Land and Environment Court of New South Wales CITATION : Pureseem Pty Limited v Canterbury City Council [2004] NSWLEC 511 APPLICANT Pureseem Pty Limited PARTIES : RESPONDENT Canterbury City Council FILE NUMBER(S) : 10617 of 2004 CORAM: Hussey C KEY ISSUES: Development Application :- Attached three level dwelling - Draft LEP - Character - Height - Overshadowing - Public interest LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Canterbury Planning Scheme Ordinance CASES CITED: DATES OF HEARING: 06/09/04 DATE OF JUDGMENT: 09/13/2004 APPLICANT Dr. S. Bervling, barrister SOLICITOR Noman Waterhouse LEGAL REPRESENTATIVES: RESPONDENT Mr A. Seton, solicitor SOLICITOR Marsdens Law Group JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 13 September 2004 10617 of 2004 Pureseem Pty Limited –v- Canterbury City Council JUDGMENT Background 1 This appeal is against the council's refusal of development application at 6 and 6A Grove Street, Earlwood, which proposes the demolition of an existing dwelling and construction of 2 double storey attached dwellings with a party wall. The site 2 This site comprises Lots 4 and 5 in DP 317306. These lots are each 6.095 m wide, with the depth of 32.31 m and east–west orientation. They have a combined area in the order of 394 sq m. 3 There is an existing single-storey brick cottage with tiled roof on the site at present. 4 The site is within the general locality consisting of small lots created around the 1850s, which have been developed primarily with low scale residential development of single and two-storey dwellings. In many cases, the existing houses have been erected over two lots, or more. Planning controls 5 Canterbury Planning Scheme Ordinance. Under this control, the site is within the Residential 2(b) zone and the proposal is permissible with consent. 6 Draft Canterbury Local Environmental Plan 2004 (DLEP). This instrument provides for the insertion of cl 62 N, which has the effect of prohibiting the development because the subject land does not comprise a "developable parcel". 7 Single Unit Dwelling House Code (Code). This Code has operated from 12 August 1991 and was recently amended in August 2004. It applies to all new dwelling houses and provides guidelines to ensure an acceptable standard of dwelling house development and good design in the City. It contains a number of design guidelines. 8 Canterbury City Council Development Control Plan No 37 - Energy Smart Homes Policy. The evidence 9 Detailed evidence on behalf of council was presented by: - Ms M. Kocak, development assessment officer with council (Exhibit 6) 10 For the applicant, detailed evidence was presented by: - Mr G. Goodyer, consulting town planner (Exhibit F) 11 Following discussions between the parties, the applicant amended the proposal so as to minimise amenity impacts on the neighbouring properties. These amendments include the reduction in height of the overall building by approximately 140 mm, deletion of the rear upper level balcony, deletion of the rear lower level terrace and replacement with steps and the provision of obscure glass to the windows on the southern elevation so as to reduce privacy impacts on the neighbouring property (No 8). Also the provision of side boundary privacy screens. 12 Consequently, a further joint planners conference resulted in agreement to a number of issues, with status of the issues being as follows: 13 Issue 1 deals with the proposal's non-compliance with the DLEP, which would have the effect of prohibiting the development, because it does not comprise a "developable parcel". However, after consideration of the Minister's letter of 25 August 2004, the planners agree that the DLEP is neither imminent or certain. In that letter, the Minister concludes: that the draft plan is inconsistent with G9 of the s 117 (2) directions under the Act, particularly the requirement to retain existing provisions and enabling a dwelling house to be erected on an existing allotment. 14 As this DLEP will not be approved, I do not give it any determining weight. 15 Issue 2 deals with the proposal's failure to comply with cl 7.9 (Solar Access to Neighbouring Properties), as contained in DCP 37. Its provisions include: at least one living room window must receive a minimum of 2-hours sunlight between 9 am and 3 pm on June 21 16 But the planners agree that the west facing living room of the neighbouring property to the south receives more than two hours sunlight on June 21 and therefore this provision is complied with. Even though the northern dining room, kitchen and laundry windows are shaded, which I deal with subsequently, I am satisfied that the solar access provisions are reasonably met in this case. 17 Issue 3 concerns compatibility of the proposal with the existing character of the locality and its streetscape impacts, particularly its bulk and scale. In support of the proposal, Mr Goodyer says that as the amended proposal substantially complies with the numeric controls for the building envelope, it is acceptable. Against this, Ms Kocak is dissatisfied because she does not consider that the proposed 3 level dwelling is compatible with the adjoining single level dwellings and other lower scale dwellings in this neighbourhood. 