Land and Environment Court of New South Wales CITATION : Serhan v Marrickville Council [2006] NSWLEC 237 APPLICANT Ahmed Serhan PARTIES : RESPONDENT Marrickville Council FILE NUMBER(S) : 11260 of 2005 CORAM: Murrell C KEY ISSUES: Development Application :- Design, building height, bulk and scale, inadequate open space areas, car parking Environmental Planning and Assessment Act LEGISLATION CITED: Marrickville Local Environmental Plan 2001 Marrickville Development Control Plan Urban Housing Development Control Plan No. 19 CASES CITED: Goldin v The Minister for Transport [2002] NSWLEC 75 ; Zhang v Canterbury Council [2001] NSW COA 167 DATES OF HEARING: 21-22/03/2006 EX TEMPORE JUDGMENT DATE : 03/22/2006 APPLICANT Mr A Pickles, barrister Instructed by Mr B Phillips LEGAL REPRESENTATIVES: RESPONDENT Mr G Christmas, solicitor Of Marrickville Council JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 22 March 2006 11260 of 2005 Ahmed Serhan v Marrickville Council JUDGMENT This determination was given extemporaneously and it has been edited prior to publication 1 This is an extempore judgment in respect of a matter that I heard yesterday as an On-Site Hearing. The matter comes before me as an appeal under s 97 of the Environmental Planning and Assessment Act against Marrickville Council's refusal of a development application for a subdivision and the erection of dwelling houses at the rear of the subject site. 2 The subject site is known as 22 and 22A Llewellyn Street, Marrickville, located on the south-eastern corner of Llewellyn Street and Shelleys Lane. Currently existing on the whole site is a two-storey building built in the middle of 1930's thereabouts with shops at the ground floor or offices and the above storey provides residential accommodation or shop-top accommodation. 3 The site is rectangular in shape and has a frontage of approximately 9 m to Llewellyn Street and a southern boundary of 9 m to Empire Lane and a western boundary of some 55 m to Shelleys Lane. The site is approximately 500 sq m. 4 The original development application submitted to the council was for a four-lot subdivision. However, following the site inspection yesterday morning and having regard to, in particular, the open space and parking for what would be the front existing shops and residential premises above, the applicant sought to amend the plans such that the proposal before the Court now is for a three lot subdivision. The three lots would be the front shop and residential premises above as one lot with two lots subdivided at the rear and the approximate size of the new lots would be in the vicinity of 125 sq m for each of the two rear lots. 5 Further in the proceedings Mr Pickles for the applicant indicated that in order to comply precisely with the open space requirements of council's planning regime that the boundary could be moved 2 m to the north therefore one would achieve two lots at the rear of approximately 135 sq m each. 6 The council provided a Statement of Issues to the proceedings although some of these issues were no longer pressed. However the remaining issues are: + the proposed subdivision of the site into three allotments with frontages to rear service lane for the two proposed dwellings does not reflect the dominant subdivision pattern in the area immediately surrounding the site and the proposal does not satisfy the objectives and controls in 3A of council's DCP 35; + the design of the two proposed dwellings, the details provided in the plans is of substandard architectural quality; + the proposed dwelling on Lot 3 will result in excessive building height, bulk and scale located immediately on the common boundary with No. 20 Llewellyn Street; + the inadequate open space areas, the car parking is proposed to provide for the existing ground floor shops and first floor dwelling is not in accordance with requirements of council's parking strategy, that is DCP 19; and + the proposal is not in the public interest and regard to the submissions. 7 The Court heard on the site inspection from three objectors. The owner of the property at No. 20 on the eastern side of the subject lot gave evidence and afforded the opportunity of viewing her premises and the relationship of her rear deck area to the proposed buildings at the rear of the subject site. 8 The Court also heard from Mrs Baxter on behalf of her sister who owns a property in the vicinity. And the Court also heard evidence from a representative of the owner of Acme Packaging, a manufacturing packaging box plant at the rear of the subject premises, on the corner of Shelleys and Empire Lane. 9 The Court also had the opportunity on the inspection of viewing the area and having an understanding of the subdivision pattern within the area in terms of council's extract from its planning scheme. 