Stancliffe R and Anor v Marrickville Council [2007] NSWLEC 633

Land and Environment Court of New South Wales

CITATION : Stancliffe R and Anor v Marrickville Council [2007] NSWLEC 633

APPLICANT: PARTIES : Roger Stancliffe and Pat Hodges RESPONDENT: Marrickville Council

FILE NUMBER(S) : 10641 of 2007

CORAM: Watts C at 1

Development Application :- Non-compliance with the side boundary setbacks; KEY ISSUES: Should not imitate a period building; Opportunity to provide a contemporary building in place of the demolished improvements.

LEGISLATION CITED: Marrickville Local Environmental Plan 2001, (MLEP) Environmental Planning and Assessment Act 1979, ss79C and 97

DATES OF HEARING: 24 September 2007

EX TEMPORE JUDGMENT DATE : 24 September 2007

APPLICANT: Mr P J Duffy, solicitor with Mr M J Higgins, agent SOLICITORS: LEGAL REPRESENTATIVES: P J Duffy & Associates RESPONDENT: Mr G Christmas, Principal Solicitor SOLICITORS: Marrickville Council

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

24 September 2007

10641 of 2007 - Roger Stancliffe and Pat Hodges v Marrickville Council

JUDGMENT

1 This involves an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Marrickville Council (the council) to refuse a development application to demolish the existing improvements (except for shed in the rear yard), remove trees and to erect a two-storey dwelling house at Lot 31 in DP 1280, being No 18 Lincoln Street, Dulwich Hill. 2 I visited the land in company with the parties on the morning of the on-site hearing. 3 I have concluded that the application should succeed, as the proposal would be a worthy replacement of the existing building on the land when considered against the council's planning controls. The land 4 The land is situated on the eastern side of Lincoln Street, at the southern cul-de-sac end of Lincoln Street. It is rectangular in plan shape with a frontage (and rear) of 12.19m, side boundaries of 40.23m and an area of 490m2. 5 Erected on the land is a single-storey and two-storey dwelling house, with a detached shed/ garage at the rear. The existing dwelling is setback around 4m from the western front alignment to the front wall and is built to the southern boundary. The dwelling is not heritage listed and is not within a urban conservation area. 6 Adjoining on the northern side is a two-storey dwelling house at No 16 Lincoln Street and on the southern side is a single-storey dwelling house at No 20 Lincoln Street. Both adjoining dwelling houses have zero setbacks to one side boundary. No 16 Lincoln is built to the southern boundary and No 20 Lincoln is built to the northern boundary. At the rear, fronting Wardell Road is another dwelling house. 7 A large tree is on the adjoining property at No 20 Lincoln Street close to the eastern façade of the existing dwelling and near the common boundary with No 18 Lincoln Street. 8 Lincoln Street comprises a mixture of single-storey and two-storey buildings dwelling houses, and some have been altered in recent years. Eleven out of fifteen dwellings in the street are built to one side boundary. Relevant planning controls Marrickville Local Environmental Plan 2001, (MLEP) 9 Under the provisions of the MLEP the land is zoned Residential 2(A) and the proposal as a dwelling house is permissible with consent. 10 The relevant clauses under the MLEP are: · Clause 10 (zoning); · Clause 58 (waste management); and · Clause 59 (energy, water and stormwater efficiency). Marrickville Development Control Plan No 35 - Urban Housing Volume 1, (DCP35) 11 The general aims and objectives of DCP35 are: 1. To provide more details on the residential controls contained in the Marrickville Local Environmental Plan, 2001 (MLEP2001). 2. To provide detailed design objectives, and controls, which encourage innovative design that positively, responds to the character and context of the locality. 3. To encourage high quality urban design outcomes. 4. To maintain and encourage compatible architectural styles within residential areas. 5. To encourage restoration and sympathetic alterations and additions to existing period houses in a manner that retains and enhances their architectural character and streetscape presentation. 6. To promote development that responds, enhances and contributes to Marrickville's heritage, comprising items of environmental heritage, conservation areas, special character areas and landscape elements. 