing trees. (c) Erect six (6) townhouses comprising three x two-storey buildings each containing two (2) townhouses. (d) Provide a single driveway with central turning circle, paving, landscaping and fencing. (e) Subdivide into six (6) strata title allotments, and common area including the driveway in the battleaxe handle. 17 Each of the proposed new dwellings would comprise three (3) or four (4) bedrooms and integrated double garage with internal access. The dwellings will face onto a central space. Notification 18 The application was notified to nearby owners and occupants from 30 August 2004 to 17 September 2004. The council's notification letter was sent to Nos 13, 15, 17, 19, 21, 41 and 43 Allumba Street, and Nos 21, 23, 25 and 27 Garrong Avenue. A second letter was subsequently sent to the same addresses, extending the comment period until 24 September 2004. The development application was also notified in the 'Queanbeyan Age' from 3 September 2004 to 17 September 2004. At the end of the extended notification period the council had received eleven (11) submissions and one (1) late submission. 19 The resident concerns focussed on tree removal, privacy and traffic. The council's decision 20 The council at its meeting of 17 November 2004, resolved to defer consideration of the application until a site inspection had been held. On 8 December 2004 the Mayor, councillors, council staff, the applicant, and 35 local residents attended the site inspection. 21 By notice dated 15 December 2004, the council refused the application for the following reason: The development is inappropriate for the area on the basis that it is not compatible with the neighbourhood, privacy issues, streetscape, overlooking and overshadowing, and also the removal of trees on the site. The hearing 22 The appeal was filed on 29 April 2006. 23 Mr M E Neustein the Court-appointed town planning expert, supported approval of the development application provided the existing building on the land was not found to be a heritage item and he endorsed the recommendation to record the building before demolition. 24 Local residents who gave evidence on site included: · Mr T Wilson, resident of No 14 Allumba Street, Letchworth; · Ms N A Dean, resident of No 19 Allumba Street, Letchworth; · Ms P Bright, resident of No 21 Allumba Street, Letchworth; · Ms E F Anderson, P O Box 222, Queanbeyan; · Mrs K A McGrath, resident of No 46 Allumba Street, Letchworth; · Mr A P Danzey, resident of No 43 Allumba Street, Letchworth; · Mrs A J Garlick, resident of No 34 Allumba Street, Letchworth; · Mr I Huntstep resident of No 2A Garrong Street, Queanbeyan. The issues 25 On about 1 June 2005, the council filed a statement of issues. Part 1.5 of Dwelling Control Plan No 46 - Multi Dwelling Housing requires the proponent to demonstrate to Council (using Performance Criteria and/or Acceptable Solutions) that the proposed design meets the Objectives of each element. The proposed development fails to meet the requirements of DCP46 in the following aspects: (a) Design element No 1: Neighbourhood compatibility Objective 01 The proposal has not demonstrated that the development is compatible with the neighbourhood or is sensitive to the landscape and environmental conditions of the locality. Performance Criteria P1 The proposed design has not achieved: · An attractive residential environment clearly compatible with the neighbourhood, as the proposal represents a 2 storey multi-unit development in a neighbourhood, which has a predominant low density, single storey character. · Respect of established neighbourhood style including vegetation and landscape character, as the proposed development does not respect the existing mature landscape character on the site, which is continued through the open space system which leads to Furlong Road, as a major neighbourhood feature. · Efficient use of features of the site, eg existing vegetation, as the development involves the removal of all existing trees. Performance Criteria P7 The proposal has not demonstrated that the bulk of new development is compatible with the scale of the neighbourhood area, particularly where the neighbourhood has some distinctive character (in this case predominantly a distinctive single storey character). (b) Design Element No 2 Density Objective 01 The proposal has not demonstrated that the scale of new buildings respects that of existing adjoining buildings for the following reasons: · the proposed development involves 2 storey, semi-detached, building forms; · all adjoining dwellings are single storey and detached. Performance Criteria P1 The bulk of the new development, which is mainly 2 storey, is not compatible with the scale of existing development in the