Land and Environment Court of New South Wales CITATION : Boutouridis v Canterbury City Council [2004] NSWLEC 220 APPLICANT Bill Boutouridis PARTIES : RESPONDENT Canterbury City Counncil FILE NUMBER(S) : 11532 and 11533 of 2003 CORAM: Hoffman C KEY ISSUES: Development Application :- Demolish an existing cottage - build two semi-detached dwellings one on each small existing lot - draft LEP provisions - front setback - common side boundary setback - character of locality - density - bulk - scale - traffic and parking. LEGISLATION CITED: Environmental Planning and Assessment Act Local Government Plan CASES CITED: DATES OF HEARING: 26 and 30 March 2004 EX TEMPORE 04/02/2004 JUDGMENT DATE : APPLICANT Ms M L Taylor, solicitor SOLICITORS Taylor Kelso LEGAL REPRESENTATIVES: RESPONDENT Mr A Seton, , solicitor SOLICITORS Marsdens JUDGMENT: 1 IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 11532 and 11533 of 2003 Hoffman C 2 April 2004 Bill Boutouridis Applicant v Canterbury City Council Respondent Judgment 1. This was a class 1 appeal Nos. 11532 and 11533 of 2003 between B Boutouridis and Canterbury City Council in regard to the refusal of an application to demolish an existing cottage straddling two lots of land and build two semi-detached dwellings at 48 and 48A Woolcott Street, Earlwood. Lot 8 was No. 48A and appeal 11533 related to it. Appeal 11532 related to No. 48 being Lot 7. 2. The appeals were heard together at an on site hearing held on 26 March 2004, present were: + Mr A Seton, solicitor for the respondent and + Messrs M L Taylor, solicitor for the applicant 3 . For the applicant present were: Mr G Goodyer, town planner, Mr G Leigh, architect, Ms K Allen, law clerk, and Mr B Boutouridis, applicant. 4 . For the respondent present were: + Mr D Brindle, town planner, + Mr G Gouvatsos, manager development assessment Canterbury City Council, + Mr M Brown, development and assessment officer planning Canterbury City Council 5 . The objectors also present were: + Ms P Verdun of 11 Stone Street behind the subject site, + Ms C Fraser of 13 Stone Street to the south-east behind the site + Ms P Galanis, address not given, + Mr A and Mrs C Georgakopoulos of 9 Stone Street, behind the site, + Mr P Galanis, address not given, 6 . Also attending on the site view was: + Mr and Mrs Leung of 46 Willcott Street on the northern side of the site. 7 . The new owner of 50 Willcott Street, on the southern side of the site, Mr Stellios was not present, however a letter of objection was tendered, his main concern was overshadowing of his rear yard. 8 . The issues were similar in each appeal with some minor differences. The issues were: 1. The proposed development is prohibited under the draft Canterbury Local Environmental Plan 204 which inserts cl 62N into the Canterbury Planning Scheme Ordinance , in that land, subject of the proceedings does not comprise a "developable parcel". 2. The proposed development is unacceptable in that it is inconsistent with Part (a) of clause 4.1 of the Canterbury Single Unit Dwelling House Code ("the Code") particularly in terms of the provision of a front building line of 4.1 m for the proposed dwelling where a front building line of 7.5 m is required. 3. The proposed development is unacceptable in that it is inconsistent with Note 2 of clause 4.2 of the Canterbury Single Unit Dwelling House Code ("the Code") particularly in terms of the provision of a zero setback from the centre boundary of the proposed dwelling and the dwelling attached to the proposed dwelling, where a setback of 1 m is required. 4. The proposed development is incompatible with the existing character of the locality insofar as it constitutes an overdevelopment of the land in terms of density, bulk and scale. 5. The proposed development is unacceptable in terms of the potential for overshadowing of adjoining properties. 6. Whether the proposal will result in an unacceptable reduction in privacy for the dwellings located to the rear boundary of the proposed developed, within Stone Street. 7. The proposed development is not in the public interest. 9 . During the hearing Mr Brindle conceded the shadow drawing revealed that there was no unacceptable impact on No. 5 to the south of the site, nor on any other property, and issue 5 was not sufficient for refusal. 