Land and Environment Court of New South Wales CITATION : Milosavljevic v Liverpool City Council [2006] NSWLEC 793 APPLICANT Milos Milosavljevic PARTIES : RESPONDENT Liverpool City Council FILE NUMBER(S) : 10391 of 2006 CORAM: Bly C KEY ISSUES: Development Application :- multiple unit development compirisng four two-storey detached dwellings, loss of amenity, urban design, character and appearance, landscaping, private open space, car parking, drainage and overdevelopment. Environmental Planning and Assessment Act 1979 LEGISLATION CITED: State Environmental Planning Policy No. 1 - Development Standards Liverpool Local Environment Plan 1997 Liverpool Development Control Plan No. 4 DATES OF HEARING: 11/12/2006 EX TEMPORE JUDGMENT DATE : 12/11/2006 APPLICANT Mr B. Goldsmith, town planner of B T Goldsmith Planning LEGAL REPRESENTATIVES: RESPONDENT Mr A. Seton, solicitor of Marsdens Law Group JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Commissioner Bly 11 December 2006 10391 of 2006 Milos Milosavljevic v Liverpool City Council This decision was given extemporaneously. It has been revised and edited prior to publication. JUDGMENT 1 This appeal relates to Development Application No. 1138/2005 which is for the construction of a multiple unit development comprising four two-storey detached dwelling houses at 66 Passefield Street, Liverpool. The site comprises Lot 2 in DP 1060576 which has a frontage of 26 m, a depth of about 45 m an area of 1034 sq m. 2 It adjoins a council depot to the west which is also developed with light industrial and commercial purposes. There are detached dwelling houses to the north, east and south. The locality mainly comprises one and two-storey detached dwellings together with some more recently developed multi-unit housing. 3 The site is included in the 2(a) Residential Zone under Liverpool Local Environment Plan 1997 ("the LEP") and in this zone the proposal, comprising multiple dwellings, is permissible with development consent. The relevant objective of the 2(a) zone is: to identify land to be used for housing primarily dwelling houses and also dual occupancy housing, integrated housing, multiple dwellings and housing for aged and disabled persons that in each case is compatible with existing housing. 4 Clause 14 of the LEP requires that before determining an application for development consent consideration must be given to the character, location, siting, bulk, scale, shape, size, height, design and aesthetic appearance when viewed from the public domain. 5 Clause 40 of the LEP requires that consent may be granted for development if it would be compatible with the character and amenity of the existing and likely future residential areas in terms of matters such as scale, bulk, design, traffic generation and car parking, and overshadowing. 6 Clause 41 deals with general considerations for residential development that must be considered, including privacy, access to natural light and car parking. The relevant development standards in the LEP in cl 41A(5) comprise a minimum width of 24 m and a minimum area of 1000 sq m. The site complies with the area standard but the minimum width standard is not met. Although the site has a frontage of about 26 m a significant proportion of it is about 21 m in width, hence in the absence of an objection under State Environmental Planning Policy. No 1, Development Standards, the consent as sought cannot be granted. 7 In cl 44 of the LEP a maximum height of 7.2 m is applicable and this standard is complied with by the proposal. Liverpool Development Control Plan No. 4 is also applicable and there are a number. of relevantly applicable requirements to which I shall refer later. 8 The application was advertised and no submissions were received. On 16 May 2005 the application was refused for reasons including: loss of amenity for neighbouring properties; not a high standard of urban design; failure to meet a number of development control plan requirements including neighbourhood character and building appearance; unsatisfactory private open space, landscaping and car parking; unsatisfactory drainage arrangements; the removal of two trees from the site; and overdevelopment of the site. 9 The proposed development has since been modified and additional information provided and the remaining issues in essence comprise: whether the proposed development would be out of character with the locality; whether the private open space for dwellings No.s 3 and 4 would be satisfactory; whether dwelling No. 3 would adversely affect the privacy of the neighbouring property at No. 64 as a result of overlooking; whether the existing mature tree near dwelling No. 1 should be removed. 10 Expert town planning evidence was given on behalf of the application by Mr B Goldsmith and on behalf of the council by Mr A Pizzolato. These experts provided a joint report for the assistance of the Court. 11 I firstly deal with character, particularly in the context of the objective of the residential zone. This objective is to a significant degree met by the zoning provisions insofar as they apply to land so zoned, particularly taking into account that the land use table permits the range of housing specified in the objective. Nevertheless the objective can be applied to development applications (for the range of uses permitted by the zone) to the extent that development needs to be compatible with existing housing. This does not however mean that new forms of housing, simply because they are not the same as what might be in existence, should be rejected. 12 More particularly here, the existing development mainly comprises one and two-storey detached dwellings. By comparison the proposal, whilst comprising four two-storey dwellings not entirely dissimilar to others in the locality, will appear different because of their number and physical relationship with and proximity to one another. In this regard the identified issue speaks of the bulk and scale of development being inconsistent with the existing character and in response Mr Goldsmith said that what is here proposed would not be out of character. 13 Mr Pizzolato was concerned that the proposal has not been designed with regard to the constraints of the site and is an overdevelopment of it. It fails to provide satisfactory setbacks and the dwellings are considered to be bulky. He was also concerned that there would be amenity impacts on the prospective occupants of these dwellings although I am not sure as to how this can be taken into consideration in dealing with the character of the locality. 14 The DCP requires that multiple dwelling development should incorporate the predominant building form characteristics of the neighbourhood. Whilst this proposal does not reflect the predominant single­-storey detached dwelling house character the four two-story dwelling houses which are in appearance detached is in my opinion sufficiently responsive to this requirement. 