Land and Environment Court of New South Wales CITATION : Camenzuli v Bankstown City Council [2009] NSWLEC 1235 APPLICANT Camenzuli, Danielle PARTIES : RESPONDENT Bankstown City Council FILE NUMBER(S) : 10160 of 2009 CORAM: Murrell C KEY ISSUES: DEVELOPMENT APPLICATION :- Privacy; design; impact on adjoining properties; streetscape;variation to LEP minimum frontage for dual occupancy. Bankstown Local Environmental Plan 2001 LEGISLATION CITED: Bankstown Development Control Plan 2005 State Environmental Planning Policy No 1 CASES CITED: Wehbe v Pittwater Council [2007] NSWLEC 827 DATES OF HEARING: 12 June 2009, 17 June 09 EX TEMPORE JUDGMENT DATE : 17 June 2009 APPLICANT Ms J Reid (Solicitor) SOLICITOR Pikes Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr A Seton (Solicitor) SOLICITOR Marsden Law Group JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 17 June 2009 10160 of 2009 CAMENZULI, DANIELLE v BANKSTOWN CITY COUNCIL This determination was given extemporaneously and has been edited prior to publication JUDGMENT 1 COMMISSIONER: The applicant in these proceedings is seeking to erect two separate dwelling houses in the form of a, a dual occupancy and subsequent subdivision of the land known as 3 Opal Place, Padstow Heights. 2 The Court has the opportunity of a site inspection and heard from a number of resident objectors on the site. Mr and Mrs McCann of 55 Valley Road, are concerned about the impact of the proposal on their amenity and privacy, the poor design, of the proposed open space for the new dwelling houses, and the impact on the character of the area. 3 Mr Tuffek of 53 Valley Road considers the proposal is too high and there will be overlooking of his rear yard and dwelling given the topography. He also expressed concern about sewerage and drainage and this was also raised by Mr McCann. 4 Mrs Denning of 14 Opal Place is concerned about lack of privacy, especially to her swimming pool and the removal of trees. She said the parking in the street is at a premium because of the shape of the cul-de-sac and she is also concerned about the need to erect lattice on the top of the rear fence. Mr Smith of 7 Opal Place is also concerned about parking issues. 5 By way of description the area can be described as a relatively low residential area with topography that is varying, in particular from the beginning or the front of the site near the cul-de-sac there is a significant slope to the rear. As such the properties at the rear on Valley Road are significantly lower than the subject property. The properties to the east are also lower including, that of Mrs Denning's at 14 Opal Place. 6 The plans submitted to the Court show the proposed two lot subdivision following the dual occupancy development. That is subdivision of the land to provide Torrens title to each of the dwelling houses erected. The sequence is such that the dual occupancy must be developed first before the subdivision can take place to satisfy the provisions of the planning instruments. One lot would be some 5 m boundary frontage to Opal Place and the other some 11 m, however there is an arc boundary to the cul-de-sac. 7 In total the land is some 895 sq m or thereabouts and it is an irregular shaped allotment. The controls require for a dual occupancy development that the land be a minimum of 700 sq m. As this is an extempore judgment I will briefly go through the controls noting there are greater detail in the statement of facts and contentions were provided to the Court. 8 The relevant planning instrument is the Bankstown Local Environmental Plan 2001 and the objects of this plan includes: "New development in or affecting residential areas should be compatible with the remaining suburban character and amenity of the locality of the development site". 9 The provisions for the objectives of the zone, the zone being 2A include, (a) To compliment the single dwelling suburban character of the residential areas of Bankstown, (b) To enable dual occupancy, row house and villa development that is otherwise consistent with the objectives of the zone. (c) To ensure sites of sufficient size to provide for buildings, vehicle and pedestrian access, landscape and retention of natural topographical features. (d) To ensure that development is of a heightened scale which compliments existing buildings and streetscapes. (g) To ensure adequate public and private open spaces is available to residents. 10 The general restrictions on development for the 2A and 2B zone in cl 45 reads: "Consent shall be granted for a building on land only if it is compatible with the character and amenity of existing and likely future buildings on adjoining land in terms of scale bulk design, height, siting and landscaping and privacy". Clause 46 that relates to the subdivision of the land and the core residential standards include: (b) "To ensure that allotments are of sufficient size to accommodate proposed dwellings, setbacks to adjoining residential land, private open space and courtyards, driveways, vehicle manoeuvring areas and the like". (d) "To limit the potential for villa, row house, terrace house and dual occupancy development in 2A". (e) "To ensure that dual occupancy retains the general low density scale and character