10 . Ms Verdun did not accept the shadow diagrams were accurate largely it seemed due to earlier drawings being proven to be inaccurate. The applicant produced an expert certification of the accuracy of the new shadow diagrams and the Court accepted it. 11 . Also during the hearing Mr Brindle said that the impacts on privacy were not sufficient for refusal, and Issue 6 was of little weight for the following reasons: + The separation distance for the first floor bedroom windows of the proposal to the rear balconies of the Georgakopoulos and Verdun houses was 18 m. The normally accepted minimum separation for privacy was 9 m. + Also the houses fronting Stone Street were uphill so, if anything, it was the applicant that suffered loss of privacy as the objectors look down to it. + In addition the back fences on the Stone Street houses prevented vision to the ground floor family rooms and rear yards of the proposal, so the essential living and outdoor activity areas of the proposal, would retain their privacy. + The bedroom balconies of the proposal facing the rear had privacy screens to prevent immediate overlooking of the backyards of No. 46 and No. 50. + Mr and Mrs Leung were under the impression the proposal came close to the rear boundary but they were shown the rear setback was 12 m to the family room and 9 m to the first floor bedroom balconies. Mr and Mrs Leung's own house had only a 3.6 m rear setback so it was not possible to see into their backyard from the proposed house except for the extreme rear south-east corner. + Mrs Fraser's house had an existing tree that almost completely screened the proposal from her. The only view she would have was oblique to the side windows of No. 48A at a distance greater than 18 m. 12 . The evidence showed that the critical issues in this appeal were draft Local Environmental Plan No. 204 having been exhibited and referred to the Department of Planning, Infrastructure and Natural Resources for report to the Minister for gazettal, and, the streetscape appearance of the proposal being too large amongst the existing houses and too close to the street. 13 . During the hearing the design was amended in response to comments from the respondent's experts. However, the experts, although agreeing that these did create improvements, the respondent's experts maintained it did not overcome the basic Issues Nos. 1, 2, 3 and 4 relating to bulk and scale. 14 . The changes to the plans in summary were: 1. A fake parapet to the eave gutter of the street front roof was deleted. This would reduce visual bulk from the street and improve the view of the Stone Street houses above the roof to the trees on a public reserve about 200 m to the west. 2. The original entry to each semi was via a masonry portico and gate within the side setback and then upstairs with zero side setback to a deck on the roof of each garage. This was deleted and the entry relocated within the width of the garage so that the side setbacks were retained on the north and south and the apparent width of the building reduced as seen from the street. 3. The front balustrade to the decks on each garage was to have been masonry in the original drawings and it was changed to glass. This would again reduce the visual impact in the streetscape. 4. The masonry privacy wall separating the adjoining garage roof decks and first floor balconies of the two semis was changed to obscure glass. This would again reduce visual impact. 5. The garage doors were reduced in width to make them less obvious. 6. The colour and materials and finishes were changed to suit these alterations and to make the garage doors blend in with the walls and again reduce visual impact from the street. 15 . The respondent did not object to these changes. 16 . The objectors in Stone Street were also concerned about noise generation from entertainment in the backyards of the proposal. The applicant drew attention to the objectors' own backyards which had paving and gardens and were capable of use for entertainment. The objectors said they were quiet persons who did not cause such nuisances. One reason for their concern however was "house-sitters" who had looked after Ms Verdun's home recently and kept the neighbours awake. 17 . The Court concluded the soft landscaping in the backyards of the proposal and their location well below the level of the houses in Stone Street was not as conducive to noise nuisance from entertainment as the two objectors' courtyards, and, permanent residents of the proposal would eventually adopt the local custom of quiet enjoyment of their homes. 18 . Although not specifically raised in the issues, the respondent said a consequence of being semi-detached was the southern house got inadequate solar access. Mr Goodyer thought the modified design would get acceptable internal direct sunlight through windows in mid-winter although he had not seen redrawn shadow diagrams. The rear yard and front balconies of the southern semi-detached house would get good direct sun in mid-winter. 19 . Looking at the shadow diagrams and the glass privacy screens reduced to 1.8 m high, the Court has concluded there would be some afternoon direct sun into the living rooms of the southern semi-detached house and it also had skylights to some rooms. The applicant produced a natHERS certificate showing the southern unit reached three and a half stars which is the acceptable standard under the council's controls. 