10 The subject site is zoned Residential 2(a) and there is also an arterial road affectation or widening at the front of the property that extends approximately at its maximum, 12 m into the site. 11 The locality can be described as the adjoining properties to the east are free-standing single storey dwellings. Other development in Llewellyn Street to the west is of a mix of one and two-storey attached and detached dwelling houses. The existing industrial development is located on the south of the site on the opposite side of Empire Lane next to the cardboard manufacturing establishment. There is a printing business which is on the corner of Victoria Road and extending through to the drain that separates the box manufacturing plant from the printing premises. Also in Empire Lane at Nos. 1 to 9 there is a more recent redevelopment for a medium-density style development where the existing use rights provisions were exercised from a previous industrial/commercial use. 12 The properties to the west of Shelleys Lane on the opposite side of the subject site, have rear access to these premises from the Lane and the dwellings front Juliet Street and the properties are Nos. 124 to 142 Juliet Street. 13 On the opposite side of Juliet Street through to O'Connor Lane there is also a smaller lot subdivision with properties running through from the street through to the laneway. On Victoria Road, once again, the properties in the section onto Shelleys Lane have rear access. 14 The Court was also taken to smaller properties within the vicinity, that is in the vicinity of Alice Street and Edgeware Road and it can be seen that the corner allotment of Alice Street/Edgeware Road is 109 sq m, the adjoining property at 214 Edgeware Road of 185 sq m. There were representative allotment sizes provided to the Court which range from the 109 sq m being the smallest through to some 418 sq m for No. 16 Shelleys Lane although it is noted that 20 Llewellyn Street is also larger than the subject site. 15 The planning regime on which the Court must assess the development application is the Marrickville Local Environmental Plan 2001 and as I stated the subject site is zoned Residential 2(a). The LEP states: "The objectives of the zone are to identify suitable areas predominantly single dwelling residential development to provide opportunities for non-residential development in scale and compatible with surrounding area and to enable site with an area greater than 1500 sq m to be developed for multi-unit housing." 16 Subdivision must occur in order for the then dwelling houses to be erected at the rear of the subject property. 17 The special provisions are with respect to the arterial road affectation and development consent can only be granted with the concurrence of the RTA. A person may carry out development for a purpose which the development may be carried out on land in an adjoining zone or for any purpose which is compatible with development which may be carried out on land in an adjoining zone. The RTA's concurrence is in council's bundle, and therefore this does not provide an impediment to the consent of the development application. 18 Just while I am also talking about controls and the zoning, there was discussion as to the existing use rights of the property. This was not clarified during the proceedings and indeed was not raised as an issue by either the applicant relying on existing use rights or the council. In my assessment of the application I do not need to go to existing use rights provisions under the Act and that will become clear in my judgment. 19 The other relevant planning instruments or planning regimes is the Marrickville Development Control Plan Urban Housing Volume 1. This DCP sets out a number of requirements for dwelling houses in terms of open space requirements. There are also objectives to promote site landscaping in keeping with the character of individual building and area; to obtain and enhance existing street trees; to provide dwellings with usable outdoor recreation space; to improve the appearance, amenity and energy efficiencies of housing; to blend new development into the streetscape in neighbourhoods; and encourage the integration of buildings and landscape elements. 20 The subdivision control or guidelines are provided in 3A wherein it states that subdivision of land is usually followed by its development for one or more dwellings under the Environmental Planning and Assessment Act. Subdivision is defined as development as such requires consent. The residential subdivision pattern of Marrickville is characterised by small lot subdivisions of attached and detached row housing along the northern and eastern parts with larger lot subdivisions of detached housing found in the western and southern areas. 21 It was generally agreed that the subject site falls within the north-eastern quadrant although it can be seen from the planning scheme map tendered that the lots generally within the area of the subject site, whilst they are varied they are not the small grained fabric that we find in the far north-eastern corner of the municipality. 