Nanevski v Rockdale City Council [2005] NSWLEC 533

Land and Environment Court of New South Wales

CITATION : Nanevski v Rockdale City Council [2005] NSWLEC 533

APPLICANT Tom Nanevski

PARTIES : RESPONDENT Rockdale City Council

FILE NUMBER(S) : 10322 of 2005

CORAM: Hoffman C

Development Application :- s 96 application to amend conditions of consent for a two-storey dual occupancy with subdivision - streetscape - provision of private open space - bulk - setbacks - minimum site area - floor space ratio - splay corner dedication. KEY ISSUES:

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Development Control Plan No. 39 Dual Occupancy Development Control Plan

DATES OF HEARING: 11/07/2005 and 02/09/2005 EX TEMPORE JUDGMENT DATE : 09/02/2005

APPLICANT Mr S Kerr, barrister

LEGAL REPRESENTATIVES: RESPONDENT Mr C Cole, solicitor SOLICITORS Abbott Tout

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hoffman C

2 September 2005

10322 of 2005 Tom Nanevski v Rockdale City Council

JUDGMENT

1 This is a class 1 appeal between T Nanevski and Rockdale City Council in regard to the refusal of a s 96 application to amend conditions of consent in development application 1058/03 for an attached two-storey dual occupancy with subdivision at No. 2 Meriel Street, Sans Souci. 2 The site is on an L-shaped corner of Meriel Street and Lawson Street. The proposal has unit 1 facing Meriel Street and unit 2 facing Lawson Street. The hearing commenced on-site on 11 July 2005 but it soon became evident the plans of the proposal had many inconsistencies, especially on the elevations and some on the floor plans, such that the intended appearance of the proposal could not be understood and the plans were unsuitable for any consent. 3 Accurately updated plans were needed and an adjournment was granted to enable that to be done. On resumption of the hearing on 1 September the plans had better consistency. However, some new changes were shown that are not part of the s 96 application. They are: (1) A large tree in the north-east corner of the site is still shown to be removed when the application is that it be retained. (2) The two driveways, one to each dwelling, are shown to have gates at the street boundary. (3) The 1.8 m high courtyard walls on the Lawson Street frontage are shown to be solid brick when the original application is brick piers with 800 mm high masonry dwarf walls between piers and a wrought iron infill panel above the dwarf walls up to the 1.8 m height. 4 The applicant submitted these changes were by mistake and should be conditioned to be deleted in any consent. 5 Other differences the applicant sought to have included are: (a) Brick piers supporting the balcony above the kitchen and family room of dwelling 1 are not shown on the floor plans but are shown on the elevation. The applicant said the piers were left off the floor plan by mistake and should be included. (b) The 1.8 m high boundary fence to dwelling 1, private open space, on Lawson Street had been extended in length by 2 m on the updated plans compared to the original application. The applicant sought that the extra length of high fence be included in the application. (c) On drawing DA0D, the north elevation of dwelling 2, the north-west corner of the master bedroom on the external parapet wall was not shown and should be included. 6 The conditions of the council consent, No. DA1058/03 that the applicant wanted deleted are the following deferred commencement conditions: "(i) Plans to be submitted and approved by council with the following amendments: (a) one garage space of dwelling 2 is to be deleted and the width of the garage reduced by 2.5 m internal dimension. (b) the setback of the northern boundary from dwelling 2 is to be thereby increased from 6 m to 8.5 m. (c) the front setback of dwelling 2 and the garage is to be increased by 500 mm to 3.5 m and 5.5 m respectively. (d) the high fence in the north-west corner shall be set back from the street boundary so as to align with the front of dwelling 2. (e) the en-suite to the master bedroom and walk-in robe to dwelling 1 is to be deleted and this area projecting over the garage below shall be roofed in style and pitch consistent with the principal roof. (f) windows to bedroom 2 on the eastern elevation of dwelling 2 being deleted or must have a minimum sill height of 1.5 m. Bathroom windows shown on same elevation must be provided with frosted glass. (g) privacy screening of 1.8 m high being provided to the eastern side of the proposed first floor terrace. (ii) Hydraulic plans to be submitted and approved by council with the following amendments: (a) the proposed absorption pit adjacent to Lawson Street to be relocated outside the dedicated 3 m x 3 m splay corner. (b) the garage levels to be at the minimum garage level as required to provide for flooding. (iii) Driveway profiles on long sections of the footpath prepared in accordance with the council's code are to be submitted and approved by council. The sections must show footpath treatments and any fillings proposed." 7 The parties had negotiated on some of the matters and the applicant no longer pursued the deletion of conditions (i), (e), (f) and (g) and (ii), (a) and (b) and (iii). In condition (ii) (a) the applicant sought a 1.5 m x 1.5 m splay instead of the 3 x 3 m splay. 8 The absorption pit for unit 1 is able to be relocated within the front setback of unit 1. There is a second absorption pit to serve unit 2. 9 In conjunction with the large tree to be preserved under condition 87 of the approval, the landscape plan had to be amended to relocate the second absorption pit within the front setback of dwelling 2 and outside the drip line of the canopy of the tree so that its roots would be unaffected. 10 A condition was to be inserted to that effect and would require an addendum to erect a chain wire mesh fence around the tree at the drip line to protect it immediately after the demolition of the existing garage. And, to require that no building materials be stored or work be carried out or personnel use the area fenced off around the tree except for landscape and tree maintenance during the period of construction. 