Land and Environment Court of New South Wales CITATION : ACM Landmark Pty Limited v Cessnock City Council [2007] NSWLEC 429 APPLICANT ACM Landmark Pty Limited PARTIES : RESPONDENT Cessnock City Council FILE NUMBER(S) : 10163 of 2007 CORAM: Hussey C KEY ISSUES: Development Application :- Multiple Unit Housing, compatibility with controls, access, impact on neighbours solar access, traffic LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Cessnock Local Environmental Plan 1989 DATES OF HEARING: 12/06/2007, 28/06/2007 and 09/07/2007 DATE OF JUDGMENT: 18 July 2007 APPLICANT Mr S. Williams, solicitor of Thompson Norrie Solicitors LEGAL REPRESENTATIVES: RESPONDENT Mr R. Mallik, solicitor of Mallik Rees Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 18 July 2007 10163 of 2007 ACM Landmark Pty Limited v Cessnock City Council JUDGMENT Background. 1 This appeal was lodged against Councils' deemed refusal of a development application for a 23 unit multiple dwelling development at No's 82A & 88 Alexandra Street, Kurri Kurri. 2 For the appeal a number of issues were identified which can be summarised as follows: o the proposal does not satisfy character objectives for the area; o the proposal does not provide high quality urban design and residential amenity; o impacts on neighbours; o boundary fencing; o drainage; o traffic and access; o public interest in terms of objections from neighbours. 3 In response to these issues, the applicant amended the proposal, resulting in the councils' agreement to consent orders, subject to resolution of conditions impacting on the neighbouring properties. The Site. 4 The subject site is described as Lot 1 DP 931658 & Lot 81 DP 1074404. It has 2 frontages to Alexandra Street and total area of 7371 sq m. It is predominantly behind (infill development) the row of dwellings facing Alexandra Street and contains 2 dwelling houses. 5 The majority of the subject site falls towards the north-western corner, through which a drainage has been created, to dispose of water to Deakin Street. 6 The site is located in the residential area of Kurri Kurri and is less than 500m from the western end of the commercial area. The Proposal. 7 This proposal involves the demolition of all structures on the site and construction of a multiple dwelling development comprising 23 dwellings, in the form of attached and detached villas and townhouses. They comprise 2 x 2-storey dwellings and 21x single-storey dwellings. These dwellings comprise 11 x 2 bedroom and 12 x 3 bedroom. 8 Access to the proposal is via a new loop road with 2 intersection points with Alexandra Street. This loop road surrounds the existing dwellings at No 84 & 86 Alexandra Street. 9 There are 6 car parking spaces and garbage collection points proposed within the site. Planning Controls. 10 Cessnock Local Environmental Plan 1989 (CLEP). Under this CLEP the site is zoned 2 (a) – Residential "A" where multiple dwelling developments are permissible with consent. The surrounding locality is similarly zoned. 11 The following zone objectives and development control table are contained in clause 9: (a) primarily to provide for low-density residential development; (b) to enable residential flat buildings which are compatible with single storey development; (c) to provide for other forms of development which may appropriately be located in a residential zone; (d) to ensure non residential development is of a type, scale and character which will maintain residential amenity. Development Control Plans . The development is subject to 4 DCPs, which have been consolidated as follows: DCP 22 - Lower Hunter Urban Housing with the objectives: (a) provide a user-friendly document with flexible performance based criteria to guide development; (b) encourage high quality urban design and residential amenity in urban housing development; (c) support the efficient use of residential land and expand the variety of housing options available; (d) set appropriate environmental criteria for solar access, privacy, noise, vehicular access, parking and open space; (e) ensure the impact of urban housing proposals on the amenity of adjoining properties is a prime and initial consideration of applicants when preparing their development proposals; (f) encourage an increased community acceptance of urban housing in its various forms and minimise associated conflict; and (g) encourage ecologically sustainable development. DCP 38 - Public Notification and Advertising Plan DCP 40 - Waste Management and Minimisation DCP 58 - Access & Mobility The Evidence. 12 The main evidence presented in this appeal comprises the development assessment contained the Director Corporate & Regulatory Services report No 8/2007 and the objections lodged by neighbours. 13 This report contains a detailed s 79C assessment of the proposal, relative to the current controls and concludes that: o There are no environmental impacts as a result of proposed development, with any soil, erosion and drainage issues controlled via required details and conditions consent. o The proposal is generally single storey, in keeping with the existing residential character of the area. The immediate locality contains a number of old buildings, meaning that the proposal would represent urban renewal and an increase and improvement to the housing stock in Kurri Kurri. o There are likely to be beneficial social and economic impacts in the locality, as local services and existing infrastructure are increasingly utilised, including: schools, playing fields, transport, local shops and the like. o The majority of the subject site has been vacant residential land for many years and as such, its development is seen as a matter of course. There are no reason such as topography, contamination, vegetation or the like, for which the site would be deemed to be unsuitable. o Apart from the submissions received during the notification periods, there are no other issues with regard the public interest or submissions from any public authority. 