Land and Environment Court of New South Wales CITATION : Liakopoulos v Sutherland SC [2004] NSWLEC 750 APPLICANT Con Liakopoulos PARTIES : RESPONDENT Sutherland Shire Council FILE NUMBER(S) : 10838 of 2004 CORAM: Bly C KEY ISSUES: Development Application :- Dwelling house - Floor Space Ratio - Streetscape - excavation - application of planning principle Sutherland Shire Local Environmental Plan 2000 LEGISLATION CITED: Sutherland Development Control Plan 2000 State Environmental Planning Policy No. 1 - Development Standards Environmental Planning and Assessment Act 1979 CASES CITED: Drivas v Canada Bay [2004] NSWLEC 111; Leighton Properties v North Sydney [1998] 98 LGERA 389 DATES OF HEARING: 15/12/2004 and 22/12/2004 EX TEMPORE 12/23/2004 JUDGMENT DATE : APPLICANT Mr C McEwen SC Instructed by Mavrakis & Associates LEGAL REPRESENTATIVES: RESPONDENT Mr C Mathieson Solicitor of Sutherland Shire Council JUDGMENT: - 7 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 23 December 2004 10838 of 2004 Con Liakopoulos v Sutherland Shire Council JUDGMENT 1 This appeal relates to development application number 04/0328 which is for the demolition of an existing dwelling house and the erection of a new two-storey dwelling with basement garage at 10 Lucas Street. Cronulla. The appeal was dealt with as an on-site hearing. 2 The rectangular shaped site has a width of 12.19 m and an area of approximately 440 sq m. It is presently occupied by a single story dwelling house. The locality is generally characterised by single and two-storey dwelling houses. 3 The site is zoned Residential 2(a1) and is in a Foreshore Scenic Protection Area under Sutherland Shire Local Environmental Plan 2000 ("LEP 2000"). The proposal is permissible with development consent. 4 The remaining issues in the case comprise streetscape, setbacks, floor space ratio and the possible impacts of the proposed swimming pool on the neighbours. 5 Dealing firstly with the swimming pool, taking into account that it is a lap pool having a somewhat limited usage and the proposed masonry boundary fence I do not accept that any noise impacts from this pool would be such as to acquire its deletion or relocation. 6 In relation to streetscape, the matters of concern to the respondent involve the bulk and scale of the building and its presentation to the street. The particular aspect of the street presentation said to be unacceptable involves the contention that the building will appear as being in excess of two storeys. This appearance results from the presentation of the garage doors to the street. The ramped driveway enables the garage doors and thus the basement to be seen in conjunction with the two stories of building above. Otherwise the basement is slightly less than 1.5 m above ground level. Of further concern here is the parapet height despite the fact that the building complies with the 9 m building height limit and the 7.2 m ceiling height limit. 7 Clause 34(1)(d) of LEP 2000 requires that buildings in residential zones (other than the 2(c) zone) should maintain a maximum two storey appearance. In this regard I accept the applicant's submission that in terms of the height requirements in LEP 2000, including the provision in sub cl. 2(e) which sets out the maximum height above ground level for basement car parking, that these matters indicate that compliance with them would result in a two storey building. 8 I accept that a development of the kind here proposed is a reasonable form of development resulting from the application of the relevant standards. However this proposal, when viewed from directly in front of the garage, will appear as being more than two stories and this appearance needs to be mitigated. As I pointed out during the hearing the effect of the garage doors could be significantly mitigated by the provision of appropriate fencing along the boundaries of the site and the retaining walls associated with the ramp. 9 The provision of landscaping should provide further benefits such that when approaching this property from either direction the proposed house would appear as being substantially two stories, with the garage doors and the three storey appearance only being completely apparent when viewed for directly opposite. In all of those circumstances I am satisfied that the objective of the height limits can be met. 10 The Dwelling Houses Development Control Plan ("the DCP") requires that a 7.5 m building line shall apply for all residential allotments. Unfortunately there is no definition or explanation as to how this building line should be applied to ancillary structures or extensions or projections from buildings such as balconies or terraces. I propose to consider what I believe to be the substantial elements of the building, which would read as part of it rather than a projection from it. In this case the front terraces and the front entrance to the building with their side wall enclosures indicate that these should be considered as part of the building proper and should comply with the setback requirements. As such they do not comply with the 7.5 m building line. 11 Ignoring the front terraces and the entrance structures, the front walls of the building comply with the building line requirement. As I pointed during the hearing, changes to the design of the terraces and the entrance could result in the bulkiness of these structures being alleviated. The applicant has accepted this proposition and amended the proposal accordingly. In the circumstances I accept that the front walls of the building proper are the relevant walls for the purposes of the 7.5 m building line, thus achieving compliance. 12 Regarding the respondent's concerns about excessive excavation I find no fundamental concerns with what is proposed here. LEP 2000 anticipates the provision of basement car parking. The extent of excavation proposed here is not unreasonable or inconsistent with the extent of excavation required for the not excessive two-car basement proposed here. 13 Dealing finally with the issue of floor space ratio, LEP 2000 sets a maximum floor space ratio of 0.45:1 whereas the proposal has a floor space ratio of 0.486:1, which indicates an actual floor space exceedence of around 16 sq m. In relation to this non-compliance an objection pursuant to State Environmental Planning Policy No. 1 Development Standards has been prepared by Mr D Crane the applicant's consultant town planner. 