of existing single dwelling and development. The consent authority may grant consent to the subdivision of a single allotment of land to create two or more allotments where the area is not less than 450 square metres". And also, 'Each allotment contains a rectangular with size of ten metres and fifteen metres behind the setbacks and building line of the proposed dwelling". Subclause 4 says, "The consent authority is not to grant consent for detached dual occupancy on an allotment if the allotment has an area less than: 700 square metres; and a width of twenty metres at the front building line". Subclause 5, "The Consent authority shall not grant consent for the purpose of attached dual occupancy if the allotment has an area less than: 500 square metres; or a width of fifteen metres". 11 A SEPP 1 State Environmental Planning Policy No 1 objection was lodged to the development application in respect of the standard of the twenty metres width proposed. 12 I note that the front building line means the line determined by the council establishing the minimum setback of a building from the street alignment. 13 The Council also has a Development Control Plan entitled Bankstown Development Control Plan 2005 and this contains a number of provisions that the court was taken to, in particular part D2 for residential zones. This DCP applies to the 2A zone and also to dual occupancy development as contained in the introduction to the plan. The objectives include: "To have a high level of amenity for residents in community focus and safe neighbourhoods". 14 The subdivision and density controls are in sec 2. The objectives include: "To ensure the size of an allotment is sufficient to provide a usable area for building, landscaping and access. (c) To minimise any likely impact of subdivision and developmental on the amenity of neighbouring properties. (e) To control the scale of development so that it is compatible with the housing characteristics of the locality". 15 The performance criteria for subdivision and density of an allotment include: "To allow the reasonable construction of dwellings and outbuildings and provision of open space, practical vehicle access and parking". 16 The minimum width of an allotment at the front building line includes: "(1) to provide adequate space for dwellings and landscaped areas, practical vehicle access parking and spatial relief between buildings" and "(3) to minimise the impact of a development on the amenity of a neighbouring property". 17 The setback controls are contained in sec 5, "To ensure the siting protects the amenity of neighbouring properties and maintains residential character and to ensure that the siting is compatible with the alignment of neighbouring buildings and the general alignment of the street to provide spatial relief between dwellings and to ensure there is adequate open space for an allotment". 18 Dwelling houses and dual occupancies have a minimum setback of 5.5 m for the first storey, 6.5 m for the second storey. The setbacks to side boundaries are 0.9 for the building wall and 0.45 for eaves and gutters. The minimum setback between a dual occupancy and a side boundary must be clear of all other elements such as water tanks et cetera and a setback to the rear boundary should compliment the rear building alignment of any adjoining dwelling house. 19 The provisions for open space include: "To ensure that there is reasonable open space to meet the needs of the occupants and dwelling houses and dual occupancies must provide a minimum of 80 sq m of private open space per dwelling. Private open space must be provided as a single space with a minimum area of 80 sq m, a minimum width of 5 m". 20 The other controls in the DCP relate to parking. The proposed development satisfies the requirement of a double garage provided for each dwelling house. 21 The Court has the opportunity from the view of understanding the character of the locality this is a relevant matter to be considered in the merit assessment of the application. 22 Mr Robert McGuiness gave evidence on behalf of the applicant, a consultant town planner and council's development assessment officer Mr Peter Cooke, gave evidence to the Court. They also prepared a joint statement to assist the Court in its assessment of the application and participated in concurrent evidence. 23 The development requires the Court to assess a SEPP 1 objection. The SEPP 1 objection must justify the variation to the twenty metre width at the building line. 24 With respect to the front building line if this is taken at 5.5 m or 6.5 m having regard to the provisions of the DCP for single and two storey houses respectively. The two dwelling houses proposed on the subject land are part one and part two storey houses. The garages are forward of the dwelling and form the single storey element and there is then a slight setback to the upper level which provides a balcony over the garage to the upper level of the dwelling houses. There is a two storey middle portion and then at the rear dwellings, a single storey element. 25 It is noted that there is a sliding scale in terms of the floor space ratio achievable for the site. That is up to 700 sq m 0.5:1 applies and then a component for anything over 700 sq m of 0.2:1. The proposal provides for some 388 sq m of built form and what is permissible is 390 sq m on the subject site. 26 The building line where the dwelling houses are proposed are currently significantly set back from the street frontage and at that point the width of the block is some 18 m where the dwellings are set back from the street by in excess of 15 m. If one takes the setback line at 5.5 the width of the lot is some 15 m and at 6.5 it is between 15 and 16 m in width. 27 I need to say at this stage that the applicant tendered an amended plan which was the result of further recommendations by Mr McGuiness and I have considered the amended plans that have the effect of bringing dwelling No 1 to an additional 2 m further forward than the original plan. This also has the effect of providing for a reduced setback to the two neighbours on the eastern side, to be then some 900 mm where as previously it was in the vicinity of 1.5 m from the eastern boundary. The purpose of this amendment is to provide for a more useable open space area in the rear corner of lot 2. 28 I should also say at this point that the owner of the property No 14 to the east which also has frontage to Opal Place was not at the proceedings as they were overseas and apparently did not have knowledge of the hearing. I do note there is a letter of objection in the bundle which I have taken into consideration. Once again they are concerned about privacy matters and overlooking. 29 The plan submitted to the court in exhibit A (referred to as the McGuiness plan) provide for greater details than the original plan submitted with the development application. I am conscious of the fact that they have not been the subject of formal notification to neighbours although some residents on site had the opportunity of viewing same. 30 It was submitted on behalf of the applicant that if the Court accepted the amended plans then neighbour notification could occur in view of the fact that there is a reduced setback to the eastern boundary. 31 The first role of the Court is to consider the State Environmentally Planning number 1 objection as this is a threshold matter. It was submitted that the twenty metre width is a development standard and this is accepted. 32 The objectives of the standard must be considered in the LEP and I will go back to the objectives and the core residential standards have objectives set out in cl 46. The 20 m development standard is at cl 46.4. The objectives are stated within the clause which more particularly include: "To ensure that allotments are of sufficient size to accommodate proposed dwellings, setbacks to adjoining residential land, private open space, courtyards, driveways, vehicle manoeuvring areas and the like". 33 Mr McGuiness is of the opinion that the proposal satisfies the objects of the standard and in his opinion the control in the LEP for the setback is justified to be varied in the circumstances of this case. The configuration of the lot is one that in his opinion can accommodate satisfactorily the two dwelling houses proposed and the minimum width standard should be varied as the dwellings can be accommodated on site. 34 Mr Cooke on the other hand considers that the 20 m width requirement of the LEP is one that should be imposed and that the proposed development does not satisfy the objectives of the standard. The resultant development pushes the built form towards the rear of the lot which in his opinion compromises the amenity for adjoining properties and also compromises the amount of open space for the proposed dwellings, in particular dwelling number two. 35 The Court in its assessment has considered the McGuiness plan, and this is where the open space provision generally meets the standard of council's control. Nonetheless in my overall assessment I am not satisfied that the proposed development meets the objectives standard articulated in council's LEP. 36 I am not satisfied that the width of the subject site is of sufficient size to provide for a dual occupancy development of a detached nature. Council specifically has controls for both attached and detached dual occupancies. The minimum width for a detached dual occupancy is 20 m whereas for an attached dual occupancy it is some 15 m. 37 It is not a matter for the Court to say what is the appropriate attached development for the subject site and there was a great deal of discussion about the impacts that such a development could create, in particular for the properties on the eastern side boundary of the subject site. Where there are two dwelling houses adjoining with their rear yards which are relatively small at a lower level and with swimming pools. 