14 Accordingly, the assessment officer concludes that: "The proposed complies with Councils requirements and the proposed conditions will alleviate a number of the concerns raised by the objectors. The proposal represents new development in the locality and is recommended for approval, subject to conditional consent." 15 As I noted initially, the objectors were advised of councils' agreement to consent orders and were subsequently allowed to express their concerns at the site inspection. This procedure resulted in some amendments to the proposal, in response to the matters raised. 16 Notwithstanding this, I understand from Mr Mallik's submissions that following objections remain: Boundary fencing ; 17 This concern arises because the proposal is for a 1800mm high timber lapped and capped fence along the northern boundary of No 86 and a 1500mm Colorbond fence with 300mm lattice extension along the rear (southern) boundary. 18 The property owner prefers the continuation of the 1800mm timber fence, primarily to maintain privacy to the elevated swimming pool in the rear yard. 19 A similar specification is proposed along the southern, side boundary of No 84, together with the rear Colorbond fence. This property owner prefers the specification of side fencing to be reduced to 1500mm, from the adjacent visitor space 6 to Alexandra Street to allow better entry of natural light and air circulation. 20 For my assessment of these objections, I consider it relevant to take into account that the new development proposes substantial Colorbond fencing. I understand from the applicant's submissions that the subject rear fencing (1500mm + 300mm lattice) is preferred for consistency and also because the proposed new units are below the natural ground levels along this boundary and the proposed lattice extension improves solar access. 21 On this basis, I consider it reasonable to maintain the proposed Colourbond rear fencing specification for consistency of materials in the estate and because the levels of the proposed outdoor areas of units 22 and 23 are significantly below the rear yard levels of No 86 and therefore overlooking should not be a significant issue. 22 With respect to No 84, this dwelling is set above natural ground level and I do not consider the additional 300mm of fencing (i.e. total height of 1800mm) will significantly alter the light and air circulation to this dwelling. Instead, I consider more weight should be given to maintaining this height of fence to ensure consistent streetscape impacts and maintaining a reasonable level of privacy to No 84, considering the location of the adjacent pedestrian walkway and proximity to the visitor car parking spaces. Noise from traffic structures ; 23 This concern arises because lateral markings are shown on the road plan near the Alexandra Street intersections. However, clarification of this detailing confirmed that the markings are to define the entrance to the new estate and will conform to the normal road cross-falls. On this basis, undue noise should not be generated from vehicles passing these markings and I therefore consider it is reasonable that they remain. Landscaping/Jacaranda ; 24 Objections were made from the property owner at No 86 that the proposed Jacaranda near the rear boundary would cause undue disamenity to the pool and rear yard area of his property. However, I understand that this planting is part of the landscape theme for the new estate and that the tree can be planted an appropriate distance away from the fence area and on the road reserve, so that any disamenity is minimised. Accordingly, I am satisfied that this aspect of the landscaping plan should be maintained. Landscaping/Syzygium ; 25 This concern relates to the size of the proposed planting of the 'Aussie compacts' along the part of the southern boundary of No 84. Insofar as the planting specification is for 200mm pot sizes, I understand from the evidence that these species will be in the order of approximately 900mm at planting and are anticipated to reach a mature height of 1.5 – 2m. I am satisfied that the proposed size of these species is reasonable, subject to detailing of the planting height in the landscape schedule. Conclusions. 26 Having considered the evidence, the submissions and undertaken view, I am satisfied that the amended plans demonstrate reasonable compliance with the current planning controls and that the amenity impact on adjoining properties is reasonable, as required by the DCP. In this regard, I rely significantly on the detailed s 79 C assessment, which concluded that the proposal merited conditional consent, noting that there was no substantive challenge to this assessment. Therefore, the consent orders should be made. Court Orders 27 By consent the Court orders: 1. The appeal is upheld. 2. Development consent is granted to DA No 8/2004/606/1 for the demolition of structures on the site and construction of a 23 unit multiple dwelling development at Nos 82A and 88 Alexandra Street, Kurri Kurri subject to the conditions in Annexure A. 3. The exhibits may returned except for Exhibits E, F and G. ___________________ R Hussey 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.