John Atra v Canterbury City Council [2004] NSWLEC 317

Land and Environment Court of New South Wales

CITATION : John Atra v Canterbury City Council [2004] NSWLEC 317 APPLICANT PARTIES : John Atra RESPONDENT Canterbury City Council FILE NUMBER(S) : 10171 of 2004 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Status of the Draft Local Environmental Plan - Streetscape impact - Overshadowing. LEGISLATION CITED: Canterbury Planning Scheme Ordinance, (CPSO) - Draft Local Environmental Plan No 204, (DLEP) - Energy Smart Homes Policy - Development Control Plan No 37, (DCP37) - Development Control Plan No 32 - Notification Policy, (DCP32) - Single Unit Dwelling House Code, (Code) Environmental Planning and Assessment Act 1979, ss 79C and 97 CASES CITED: DATES OF HEARING: 10/06/2004 DATE OF JUDGMENT: 06/24/2004

APPLICANT Mr M J Connell SOLICITORS Michell Sillar LEGAL REPRESENTATIVES: RESPONDENT Mr A J Seton SOLICITORS Marsdens Law Group

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

24 June 2004

10171 of 2004 John Atra v Canterbury City Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Canterbury City Council (the council) of a development application to demolish the existing dwelling and to erect two new attached two-storey dwellings at Lots 2 and 3 of DP 4390, being Nos 28 and 28a Woolcott Street, Earlwood. 2 Separate development applications were lodged for each of the proposed two attached dwellings: · DA No 332/03 - 28 Woolcott Street (Lot 2); and · DA No 333/03 – 28a Woolcott Street (Lot 3). 3 By consent the two applications were dealt with together in this Appeal No 10171 of 2004. 4 I visited the land in company with the parties on the first day of the hearing. 5 I have concluded that both the development applications are satisfactory when assessed under the heads of consideration of s 79C of the Environmental Planning and Assessment Act 1979 . 6 I accept that the draft environmental planning instrument might be 'certain and imminent' as it has progressed well on the way to being gazetted. Despite this, the present planning controls continue to apply to the land and I am satisfied that the proposal is one that is acceptable under that zoning and may be approved with conditions. The land 7 The land is situated on the eastern side of Woolcott Street between Elsie Street and Caroline Street, Earlwood. Erected on the land is a vacant freestanding single-storey fibro cottage, which straddles both lots, and with a rear-detached garage with driveway along the northern side of the land. 8 The land comprises two rectangular adjoining lots and each lot has a frontage of 6.095m with a depth of 36.575m giving an area of 222.9m2 and a combined area of 445.8m2. 9 The area is characterised by a mixture of single-storey and two-storey detached dwellings some that straddle two or more lots. 10 To the north of the land is a single-storey dwelling with a rear private open space area and car parking area accessed off Elsie Street. To the south is a single-storey dwelling containing a front porch and a detached garage with a rear open space area. 11 To the east of the land is a part single-storey and two-storey dwelling with access off Elsie Street. 12 To the west of the land located on the other (opposite) side of Woolcott Street are single-storey dwellings similar to those properties adjacent to the subject land. 13 A bus stop is located adjacent to the southern property adjoining the land to the south that services the local area with regular services operating throughout the week. Relevant planning controls Canterbury Planning Scheme Ordinance, (CPSO) 14 The land is zoned Residential 2(b) under the CPSO and the proposed developments are permissible with consent. Draft Local Environmental Plan No 204, (DLEP) 15 In June 2003 the council resolved to prepare the DLEP for land bounded by Burlington Avenue, Karool Avenue, Caroline Street, Thompson Street, Spark Street and Woolcott Street, Earlwood. 16 The aim of this DLEP is to restrict the practice of demolishing a single dwelling house that straddles two or three allotments, and replacing that single house with multiple attached dwellings or one dwelling per lot. 17 The DLEP was placed on public exhibition from 30 October 2003 to 27 November 2003. All affected property owners were notified in writing. 18 On 11 December 2003, the council resolved that the DLEP be adopted and referred to the Department of Infrastructure Planning and Natural Resources (DIPNR) for final approval and gazettal. The Parliamentary Counsel has now indicated it may be made and a s 89 report has been prepared for the Minister. 19 It is not clear whether or not there will be contained within the instrument a 'savings clause' that would enable the present development applications, not yet determined, to be considered as if the existing planning instrument still applied. Energy Smart Homes Policy - Development Control Plan No 37, (DCP37) 20 DCP37 applies to all land within the City of Canterbury for alterations and additions to dwellings, new dwelling houses, dual occupancy townhouses and villa homes multiple unit developments. 21 The objectives of DCP37 as stated in cl 1 are: 1. To contribute towards a more sustainable urban environment; 2. To promote a more liveable residential environment; 3. To promote energy efficiency in the design, construction and use of housing; 4. To protect solar access enjoyed by neighbours; 5. To encourage the use of energy efficient hot water heating and lighting appliances; and 6. To encourage the use of water saving devices. 22 Section 7.9 of DCP37 deals with solar access to neighbouring properties and requires that: All proposals must demonstrate that any adjoining property will receive at least two hours of sunlight between 9.00am and 3.00pm on June 21 to at least 50% (or 35sqm with minimum of dimension 2.5m, whichever is lesser) of the principal area of ground level private open space of the adjacent properties. Where existing overshadowing by buildings and fences is already greater than this, sunlight is not to be further reduced by more than 20%. In addition, at least one living room window must also receive a minimum of 2 hours sunlight between 9.00am and 3.00pm on June 21. For example, rooms normally occupied during the day. Where less than 2 hours of sunlight is currently available, that sunlight is not to be reduced further. When considering this issue Council will also take into account block orientation, existing boundary setbacks and solar access to living room windows not affected by the proposal. Neighbouring clothes drying areas must also receive a minimum of two hours of sunlight on 21 June between 9.00am and 3.00pm. Development Control Plan No 32 - Notification Policy, (DCP32) 23 DCP32 applies to all development in the City of Canterbury and stipulates a notification period of fourteen days. Single Unit Dwelling House Code, (Code) 24 Clause 1.1 of the Code states: 1.1 This code applies to all new dwelling houses and extensions and alterations to existing dwelling houses. 1.4 Compliance with the requirements of the Code does not necessarily imply automatic approval, as the merits of each individual proposal will be taken into consideration in determining application. 1.5 Where special conditions or circumstances prevail, departures from the requirements of the Code will be considered on their merits by Council having regard to those special circumstances and conditions. In such cases, it is suggested that the application be accompanied by a letter detailing why a departure from the Code should be permitted.