Land and Environment Court of New South Wales CITATION : Drivas v Canada Bay [2004] NSWLEC 111 Peter and Helen Drivas Applicant PARTIES : Canada Bay City Council Respondent FILE NUMBER(S) : 11425 of 2003 CORAM: Roseth SC KEY ISSUES: Development Application - Development Control Plan - Development Standards :- Planning principle: development potential of small sites LEGISLATION CITED: CASES CITED: DATES OF HEARING: 18/03/2004 and 19/03/2004 DATE OF JUDGMENT: 03/26/2004 Ms A Pearman, barrister LEGAL REPRESENTATIVES: Mr P Jackson, solicitor, Pike Pike & Fenwick JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 11425 of 2003 Roseth SC 26 March 2004 Peter & Helen Drivas Applicant v Canada Bay City Council Respondent Judgment Introduction 1 This is an appeal against the refusal by Canada Bay City Council (the council) of a development application to demolish the existing building and erect a two-storey house over basement parking at 41 Thompson Street, Drummoyne. The site 2 The site is 9m wide and 36m deep, with an area of 334m2. The adjoining property to the north is No 43 Thompson Street, a two-storey house of considerable bulk. The adjoining property to the south is No 39, a partly single partly two-storey house of modest size. The site is within the Bourketown Conservation Area, which extends over several street blocks and which, despite containing a variety of house sizes and styles, exhibits some uniformity and cohesion. 3 The houses in Thompson Street in the block in which the site is located have little uniformity. There are three two-storey houses, the remainder is single-storey with asymmetrical gabled fronts. Some have additions at the rear creating an upper level. 4 On the opposite side of the street the house types are also mixed, although they have more consistency of form and scale. At the northeast corner of Thompson and Broughton Streets there is a former corner shop and residence, which is listed as a heritage item. The proposal and its history 5 The applicant proposes to demolish the existing house on the site and to erect a three-storey house in its place. 6 The applicant lodged the development application in May 2003. Following notification, the council received three objections from Nos 37, 39 and 43 Thompson Street. In August 2003 the council considered a report by its planning staff recommending approval. The council deferred the application and asked for changes and further details. The applicant submitted amended drawings in September 2003 that were also notified. This time the council received eight objections. In November the council considered a report that again recommended approval. It again rejected the recommendation and refused consent on the grounds of overdevelopment leading to adverse impact on neighbours and the conservation area. Relevant legislation, planning instruments and controls 7 Local Environmental Plan 1986 (the LEP) zones this site 2(a). The Comprehensive DCP (the DCP) establishes detailed controls for residential development (among other things). The Drummoyne Heritage and Conservation Controls apply to the Conservation Area. The issues 8 The council submitted a Statement of Issues containing 13 issues. In submissions the council's advocate, Mr P Jackson, reduced these to three, namely · Has the proposal too much bulk? · Is the impact on neighbours acceptable? · Is the impact on the conservation area acceptable? 9 The third issue is repetition of the first, since the council's expert saw the adverse impact on the conservation area as a result of the proposal's excessive bulk. I have therefore not considered this issue separately. Bulk 10 There are three aspects to the issue of bulk. The first is the Floor Space Ratio (FSR). The LEP contains a FSR for dwelling houses only if they exceed 7.2m in height. The proposal is below 7.2m. The DCP establishes a maximum FSR for dwelling houses of 0.5:1. The proposal has a FSR of 0.75 (according to the applicant's planning expert, Mr B Goldsmith) or 0.95:1 (according to council's planning expert, Mr B McDonald). The difference between them was due to Mr Goldsmith's excluding the habitable space at the lowest level on the basis that it was partially underground. 11 The second aspect is the setback from side boundaries. The DCP requires two-storey buildings to set back 1.5m from side boundaries. Lesser setbacks may be permitted where the wall does not contain windows and the levels or width of the site or other exceptional conditions make compliance impractical. The proposal sets back for the most part by 900mm, though there is a 3m setback for part of the south boundary. The third aspect is the number of storeys. The maximum number of storeys is two. The proposal is three storeys. 12 Mr Goldsmith justified non-compliance with the above requirements on the following grounds: · The FSR of 0.5:1 may not apply to the site. · If it does apply, it was intended for a 450m2 allotment with a 14m width. · The site is small and it would be unreasonable to apply a FSR of 0.5:1 since it would not allow a house of adequate size. · The site is overlooked and overshadowed ("crowded in") by its neighbours Nos 39 and 43. 