22 The DCP states: in response to the diversity of the household sizes and open space needs the Marrickville LEP consents to the variety of lot sizes as long as the allotment size and shape relate to the existing subdivision pattern of the locality, the context of the site and is adequate in size to provide room for open space parking and landscaping. New development of any newly created allotment has the potential to impact on the streetscape and the amenity of the locality. Consequently it is essential that the other design elements contained in the DCP are considered at the subdivision of land stage. This will ensure future development if the site maintains and enhances the character of the amenity of the locality. 23 In the diagram of the northern and eastern parts of Marrickville it states the subdivision pattern is characterised by very small allotments containing terraced-style dwellings. The subdivision pattern consists of narrower streets with more rigid grid pattern which allows for dominant perspectives and vistas. 24 The objectives of garages, car ports and driveways is to ensure that the site of car parking respects and enhances the character of the street and to encourage vehicle parking at the rear of properties off laneways instead of along the streets. 25 There was evidence given to the Court from the court appointed expert, Mr Nick Juradovic and there was also leave granted for the council to provide a statement from its senior assessment officer Ms Narelle Butler. The Court had the benefit of concurrent evidence and a joint statement from the experts as well. 26 As I stated, I will go back to the people who gave evidence on the view. The owner of the property at No. 20, Ms Eckhardt is concerned about the impact of the proposed rear dwellings on the amenity of her backyard area in terms of both privacy, overlooking and the volume of the building and also in terms of the solar access to her allotment. 27 It was agreed between the experts that the solar access impact would not be a reason to warrant refusal of the application. Similarly, the experts were of the opinion that with the setback of the upper floor of the eastern dwelling on Lot 22 at the rear, and the fact that the upstairs balcony and is a Juliet-style and serves only a bedroom and as such overlooking would not warrant refusal of the application. 28 The Court had the benefit of seeing a container at the rear of the subject premises and it could be ascertained that the height of the subject building will be some 6½ m from the ground at that point and the container was approximately half that height. 29 The rear dwelling on Lot 22 the eastern portion, would be some 3.3 m from the near ground level rear deck of No. 20. However with the diagonal measurements in terms of the balcony and having a 1 m setback to the upper storey, this increases to approximately 4½ m separation from the rear deck, to the building bulk. 30 The experts differed in terms of their assessment of the application and in particular that is because Mr Juradovic is of the opinion that the character or the future of the Empire Lane will in fact change with the box manufacturing site being redeveloped for residential use in the future and he sees the future of the laneway as serving residential properties. He is of the opinion however that the two garages that front Empire Lane for the two rear dwellings would not be an appropriate contribution to a future streetscape. He considers that the size of allotments is very varied in the area and does not consider the proposed rear dwelling allotments to be inconsistent or incompatible. He does however say in his statement that the respondent's underlying concern relates to creating residential allotments with frontages to service lanes. To this extent the proposed subdivision is inconsistent with this aspect of the existing subdivision pattern of the area where the frontage of dwelling is not to service lanes. There are no allotments apart from the townhouses at Nos. 1 to 9 that have frontages only to service lanes. Furthermore Mr Juradovic states that the subdivision of land to create a frontage to a service lane it somewhat of a departure from the existing subdivision pattern but he refers to the fact that there is a precedent of 1 to 9 Empire Lane. 31 On the other hand Ms Butler for the council indicated that she does not consider 1 to 9 Empire Lane in terms of the dominant subdivision pattern in the area. And furthermore, this development does not alter the existing land subdivision pattern as it retains the existing allotment on which it is located in its original form with a strata subdivides titling for the townhouse building. The Court could also see on the view that there is basement parking with a common entrance for the townhouses so it does not present as a battery of garage doors to the laneway. 