locality, particularly that on the perimeter of the site, which is single storey. The difference in height and density will create problems for adjoining residents in terms of reduced amenity and privacy, overlooking etc, and the new development cannot there be regarded as compatible with existing development. (c) Design Element 4 Building Form Objectives 01, 02, 04 The proposal has not demonstrated that: · The height and scale of the proposed new multi-dwelling housing relates well to its neighbourhood setting, as it imposes a 2 storey multi-unit development in the middle of a single-storey, detached housing context. (Objective 01). · It retains the amenity of surrounding properties, as it will create overlooking from the living areas, and in some cases, the outdoor terraces, of the upper floors of the new dwellings. (Objective 02). · It maintains sunlight access into neighbouring private open spaces, as there will be some overshadowing from the new development at certain times. (Objective 04). Performance Criteria P1 The proposed siting and height of the 2 storey dwellings is not responsive to the need to ensure there is no significant loss of amenity to neighbouring residents. In particular, building heights are not similar to those in the neighbourhood (second dot point), separation between dwellings is not sufficiently adequate to ensure privacy (fourth dot point), and building bulk is such that it does not minimise impact on neighbours (fifth dot point). Performance Criteria P4 The siting of the proposed dwellings will create some mid-winter overshadowing of adjoining properties to the west in the morning, and adjoining properties to the east in mid-afternoon. The private rear garden spaces of proposed Units 1 and 2 will be in shade most of the day in mid-winter. (d) Design Element 5: Visual and Acoustic Privacy Objective 01 The proposal has not demonstrated any satisfactory attempt to limit direct views from the proposed new dwellings into the open space areas and habitable rooms of neighbouring dwellings, as the placement of windows of major living areas (Units 1, 2, 4 and 5) and outdoor terraces (Units 4 and 5) at the upper levels, in a direct interface with adjoining properties, has not been mitigated through proposals for landscaping, screens, or alternative window treatments or dwelling design etc. Performance Criteria P1 The proposal has not demonstrated any satisfactory attempt to minimise overlooking of other dwellings by building layout, location of windows and balconies, screening devices or landscaping. Units 1, 2, 4 and 5 have extensive upper level windows, and Units 5 and 6 also have upper level outdoor terraces, all at the rear of the dwellings, directly overlooking adjoining dwellings, thereby impacting on the privacy, enjoyment and use of their main living areas and private open spaces. Performance Criteria P2 The development has not been designed and sited to satisfactorily acknowledge the private open space of adjoining dwellings, as it has sited the dwellings, and placed upper floor windows and outdoor terraces, in a manner, which will have a major impact on the legitimate expectations of adjoining residents for quiet enjoyment of their private open spaces. (e) Design Element 8: Open Space and Landscaping Performance Criteria 10 1. The proposal does not demonstrate that an adequate attempt has been made to retain major existing trees, where practical, through appropriate siting of dwellings. Although the Condition Report on Existing Trees (Canopy Tree Experts 27 May 2004) indicated that many trees may be inclined to wind damage if left to stand alone, only one of the 23 trees on site was assessed to have "poor" health and vigour. The trees collectively provide a mature landscape character, which enhances the visual and environmental amenity of the area. There appears to have been no assessment of the ecological value of the existing trees. 2. The proposed development has not sought to demonstrate through design that the proposal can address the concerns, and perceptions raised by neighbours in respect of decreased amenity, lack of privacy, overlooking loss of existing trees, excessive scale and height, increased traffic and street parking, increased noise etc. 26 Representative of the council and the applicant came to Court seeking a consent award. They had agreed that the salient issues have been resolved and that the application may be approved. The evidence and findings Streetscape and neighbourhood compatibility 27 Mr Bradbury submitted that DCP46, gazetted in 2003, applied when the application was originally lodged and now although the application falls to be considered under the 2006 version of the development control plan there is no material difference in the standards to be applied. 