Land and Environment Court of New South Wales CITATION : Galea v Marrickville Council [2005] NSWLEC 113 Applicant: Julian Galea PARTIES : Respondent: Marrickville Council FILE NUMBER(S) : 11425 of 2004 CORAM: Roseth SC KEY ISSUES: Development Application :- planning principle: walls on boundary in residential areas DATES OF HEARING: 23/02/2005 DATE OF JUDGMENT: 03/17/2005 Applicant: Mr C Gough, solicitor of Storey & Gough LEGAL REPRESENTATIVES: Applicant: Mr G Christmas, Principal Solicitor for Marrickville Council JUDGMENT: - 8 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Roseth SC 17 March 2005 11425 of 2004 Julian Galea v Marrickville Council JUDGMENT 1 Senior Commissioner: This is an appeal against the refusal by Marrickville Council of a development application to subdivide lot 14 DP 59484, known as 54 Alfred Street, St Peters into three allotments and to erect a two-storey dwelling house on each. The site 2 The site is 15m wide, 31m deep and has an area of 462m2. It is on the east side of Alfred Street, a side on which parking is prohibited. A single storey detached dwelling now stands on the site. 3 Alfred Street contains a mixture of houses and allotment widths and sizes. Most allotments are between 8m and 12m. The two notable exceptions are No 22, which is 4m wide; and No 10 for which this Court granted a consent permitting subdivision into 4.7m wide allotments (see below). 4 Immediately to the west is No 56, a property that has been recently developed with two-storey semi-detached dwellings, with parking from the rear. (Unlike the subject site, No 56 has rear access.) Immediately to the east is No 48, a property on which two two-storey semi-detached dwellings are under construction. A garage is provided for each dwelling on the side of the allotment. The proposal and its history 5 The applicant proposes to subdivide the allotment into three lots (each approximately 5m wide and 150m2 in area) and to erect a two-storey terrace house on each new lot. Two of the dwellings include a garage in a location that usually contains the living room in terrace houses. The third dwelling does not provide on-site parking and has a living room where the others have garages. 6 The applicant lodged the development application in June 2003. Following notification the council received seven objections. The applicant submitted amended drawings. The council considered the amended proposal in September and October 2005, refusing it at the October meeting. The applicant lodged the appeal in November 2004. Relevant planning instruments and policies 7 The Marrickville Local Environmental Plan 2001 zones this site 2(A), a zone in which the proposed development is permissible with consent. The LEP does not contain a minimum allotment size. Development Control Plan 35 – Urban Housing Volume 1 (DCP 35) contains detailed controls for housing. Development Control Plan 19 – Parking Strategy (DCP 19) applies to the application. The issues 8 The council submitted a Statement of Issues containing four issues, ie · Are the proposed allotments in keeping with the subdivision pattern and the streetscape? · Are the bulk and scale of the buildings appropriate? · Is it acceptable to have one dwelling without on-site parking? · Is sunlight access to the dwellings acceptable? 9 The issue of bulk ands scale is the same as the concern with the proposal's two-storey walls without setback on the east and west boundaries. I discuss he issue under the heading of Building on the side boundary. The objectors' evidence 10 The Court heard the evidence of three objectors, Mr G Toubia, the owner of 48 Alfred Street, adjoining the site to the east; Mr S Glezakis, the owner of 56 Alfred Street, adjoining the site to the west; and Mrs B Dever, the owner of 49 Alfred Street diagonally opposite the site. 11 Mr Toubia was concerned about the proposal's two-storey wall on the common boundary. He pointed out that, apart from the single-storey garage, his development sets back from the common boundary. Mr Glezakis had similar concerns. He was proud of his development and he feared that the proposal, being so much larger and on the boundary, would dwarf it. Mrs Dever said that the proposal was an overdevelopment and the site should be developed for two dwellings, not three. In essence, this was also the council's position. Consistency with subdivision pattern 12 It is clear that the proposed allotments would be smaller and narrower than the other allotments in the street, with the exception of Nos 10 and 22. The applicant's planning expert, Mr M George, agreed with this but maintained that the difference was not striking and would not be conspicuous in the street. To paraphrase Mr George, the proposed allotments would be smaller than most existing ones in the street, but this would not make the street any less attractive. I accept this evidence, at least to the extent that the impact of the proposed allotments being narrow, per se, is not sufficient to justify refusing the application. The small width of the proposed allotments, however, has other negative consequences, which are discussed below. Building on the side boundary (zero lot line) 13 The three dwellings are built to the side boundary with two-storey high walls. In my opinion, this is the worst feature of the proposal, and it is a necessary consequence of the 5m-width. There is, of course, no problem with the party walls that straddle the boundaries within the development as these have impact only on each other. The problem occurs where the dwellings at the eastern and western end are built on the boundary and thus impose an impact on Nos 48 and 56, both of which have set back from their own side of the common boundary, with the exception of the single-storey garage on No 48. 14 Detached dwellings in Sydney are usually built with a setback of 900mm or more from the side boundary. The major exception to this is the traditional terrace house, most examples of which are in the inner suburbs. Terrace houses are usually separated by party walls, which straddle the common boundary. 15 Building to side boundaries has been re-introduced into modern town planning with townhouse and villa home development, as well as with a form of housing that is usually referred to as zero lot line. In zero lot line housing one side wall (usually without windows) is built on the boundary while the setback on the other boundary is increased. The advantage is that instead of two narrow setbacks, each dwelling enjoys one spacious and therefore more useable setback. 