> Land and Environment Court of New South Wales CITATION : Rodonna Properties Pty Ltd v Wollondilly Shire Council [2003] NSWLEC 259 APPLICANT: Rodonna Properties Pty Ltd PARTIES : RESPONDENT: Wollondilly Shire Council FILE NUMBER(S) : 10546 of 2003 CORAM: Bly C KEY ISSUES: Development Application - Development Control Plan - Subdivision :- Strata title - medium density units - refusal· Character of area - amenity of dwellings - site arrangement and planning Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Rivers and Foreshores Improvements Act 1948 Wollondilly Local Environmental Plan 1991 CASES CITED: DATES OF HEARING: 19, 22 , 23 September 2003 DATE OF JUDGMENT: 10/29/2003 APPLICANT: Mr D Parry, barrister SOLICITORS Reimer Winter Williamson LEGAL REPRESENTATIVES: RESPONDENT: Mr A Seton, solicitor SOLICITORS Marsdens Law Group JUDGMENT: In the Land and Heard by: Commissioner T A Bly Environment Court Decision date: 29 October 2003 of New South Wales Rodonna Properties Pty Ltd v Wollondilly Shire Council Judgment Introduction 1 This appeal relates to development application No. 1718/02 ("the application") for the demolition of an existing weatherboard dwelling and associated outbuildings, the removal of trees, the construction of twelve single-storey three-bedroom dwellings ("the proposal"), and the strata subdivision ("the subdivision") of the resulting medium density units, on part of lots 1 and 2 in DP 625492 being land at Nos. 19 and 21 Victoria Road, Thirlmere. 2 An existing detached dwelling house is to be retained on proposed Lot 102 which has been created as a result of an approved subdivision of Lots 1 and 2. This subdivision also created lot 101 with an area of 6,585 m2 which forms the site of the proposal ("the site "). 3 Five of the proposed detached dwelling houses are to be positioned along the northern portion of the site with the remaining seven dwellings positioned along the southern portion of the site. A central articulated driveway from Victoria Road provides access to the garages and visitor parking spaces. 4 Situated on the western side of Victoria Road the site has frontage of 22.4 m and a depth of 198 m. It backs onto Matthews Creek "(the creek") and a council reserve which includes the Lin Gordon Reserve ("the reserve") which is heavily treed in parts. The site has a fall of about 10 m from the street to the creek's embankment below which the land is flood liable and in part, swamp like. The site contains a number of large Casuarina trees mostly in the vicinity of the creek. Statutory Provisions 5 Under Wollondilly Local Environmental Plan 1991 ("the LEP") the site is zoned 2(a) Residential in which zone the proposed medium density development comprising multiple dwellings is permissible with development consent. Subdivision is also permissible with development consent. The 2(a) zone aims to: Provide an environment primarily for detached housing and to ensure that the range of other development permitted in a residential area is compatible with the residential environment. 6 Also applicable to the site is Development Control Plan No. 32 - Residential Development ("the DCP"). (The more recent Development Control Plan No. 50 is not applicable by virtue of the transitional provisions contained therein). The DCP contains a number of standards applicable to this proposal including site area and frontage, population and dwelling density, landscaped area, private open space and courtyards, common open space, building height and set-backs as well as on site parking, access and driveways. It was agreed that the only standard not met by the proposal involved solar access to some of the private courtyards. 7 The development comprises integrated development being within 40 m of a river and therefore requires approval under the Rivers and Foreshores Improvements Act, 1948 whereby a s 3A permit is required. Advertising and council's decision 8 The application was advertised and 44 objections were received. Matters of concern raised in these objections include: · Likely adverse impacts on Matthews Creek · Increased traffic in local streets · Insufficient on site parking for residents and visitors · Bushfire threat · Out of character with the rural amenity of the locality · Adverse visual impact and loss of visual amenity · Part of the site is liable to flooding. 9 Following its consideration of an officer's report recommending approval of the application the council decided that it should be referred back to the applicant seeking a reduction in the number of units and alteration of open space and layout of the carparking and landscaping. In response the applicant advised that the development application should be processed without any further amendments. 10 The application was consequently re submitted to council for determination together with a recommendation that it be approved subject to a number of conditions. The council subsequently decided that the application should be refused and a notice of determination to this effect was issued on 19th May 2003 the reason for refusal being: As it is an overdevelopment of the site within the locality, carparking, open space and gun barrel access, in particular DCP 32 as outlined on page 32 and 33 of the report and s 79 C parts A, B, C, D, and E. The evidence 11 On behalf of the respondent council expert evidence was given by: · Mr M Brown - town planner · Mr R Bradley - urban designer 12 In addition resident objector evidence was provided by: · Dr D Ryan · Mr J Dawson · Mr D Brown · Mrs L Eberheart · Mr D Ashton 13 On behalf of the applicant expert evidence was given by: · Miss N Sonter - landscape consultant · Mr J Hollis - traffic Engineer · Mr S Buchanan - town planner 14 An inspection of the site and its environs was undertaken during the hearing in company with the applicant, the