32 It could also be seen on the view that the brick printing factory has a car park towards its eastern end and there is greater separation at that point although it is noted that in the laneway the non-conforming uses both the print factory and the box factory are built to the boundary and there is only a 6 m laneway width for Empire Lane. 33 Ms Butler says the development at 1 to 9 is also unusual circumstances as it is a property redeveloped under the 'existing use rights' provisions and the envelope shell of the original industrial building was retained and used in the townhouse redevelopment. Whilst she agrees with Mr Juradovic's assertion that the remaining industrial sites opposite the subject of property in Empire Lane are also likely to be redeveloped with existing use rights but existing use rights are also likely to apply to this property. There is a difference between the experts and the Court considers that one could not assume that the box factory would be redeveloped as a permissible use in the Residential A as an owner may wish to exercise existing use rights and any such application would be subject to a merits assessment. 34 Ms Butler states the proposal is to divide the site in half at the rear, and there are no examples of this arrangement in the immediate locality where such subdivision results in two two-storey dwelling houses addressing a rear service lane with the lane forming the only street frontage for the lots and dwelling. 35 Ms Butler also comments on the other issues but the determinative issue in the Court's assessment is the subdivision. There was discussion about the design and whether the garages should front Empire Lane or whether in fact they should be off Shelleys Lane but at the end of the day the determinative issue in the Court's assessment is the proposed subdivision is inconsistent and antipathetic to the subdivision pattern of the area. 36 In terms of my assessment and being guided by the Development Control Plan which I must give real genuine and proper consideration in my assessment, I consider that the proposed subdivision for two residential allotments fronting Empire Lane of 4½ m wide each does not warrant approval. In the Court's assessment this subdivision is incompatible and inconsistent with prevailing subdivision pattern of the area and whilst Mr Pickles submitted that there is nothing in the DCP that says that one cannot have access off laneways. At the same time the prevailing subdivision pattern, and when one goes to the planning scheme map there are fee allotments, being a rare exception for residential lots to only have access from a rear laneway. The rear laneways are there and it is an intricate urban fabric in terms of providing rear lanes to many long narrow lots that front streets and then have rear laneways in terms of the traditional subdivision pattern. 37 On one hand Mr Juradovic states that the future character of the laneway will change to residential but on the other hand it can be seen that the lots immediately to the east of the subject lot, that is the six lots in the configuration before the canal all have frontages to Llewellyn Street and rear access to Empire Lane. And the approval of this subdivision would create a precedent, not only for those lots but for all lots within the municipality where currently there is rear lane access with the residential street frontage a main street. Yes, there are a number of properties, 2 to 12 that only have frontage to Llewellyn Street within the vicinity of the site and also the properties around the block in terms of Edgeware and Victoria Road. But all of these properties have frontage to a street not a laneway and that is the fundamental reason as to why I refuse this development application. 38 The property in Empire Lane which was cited, that is Nos. 1 to 9 where there is a more recent townhouse development that had relied upon existing use rights cannot be equated with the subdivision of the subject land as this did not alter the subdivision pattern and a subdivision pattern is a fundamental, underlying, prevailing pattern within the area and there are no properties in the vicinity of the subject site or even in a broader context have only rear lane access for a residential property. Whilst the DCP does say that it does not prevent or prohibit such development at the same time a common sense interpretation of the DCP must be taken in terms of what the prevailing subdivision pattern is. Yes, there is a mixture of lot sizes but the prevailing subdivision pattern still does not provide for lots with their only access, from a laneway whether it be vehicle or pedestrian access. 