Tintilly Pty Ltd v Willoughby City Council [2005] NSWLEC 615

Land and Environment Court of New South Wales

CITATION : Tintilly Pty Ltd v Willoughby City Council [2005] NSWLEC 615

APPLICANT Tintilly Pty Ltd

PARTIES : RESPONDENT Willoughby City Council

FILE NUMBER(S) : 11482 of 2004

CORAM: Hoffman C

KEY ISSUES: Appeal :- Overdevelopment of a small allotment - siting - character and streetscape - amenity - landscaping - privacy - shadows - bulk - next to a conservation area

Willoughby Development Control Plan No. 16 - Dwelling Houses, Dual Occupancy and Boarding Houses in Residential Zones LEGISLATION CITED: Willoughby Local Environmental Plan 1995 Environmental Planning and Assessment Act 1979

DATES OF HEARING: 20/05/2005, 15/07/2005 and 12/08/2005

DATE OF JUDGMENT: 11/04/2005

EX TEMPORE JUDGMENT DATE : 11/04/2005

APPLICANT Mr B Hones, solicitor SOLICITORS Hones Lawyers LEGAL REPRESENTATIVES: RESPONDENT Ms T Irish, barrister Instructed by: Mr A Stafford Of: Mallesons Stephen Jaques

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hoffman C

4 November 2005

11482 of 2004 Tintilly Pty Ltd v Willoughby City Council

JUDGMENT

1 This is a class one appeal No. 11482 of 2004 between Tintilly Pty Ltd and Willoughby City Council in regard to the refusal of a house at No. 1A Ross Lane, Naremburn. 2 The site is a small 305 sq m triangular lot in a laneway. Some other lots have a side or rear boundary frontage to the lane, this is the only lot that has its prime and only frontage to the lane. There is an existing timber Sea Scout Hall on the property. 3 There is 33.8 m frontage to the lane with 27.5 m on the east side boundary and 22.2 m on the south side. The land has one neighbour occupying the full eastern side boundary. That is a single storey house at No. 30A Dalleys Road. On the south side boundary there are three rear neighbours being Nos. 5, 7 and 9 Ross Street. There is a fourth neighbour having only a corner on the south-east side boundary and that is No. 3 Ross Street. Number 9 also has a side boundary to the laneway. 4 There is a right-of-way along the rear boundary of No. 9 giving vehicular access to the rear of No. 7. As a result No. 9's backyard is separated from the common boundary with the subject site by a fence and gates about 3 m from the rear boundary. Number 7 has a paved area inside its backyard adjoining the common boundary with the subject site and double gates to the right-of-way. Opposite the site across the lane and slightly downhill are the rear boundaries of Nos. 63, 65 and 67 Mitchell Street. Numbers 63 and 65 have rear access to the garages. Number 67 is a block of flats with vehicle access from Mitchell Street. Number 61 is offset from the site and also has a rear vehicle access but no garage off the lane. Those houses in Ross Street and Mitchell Street are in the Naremburn Conservation Area but the subject site is not. 5 The site slopes down from No. 30A Dalleys Road and Nos. 5, 7 and 9 Ross Street towards the lane. Number 61 is an almost level block between the lane and Mitchell Street. Numbers 63, 65 and 67 slope down from the lane. Their backyards are lower than the laneway but the garages and entry drives are built up to the level of the lane. They all have vegetation in their backyards and 1.8 m high fences to the laneway. Some fences appear to exceed 1.8 m high. 6 The proposal is for a two-storey house roughly L shaped and set up near the back corner of the lot being the southern boundary with 0.9 m to 3 m variable setback to the rear boundary adjoining Nos. 5, 7 and 9 Ross Street. 7 On the eastern side boundary was No. 30A Dalleys Road. The setback to it is variable 1.5 m – 1.9 m. Due to the L shape of the house the setback to the lane varies from 4.5 m – 0.93 m to 6.5 m and 2.53 m. 8 The design is said to be a little unconventional in that it has two curved corrugated iron roofs, one on each leg of the L shape with the curved sections rolling towards the neighbours at Nos. 30A, 5, 7 and 9 on the east and south. 9 On the opposite elevations facing north and west there are clerestorey glass louvre windows from about 2.1 m above the floor up to the ends of the curved roofs that are about 3.6 m above the floor level of the upper storey. Below the 2.1 m height there are conventional windows on the second storey into bedroom 1 and its en-suite and bedroom 2 of the proposal. These windows have surrounding frames on the sides, heads and sills that project out from the wall about 300 mm. They are an architectural feature of the design that the applicant said could be done away with if the Court accepted the objectors' evidence. 10 The house has 3 bedrooms and en-suite and a bathroom on the upper floor. On the ground floor is an open plan living, dining and kitchen area with a separate laundry and toilet and a tandem parked two car garage. The vehicle entry is through gates off the lane at the north end of the site. There is a pedestrian entry by another gate off lane at the south end of the site to a small porch at the front door. The private open space is in the crook of the L shape of the house between it and the laneway fence. It is a triangular space about 8 m x 10 m x 13 m or about 40 sq m in area. Within that there is a 1 m wide timber deck outside the sliding glass doors to the kitchen and to the living room. It serves as a landing only and step outside the doors into the courtyard. 