respondent and a number of resident objectors. The issues 15 The applicant and the Court were provided with a Statement of Issues containing nine separate issues which in essence became: · Whether the proposal as a whole would be incompatible with the existing character of the street and the locality. · Whether the proposed dwellings would have a satisfactory level of amenity particularly in relation to their private courtyards and their relationship to the driveway. · Whether the arrangement of the development on the site is satisfactory including aspects of vehicle manoeuvring and parking, the location of the play area and the relationship of the development to the reserve. Character and streetscape 16 Mr Brown believed that the proposal was not responsive to the character of the locality. This character is determined by existing lot sizes, the size, orientation and setbacks of existing dwellings and the rural setting and backdrop of the nearby reserve. Together these aspects point to the low density character of the locality. 17 When considered together the proposed buildings will read as being unusually large in relation to the site and by comparison with other buildings in the locality. This will be exacerbated by the reduction in landscaped areas and increases in hard paved areas. Simply put there would be too much development on the site. 18 Mr Bradley was of the opinion that from an urban design perspective, the proposed layout with its multiplicity of buildings is a very poor response to the development requirements of this site. It would fundamentally change the existing character and historic pattern of development of the area and would thus be in contravention of the objectives of the LEP and the DCP. He accepted that the development would present as single dwellings from the street and that this was an appropriate approach however from some viewpoints all of the roofs of the buildings would be seen together with little or no relief. Also by building in what is effectively the rear yard, the rhythm of large backyards which is typical of the area will be suddenly interrupted. 19 He argued for an alternate design approach with an access road winding its way through the site and around a centrally located common space. Housing could be provided in the form of four larger two-storey buildings each containing three dwellings. 20 Mr Buchanan was of the opinion that the low density proposal would be compatible with the existing residential environment and would meet the objectives of the LEP and the DCP. It would achieve this by presenting itself to the street as a single storey single dwelling in a landscaped setting not unlike other dwellings in the locality. Moreover the single-storey detached dwellings would be consistent and compatible with the existing detached dwellings in the locality even though this proposal comprises 12 dwellings on a large single allotment. 21 He was of the opinion that Mr Bradley's suggestion that the site could be developed with four, three dwelling buildings would be totally out of character with locality even when these hypothetical buildings were compared with a existing larger dwellings in the area. 22 Having contemplated this issue on site and in the light of the evidence I have not been persuaded that in principle at least the approach adopted by the applicant of providing single-storey detached dwellings in a landscaped setting would not meet the objective of the 2(a) zone. Whilst the provision of carparking spaces in the setback area is of concern the essential presentation of the development by way of a single detached dwelling in a landscaped setting when viewed from Victoria Road is appropriate. 23 Whilst I recognise that the appearance of the development when viewed from neighbouring properties will be more akin to a medium density development I do not accept that this presentation should be determinative of the application. Again any such impact would be mitigated by the proposed landscaping and the separation between each of the proposed dwellings. More generally I accept Mr Buchanan's argument that single storey well separated detached dwellings are more likely to be compatible with the character of the area by comparison with larger multi-dwelling buildings as suggested by Mr Bradley. 24 Despite these conclusions I have some residual concerns regarding the cumulative appearance of roofs stepping up the hillside, when viewed from the reserve. Of course any such impacts will be somewhat mitigated by the extent to which the development is able to be seen from the reserve, taking also into account the separation between the buildings and the proposed landscaping. Internal amenity 25 Whilst he was not critical of the dwellings themselves, Mr Brown was of the opinion that the amenity afforded to a number of the proposed dwellings would be unsatisfactory as a result of the configuration, solar access and fencing around the proposed private courtyards. He was particularly concerned at the inadequate solar access at the winter solstice to the courtyards of dwellings 6 - 12 particularly when the shadows cast by the privacy fences are taken into account. The solar access objectives in AMCORD are unlikely to be met. He was also concerned that a number of courtyards especially those associated with the northern dwellings would be of poor-quality given the need for excavation and the consequent height of privacy fences and retaining walls and the resulting overshadowing and excessive sense of enclosure. 