15 A landscape plan has been provided that should ensure an appropriate setting, subject to what I will say later about the removal of trees from the site. In this regard I accept the evidence of Mr Goldsmith and taking into account the objective of the zone, and accepting as I do that whilst this development would be different to its immediate neighbours, I have not been persuaded that it would be out of character and should not be refused in this regard. 16 In relation to private open space, the DCP requires that sufficient open space be provided to meet the residents' needs for outdoor activities, privacy, outlook and landscaping. Such open space should serve as an extension of the dwelling with main living areas opening onto it. 17 For two bedroom dwellings, 50 sq m of open space is required and such open space should contain a principal living area connected to living rooms and consisting of a rectangle of 4 m by 8 m. 18 The DCP requires that sunlight is to be available to the majority of the ground level open space for at least three hours between 9am and 5pm in midwinter. The tendered plans show that unit 3 has a north-facing area of open space of 32 sq m and an additional south-facing area of 50 sq m. Unit 4 has a north-facing area of 35.5 sq m and a south-facing area of 53 sq m. Mr Pizzolato recalculated these areas and concluded that they were slightly high. 19 The shadow diagrams reveal that both north-facing open spaces have, for much of the day, significant access to sunshine as do the family rooms that have access to these spaces. The two dwellings at the rear comprising dwellings 3 and 4, according to the plans each have two bedrooms.Whilst the DCP only seems to allow the splitting of private open space in relation to three bedroom dwellings, (dwellings 3 and 4 at the rear home 2 bedrooms) I agree with Mr Goldsmith that the arrangement here proposed will have a satisfactory level of amenity, taking into account the total area of open space provided and the extent of access to sunshine by both the open space and the dwellings. 20 Whilst the proposal may not strictly comply with the requirements of the DCP the extent of the non-compliance is not a sufficient reason to refuse the application. 21 In relation to car parking Mr Pizzolato assumed that the upstairs living areas in dwellings 3 and 4 would be able to be converted into a third bedroom and on this basis the calculated car parking shortfall, based on the requirements of the DCP, was two cars. Mr Goldsmith did not make such an assumption and calculated a deficiency of one car parking space. Dwellings 1 and 2 each have a double garage and dwellings 3 and 4 each have a single garage. There is a single visitor car parking space to be provided between dwellings 3 and 4. 22 The DCP requires that a medium dwelling containing two bedrooms should have 1.5 five car spaces per dwelling and this provision contains a bracketed reference to a medium dwelling as having an area of 75 to 110 sq m. Dwellings 3 and 4 have areas of about 120 sq m. 23 Whilst there is some suggestion that this means that these two dwellings should be considered to be three bedroom dwellings, I think that a better and more reliable approach to calculating car parking is to simply count the bedrooms, which is plainly an approach available in the alternative, hence I do not accept Mr Pizzolato's suggestion that the deficiency is two car parking spaces. I do however accept that overall this development should have eight car parking spaces, including at least one visitor car parking space as required by the DCP, notwithstanding that there is available car parking in the street. I have thus not been persuaded that, as required by the DCP, car parking on site would be adequate to accommodate requirements of residents and visitors. 24 In relation to privacy, the DCP requires that buildings be designed in such a manner as to protect the visual and acoustic privacy of nearby neighbours and private open space. To this end the visual and acoustic privacy of neighbouring dwellings and private open space is to be respected. The upstairs living room, bedroom and balcony would overlook the rear yard and the rear of the dwelling at 64 Passefield Street. The applicant has now offered to delete the balcony and to reorientate the dwelling so that it would in part be almost two metres from the boundary. 25 Mr Pizzolato was of the opinion that this overlooking was unreasonable and hence did not meet the requirements of the DCP. Mr Goldsmith disagreed pointing out that the neighbour had not objected to the proposal and the overlooking was not dissimilar to other two-storey townhouse developments in the locality. He also said that obscure glazing could be used to mitigate the impact. Whilst the extent of overlooking is not great it is nevertheless overlooking that needs to be remedied because it is overlooking towards the rear elevation of the neighbouring house and the associated open space. I accept that this problem could be remedied but I do not accept that it should occur by the utilisation of obscure glazing. 26 There is a single mature canopy tree in the north-western corner of the site that would need to be removed because of the positioning of dwelling No. 2. This was raised by the council as a matter of concern in early correspondence with the applicant. Mr Goldsmith said the tree is not significant and could be replaced and the applicant would agree to a requirement that a No. of canopy trees be provided. 27 Mr Pizzolato said that an arborist's report should have been provided to assess the tree's health and justify its removal. In these circumstances I have not been persuaded that without proper justification the tree should be removed. Also it seems to me that with an adjustment to the design this tree could have been retained. 28 In conclusion whilst I accept that a development of four two-storey dwellings is entirely possible and indeed appropriate on this site, notwithstanding its width deficiency, the design that is before me does not warrant approval for reasons relating to car parking, privacy and the loss of what I believe to be a significant tree. A revised design could take this tree into account, provide an additional parking space and deal with the issue of privacy in relation to No. 64. 29 Finally, Mr Pizzolato expressed concern about the close proximity of units 1 and 3 to the eastern boundary, notwithstanding their compliance with the setback requirement and their overbearing and adverse impact, and up to a point I agree with him. In this regard I would comment that some attention to the design of the eastern elevations of these buildings, in conjunction with the proposed increased setback for dwelling 3, would be appropriate. 30 Finally and more generally, notwithstanding the requirements of the DCP, I am satisfied that the separation between the four buildings themselves is not unreasonable. I have nevertheless decided that in all of the circumstances the appeal should be dismissed and the development application refused. Exhibit A, the plans, will be retained by the Court. ___________________ T A Bly Commissioner of the Court ljr 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. 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