18 The controls are mainly contained in the Single Unit Dwelling House Code (Code), which has operated from 12 August 1991 and was recently amended in August 2004. Whilst this Code, may have less status than a Development Control Plan, nevertheless I accept council utilises this form of control. This Code allows single unit dwelling houses to have a maximum height of 7.2 m. Also cl 5.0 (b) states that: where any dwelling house has a three level appearance on any portion of the front or rear elevation, the uppermost level of that portion shall be setback a minimum distance of 2 m from the elevation of the lowest level and any eave projecting over the setback portion of the uppermost level shall be set back a minimum distance of 1.4 m from the front or rear elevation of the lowest level. 19 It then seems to me, that Ms Kocak's opinion is not consistent with these Code provisions. This Code does not include any provisions for retention of the existing cottages in a conservation area, instead it envisages larger 2/3 level form of dwellings, subject to specified setback conditions. Evidence of this larger form of development, which has been approved recently by council was observed on the view. 20 Therefore, whilst I note that the architectural presentation of the proposal is a subjective matter, nevertheless I am satisfied that this proposed building envelope demonstrates reasonable compliance with the prevailing numeric controls, incorporated in the Code. Unfortunately, the Code does not contain any guidance for the desired future character of this neighbourhood, which identifies architectural features or elements that are desired to be retained and incorporated into new buildings. In the absence of these basic details, I accept Mr Goodyer's opinion that this proposal is fundamentally satisfactory in terms of compliance with the prevailing controls for building height/envelope and resultant streetscape impacts, in the Code. Furthermore, it appears to me that the proposed architectural style is consistent with the form and elements incorporated in new dwellings recently approved by council and the Court. 21 Issue 4 is associated with the foregoing issue, because it relates to the bulk of the building as expressed by its floor space ratio (FSR). This issue arose initially because of the protrusion of the basement garage above the natural ground levels and also because of the amount of garage floor area. However after the amendment to lower the building by 140 mm, I understand the planners agree that the resultant FSR is in the order of 0.70:1, which complies with the Code provisions. Therefore I do not consider it reasonable to reject the application on this issue. 22 Issue 5 concerns the exceedance of the maximum allowable height of 7.2 m. Insofar as there was an area of non-compliance, this was confined to part of the parapet and roof over the balcony, in front of the proposed northern dwelling. But the planners agree this issue can be addressed by deleting the proposed parapet and limiting the extent of the eave over the first floor balcony to maximum width of 600 m. As the applicant agrees with this amendment, I am now satisfied the proposal demonstrates reasonable compliance with the height controls in the Code. 23 Issue 6 was raised due to concerns about the impact of the 3 level appearance at the front elevation. This mainly relates to the infringement of the parapet and roof over the first floor balcony and to some extent the 3 level appearance, due to the incorporation of the basement garage. However the planners agree that it is satisfactorily addressed by deletion of the parapet and limiting the eaves, as previously stated. I accept this agreement and also note that proposal is consistent with the Codes allowance of three level buildings, where the third level is setback. Therefore, I do not consider that there are any substantive grounds to reject the application on this issue. 24 Issue 7 relates to inconsistencies with Pt (b), Note 2 of cl 4.2 of the Code, which requires a minimum boundary setback of 1 m. This situation arises because the proposal has its common party wall along the common boundary of the existing Lots 4 and 5. 25 In this regard, I accept Dr Beverling's submissions that this issue was dealt with in a recent appeal (NSWLEC 144) concerning a similar development at 32/32A River Street, Earlwood. In that case, Commissioner Tour stated: 32. The form of development proposed is not dissimilar to recent single dwelling house in the area and according to Mr Layman is what would be expected if a two-storey house were to be developed over both the sites, which would be the likely result if the draft LEP were to be gazetted. I accept this conclusion, but I note that the FSR for a dwelling house on the combined sites would be 0.6:1 which would also result in less bulk than that of the proposal. 33. Compliance with the setback and resultant two separate dwellings may be of a bulk and scale that better relates to the established character of the area, particularly the subdivision pattern of small allotments with separate houses, albeit single storey. However, the appropriateness of two-storey houses on a site of such a small frontage has not been tested and the question before the Court is not whether a better result is possible but whether what is proposed is acceptable. 