11 Also, it was noted during the hearing that the landscape plan had switched the unit numbers to be the opposite of the architectural plans. This needed to be corrected to avoid confusion during construction. And the landscape plan showed a 1.8 m high full masonry fence to all street frontages contrary to the architectural plans. That also needed correction together with any other changes that might arise from this judgment on the conditions remaining in dispute. 12 The issues are: (1) Whether the proposal complies with objectives (b), (preservation of the quality of the built environment), (c), encouraging development of the higher standard of merit and design and (f) integration of new development into established areas by maintaining streetscape and building quality of cl 2 of Development Control Plan No. 39, Dual Occupancy and Granny Flat Development. (2) The proposal does not comply with the maximum floor space ratio as set out at cl 5.3 of the Dual Occupancy Development Control Plan and whether compliance should be achieved having regard to the objective for that standard. Particulars : The proposal involves a floor space ratio of approximately 0.58:1; the council requirement is 0.5:1. (3) The proposal does not comply with the maximum floor space ratio for Torrens Title subdivision as set out at cl 5.4 of the Dual Occupancy Development Control Plan. (4) Whether the proposal complies with the objectives contained at cl 9 of the Dual Occupancy Development Control Plan and performance criteria (a), (b), (c), (d) and (e) also contained at cl 9. (5) The proposed development does not comply with the building setback requirements contained in cl 13 of the Dual Occupancy Development Control Plan . Particulars : The controls require a setback of 4.5 m the proposal is for 3 m. (6) The proposal does not produce adequate and usable private open space as required by the objectives at cl 14 of the Dual Occupancy Development Control Plan . In this regard the private open space is compromised by poor solar access in breach of cl 12 of the dual occupancy development control plan, its location forward of the building line in breach of cl 14.2 and overlooking in breach of cl 15. (7) The proposed deletion of the 3 m x 3 m splay corner dedication to council will have an undesirable safety implication for pedestrian and traffic movement around the site. (8) Whether the proposal ought to be approved having regard to the previous agreement between the applicant and council reflected in the conditions of development consent 1058/03. 13 Appearing for the respondent at the hearing were Mr J Cole, solicitor, and Mr T Kulchar, executive development planner. 14 Appearing for the applicant were Mr S A Kerr, barrister, Mr T Nanevski and Mr I Nanevski. The parties had agreed that an expert town planner should be appointed by the Court and this was Mr Long who had prepared three reports and gave evidence during the hearing. 15 It was Mr Long's evidence that the council had amended the definition of gross floor area quite recently and issues 2 and 3 were not pressed as the proposal now complied with the floor space ratio requirements. However, Mr Long said the proposal is now at the maximum permitted and this had a bearing on the streetscape and setback and bulk impacts sought to be ameliorated to acceptable levels by the conditions in dispute. 16 Apparently it is the Rockdale City Council's practice to deal with applications under the Development Control Plan Controls that were applicable at the time of the application. This being a 2003 application that control is now out of date and the current Development Control Plan No. 39 as amended in July 2005 is the one the Court must deal with. 17 The respondent said as a further concession to the applicant it would only press the controls in the current Development Control Plan that were also in the originally applicable document. The respondent pressed that there had been many concessions by the council already on this proposal and the conditions the council imposed were to obtain a reasonable and acceptable planning outcome for the development that otherwise might have been refused. 18 The concessions are: (1) The controls require for a dual occupancy development a minimum lot size of 700 sq m with an average width of 15.24 m. The subject lot is 592 sq m with an average width of 14.8 m. (2) The controls require the rear dwelling of a dual occupancy or on a corner lot such as this one that the furthest dwelling from the corner should be single-storey. The council approved both proposed dwellings as two-storey. (3) The controls require a minimum 7.5 m front setback for a two-storey development. The proposal has 4.5 m minimum to Meriel Street and 3 m to Lawson Street and the council only wants the Lawson Street front setback increased to 3.5 m. (4) The controls require no private open space within the front setbacks and the council accepts part of dwelling 1's private open space within the Lawson Street front setback, but requires that of dwelling 2 to be behind the 3.5 m reduced setback already allowed as a concession. (5) The controls require private open space areas of 80 sq m each and neither dwelling quite complies although it is just below 80 sq m. The private open space of dwelling 2 would comply if the approved conditions are met. (6) The controls required for streetscape and landscape reasons that driveways be 2.5 m wide with a maximum of 3 m. The proposal has the Meriel Street dwelling one crossing approved at 6 m wide but the council wants the Lawson Street one reduced to 2.5 m by making it a single garage instead of a double. (7) The control requires increased setbacks as building height increases in order to reduce visual bulk. This usually means the size of the first floor of any