20 . In regard to parking and traffic this arose from the objectors concerns and and Issue 1. The origin of the draft Local Environmental Plan had apparently commenced with these same development applications which were lodged in April 2002 for the subject site. The council had dealt with six reports on the proposal over the intervening years until the appeal was lodged in 2004. On each occasion Council officers had recommended approval whilst still supporting the draft Local Environmental Plan. 21 . The essence of the draft Local Environmental Plan was that the site was in a precinct of small allotments. Each lot in the precinct was just 6.095 m wide by 31 m deep and was subdivided in the year 1850 ostensibly to provide for workers housing for local quarries. 22 . Within the subdivision the streets were very narrow, and, as a result people used their front yards to park cars. Any on street parking, especially if both sides of the street were used, prevented through traffic. Most of the existing houses in this small lot subdivision straddled two lots. 23 . The advent of the subject development applications made the council and local residents realise if each lot had a new dwelling on it, the number of dwellings and thus the number of cars would almost double creating traffic and parking chaos greater than already existing. Many of the existing houses are old and ready for major refurbishment or rebuilding. 24 . As a result the draft Local Environmental Plan sought to allow only one dwelling per two lots, except where a single house on a single lot already existed, and thus preserve the existing density of houses and cars, and thus prevent a worsening of the existing situation. 25 . The apparent reasons that council officers supported the subject development applications was that the envelope of the proposed two semi-detached houses was about the same envelope that would be allowed for a new single house straddling Lots 7 and 8 under the council's controls; and more importantly, Woolcott Street was a wide street on the boundary of the AD 1850 small lot subdivision, unlike the narrow streets within the precinct such as Stone Street. As a result the same parking and traffic conditions did not apply as existing, for example, on Stone Street. 26 . The applicant's experts pressed this point, and also noted that at present only two on street parking spaces were available outside the site. The existing house had no onsite parking so these two spaces were in theory used by it. 27 . By having space for four cars onsite the proposal provided for all resident demand for parking on-site, and did not exacerbate parking demand on Woolcott Street. 28 . Also Woolcott Street, being wide and having larger lots and single houses on its western side, had a satisfactory supply of on-street parking spaces and still allowed two full sized moving traffic lanes. 29 . A further point pressed by the applicant's experts was that opposite the site was a pedestrian refuge in the centre of the road. This narrowed the carriageways a little at the site, and when cars were parked outside the site, it restricted the vision of both pedestrians using the crossing and drivers approaching it. The proposal, by having driveways, would prevent parking there and safety vision distances would be improved. The narrowed carriageways would be widened to normal size past the refuge. 30 . The evidence on these matters was quite compelling. 31 . On the bulk and height issues, which were associated with issue 4, the character of the locality, the applicant's experts said that the council height limit was 7.2 m and this was measured to the ceiling of the topmost floor, in fact the proposal was about 7.2 m to the ridge of the hipped roof, so on the street front the development application was considerably less than the maximum. 32 . Due to the slope of the land the garages were excavated below the ground level at the rear and the semis were two-storey only at the rear. At the street front they were two-storeys above garages it was true, but it was put that such could be expected in the future under the draft Local Environmental Plan, even though the existing houses were one-storey above garages or raised foundations as they faced Woolcott Street. 33 . The respondent thought this was not correct because the side boundary setback requirement would prevent semi-detached dwellings and this could visually reduce the scale of houses to be more compatible with the existing. 34 . Under the terms of the draft Local Environmental Plan this did not appear to be correct. A single house straddling two lots would be replaced by a single house of about the same proportions as the proposal. And in theory at least, under the draft Local Environmental Plan where there were two adjoining lots with existing small houses on each, the owners if they agreed, could apply for something like the proposal because a party wall allowed the benefit of greater width of floor space and on-site parking. 