11 The upper storey walls are clad in horizontal weather boards, ground floor walls are rendered masonry. At the rear of the proposed house there is a panel of sandstone wall about two-storeys high within which is stairwell from the living room up to the bedrooms. This wall is adjacent to rear boundary of No. 7 Ross Street. The setback varies from 0.9 m to 1.5 m. The wall is about 5.2 m tall. 12 A picket fence is proposed to the laneway with a hedge planted just inside on the boundary. The other fences are the paling type. Along parts of the boundaries with No. 30A and No. 5 there is to be a retaining wall about 0.5 m inside the subject property to support the neighbours' land and allow for excavation of the subject lot up to about 0.8 m. The issues in the appeal are: Overdevelopment and siting 1 The rear setback of the proposed development is 0.9 to 3.0 metres on the first storey (that is, ground floor). The control requires at least 4 metres. The rear setback to the wall above the first storey is not stepped as required by the control. Particulars (a) Willoughby Development Control Plan 16 -Dwelling Houses, Dual Occupancy and Boarding Houses in Residential Zones ("DCP 16") clause 4.4 performance criterion E and control 8. (b) The proposal fails to respond to the characteristics and constraints of the site, particularly its shape, or to provide adequate separation for the amenity of residents and adjoining properties. 2. The front setback/building line of 0.93 metres to 2.5 metres is not consistent with that of adjoining development and fails to respond to the characteristics and constraints of the site. Particulars (a) DCP 16 clause 4.4 control 2. (b) Where it is considered there is no consistent setback or building line, the control requires 7 metres from the front/street boundary: DCP 16 clause 4.4 control. Character and streetscape 3. The proposed development has an unacceptable bulk and scale in the streetscape and as viewed from adjacent premises. Particulars (a) The bulk and scale of the proposed development is considerable given the shape of the site and the bulk and scale does not relate well to the local context. (b) The proposed design for the southern wall elevation does not comply with DCP 16 clause 4.4 control 9. The control requires the southern external wall of the living room to be modulated or articulated with a recess of 1 metre in depth. (c) The design of the proposal is unsympathetic with the surrounding built form and not sufficiently articulated to ameliorate the impact of the bulk and scale as viewed the street and from neighbouring properties. (d) DCP 16 clause 4.3. (e) Willoughby Local Environmental Plan 1995 ("LEP") clause 18(b) applies to an area adjacent to the subject site. 4 Part of the roof form, some materials and the front fencing are not consistent with the neighbourhood character and streetscape. Particulars (a) The obscure glass blocks and glass louvered windows are not compatible with and do not harmonise with materials used in surrounding dwellings. (b) The portion of flat roof above the garage, the entry awning roof arid the roof above the living room are not consistent with the main roof form. (c) The proposed front "timber open fence" of 1.8 m is not consistent with the desired future character in DCP 16 clause 2.5.2, which requires fences of low masonry or timber picket up to 1.2 m in height to the street. 1.6 to 1.8 m high fencing is reasonable only along the private open space area adjacent to the living room. (d) DCP 16 clause 4.3. Amenity 5 The proposed development does not afford a sufficient level of amenity for residents of adjoining properties. Particulars (a) LEP clause 13D (b) The north section of the garden at 7 Ross Street will be in permanent shadow in winter. This could be mitigated if the rear setback were greater or complying. (c) The sliding timber door to the tandem garage on the eastern wall of the proposal may give rise to unnecessary privacy and amenity impacts on the adjacent premises. Landscaping 6 The semi-mature eucalyptus in the south-western corner of the site should not be removed. This may be dealt with by condition. Particulars (a) The eucalyptus is an important local landscape feature. (b) DCP 16 clause 4.6 performance criterion A. (c) The landscape plan shows the eucalyptus is to be removed whereas the other plans show it is to be retained. Plans 7 The floor plans, elevations and sections do not comply with clause 26 of the Court's Pre-Hearing Practice Direction and are not sufficiently clear. Particulars (a) The floor plans, elevations and sections do not show sufficient grounds levels, heights of eaves or ridge levels and do not take account of topography or show any necessary excavation or retaining walls. There are level differences between the subject premises and the adjacent premises to the east. (b) The awning roof shown on the ground floor plan is not consistent with the same roof shown on first floor plan, the elevation and roof plan. (c) The elevations do not show any fencing detail and the proposal does not indicate what is intended by "timber open fence for privacy". 8. The Sydney Water sewer main runs under the living room across the south-west corner of the subject premises and has not been dealt with on the plans or addressed in the proposal. 13 The respondent's evidence was heard from: o Ms R Meani, objector and resident of No. 3 Ross Street o Mr S Orsini, objector and resident of No. 5 Ross Street o Mr S Findlay, objector and resident of No. 7 Ross Street o Mr D Magin, objector and resident of No. 9 Ross Street o Mr A Waugh, Mrs D Waugh and Ms J Clark of No. 30A Dalleys Road o Mr C and Mrs P Pillay, objectors and residents of No. 63 Mitchell Street o Mr A R Stuart, owner of No. 61 Mitchell Street. o Mrs R Marsh, objector and resident of No. 63 Mitchell Street o Mr B Gaal, development officer of council o Mr P Rowan, building services manager of council and o Mr R Dickson, town planner representing the objectors.