Vibuild Pty Ltd v Kiama Municipal Council [2004] NSWLEC 396

Land and Environment Court of New South Wales

CITATION : Vibuild Pty Ltd v Kiama Municipal Council [2004] NSWLEC 396 APPLICANT Vibuild Pty Ltd PARTIES : RESPONDENT Kiama Municipal Council FILE NUMBER(S) : 11329 of 2003 CORAM: Hoffman C KEY ISSUES: Development Application :- Refusal of detached dual occupancy - streetscape - front setback - views - bulk Environmental Planning and Assessment Act 1979 Kiama Local Environmental Plan 1996 LEGISLATION CITED: Kiama Development Control Plan No. 7 Kiama Development Control Plan No. 36 State Environmental Planning Policy No. 71 CASES CITED: DATES OF HEARING: 08/03/2004 DATE OF JUDGMENT: 03/12/2004

APPLICANT Mr D Parry, barrister

LEGAL REPRESENTATIVES: RESPONDENT Mr V Moggach, solicitor SOLICITORS Kearns and Garside

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hoffman C

12 March 2003

11329 of 2003 Vibuild Pty Ltd v Kiama Municipal Council

JUDGMENT

1 This was a class 1 appeal No.11329 of 2003 between Vibuild Pty Ltd and Kiama Municipal Council in regard to the refusal of detached dual occupancy development at 27 Pacific Avenue, Werri Beach. The area had recently been sewered and this enabled the council to permit dual occupancy development. 2 A control plan, Development Control Plan No.7, had been adopted to deal with such applications. The use was permissible in the Residential 2(a) Zone under the Kiama Local Environmental Plan 1996. The site was opposite the beach reserve and was relatively flat. There was an existing two-storey fibro holiday cottage on the site. It was to be demolished. 3 One unit was towards the front of the lot containing, on the ground floor, two bedrooms, a living room and rumpus room and two bathrooms. On the first floor were three bedrooms, a lounge and kitchen and two bathrooms. It had a flat roof and was rendered block work walls. At the rear was a courtyard and garage serving the front unit. Off the driveway at the rear was another garage and the second unit which was a single-storey rendered block work building with a sheet metal hipped roof containing three bedrooms, a living room, kitchen and two bathrooms. 4 This rear unit had along the back fence a larger private courtyard than the front unit. The courtyard of this rear unit had a young Norfolk Island pine tree at its northern end about 10 m tall. This courtyard would be private whereas the front unit would probably prefer to use the front garden of the development because that was where the ground floor living room faced and it was towards the ocean. The private courtyard at the rear of the front unit was fully paved and would probably be used mainly as a service yard, although it was accessible off the rumpus room. 5 The driveway was on the northern side adjoining 28 Pacific Avenue, a two-storey solid brick house with tiled roof. Number 28 was setback 14.53 m from the street boundary and the existing house on the subject site was about the same. On the south side of No. 28 was No.26, another cottage. It was setback 14 m from the street boundary. The proposed front unit of the dual occupancy was setback 7.6 m to the front wall and 6.6 m to the front of its cantilevered balcony. 6 The issues were: 1. Non-compliance with Kiama Development Control Plan No. 7 for dual occupancy development: 1.1 The development application does not comply with Kiama DCP No. 7 in relation to cl 8.2(b) in that Unit 1 is two-storeys and has a height of more than 3.6 m to a distance of 22.5 m from the front property boundary. 1.2 The development application does not comply with cl 8.2(f) of Kiama DCP No.7 in that the property fronts a public reserve or foreshore area and the proposed front building line does not adhere to the building line set by existing development. 1.3 The development application does not comply with Kiama Development Control Plan No. 7 in relation to cl 8.3: § in that the front setback of Unit 1 is only 6.6 m contrary to council's adopted street building line of 7.6 m set in Kiama Development Control Plan No. 36; § in that the side boundaries of Unit 1 are not setback 4.38 m on either its northern or southern sides at a distance of greater than 16 m from the front boundary; the setbacks being 4.1 m on the northern side and 2.5 m on the southern side; § in that the upstairs WC of Unit 1 is setback only 2.5 m from the southern boundary when a setback of 4.28 m is required; § in that the upper living room of Unit 1 is setback only 3.68 m from the northern boundary when a setback of 5.41 m is required; § in that bedroom 5 of Unit 1 is setback only 1.6 m instead of the 2.1 m setback which is required; § in that the bathroom of Unit 2 is setback only 2.1 m rather than 2.6 m which is required; and § in that the rear setback of Unit 2 provides only 3 m to the deck rather than the 6 m which is required. 1.4 It has not been established by shadow diagrams that the development application complies with cl 8.5(c) of Kiama DCP No. 7 in relation to the sunlight provided to the private open space area of Unit 2. 1.5 The proposed development is not consistent with the objectives of DCP 7 set out in cl 2 of the plan, in particular: (b) to establish minimum standards for new development to assist in: § maintaining the existing quality and character of Kiama's urban and rural living areas; § protecting the residential amenity of the existing residents. 1.6 The departures from the requirements of DCP 7 have not been justified by the applicant. 2. Non-compliance with the Kiama Development Control Plan No. 36, building lines and foreshore building lines: 2.1 The development application does not comply with Kiama DCP No. 36: § in relation to cl 7.1 in that the front setback of Unit 1 is only 6.6 m contrary to council's adopted street building line of 7.6 m; § in relation to cl 7.4 in that the rear setback of Unit 2 is only 3 m contrary to council's adopted rear building line of 6 m or the rear building line of adjoining development. 2.2 The proposed development is contrary to the objectives set out in cl 5.0 of DCP 36 in particular: (a) to setback buildings and garages/carports from the street to provide adequate space for landscaping or open space, visual and acoustic privacy and vehicle parking, while assisting in establishing an attractive streetscape. (b) to protect the established character of a neighbourhood with a consistent view along the street and water frontage to promote an open street and waterscape. (c) to prevent dwelling houses and structure being sited inappropriately in relation to neighbouring dwellings and the waterfront. 2.3 It has not been demonstrated that the objectives of DCP 36 will be satisfied by the development and hence a variation to the requirements of the plan is not warranted, see cl 10.0. 3. Over development of the site: The bulk of the development on the site and the numerous departures from DCP 7 and DCP 36 evidence an over-development which will have unsatisfactory impacts on the neighbourhood. 4. The public interest: 4.1 The application is for one of the first dual occupancy developments at Werri Beach. 4.2 It is contrary to the public interest to permit a dual occupancy development which departs in so many ways from the requirements of DCP 7 and DCP 36. 7 The Court heard the respondent's evidence from: § Mr S Richardson, consultant town planner. § Mr Van Breda, the council's horticulturalist, but he was not required for cross-examination although his report was in evidence.