28 The council had refused the proposal for reason that the applicant had not demonstrated that the development would be compatible with the neighbourhood or would be sensitive to the landscape and environmental conditions of the locality. 29 Mr Galasso, for the applicant, submitted that the proposed density, in terms of floor space ratio (FSR), as calculated under the provisions of DCP46, would be 0.39:1 or "…just over half that mandated by the controls" at 0.7:1. He submitted that the proposal would meet streetscape and neighbourhood compatibility concerns expressed by the council when it refused the application. 30 Mr Neustein examined the question of whether the two-storey proposal would be compatible with the neighbourhood character of the area. He concluded: The proposal is not in character with existing development in the immediate vicinity but is consistent with the zoning. It's residential scale is not out of keeping with the low to medium density residential area or out of keeping with the substantial houses in Allumba Street surrounding the subject site. 31 I am satisfied that the proposed design would in time be rendered compatible with the existing attractive residential environment, and although the proposal is for a two-storey, multi-unit residential development, in a predominantly low-density, single-storey area, it is well removed from the road and would be screened from neighbours by new vegetation. Also, the design ensures that living areas mainly face away from neighbours and towards the central courtyard and or otherwise screened. Tree retention 32 The 'Condition Report on Existing Trees' [Note: Canopy Tree Experts dated 27 May 2004] indicated that many trees might be inclined to wind damage if left to stand-alone. The applicant has indicated a preference to remove the existing vegetation in the interests of safety, however, that vegetation would be replaced by landscaping compatible with a multi-unit residential development. I am satisfied, in the particular circumstances of this case, this would be a reasonable outcome, and one that is now accepted by the council. 33 Mr Neustein addressed the question of whether the proposed tree loss would result in an unacceptable diminution of the landscape quality of the neighbourhood. He concluded, [Note: Exhibit 1, p5]:: In the issues (Issue 1(a)) is contained the suggestion that the landscaping of the proposal can never match that of the area at large, especially because it is mature. My observation of the site and the neighbourhood is that the landscaping is cultural, not natural, and that this may be emulated, to the degree sought necessary, by the imposition of an appropriate condition or set of conditions. 34 Although the proposal would require the removal of all vegetation the applicant has a landscaping plan that would reinstate vegetation and provide a new setting for the proposal. The development is permissible on the land and the environmental impact is what would be expected under the controls and I would not refuse the application for this reason. Privacy 35 Mr Galasso submitted that Mr Neustein's report referred to the AMCORD separation between habitable rooms and the proposal meets this standard. Mr Galasso also submitted that the proposed screening incorporated in the design would limit overlooking of adjoining properties. 36 Mr Neustein stated, [Note: Exhibit 1, p6]: The proposal is positioned between 3.5 and 7.6 metres from the common boundary with neighbouring houses, which themselves are 4.5 metres from the boundary. Taking into account the position of windows in the upper floor, no window is closer than nine metres to those of neighbours, thus meeting the AMCORD standard. Oriented so that the living rooms look out over the circular driveway with the central planting, four of the proposed units have kitchen windows and a dining terrace looking towards a side boundaries. The distance between these windows and the nearest walls of adjoining houses is over 11 metres, above the 9 metre AMCORD standard. There is sufficient space between the proposed buildings and the boundary for landscape screening as AMCORD requires no further method. The terraces are one metre closer to the boundary and thus still meet the AMCORD standard. These terraces would be improved by the addition of privacy screens, to a height of about 1.5 metres, a more effective immediate solution than the planter boxers proposed in the amended plans. All other windows facing the side boundaries are those of bedrooms and no screening, beyond landscaping, is required. 