Peter Connor Building Consultants v Sutherland Shire Council [2010] NSWLEC 1348

Land and Environment Court of New South Wales

CITATION : Peter Connor Building Consultants v Sutherland Shire Council [2010] NSWLEC 1348

APPLICANT Peter Connor Building Consultants PARTIES : RESPONDENTS Sutherland Shire Council

FILE NUMBER(S) : 10695 of 2010

CORAM: Brown C

KEY ISSUES: DEVELOPMENT APPLICATION :- demolition of an existing dwelling and the construction of a new dwelling - appropriate front setback

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Sutherland Shire Local Environmental Plan 2006 Sutherland Shire Development Control Plan 2006

DATES OF HEARING: 13 December 2010

EX TEMPORE JUDGMENT DATE : 13 December 2010

APPLICANT Mr D Wright, solicitor SOLICITORS Willis Bowring LEGAL REPRESENTATIVES: RESPONDENT Ms J Amy, solicitor SOLICITORS Sutherland Shire Council

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Brown C

13 December 2010

10695 of 2010 Peter Connor Building Consultants v Sutherland Shire Council JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal of Development Application DA08/1202 by Sutherland Shire Council (the council) for the demolition of an existing dwelling and the construction of a new dwelling at 5 Sanderson Street Cronulla (the site). 2 The appeal was subject of a conciliation conference on 2 November 2010 and a further conciliation conference on 16 November 2010 under s 34 of the Land and Environment Court Act 1979. As no agreement was reached, the conciliation conference was terminated pursuant to s 34(4)(a). The parties consented to me disposing of the proceeding at a later date pursuant to s 34(4)(b)(i). The hearing was conducted on 14 December 2010 as an On Site hearing. The judgment reflects the contents of the Amended Statement of Facts and Contentions and the reasons for the decision given on-site. 3 The contentions originally raised by the council had been reduced through further discussion and amended plans and the only remaining contention was the building setback to Sanderson Street and the additional overshadowing created by the reduced setback on the property to the south, specifically the kitchen window. 4 Additional contentions were raised by local residents that related to: - overlooking, - overshadowing, and - the appearance of the dwelling wall near the southern boundary. 5 The site has a frontage of 13.82 m to Sanderson Street and an area of 720.8 sq m. It is located within Zone 4 - Local Housing Zone under Sutherland Shire Local Environmental Plan 2006 where dwelling houses are permissible with consent. 6 Sutherland Shire Development Control Plan 2006 (the DCP) applies. Relevantly, Chapter 3: Urban Design provides requirements for street setbacks at cl 2. The relevant objectives in cl 2.a.1.1 are: a. to establish the desired spatial proportions of the street and define the street edge. . d. to preserve a perception of openness in streets where this is consistent with the desired future character. e. to ensure new development is compatible within the established streetscape character. 7 Clause 2.b.1.1 states that: Street setbacks are measured perpendicular from the property boundary to the closest extent of the building, including balconies, sunscreens, podiums and the like. 8 Clause 2.b.2, relevantly states that 1. A minimum 7.5 m setback from the street frontage is required for all development, unless an alternative street setback is specified in this plan 2. …. 3. In the case of corner properties, the 7.5 m setback applies to the narrowest street frontage. In the case of the second street, a minimum 3 m setback applies. 4. Should the existing streetscape and development patterns comprise of a dominant dwelling setback other than 7.5 m, the average of two dwelling setbacks on each side of the site must be used to establish the required setback. 9 A joint report was prepared by Mr David Crane, a town planner and Mr Peter Connor, the building designer for the applicant and Ms Debbie Pinfold, a town planner and Mr Peter Brooker, an architect for the council. There was agreement that the proposed setback was predominantly 6.135m to the first floor balcony edge but increased to 6.8 m for a distance of 600mm. The setback of the dwelling wall is 8.060 m. 10 Mr Crane states that the relevant setback requirement is cl 2.b.2.4. In his opinion, the development pattern comprises a dominant dwelling setback other than 7.5 m therefore the setback should be the average of the setback of the two dwellings on each side of the site. At the time of preparation of the plans for the site, the existing streetscape has a predominance of other than 7.5 m setbacks. The property at 19 Mitchell Road (corner of Sanderson Street) and 9 Sanderson Street have setbacks in excess of 7.5 m, 7 Sanderson Street has setbacks between 4.3 m and 5.8 m, the previous dwelling erected on 3 Sanderson Street had a setback between 2.7 m and 3.1 m and 1 Sanderson Street has a setback of 7.5 m. The existing dwelling on the site has a setback between 3.6 m and 5.4 m. 11 To further support of the variation to the setback control, Mr Crane states that as Sanderson Street is only developed on one side (the other side being open space that leads to the North Cronulla Beach) the openness of the streetscape is guaranteed. Further, the retention of the existing swimming pool at the rear of the site creates constraints to the design of the dwelling. 12 Mr Connor states that he had considered amendments to the dwelling to increase the setback however it was not considered practical because of the impacts on the amenity of the dwelling and the necessity to link the living rooms of the dwelling to the existing swimming pool. 13 Ms Pinfold states that the relevant setback requirement is cl 2.b.2.1 as the existing streetscape and development patterns do not comprise a dominant dwelling setback other than 7.5 m. She states that the five dwellings in Sanderson Street should be the basis of assessing the appropriate setback. The property at 19 Mitchell Road should be given little weight in this assessment because it is a corner lot although the dwelling satisfies the requirements in cl 2.b.2.3 in providing a 7.5 m setback to Mitchell Road and a 3 m setback to Sanderson Street. Of the five dwellings in Sanderson Street, only 7 Sanderson Street is setback below 7.5 m. This is an older style dwelling and could potentially be redeveloped. While accepting that the recently developed dwelling at 3 Sanderson Street has a setback of around 7.1 m, she acknowledged that the approval assumed, based on the documentation provided, that the setback was 7.5 m. 14 Mr Brooker stated that the existing swimming pool, in his opinion, was not a significant constraint to the development of the site dwelling and that with some adjustment to room sizes, a dwelling could be constructed that would satisfy the 7.5 m setback. Alternatively, the building could be moved towards the rear of the site to satisfy the 7.5 m setback and at the same time maintain access to the existing pool. 15 In balancing be competing evidence, and with the benefit of the site view, I agree with conclusions of Ms Pinfold. Accepting that weight must be given to the DCP (see Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 and Zhang v Canterbury City Council (2001) 115 LGERA 373), I accept that the setback must be measured to the closest extent of the building, including balconies, sunscreens, podiums and the like (cl 2.b.1.1) in this case, the edge of the first floor balcony. The undisputed evidence of Mr Pinfold was that since the coming into effect of the DCP in 2006, the council had rigidly applied this requirement (except with the inadvertent approval of the dwelling on 3 Sanderson Street). 16 On the question of whether the appropriate setback falls within cl 2.b.2.1 or cl 2.b.2.4 of the DCP, I can comfortably conclude that the former sub clause should be applied. I do not accept that there is a dominant dwelling setback other than 7.5 m for the lots in Sanderson Street. I agree with Ms Pinfold that little weight should be given to the dwelling at 19 Mitchell Drive in any assessment of an appropriate setback. Clause 2.b.2.1 of the DCP clearly contemplates a reduced setback for the secondary street although the dwelling on this site has a setback to the secondary street that is well in excess of the 3 m setback where it adjoins 9 Sanderson Street thereby creating a blending of setbacks rather than an abrupt change. 17 The relatively isolated location and limited length of Sanderson Street dictate that the remaining five dwellings should be the basis of any assessment of an appropriate assessment of a front setback. I agree with Ms Pinfold that greater emphasis should be given to the recently constructed dwellings rather than the existing older style dwellings that are potentially development sites. In this regard, the dwellings at 1 and 3 Sanderson Street generally adopt a 7.5 m setback. If the dwellings at 7 and 9 Sanderson Street are redeveloped, it would only be reasonable to apply a 7.5 m setback given the requirements in cl 2.b.2.1 of the DCP. I see no benefit in relying on the older style dwellings in establishing a front setback particularly when it would be inconsistent with the desired future character of the area contemplated by the DCP. 18 I do not accept the evidence of Mr Crane that the applicants desire to maintain the existing pool and that Sanderson Street is only developed on one side provides any basis for a reduced front setback. 19 Based on the finding that a 7.5 m setback is appropriate, Mr Wright, for the applicant, submitted that he would accept a condition specifying this setback although this would likely require the removal of the existing swimming pool. Ms Amy, for the council, submitted that such a condition was acceptable to the council. 20 Of those matters raised by the local residents, I am satisfied that these matters would not warrant the amendment of the application or its refusal. Potential overlooking occurs from low activity areas, such as bedrooms, paths from utility areas, such as laundries or where there is a significant separation distance between the potential source of overlooking and the area of concern. In terms of overshadowing, the dwelling to the south will naturally be overshadowed however given that there is general compliance with the councils planning controls, any overshadowing is not unreasonable. The appearance of the dwelling wall near the southern boundary, in my view, is acceptable. The length of the wall is not excessively long being around 10 m and does provide some visual relief through windows and detailing by the use of different materials. 21 As the applicant has accepted a condition requiring a 7.5 m front setback, there is no basis for the refusal of the application, so the Orders of the Court are: 1. The appeal is upheld. 2. Development Application DA08/1202 for the demolition of an existing dwelling and the construction of a new dwelling at 5 Sanderson Street Cronulla 3. The exhibits are returned with the exception of exhibits 1 and A.