Roselli v Strathfield Municipal Council [2005] NSWLEC 336

Land and Environment Court of New South Wales

CITATION : Roselli v Strathfield Municipal Council [2005] NSWLEC 336

APPLICANT Mauro Roselli

PARTIES : RESPONDENT Strathfield Municipal Council

FILE NUMBER(S) : 10208 of 2005

CORAM: Bly C

KEY ISSUES: Development Application :- Demolition of existing building - erection of a two-storey dwelling - height - streetscape - bulk - scale - architectural character

Strathfield Planning Scheme Ordinance Draft Local Environmental Plan 2003 LEGISLATION CITED: Environmental Planning and Assessment Act Strathfield Development Control Plan No. 21 - Dwelling Houses and Ancillary Structures

CASES CITED: Project Venture Developments v Pittwater Council [2005] NSWLEC 191

DATES OF HEARING: 22/06/2005 EX TEMPORE JUDGMENT DATE : 06/22/2005

APPLICANT Mr D Briggs, solicitor SOLICITORS D G Briggs & Associates LEGAL REPRESENTATIVES: RESPONDENT Mr A Seton, solicitor SOLICITORS Marsdens Law Group

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Bly C

22 June 2005

10208 of 2005 Mauro Roselli v Strathfield Municipal Council

JUDGMENT

1 This appeal relates to development application No. 0304/466 and involves the demolition of an existing single storey dwelling and the construction of a new two storey rendered brick dwelling with attached double garage at 31 Merley Road, Strathfield ("the site"). 2 The site is located on the northern side of Merley Road between Dickson and Francis Street. It has an area of approximately 810 sq m and slopes from the rear to the street approximately 1.45 m. The streetscape is predominantly characterised by single storey Federation style Californian bungalows. A large rendered two storey brick dwelling is situated opposite the site and several dwellings within the immediate vicinity of the site are bagged or face painted. 3 The subject site currently adjoins a heritage item to the rear which is known as 8-10 Hyde Brae Street, Strathfield. 4 The site is situated in the Residential 2(a) Zone under the Strathfield Planning Scheme Ordinance ("the Ordinance"). In this zone the proposed dwelling house is permissible with development consent. Clause 59B of the Ordinance requires that consent cannot be granted to an application unless any nearby heritage item has been taken into consideration. There was no issue that this requirement is complied with, the applicant having provided an appropriate report assessing the relationship between the proposal and the heritage item at the rear in Hyde Brae Street. 5 Clause 41B of the Ordinance is a condition precedent that relevantly provides that consent shall not be granted unless the consent authority is satisfied that the proposal is compatible with other developments in the vicinity. 6 Also applicable to the site is draft Local Environmental Plan 2003 ("the draft LEP") which has been exhibited and is therefore a relevant matter for consideration under s 79C of the Environmental Planning and Assessment Act 1979. There was no suggestion that this draft LEP was certain or imminent. Under the draft LEP the site will continue to be zoned Residential 2(a). 7 Unlike the Ordinance the draft LEP contains zone objectives and relevantly objective (b) requires that new development should be compatible with the scale, density, form, urban design, streetscape and landscape characteristics of the neighbourhood. Clause 17 of the draft LEP contains general considerations for development within residential zones and relevantly provides that consent may be granted only if the proposed development would be compatible with the character and amenity of the existing and likely future buildings on adjoining land. 8 Relevantly, Strathfield Development Control Plan No. 21 – Dwelling Houses and Ancillary Structures ("the DCP") contains provisions relating to streetscape and character and I shall return to these later. It also contains numerical standards such as height, setbacks and floor space ratio and the proposal meets these requirements. 9 The application was notified and five objections were received from nearby residents plus an additional letter of objection from the Strathfield District Historical Society. Of particular relevance to the matter today were the expressed concerns in relation to adverse impacts on the streetscape. In this regard three residents of Merley Road provided oral evidence expressing concerns about the streetscape. Those residents were Paul and Dawn Morante, Truder Rail and Darryl Anderson. Their concerns were, generally speaking, that the character and style of the proposed house would be very different to the typical Californian bungalow, single storey style of house in the street and as such would be inappropriate in the streetscape. 10 The Strathfield District Historical Society also expressed concerns in relation to the Merley Road streetscape. More particularly, there are no housing styles of the type proposed in the immediate vicinity and there can be no justification to any claims that it is similar to other house types in the street or even the surrounding area. Also the use of a rendered finish rather than exposed brickwork is inappropriate. 11 The appeal to the Court is on the basis of the deemed refusal of the application. I understand that the council has considered a number of officers' reports including one that recommended approval of the application. 12 A more recent report by a council officer prepared in March 2005 recommended that determination of the development application be deferred to give the applicant an opportunity to redesign the proposal so as to be responsive to the streetscape. The report notes that the Merley Road streetscape is predominantly characterised by single storey Federation style Californian bungalows and comments that the proposed development being for a two storey building would have a bulk and scale that is inconsistent with the style of residential development in the vicinity. While the proposed development is of a height consistent to that of other two storey dwellings in the street, it would not be compatible with the existing and future scale of development in the vicinity. It is not responsive to the style, scale and materials in Merley Road which mostly include first floor additions constructed in a manner sympathetic to other dwellings in the streetscape. 13 The proposal does not contain elements of Federation style bungalows and provides an essentially flat façade which does not complement the streetscape. In concluding that the proposal is inappropriate in the streetscape context given its poor bulk and scale and conflict in relation to the existing character it was recommended that the application be deferred and the applicant given an opportunity to redesign the home. 14 Despite this recommendation the applicant chose to proceed with the appeal on the basis of what are essentially the original plans. 15 The only issue for the determination of the Court is the question of whether the proposed house would be appropriate in the Merley Road streetscape particularly taking into account the predominant height, bulk, scale, form and architectural character of the houses in the street. In considering this issue, and indeed understanding the basis upon which the streetscape became a matter of concern, one must turn to the DCP, a central consideration. 16 The specific objectives of the DCP are to be found in s 1.3 and to my mind the most important and relevant objectives are as follows:- 1. …… 2. To maintain compatible architectural styles of dwelling houses within a streetscape. 3. To maintain continuity of streetscape by requiring new and altered dwellings to be constructed in a similar size and scale to adjoining developments. 4. To preserve the overall appearance of the tree lined street and parklike environment of the Strathfield Municipality. 5–7. … 8. To protect and enhance the residential amenity of adjoining properties, more particularly in terms of streetscape. 17 Section 2.2 in effect requires that new development should improve the quality of existing streetscapes by enhancing positive elements and promoting changes to negative elements. It provides a number of guidelines to assist in achieving this objective: