Artmade Architectural v Campbelltown City Council [2007] NSWLEC 855

Land and Environment Court of New South Wales

CITATION : Artmade Architectural v Campbelltown City Council [2007] NSWLEC 855

APPLICANT Artmade Architectural PARTIES : RESPONDENT Campbelltown City Council

FILE NUMBER(S) : 10759 of 2007

CORAM: Moore C

KEY ISSUES: Development Application :-

DATES OF HEARING: 28 November 2007

EX TEMPORE JUDGMENT DATE : 28 November 2007

APPLICANT Ms S Hill, solicitor Susan Hill & Associates Lawyers Pty Limited LEGAL REPRESENTATIVES: RESPONDENT Mr A Seton, solicitor Marsdens Law Group

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

MOORE C

28 November 2007

10759 of 2007 Artmade Architectural v Campbelltown City Council

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. The consequence of the Court's decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/

1 COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 against the refusal on 21 August 2007, under delegated authority, by Campbelltown City Council (the Council) of Development Application 1833/2006/DA-RS - an application which was lodged on 17 July 2006. The application is for the construction of an additional dwelling on and the Torrens Title subdivision of an existing property at 2 Mongon Place, St Helens Park (the site). 2 The existing dwelling which is located generally in the north western corner of the site is proposed to be retained. The existing swimming pool on the site is to become part of the new allotment (Lot B) and an additional two-storey dwelling house (comprising four bedrooms and an attached single garage) is proposed to be erected on Lot B. The site is a little over 803 sq m in size and the existing dwelling, which is (from its appearance) several decades old, is a single storey dwelling with three bedrooms. 3 The site is on the corner of Mongon Place and Larapinta Crescent and is on the high side of that corner. 4 During the course of the site inspection with the legal representatives of the parties and those instructing them, I had the opportunity of inspecting the exterior of the existing dwelling - there being no interior issues requiring my attention - and of visiting the properties of (and hearing evidence from) residents of 12 Larapinta Crescent, which is the adjacent property to the west, and from a resident of 18 Marloo Place, Mr Cunningham, which is the property immediately to the south and south east and from Mr Talty whose father is the proprietor of 16 Marloo Place, the property one further to the east of Mr Cunningham's property. 5 During the course of the site inspection, a variety of matters were discussed and a number of amendments agreed to be incorporated into the plans. These amendments address, at least to my satisfaction, a number of the concerns raised by the three objecting properties. The first of the amendments of significance is that the proposed new single garage to be added to the front of the existing dwelling will be moved approximately 1.25 m further to the east. 6 The precise degree of that movement will be determined by the new location not breaching a 5.5 m setback in its north eastern corner from the nearest point on the property boundary. That will be achieved by the movement of that edge together with a shrinking of the garage by some 500 mm. The garage floor will also be constructed so that the top of the slab is at RL141.15 which will enable both a lowering of the structure somewhat and a continuation of the existing roofline on the site. 7 That will have two beneficial impacts. The first is that there will be greater amenity retained for the master bedroom of the property at 12 Larapinta Crescent, both by the setting down and the moving away of the garage, and, secondly, it will also have the effect of reducing the degree of brick wall, albeit with two inserted windows, that will face Larapinta Crescent. That is an issue of some importance when I come to consider the provisions of the present Development Control Plan about the contribution that the present dwelling makes to the streetscape. 8 In this regard, and I will deal with it at greater length later, I am satisfied that for the purposes of consideration of cl 3.9.2(f) of the Development Control Plan, which existed at the time the development application was lodged and which is in identical terms relevantly to the provisions of the 2007 Development Control Plan which came into effect on 21 November 2007, the existing dwelling located on the site, for the purposes of that consideration, should, in my view, be read to be the existing dwelling located on the site in the form that it will be when it is modified by the application that is presently proposed. 9 I have been presented with a revised compliance table which shows that both dwellings are compliant (with one minor exception - that the bedroom floor area of the proposed new dwelling is two per cent in excess of the thirty five per cent total built area that is permitted). I am satisfied in the overall context of the application that that exceedence is de minimus and need not detain me further. 10 The other matter of objections that were raised by the residents of 12 Larapinta Crescent concerns both the outlook from and the overlooking of two children's bedrooms along the eastern side of that property and privacy issues concerning the bath and basin areas of the bathroom in that dwelling which have separate windows in the direction of proposed dwelling on Lot B. 11 As to the question of presentation to the bedroom windows of that which will be constructed on Lot B, I am satisfied, first, that the dwelling will not simply be the presentation of a blank wall. There will be a presentation of an articulated dwelling. It will not remove the totality of light to those rooms - whilst there will undoubtedly be a change, it is a change at sufficient distance that I am satisfied that, whilst it might be an adverse change, in itself it would not warrant refusal nor warrant making a significant contribution to refusal. Given the overall conclusion that I have come, although that is an adverse impact, it is not such as would together with any other adverse impacts warrant refusal of the application. 12 With respect to the question of privacy for the young female residents of 12 Larapinta Crescent, I am satisfied that, although they may have become accustomed to having the bathroom and bathing area windows left open, I noticed that the windows to those two areas were the traditional obscured glazed form of window commonly required for bathroom and similar areas - indeed as are to be incorporated in such facilities in the proposed new dwelling on Lot B. I also observed the top of each of those windows had a gauzed section designed to permit airflow into the area. I am not satisfied that it would be appropriate to require any alteration - if issues of privacy arise they are readily able to be addressed by the closure of the windows by those persons utilising those facilities in 12 Larapinta Crescent. 13 I am satisfied that the degree of separation between the dwelling proposed on Lot B together with the alteration to the nature of the glazing to the master bedroom at the first floor when coupled with the fact that that room overlooking the rear yard of 12 Larapinta Crescent is a bedroom rather than an intensely used living area, is an appropriate degree of separation. 14 As has been observed in this Court on numerous occasions in the past, when living in an urban environment that is comparatively densely settled there is a degree of good neighbourliness required and a degree of modest averting of the eyes from accidental overlooking. That is the situation that arises with respect to this proposed development. 15 With respect to the concerns raised by Mr Cunningham, the master bedroom window as now to be treated will not provide any significant overlooking given that there will be obscure glazed or translucent glass at the end closest to his property. I am also satisfied that the degree of overshadowing from the shadow diagrams, which the council accepts are accurate (and I see no reason from the face of the documents to dispute their accuracy), will provide modest and passing shade at the winter solstice to a very small proportion of his outdoor clothes drying area. 16 It certainly would not make any contribution in the context of the relevant controls contained in cl 3.6 of the old Development Control Plan and which appear to be mirrored in cl 3.6 of the new Development Control Plan. I am satisfied that there is no impact on 18 Marloo Place that would warrant refusal or contribution to refusal. 17 As to the concerns about 16 Marloo Place, as I pointed out to Mr Talty onsite, from my consideration of the plans, there was in excess of 20 m separation between the rear yard of his father's property and the site and that for somebody to look from the master bedroom window on the dwelling proposed for lot B onto 16 Marloo place they would need to have their abseiling equipment on and be hanging out the window for that purpose. 18 I am satisfied that the range of other matters that have been discussed including some largely cosmetic but necessary changes to the existing dwelling on lot A will enable the development to be granted approval. 19 I turn to the provisions particularly of cl 3.9.2(f) of both development control plans. That is the old and that which operates from 21 November of this year. Cl 3.9.2(f) reads as follows: "Unless council can be satisfied that an existing dwelling located on the site makes a positive contribution to the character of the streetscape that dwelling shall be demolished. In the case where an existing dwelling house is to be retained the design of the new development shall complement the siting, bulk, scale, form, materials, colours and finishes of the existing dwelling." 20 First, with respect to the new dwelling, I am satisfied that the schedule of finishes together with the design satisfy the second element of that provision - in that this new dwelling will complement the relevant elements of the existing dwelling. It will be distinctly different and complementary but nonetheless complementary. 21 The more difficult issue that I raised with Mr Crane, planner for the applicant, during the course of the beginning of the hearing onsite, relates to the requirement that I must be satisfied that the existing dwelling located on the site makes a positive contribution to the character of the streetscape. 22 As I earlier indicated, I am satisfied that that should be measured as a contribution to the streetscape after such alterations or additions as may be proposed to the existing dwelling are effected to that dwelling. 23 I walked the relevant portion of the streetscape with the representatives of the parties during the course of the onsite inspection. It was agreed that the totality of the streetscape for that purpose comprised the length of Larapinta Crescent in each direction from the site together with the small element that comprises Mongon Place. 24 It is a streetscape which has no degree of architectural coherence apart from the fact that for the relevant frontages to Larapinta Crescent and Mongon Place, the dwellings all present as single story dwellings and would range, I would estimate, from twenty to twenty five years old through to perhaps fifteen or so years old. They are of a uniform and generally bland architectural style that characterised that era of dwelling design. 25 The applicant, in response to my enquiring of Mr Crane how cl 3.9.2 would be satisfied, has proposed that the existing guttering on the existing dwelling and its fascia boards be changed. That is, the guttering will be replaced with new guttering colour-consistent with the new dwelling and the fascia boards repainted. There are a number of elements of downpiping and the like which would be subject to the same treatment. 26 There is to be a new balustrade to a design satisfactory to the Council around the existing front porch and a new front door also to the satisfaction of the Council. The area down the slope away from what is proposed to be the added garage towards the corner of Larapinta Crescent and Mongon Place will be landscaped consistent with a landscape plan which is to be approved by the Council prior to the issue of a construction certificate and which landscaping is to be installed prior to the issuing of an occupation certificate for the dwelling onLot B. Finally, the tiles on the roof, which were showing considerable signs of aging, are to be cleaned. 27 I am satisfied that all of those elements do, in fact, positively satisfy the requirement of cl 3.9.2 in that the existing dwelling, as subject to those cosmetic and appearance changes together with the addition and change to the presentation of the street by the adding of the garage to the front, will make a positive contribution to the character of the streetscape, - particularly compared to the contribution that the existing dwelling in its unadorned form makes to the streetscape. 28 For all those reasons, I am satisfied that the appeal should be upheld, that the development application should be granted development consent subject to conditions which remain to be finalised between the parties; subject to the filing of revised plans to give effect to what has been discussed and agreed between the parties; and subject to the filing and serving of a revised BASIX certificate indicating compliance with basics requirements.