dwelling is smaller than the ground floor with small pitched roofs over the ground floor ceiling that projects outside the footprint of the top floor. This reduces visual scale because the top floor is smaller than the ground floor and the ground floor roofs pitch part way up the second storey walls, thus reducing its apparent height. The proposal has been approved by council with full two-storey walls with the top floor the same footprint as the ground floor and with reduced front setbacks. This is another major concession by the council whereby the disputed conditions seek to reduce to acceptable impacts the streetscape, landscape and bulk of the proposal. (8) The proposal has an almost 30 m long building façade facing Lawson Street. The break between units 1 and 2 is not significant in reducing visual bulk due to the privacy screen needed for the deck on the garage roof to protect the next door neighbour from overlooking their swimming pool from the deck. The reduction of the garage for dwelling 2 to a single car will reduce the length of the façade to the street. 19 Mr Long supported the retention of the conditions except for an amendment to conditions (i)(d). 20 He agreed if the street boundary fence to dwelling 2, private open space was made brick piers 1.8 m high, with an 800 mm high brick dwarf wall between and a wrought iron grille up to the 1.8 m height so it was partially see-through with a hedge behind that for privacy, the private open space would be acceptable in the front setback. Indeed, in looking at the approved landscape plan there was already a line of Lilli Pilli trees of a type suitable for a hedge approved along the street boundary in that location so the privacy was already partially assured and the council Development Control Plan allowed the use of vegetation for privacy to courtyard areas. 21 Mr Long said a similar change should apply to dwelling 1, private open space, in the front setback. 22 The respondent said it would accept that change but no others including the need for the 3 m x 3 m splay dedication at the corner of Meriel and Lawson Streets to give driver safety sight lines around the corner. It is a standard requirement of council's subdivision controls and the approved development included subdivision to place dwellings 1 and 2 on separate lots. Given that the site is 592 sq m in area instead of the required 700 sq m the grant of subdivision is another major concession by the council. 23 The applicant said really the dispute came down to the council wanting a single car garage for dwelling 2 with a second car parked in the driveway whilst the applicant wanted a double garage. The applicant said that the Development Control Plan required two car spaces on site of each dwelling. A double garage is the logical solution as it kept the second car out of sight so the development would have a good streetscape appearance. A car parked permanently in the driveway would be a poor planning outcome the applicant said. 24 There were eight letters of support from neighbours and no objectors. The applicant pressed its case. 25 The respondent's submission and Mr Long's evidence is that the reduced bulk of the building and the reduced concrete drive width and the increased landscape is needed to offset the impact of the development given all the concessions the council has already granted. 26 Whilst the council Development Control Plan required two car spaces per dwelling it did not require them to be garaged, and did require that garages not dominate the designs. If a double width driveway is permitted it could possibly be that four cars could park at dwelling 2 as you could have two in the garage and two on the driveway, a worse streetscape outcome. The reduction to a single driveway reduced that possibility as well. 27 The respondent said the proposal was on a highly prominent site and needed the conditions to make it acceptable in bulk on the streetscape. The applicant submitted that it would be no more prominent than two other dual occupancies at No.'s 47-49 Lawson Street opposite the site. The respondent and Mr Long said that they only had narrow frontages to the street and so they did not present the bulk of a 30 m long building, as the proposal would, within the streetscape. 28 Overall I have come to the conclusion that the bulk of the building as proposed with its small setbacks to the street and full two-storey walls with dwelling 2 as two-storey instead of single storey as normally required under the Development Control Plan will be highly prominent in the streetscape. 29 The applicant was able to indicate in cross-examination that Mr Long had not carried out a thorough analysis of developments in the neighbourhood to support his contentions. Nevertheless I do not accept other bulky developments create any precedent given the evidence in this case. I agree with the respondent's evidence and do not grant the amendments sought to conditions (i) (a), (b) and (c) and require that the normal 3 m x 3 m corner splay for driver safety sight lines be dedicated. 30 Conditions (i) (e), (f) and (g) are resolved by the amended plans and can be deleted from the deferred commencement conditions. 31 The other matters referred to in this judgment regarding condition (i) (d), the changes to the landscape plan, the showing of the tree retained and protected instead of removed, the driveway gates, the showing of the piers to the balcony and the corrected north elevation of dwelling 2 should be inserted into the deferred commencement condition. 32 Therefore the orders of the Court are: (1) The appeal is upheld in part. (2) Development consent DA1058/03 issued by Rockdale City Council for an attached dual occupancy with subdivision at No. 2 Meriel Street, Sans Souci, is amended as set out in Annexure A hereto. (3) The exhibits are returned to the parties except Exhibits 4, 5, 8 and C, D and E. (4) No orders as to costs. _______________________ K G Hoffman Commissioner of the Court Rjs/ljr