26 Mr Brown was also concerned regarding the adverse amenity impacts associated with a number of the buildings which had their floor levels below the level of the driveway. The associated excavation of the site for some of the dwellings and the courtyards was reflective of poor design and a failure to respond to the topography of the site. 27 In relation to solar access Mr Bradley was of the opinion that the housing concept was fundamentally flawed. This was because variations to the same house type are used resulting in the southernmost dwellings having their principal living areas and courtyards facing south. 28 Mr Buchanan, after taking into account the shadow diagrams which include shadows generated by the courtyard fences was of the opinion that solar access to all of the courtyards would be adequate even though they may not meet the standards in the DCP. Overall he was of the opinion that the courtyards would provide a satisfactory level of amenity for the proposed dwellings. 29 In relation to the courtyards, having examined the winter solstice shadow diagrams I have been persuaded that a number of these will be unsatisfactory in terms of amenity and usability. The design of these courtyards is flawed for the reasons given by both Mr Brown and Mr Bradley, especially taking into account the extent of excavation, privacy fences and the east-west orientation of the site. This is a large, relatively unconstrained site and I heard no reason why a good level of amenity should not be provided for all of the proposed dwellings. 30 It may be that a different design which focuses on providing north facing courtyards between the buildings would produce a better result by avoiding the problem of having courtyard areas which are not so extensively overshadowed by their associated dwellings and privacy fences. Site planning 31 In relation to the arrangement of development on the site Mr Brown had a number of concerns including: · The unsympathetic location of visitor carparking spaces in the front of the site · Excessive hard paved areas · The functionality of use of the common open space and the isolation of the play area. · Location of visitor parking spaces at the end of the long driveway · The tight access to a number of carparking spaces and associated restricted visibility and safety aspects. · The failure of the development to respond to the topography of the site as evidenced by the excessive excavation and retaining walls. 32 Mr Hollis had no concerns in relation to the location of the visitor parking spaces or in relation to manoeuvrability and safety aspects associated with the carparking spaces for any of the dwellings. He agreed that it would be appropriate to provide a turning area in the vicinity of the visitor parking spaces for fire-fighting. 33 In relation to the vehicle manoeuvrability and safety aspects I accept the evidence of Mr Hollis that this would be satisfactory particularly taking into account that this would be a low speed low traffic volume environment. However I do not accept that the proposed location of the visitor carparking spaces would be appropriate and agree with Mr Brown that being located such a distance from the street would tend to encourage inappropriate on street parking. 34 I also accept that it is appropriate for an emergency vehicle turning area to be provided. However in the location proposed this would add to the hard paved area in the vicinity of the visitor carpark and most likely to the extent and height of the retaining walls in this location. I agree with Mr Brown's concerns here that these structures would be unnecessarily intrusive when viewed from the reserve and a poor response to the topography of the site. These problems may have been avoided if the visitor parking spaces were provided elsewhere or distributed throughout the site. It may also resolve the concern, with which I agree, that these parking spaces are inappropriately located. 35 As for the play area Mr Buchanan did not accept that this was inappropriately located. Whilst I accept that this aspect of the proposal is not entirely unsatisfactory, given the length of the site and the resulting distance of some of the dwellings to the play area, I agree that it could have been better located. 36 In relation to the common open space generally I accept that the provision of the space adjacent to the reserve is entirely appropriate. It clearly could be made useable in the context of this medium density development and access to it by a limited number of steps is not unreasonable. Conclusions 37 I accept that, given the single-storey nature of the proposal and the inward looking and nature of the dwellings that possible privacy impacts on neighbouring properties will be minimal. The creek will be protected by the provision of appropriate set backs together with additional landscaping with suitable local species. Stormwater will be directed to the creek in accordance with the requirements of both council and the Department of Land and Water Conservation although I wonder whether some kind of treatment might be appropriate given that the creek appears to function in the manner of a wetland. 38 In principle I do not find the form of the development, being detached dwellings in a landscaped setting to be unacceptable and I accept, that in its essence it is responsive to the applicable statutory controls. However there are a number of design details which I have already referred to which are unsatisfactory. Together these matters result in my decision that the proposal in its present form should not be approved. Orders 39 The orders of the Court are: 1. The appeal is dismissed. 2. Development application No. 1718/02 for the demolition of an existing dwelling, the construction of twelve single-storey three-bedroom dwellings and the strata subdivision of the resulting medium density units, on part of lots 1 and 2 in DP 625492 being land at Nos. 19 and 21 Victoria Road, Thirlmere, is refused. 3. Exhibits A, B, and C are retained. 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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