35 . The respondent was concerned that any approval for this development would form a precedent for others. The applicant showed 15 examples of recent single and attached dwellings near the proposal, and, not unlike the proposal to look at, except only five were two-storey above garages. Most were two-storey with either garages in the bottom storey or at a slightly lower level than the bottom storey to give them driveway access. Nevertheless they all showed quite a different character to the existing older houses on Woolcott Street. It was not a conservation area and the existing houses were not intended by council to be preserved. The character of Woolcott Street would change towards houses that fitted the height and bulk envelope permitted by the council's controls. 36 . The applicant put and the Court accepts that draft Local Environmental Plan 204 has no savings clause for applications received before the gazettal date (when it is known). A consent for this application cannot create a precedent for several reasons: 1. The gazettal date becomes the cut off date. From then on no other application for the demolition of a single house straddling two lots and the erection of a dwelling on each lot could be approved. 2. The issues of road and parking congestion are directly related to the narrow streets like Stone Street inside the AD 1850 subdivision. This site does not have those characteristics. 3. The circumstances of each lot or two lots or three lots, where there is an existing house, will be different to this situation and each must be determined on its merits. 37 . The remaining matter was the street front setback. The council's code which had never been made a development control plan asked for 7.5 m front setback, but it could be varied depending on the existing streetscape. In this proposal the garages were at the same front setback as the adjoining houses at Nos. 46 and 50, that is, about 4 m and the two living levels were setback at 7.5 m. 38 . When seen in elevation from the street the ground floor of the proposal, that is, the roof deck of the garage, is at the same level as the ground floor as Nos. 46 and 50 Woolcott Street. So, the proposal relates to them quite well in that the garages of the semis appear to be substructure, that is, substructure similar to the raised front foundations of Nos. 46 and 50. 39 . The main bulk of the proposal is then pushed back another 3.5 m behind the front walls of Nos. 46 and 50. This makes the proposal recessive compared to them although of course it will look considerably larger. But, because the ground floor levels are at the same level as its neighbours, and the first floor levels are at about the eaves height of its neighbours as seen in Exhibit J, drawing 71B, the proposal will look like an "in scale" two-storey building. It might be noted No. 50 stands on two lots and has been recently renovated so it is likely to remain the same in the foreseeable future and occupies about the same width of building as the proposal. Number 46 is on a single small lot. 40 . The draft Local Environmental Plan has never been seen before by the Department of Planning, Infrastructure and Natural Resources although it is in theory in its final phase. It has been referred to the department for report to the minister to obtain his or her approval of gazettal. A letter from the department in evidence stated that the council acted within its delegations in issuing the s 65 certificate for exhibition of the draft Local Environmental Plan, but no other comment was made. 41 . The council presses at this stage that the draft Local Environmental Plan is certain and imminent and the Court should apply that weight. That submission is not accepted as changes could be made by the department's report to the Minister, the Parliamentary Counsel, or by the Minister, including the insertion of a savings clause. If that was inserted the Court would come to the same conclusion that the proposal is reasonable. Therefore there being no other matter sufficient for refusal the application should be approved. 42 . The orders of the Court are: 1. The appeals are upheld. 2. That consent is granted to the demolition of an existing house and the erection of a semi-detached dwelling with a common wall boundary between Lots 7 and 8, DP32036 being Nos. 48 and 48A Woolcott Street, Earlwood, as shown on drawings in Exhibit J of this hearing being job No. 01-25, drawing Nos. 51C, 52C, 61C, 62C, 71B by Garth Leigh Pty Limited and landscape plan job No. 1902, drawing 01-25A by Linda Lessing as revised in Exhibit C and the revised colour schedule in Exhibit K all in accordance with and as further amended by the conditions in Annexure A hereto. 3. The exhibits be returned to the parties except Exhibits C, J, K 6, 9 and 11. _______________ K G Hoffman 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. 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.