34. The bulk of the proposal is generally consistent with a single two storey house over both allotments and does not result in adverse amenity impacts on adjoining neighbours. The proposal is consistent with other recent developments in the area that results from implementation of the planning framework. 35. I therefore agree that the bulk and scale of the proposal is acceptable and the appeal can be upheld. This conclusion is based on the lack of any contrary evidence put forward to me by council and that the proposal is consistent with the controls … 26 In my assessment, the subject proposal exhibits many similarities in form to the development determined by Commissioner Tour, so that it is reasonable and appropriate to adopt her conclusion that the proposed form of development, without the central setback, is acceptable because it demonstrates reasonable compliance with the overall intent of the Code provisions. Accordingly I do not consider it reasonable to reject the application on the basis of non-compliance with this internal boundary setback guideline. 27 Issue 8 relates to the reduction of solar access to the adjoining property (No 8), due to the height of the proposed dwelling. Reference to the shadow diagrams indicates that direct sunlight to the dining room, kitchen and laundry windows on the northern elevation will be changed. Whilst I accept that there will be a likely reduction in direct sunlight to these windows, nevertheless I consider this consistent with the effect of implementing the controls in the Code, which allows higher dwellings adjacent to the side boundaries. In reaching this conclusion, I presume that this impact has been considered by council, in the adoption of the previously mentioned height and setback controls in the Code. 28 Furthermore, I observe that the proposal will result in the provision of a similar level of solar access created with the recent approval of a similar 3 level dwelling at 18 Grove Street. In my assessment , this is a negative aspect of the proposal, but not sufficient to warrant rejection, considering the overall redevelopment opportunities allowed in the Code. 29 Issues 9 and 10 then deal with privacy impacts on the adjoining properties. However the planners agree that the amendments to delete the rear balconies and incorporate side boundary screening overcomes these concerns to a reasonable extent. From my observations on the view, I am satisfied that considering the separation distances to the adjoining properties, the proposal addresses the privacy impacts to a reasonable extent. 30 Insofar as a number of objections were received, they mainly relate to amenity impacts on the neighbouring properties and concerns about the changing character of this residential neighbourhood. However in my assessment, it is apparent that the current controls allow a significant change in the character of the area, which may not be in accordance with the residents expectations. Nevertheless, for the reasons previously detailed, I consider this proposal demonstrates reasonable consistency with the controls and the amendments result in reasonable impacts on the neighbouring properties, so as to merit conditional consent. Conclusions 31 Having considered the evidence, the submissions and undertaken a view, I am satisfied this proposal merits conditional consent, because it demonstrates reasonable compliance the guidelines in council's current Code, which was recently confirmed and amended in August 2004. 32 However I acknowledge the evidence that there appears to be some dissatisfaction with the outcomes from this Code, which the council has sought to address by way of the draft LEP. But this approach has been rejected by the Minister and the draft LEP not approved. Therefore I consider it a reasonable expectation that consent be granted for a dwelling, which substantially complies with the provisions of the current Code, as this proposal does in my assessment. 33 Notwithstanding this, I also note from the evidence before the Court, there is a significant void in the presentation of appropriate guidelines describing the future character of this area. Insofar as the planners do not agree on this aspect, in the ultimate it seems to me that Mr Goodyer's opinion is more reliable because it relates to the emerging character allowed in the existing controls, rather than Ms Kocak's evidence which is predicated more on the retention of the existing character. But this is not reflected in the Code. 34 Accordingly I rely on Mr Goodyer's evidence that this proposal will produce an acceptable standard of design in granting conditional consent to this application. Court orders 1. The appeal is upheld. 2. Development consent is granted to DA1034/03, for the demolition of an existing dwelling and construction of two double storey attached dwellings, with common fire/party wall at 6 and 6A Grove Street, Earlwood, in accordance with the conditions in Annexure A. 3. The exhibits may be returned except for Exhibits 8, D, E, F and G. _________________________ R Hussey 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.