39 During the proceedings the Court raised the issue of the interface with the existing box factory and the planners were given the opportunity to respond to the Court's concern in this regard. The Court invited Mr Pickles to advise, either before hearing from the planners, whether an adjournment was sought to allow the applicant to address this issue, given the Court had raised it and it was not identified directly as an issue in the proceedings. The planners, and I accept their opinion, consider that the interface with the box factory would not warrant refusal of the application in itself. They have advised that due to the 25 ANEF affectation the dwelling would have to be designed for noise insulation purposes and therefore in terms of the box factory noise would not be a concern. They both said that it certainly does not provide a good outlook for dwellings but this is not a reason for refusal of the application and accept this. My determinative reason for refusal is on the basis of the prevailing subdivision pattern and the requirements of council's Development Control Plan. The other issue is the one of precedent and I refer to the judgment of his Honour Lloyd J Goldin v The Minister for Transport [2002] NSWLEC 75 where precedent was upheld as a relevant matter for consideration. Precedent in this case is also a matter of considerable concern as the subdivision of the subject property could mean other owners may seek to invoke subdivision approval for similar properties. This would not just be in the vicinity of the subject site but as I said in the municipality where currently it is a rare case to only have access from a laneway. I will just make one other comment in my judgment and that is, with respect to rear lane access and the development of studios et cetera, these in fact do not overwhelm adjoining properties and whilst I accept the planners assessment that privacy is not a concern for No. 20, at the same time the juxtaposition of the building bulk of a two storey building at the rear of the property is not consistent with the building form and subdivision pattern of the area. And if this was to be repeated throughout the municipality or even within the number of lots to the east of the subject lot, this would change the character of the area and would not be consistent with council's Development Control Plan provisions. 40 There would be nothing to distinguish many of the lots from seeking similar Torrens Title subdivisions and this would not create an appropriate outcome for the area. This would not only be in respect of the properties fronting Llewellyn Street to the west and towards the canal but also properties fronting other residential streets with rear lane access. 41 It was submitted that there has been an approval for a studio above the garage of the adjoining property at No. 20 and clearly there is a double garage also to the laneway from that property. But this does not equate to the subdivision or the provision of the erection of two dwelling houses onto a laneway. Studios above garages are an entirely different scenario. On the view it could be seen there is a granny flat on the corner of Shelley Lane where the property fronts Juliet Street at 142 but there is no Torrens Title for the rear. For studios/granny flats there are expectations of individual owners in terms of amenity as opposed to a dwelling on a separate allotment of land. The development of the properties at the rear with studios above garages as I stated is an entirely different scenario and would not justify the development of separate dwelling houses with rear laneway access only. 42 The issues of the design of the dwellings in terms of whether the garages should be off Shelleys Lane or Empire Lane are not matters that I need to go into given the determinative reason for my refusal is that the subdivision would be inconsistent and out of character with the area and contrary to the Development Control Plan. In this regard I cite the decision of Zhang v Canterbury Council [2001] NSW COA 167 that requires I reveal genuine and proper consideration to the council's Development Control Plan. While Development Control Plans are discretionary matters I am persuaded by the evidence in this case that the Development Control Plan should be varied or dispensed with. 43 In terms of an assessment of the size of the allotments, even with allotments of a 135 sq m, there are few lots that are of this size in the area, especially of a recent subdivision approval. The smaller lots that we see, the narrow-fronted lots, even those that do not have rear service lane access are an historic pattern of the area and very few of these were provided with car parking accommodation. And today the provisions of council's is to provide off-street parking and there is an expectation that new allotments provide off-street parking. The existing residential allotments also does not therefore justify the subdivision. The traditional lots are ones where car parking is not expected. 44 Therefore on the basis of the Court's assessment the formal orders of the Court in this matter are: 1. The appeal in respect of the property known as 22-22a Llewellyn Street Marrickville, is dismissed. 2. The development application submitted to Marrickville Council and as amended for a three lot subdivision and the erection of two attached dwelling houses at the rear is determined by the refusal of consent. 3. The exhibits except 2, 3 and C are returned to the parties. ___________________ J S Murrell Commissioner of the Court 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.