16 For the above examples to provide good amenity, they require the coordinated development of a group of dwellings. Where the wall of a dwelling is built on the side boundary, the adjoining dwelling should either be built on the boundary (as in town houses and villa homes) or alternatively it should be built a sufficient distance from the boundary to provide a useable outdoor area. The question arises whether building on the side boundary is appropriate at the ends of such developments, where the adjoining site is under another owner's control. In most such cases, building on the boundary is not appropriate. Planning principle: building on the boundary in residential areas 17 To test whether building on the boundary is appropriate, the following questions should be asked: · Is the street characterised by terrace housing? Building to the boundary is likely to be appropriate in streets where the existing form of development is terrace houses or villa homes, ie where building to the boundary follows the existing pattern of development. · What is the height and length of the wall on the boundary? Short lengths of single storey walls (such as garages) are usually acceptable on the boundary. · Has the applicant control over the adjoining site(s) or the agreement of their owners? Where the applicant has control over the development of the adjoining sites or their owners agree to a wall on the common boundary, such walls are likely to be appropriate. · What are the impacts on the amenity and/or development potential of adjoining sites? Building to the boundary may be appropriate, even where the above tests are not answered favourably, provided it can be shown that a wall on the boundary does not diminish the amenity or the development potential of the adjoining site. · Are there arrangements in place for the maintenance of the wall or gutters? The question of maintenance should be considered at the time of the development application to avoid disputes later. 18 I apply the above principles to the present case. Alfred Street is not characterised by terrace housing. The proposed wall on the boundary is not a short length of garage wall. The applicant has no control over the adjoining sites and the owners of those sites have objected. The amenity impact on the adjoining sites is serious. All this suggests that building to the boundary in this case is not appropriate. No on-site parking 19 DCP 19 requires one on-site car space per dwelling. The proposal does not comply. In his written report Mr George justified the non-compliance by saying that the absence of the garage from one of the dwellings was in response to the council's concerns about streetscape. Mr Lusher did not think that three garages in a row, each of which takes up most of the width of its allotment, would look attractive. In the event, the evidence changed during the hearing, as both experts said that, if the proposal were allowed, each dwelling should have a garage, notwithstanding the adverse effect on the streetscape, this being the lesser of two evils. 20 In my opinion, three garages over a distance of 15m would have a disastrous impact on the streetscape. The option of only two dwellings containing garages is probably the worst, since it is almost as unattractive as three garages and adds to the street's parking problems. The difficulty of reaching an acceptable solution to on-site parking is the direct consequence of the narrow width of the allotments. It is one of the reasons why a 5m wide allotment without rear or side access for cars is unacceptable. Sunlight access 21 Because the front of the sites faces north, only those rooms facing the street have reasonable sunlight, while the rooms in the rear receive little or no sunlight. The location of the garages in the front of two of the dwellings means that two dwellings do not receive sunlight in mid-winter. Mr George argued that this was an inevitable consequence of the site's orientation. I do not accept that this is so. The lack of sunlight is a consequence of the site's proposed subdivision into three rather than two allotments because it forces the applicant to put a garage where there would otherwise be a living room. 22 The lack of sunlight to the proposed dwellings is not a determinative matter, but it is a negative feature of the proposal. Relevance of Watts C's decision at No 10 23 On 29 April 2004 Watts C granted an approval for a proposal that created two allotments of 4.7m width and two two-storey semi-detached dwellings built to the boundary, with only one dwelling providing on-site parking. The reason for allowing one of the dwellings without parking was that the site was close to public transport. 24 It is clear that most of the controversial aspects of the subject application are present in the proposal that received the Court's approval at No 10. While there are reasons for a decision in the current appeal to be consistent with the Court's earlier decision, there are also reasons against it. The first is that No 10 has been constructed and the Court had the benefit of seeing the dwelling that has no on-site parking. During the visit to Alfred Street on the day of the hearing, a large car was parked on the footpath in front of No 10, on the side of the street where parking is prohibited. The car was in an identical position on a photograph taken earlier by one of the objectors. It is likely therefore that the illegally parked car is a regular occurrence. 25 The second reason for not following Watts C's decision on No 10 is that the properties on either side of No 10 have not been recently developed, and their owners did not object to the application. There is therefore an opportunity, at the time of redevelopment of the adjoining sites, to take the two-storey building on the boundary into account. In the present case, the properties on both sides are recently developed, have provided a setback to the side boundary and their owners have objected. Orders 1. The appeal is dismissed. 2. Development application to subdivide lot 14 DP 59484, known as 54 Alfred Street, St Peters into three allotments and to erect a two-storey dwelling house on each allotment, is determined by refusal. 3. The exhibits are returned. ____________________ Dr John Roseth Senior Commissioner 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.