7. To enhance the quality of life and promote the well-being of the local community. 8. To encourage residential development, which is sensitive to the local, environment, socially responsive, promotes a safe living environment and makes better us of existing infrastructure. 9. To ensure that new development considers the principles of ecologically sustainable development, in particular energy, water and stormwater efficiency, solar access waste reduction and local bio-diversity. 10. To ensure that the impact of urban housing on the amenity of surrounding properties and the streetscape is a prime and initial consideration in the preparation and assessment of development proposals. 12 Of particular relevance are Parts 2B – Built form and character; Part 4 – Supporting design advice. Under Part 2B – B2 that deals with building setbacks for lots with frontages greater than 12m, as is the present, the minimum distance from the side boundaries is for two floors 1.5m, [Exhibit 3, p 35]. However, under Part 4 setback and siting it is stated, [Exhibit 3, p 94]: Ensure that built forms, and the gaps between buildings, maintain the established rhythm of buildings and spaces. 13 Also under B2, [Note: Exhibit 3, p 34]: Building to side boundaries for a proportion of the site may be appropriate to maintain the continuity of building facades in uniform streets or where the allotment is narrow and it is impracticable to design a workable and functional living area. In such cases the applicant must demonstrate that the impact to the amenity of adjoining premises is minimal. 14 Other planning controls include: · Marrickville Development Control Plan No 19 - Parking Strategy, (DCP19); · Marrickville Development Control Plan No 27 - Controls for Site Waste Minimisation, (DCP27); and · Marrickville Development Control Plan No 32 - Energy Smart Water Wise, (DCP32). The proposal and its history 15 Development application No 2006/00212 was lodged with the respondent council on 9 May 2006 to demolish the existing improvements (except for the shed in the rear yard), remove trees and to erect a two-storey dwelling house on the land. 16 The proposed dwelling would have a floor area of 225m2 (117m2 and 108m2 to ground and first floors respectively). The floor space ratio (FSR) would be 0.57:1 (including the shed) and would comply with the council's requirement of 0.6:1 FSR. The proposed site coverage would be 251m2 or 51% of the site area. Thus the site coverage would be 1% over the requirement. On-site parking is proposed via a side drive-through. 17 The proposal would be built 240mm off the blank sidewall of the adjoining property at No 20 Lincoln Street, in much the same location as the existing dwelling's sidewall that is built to the side boundary. Thus on the southern side of the proposal would maintain the appearance of the presently existing spacing of buildings in the street. It would extend on the ground floor around 1m further to the east than the existing building and closer to the tree on the adjoining property, however the council did not raise issue with this. On the first floor the setback from the eastern boundary is similar to that of the existing first floor setback. The proposal would be set 1.072m off the northern boundary on the other side of a drive-through. 18 During the hearing Mr Duffy, solicitor for the applicant, indicated that his client would be prepared to remove part of the shed at the rear to bring the site coverage into compliance with the 50% coverage requirements. Notification 19 The application was notified by way of a newspaper advertisement, an on-site notice and letters sent to adjoining and neighbouring properties between 11 May 2006 and 30 May 2006, and the council received one submission. The owner of the adjoining premises at No 16 Lincoln Street raised concerns with: i) Privacy impacts due to limited separation between buildings. ii) Possible adverse impacts on energy efficiency. iii) Loss of a building that has been in existence for about 120 years. iv) Excessive floor space. v) Loss of trees reducing a sense of privacy between properties. The council's decision 20 On 21 June 2006, the application was considered by the council's Development Assessment Panel, (DAP), which raised the issue that: · the development did not comply with DCP35 in terms of streetscape, height and setbacks; and · the quality of the design of the infill building was not sufficient to warrant demolition of the existing building.