38 I am not satisfied that the objectives, that is sufficient size to accommodate the dwellings with setbacks to adjoining residential land. Even if the 900 mm was increased to the eastern boundary commensurate with the original development application, I am not satisfied that there has been sufficient consideration of the impacts on the properties to the east and the differences in topography, and the relative levels have not been identified on the plans. Even though I have the benefit of the site inspection and I understand the lay of the land. 39 It can be seen that the subdivision creates a width of 5 m at the street boundary for one lot and some 11 m for the other lot to be created. This has a significant proportion of the front area taken up with driveways for the dual occupancy development, (whilst they share the common driveway at the front of the property) as seen the percentage of impermeable area for the dwelling houses in the front yard is not consistent with the character of the area. 40 I do note that the proposal does allow for the significant gum trees to be retained on the property and clearly this is of benefit to the character of the area. However, the threshold question of whether the standard of twenty metres should be varied has not been satisfied and I am not persuaded that the SEPP 1 objection in the circumstances of this case warrants approval. 41 The other matters under SEPP 1 that I must consider are with respect to whether non-compliance with a development standard raises any matters of State or regional significance and the public benefit of maintaining the planning control. Clearly there is a public benefit in maintaining the planning control. As contemplated by council's controls the standard of 20 m is to ensure that there is sufficient width at the front building line for a detached dual occupancy development and in my assessment the proposal does not provide for such an outcome. 42 I have assessed this SEPP 1 having regard to the principles articulated for an assessment of SEPP 1 objections as provided in the judgment of the Chief Judge of this Court in Wehbe v Pittwater Council [2007] NSWLEC 827. 43 The applicant argued that the orderly and economic development of the land is satisfied, that is the object of the Environmental Planning and Assessment Act. However, the objectives of the standard are not met or achieved by a variation to the development standard in the circumstances of this case. I am persuaded by the evidence of Mr Cooke that the outcome pushes the built form to the rear of the property and the dwelling houses built or erected on same will not be consistent with the character of the area and do not allow for sufficient setbacks to adjoining properties and an appropriate fit with the character of the area is not achieved. 44 It is important to note that the objective of (d) is to limit the potential for villa, row house, terrace house and dual occupancy development in the 2A zone. The 20 m standard is to provide for such development to fit in with the character of the low density, single, residential nature of the area. And is (e) to ensure that dual occupancy retains the general low density scale and character of the existing single dwelling development. 45 Having failed the SEPP 1 threshold test, while it is not necessary for me to carry out a merits assessment under s 79C, (although in some instances the merit assessment overlaps with the SEPP 1 assessment). I am of the opinion that the ultimate outcome of the proposed development on a merits assessment would create two allotments that are out of character with the general area. The two detached dwelling houses would sit on relatively very long, narrow lots with a contrived common boundary to accommodate the siting of the dwelling houses and their open space. 46 I agree with the submission made on behalf of the applicant that the proposed development retains the significant gum trees and this would be a requirement of any development of the subject site, especially having regard to the fact that the gum trees are generally located within the traditional setback area for a dwelling house. 47 The applicant submitted that the proposed development would be a 'better development' for the properties with their rear backyards on the eastern boundary. However, I am not persuaded that the development application before the Court is one that provides for a 'better outcome'. Clearly there is a constraint of the site and the constraint of the site incudes not only its narrow width but the fact that there are two rear backyards adjoining on the eastern side boundary that must be considered in the development of the subject site. As such there needs to be a great deal of sensitivity in the design of any dwellings for the subject site having regard to the properties at the rear and having regard to the properties along the eastern boundary. The test for the Court in these proceedings is not to say that this is a better outcome than what maybe achieved by an attached to dual occupancy development as clearly an attached dual occupancy must also be assessed on its merits having regard to the constraints of the site. 48 Accordingly, on the basis of my assessment above the formal orders of the Court in this matter are, 1. The appeal in respect of the property at 3 Opal Place Padstow Heights is dismissed. 2. The SEPP 1 objection to vary the minimum width of twenty metres as contained in clause 46 of the Bankstown LEP is not allowed. 3. The development application submitted to Bankstown Council and as amended is determined by the refusal of consent. 4. The exhibits are returned to the parties. ___________________ J S Murrell Commissioner of the Court ajl 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.