14 The objection notes that the building as proposed is compatible in terms of height, bulk, scale and character with existing development in streetscape. It meets the height and landscape area requirements and it also meets setback requirements, particularly noting compatibility with existing and adjoining buildings. The objection also notes that the proposal will not result in any unreasonable or unacceptable amenity impacts to neighbouring residential properties in terms of overshadowing, loss of privacy, view, visual bulk and scale. It concludes that compliance with the floor space ratio development standard would be unnecessary and unreasonable in the circumstances of the case. 15 In his report Mr Hand, the respondent's town planner disagrees and argues that the objection is not well founded because there is a demonstrable failure to meet the objectives of the standard itself and that there is no reason why the applicant could not re-design the building to be in full compliance with councils planning controls. 16 The relevant objectives of the standard are: (a) to provide a degree consistency for existing residents as to the size and bulk of potential buildings in their neighbourhood. (b) to allow buildings of sufficient scale to satisfy the needs of residents while preventing development of sites beyond community expectations and the environmental capacity of the zone. 17 Mr Hand drew the Court's attention to the planning principle in Drivas v Canada Bay [2004] NSWLEC 111 where Senior Commissioner Roseth said, "that the larger the site, the larger the house it can accommodate. If an applicant desires a large house, it should be built on a large allotment". In other words just because an applicant requires a larger building that is no justification for non-compliance with the floor space ratio development standard. 18 Principles are matters for consideration and should be applied unless there is a proper justification for doing otherwise. In this case the applicant's justification, which I accept, can be largely found in the SEPP 1 objection together with the evidence brought on behalf of the applicant 19 In this case I am able to conclude, given the extent of compliance with the various controls (other than the floor space ratio development standard) and the lack of or minimal impacts on neighbouring properties, that there would be a lack of environmental harm a phrase referred to in Leighton Properties v North Sydney [1998] 98 LGERA 389. In that case Talbot J said that it was not sufficient merely to point to a lack of environmental harm to justify an SEPP 1 objection. Such a lack of harm can nevertheless be given some weight. 20 The house proposed here is not excessively large and it could not be said that in terms of its floor space it would be out of character with the likely future character of this locality particularly in relation to house sizes. In this regard I accept what Mr Crane said about the likelihood of redevelopment of the older smaller houses in the street. 21 The objectives of the standard in part provide for buildings to be of sufficient scale to satisfy the needs of residents and provide a degree of consistency as to size and bulk and I accept that the proposal would reasonably meet these objectives. 22 Objective (b) of the standard goes further by discouraging development, which would be beyond community expectations and the environmental capacity of the zone. I do not know exactly what the community expectations for the zone are but I am satisfied that, to the extent that I understand it, but I heard no persuasive evidence that the proposal would not be within the environmental capacity of the zone. 23 Whilst different house design for this site could comply with the development standard, the application cannot simply be refused on this basis. The provisions of SEPP 1 are available and must be given work to do. The relevant test, which I find to have been met, that must be applied is, whether compliance with the standard would be unreasonable or unnecessary in all of the circumstances including those to which I have already referred. One of the reasons supporting this conclusion is because I accept that there would be a public benefit resulting from the non-compliance. 24 I accept Mr McEwen's submission that an alternative design which, instead of providing a basement garage, incorporates car parking at ground floor level and meets all of the setback and floor space ratio and height requirements (taking into account the allowances available to exclude garage floor space from the floor space ratio calculation) would result in a building which would be larger and bulkier than that proposed. It would also produce a design which, in terms of the internal amenity of the dwelling particularly regarding solar access, would be less satisfactory than a non-complying building. 25 In all of the circumstances I propose to uphold the SEPP 1 objection supporting the non-compliance with the floor space ratio development standard. 26 More generally and subject to changes to the front of the building and its landscaped setting (discussed above) I conclude that the proposal would not be an overdevelopment of the site and would sit comfortably in what I expect to be the likely future streetscape character of this street. In this regard I again note what Mr Crane said about the likelihood of redevelopment in the street. 27 Similarly I do not accept that this proposal would comprise an inappropriate precedent for this street or this locality. I therefore uphold the appeal and grant development consent in accordance with the amended plans which incorporate changes to the front terrace and entrance, fencing and landscaping, subject to the conditions in exhibit 2. Orders 1. The appeal is upheld 2. Development application number 04/0328 for the demolition of an existing dwelling house and the erection of a new two-storey dwelling with the basement garage at 10 Lucas St. Cronulla is determined by the granting of development consent subject to the conditions in Annexure A. hereto. 3. Exhibits E, F and G are retained. ____________________________ T A Bly 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. 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