37 I accept the evidence of Mr Neustein that this aspect of the design has been adequately addressed. Solar access 38 In regard to the question of solar access Mr Neustein stated, [Note: Exhibit 1, p6]: Overshadowing caused by the proposal at the winter solstice is largely confined to the site in itself and will not infringe the DCP standard of requiring two hours of sunlight to the northerly-oriented yards of adjoining dwellings (page 44). Internal overshadowing, which falls on minor spaces between buildings, is not sufficient reason to refuse development consent. Similarly, it may be inferred that all surrounding buildings will have sufficient solar access, even in midwinter. 39 I am satisfied that the proposal would maintain a reasonable level of sunlight access into neighbouring private open spaces, as per Objective 04 of DCP46. Car parking 40 Mr Galasso submitted that sufficient car parking is proposed to meet the DCP46 standard of two car parking spaces per three-bedroom dwelling and one for 5 for visitors. There was no issue between the parties in this regard. 41 Mr Neustein stated, [Note: Exhibit 1, p7]: Two visitors' parking spaces are provided on site, as required by the DCP, with further two or three spaces available in front of some of the townhouses. This should be sufficient for most occasions, but for rare events like parties, there may be some spillover to Allumba Street, which has considerable and mostly underused parking capacity. 42 I am not persuaded by the resident submissions that the application should be refused for this reason. Traffic 43 Mr Neustein was of the opinion in this regard, [Note: Exhibit 1, p7]: In spite of what some residents have suggested, this cul-de-sac does not have a dangerous section and a very small increase in traffic will not cause safety problems. Stormwater 44 In respect of stormwater Condition 46 is proposed in an amended form and this is acceptable to the council, [Note: Exhibit 4]. Heritage 45 Mr Neustein raised the issue of heritage of the Pettit and Sevitt dwelling on the land that was designed by Ken Wooley for Dr Madew, the previous owner of the land and but for this he would have recommended approval. 46 The heritage value of the building was addressed in a report [Note: Exhibit 6, Tab 7] and in the Heritage Report of Mr Martin in Exhibit 9. Mr Martin concluded that there were around 4000 project homes built and the Mark 5 is not rare. He recommended that photographs be taken of the site prior to the demolition of the building and Condition 5 is proposed to that end and this is acceptable to the applicant. 47 Despite his concerns in relation to the heritage significance of the existing building, Mr Neustein assessed the application and concluded that the proposal would be consistent with the current zoning and that the environmental impacts are acceptable. I accept that evidence. For the above reasons, the appeal is upheld. Conditions 48 The conditions are those attached to the consent orders in Exhibit 2 and as amended during the course of the hearing. 49 The applicant was willing to submit to the draft Condition 46 concerning stormwater, [Note: Exhibit 4]: 46. All stormwater generated within the property must be detained on site and discharged at pre-development flow rates to the street gutter. An engineering design of the proposed drainage system is required before the issue of a construction certificate. 50 The applicant also was willing to submit to the draft Condition 1B concerning privacy screens to balconies designed to protect the privacy and amenity of the neighbours in accordance with Council's DCP46, [Note: Exhibit 5]. 1B. The planter boxes shown on the plans to the first floor terraces to Units 5 and 6 are to be replaced by a 1 metre high solid balustrade in line with the lower floor outside wall. On top of the balustrade, a horizontal louvre frame projecting 1.2 metres out from the building and with its louvres fixed in such a way so as to prevent looking down into the rear yards of neighbours properties. Costs 51 The parties agreed to make no costs application and I order that there be no costs as agreed. Consent orders 52 The parties agreed to consent orders: 1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld. 2. Development application No 395-2004 lodged with the respondent council on 19 August 2004, to demolish the existing buildings; remove existing trees; erect six (6) townhouses and subdivide the land into six (6) strata title allotments at Lot 1, DP 1028157, being No 23 Allumba Street, Letchworth Queanbeyan is approved subject to Conditions No 1 to 52 in Annexure A. 3. No order as to costs. 4. The exhibits except for Exhibits A, C, 2, 4, 5, 7, 9 and 11 are returned. S J Watts Commissioner of the Court sw The consequence of the Court's decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.