13 Mr McDonald did not accept the above justification. He thought that the FSR of 0.5:1 did apply. While he was not emphatic that the FSR should be strictly applied, he considered the proposal with almost double the permissible FSR to be excessive. Regarding the requirements for side setbacks, they should be strictly applied to protect the neighbours' amenity. Findings 14 It is clear that the maximum FSR of 0.5:1 in the DCP applies to the application. As the LEP does not establish a FSR for dwellings that are below 7.2m in height, the DCP's FSR control applying to all dwelling houses is not inconsistent with the LEP but supplementary to it. I accept Mr McDonald's assessment that the FSR of this proposal as 0.95:1. There is no mandate to exclude the habitable parts of the lowest level, neither in the Model Provisions, which the LEP adopts, nor in the LEP's definition. The question then is: should such a significant increase on the permissible FSR be accepted. 15 To answer this question, I turn to Mr Goldsmith's main argument, namely that the FSR was intended for 450m2 allotments. If one applies the 0.5:1 FSR to a 450m2 allotment, the permissible floor space is 225m2. The floor space in this proposal is over 300m2. Even on Mr Goldsmith's calculation, which is more favourable to the applicant, the floor space is 250m2, ie more than would be permissible on 450m2 allotment. I do not accept that this small allotment can reasonably support a bigger bulk than if it was a 450m2 allotment. 16 I am strengthened in this conclusion by the fact that neither Mr McDonald nor Mr Goldsmith included in their calculations the large area used for parking. This area is about twice as big as it would need to be to accommodate two cars. If it were reduced to the normal dimension of a double garage, it would allow the rear part of the building to be lowered, thereby reducing its impact on neighbours. 17 I turn to the issue of setbacks from side boundaries. Again, Mr Goldsmith's argument is that the site is too narrow to allow a setback of 1.5m, as it would produce a house only 6m wide. He supported his argument by noting that the neighbouring houses are 900mm from the common boundary. In fact, this is true only No 43, as the two-storey section of No 39 is about 3m from the common boundary. I accept that parts of the proposed building may have a 900mm setback, but this should occur only in the section within the traditional building line and not at the rear where it has maximum impact on the outdoor areas of neighbours. 18 I turn to the question of the number of storeys. The building is a three-storey building, though it appears as a two-and-a-half storey building, as the lowest level is about half a floor below ground level. This would probably be acceptable in a building that complies with the FSR and side setbacks, but not in the current proposal. Impact on neighbours 19 The Court heard the evidence of Mr D Parker of 39 Thompson Street, Mr D Phillips of 37 Thompson Street, Mr M Avramides of 43 Thompson Street, and Ms Viskovich of 15 Broughton Street. The potential impact of the proposal would fall primarily on No 43. There would be some impact on No 39, but not sufficient to justify refusal. The other objectors would not, in my opinion, be severely affected. 20 The adverse impact on No 43 would be severe, mainly as a result of a bulky building 900mm from the common boundary. It is true that No 43 itself is a relatively bulky building that has an adverse impact on the subject site. Even so, it appears to have a lesser FSR than that proposed by the applicant. In my opinion, the impact on No 43 is unacceptable. Planning principle 21 The applicant advanced two major reasons why it should be permitted to significantly exceed three important planning controls related to bulk and impact. First, because the site is small. Second, because the adjoining sites have large buildings on them. 22 Underlying the applicant's first argument is the principle that small allotments should have a larger FSR than large allotments. I do not accept that this is a valid principle. The principle I have adopted is that the larger the site, the larger the house that it can accommodate. If an applicant desires a large house, it should build it on a large allotment. 23 Underlying the applicant's second reason is the principle that where there are existing large houses in a street that exceed current controls, those controls should be relaxed for a new infill development. Judicially applied, this is a valid planning principle. In this case, however, there is only one house in the street block, No 43, that appears bulky. The principle does not justify placing more bulk on an infill site than the bulkiest building in the street, which is what the proposal seeks to do. 24 For the above reasons the appeal is dismissed and the application refused. Orders 1. The appeal is dismissed. 2. Development application to demolish the existing building and erect a two-storey house over basement parking at 41 Thompson Street, Drummoyne 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.