Land and Environment Court of New South Wales CITATION : Grinberg v Byron Shire Council [2007] NSWLEC 746 APPLICANT Bernard Grinberg PARTIES : RESPONDENT Byron Shire Council FILE NUMBER(S) : 10806 of 2007 CORAM: Brown C KEY ISSUES: Development Application :- erection of a new dwelling to create a detached dual occupancy development - impact on character of area - amenity impacts LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Byron Local Environmental Plan 1998 CASES CITED: Veloshin v Randwick Council [2007] NSWLEC 428 DATES OF HEARING: 12/11/07 DATE OF JUDGMENT: 20 November 2007 APPLICANT Dr S Berveling, barrister SOLICITORS Blake Dawson Waldron LEGAL REPRESENTATIVES: RESPONDENT Mr A Seton, solicitor SOLICITORS Marsdens Law Group JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 20 November 2007 10806 of 2007 Bernard Grinberg v Byron Shire Council JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal of Development Application DA 10.2007.63.1 by Byron Shire Council (the council) for the erection of a new dwelling to create a detached dual occupancy development at 89 Wordsworth Street Byron Bay (the site). The site and surrounding area 2 The site is Lot 1 in DP 780229. It has an eastern frontage of 22.28 m to Wordsworth Street and a northern frontage of 40.23 m to Burns Street giving a total site area of 915.5 sq m. 3 The site contains a single storey dwelling located towards the Wordsworth Street frontage and a shed located approximately mid way along the southern boundary. A large mango tree is located near the shed. 4 The surrounding area is exclusively residential in nature. The proposal 5 The proposal is to construct a new two-storey dwelling to the west of the existing dwelling with access from Burns Street. The ground floor area will have an area of 143.6 sq m and contain a rumpus room, a media area, a guest room and a garage containing two car parking spaces. The first floor has an area of 123.8 sq m and contains three bedrooms, kitchen, dining room, lounge room, toilet and bathroom facilities. Front and rear verandahs are also provided on this level. Relevant planning controls 6 The site is zoned 2(a)(Residential Zone) under Byron Local Environmental Plan 1998 (LEP 1998). The proposed use is permissible within this zone. Clause 9(3) provides that consent must not be granted unless the proposed development is consistent with the zone. Clause 17 provides specific requirements for dual occupancy developments, relevantly a minimum lot area of 800 sq m (cl 17(5)(b)) and a maximum floor space ratio (FSR) of 0.5:1 (cl 17(6)). There was no disagreement that the proposed development satisfies these requirements being 915.5 sq m and 0.4:1 respectively. 7 Clause 40 provides requirements for height, relevantly a height of 4.5 m for the topmost floor level above existing ground level (cl 40(2)(b)(i)) and a height of 9 m from the topmost part of the building measured vertically to the existing ground level (cl 40(2)(b)(ii)). There was no disagreement that the proposed development satisfies these requirements being 2.46 m and 6.6 m respectively. 8 Byron Development Control Plan 2002 (DCP 2002) also applies. Part A provides General requirements, including How does this DCP work? (Pt A4). Part C provides requirements for Residential development in including Introduction (Pt C1), General provisions (Pt C2) and Dual occupancy (Pt C5). The issues 9 The council's Statement of Facts and Contentions identifies 7 areas of dispute. Following the preparation of amended plans, the permissibility of the proposed development (Issue 1), overshadowing and solar access (pt Issue 3) and insufficient information (Issue 7) were not pressed. The remaining issues can be grouped into the following areas: 1) whether the proposed development has an unacceptable impact on the character of the area specifically front setback, bulk and, scale and density (Issue 2 and 4), 2) whether the proposed development creates unacceptable amenity impacts on adjoining properties (pt Issue 3), and 3) whether the proposed development provides adequate parking for the existing dwelling (Issue 5). 10 The public interest (Issue 6) is addressed as part of the above issues. The evidence 11 Mr Patrick Dawson, for the council, and Mr Andrew Martin, for the applicant, provided town planning evidence. 12 The following local residents provided evidence on site: o Ms Kerry Geldens, the owner of 22 Burns Street, o Mr Paul and Ms Karen McCarthy of 24 Burns Street, and o Mrs Gloria Simmons of 91 Wordsworth Street. 13 The concerns of the local residents related to the unacceptable impact on the character of the area largely by the two storey construction of the dwelling, the use of the proposed new dwelling for holiday letting and the consequent noise, traffic and parking issues and the loss of privacy particularly from the first floor windows and verandahs. Character The evidence 14 Mr Dawson and Mr Martin addressed the issue of impact of the two-storey construction of the dwelling on the character of the area. Mr Dawson states that the design of the proposed dwelling has no common elements, including the number of storeys, with those of the existing house on the site. The effect is to exaggerate the apparent scale of the development and to distinguish it from the scale and character of other local development. Such distinction would not reinforce the existing local character, which is of low-key residential development. The proposed dwelling would appear as a visually unattractive overdevelopment of the site. 15 Mr Martin comes to the opposite conclusion. He states that the dwelling is architecturally resolved having well-balanced proportions and fenestrations. In his opinion, the site does not warrant strict compliance with the single storey building control as the area, whilst are supporting a majority of single storey dwellings, has examples of two-storey development. This is not a case where a two-storey dwelling is proposed within a unique row of existing dwellings so flexibility is warranted for the site due to the screened position and sub-tropical ambience. The relevant controls 16 Part A of DCP 2002 under the heading How does this DCP work? states: Specific requirements for various forms of development addressed by the DCP are generally divided into the primary Control Elements of the particular type of development. Control Elements comprise Element Objectives , Performance Criteria and Prescriptive Measures . In some cases both Performance Criteria and Prescriptive Measures are specified, but in other cases only one of those criteria is specified. Every development proposal must meet the Element Objectives. This will usually be achieved by meeting the prescriptive measures. The prescriptive measures are requirements that Council considers are likely to meet the objectives and performance criteria of the particular control element. Alternatively Council may be prepared to approve development proposals that are demonstrated to meet both the element objectives and the performance criteria. This provision enables the development of innovative schemes that meet the particular characteristics of an individual site. 17 DCP 2002 provides the following relevant controls: C5.2 Element – Character Element Objective To ensure that dual occupancy development is compatible in character with development in the locality, provides adequate private open space and addresses slope and drainage issues. Performance Criteria In assessing any proposal for dual occupancy development, particular consideration will be given to the topography and slope of the site, design to minimise loss of privacy, the visual impact of the proposal and the likely impact on water flows and drainage. To encourage better visual quality and greater public acceptance, any attached dual occupancy development must be designed as far as possible to look like a single dwelling. Mirror-image dual occupancies must be avoided. Private open space must be specifically designed to be easily accessible to each dwelling Prescriptive Measures There are no prescriptive measures for this Element. C5.3 Element – Density Control Element Objective To promote a low-density residential character. Performance Criteria The bulk, scale and density of dual occupancy development must be consistent with single dwelling development in the locality. The site coverage must allow adequate areas for access, parking, landscaping, useable outdoor recreation and clothes drying. The area of the site covered by impervious surfaces must be minimised to reduce stormwater runoff. Prescriptive Measures The local environmental plan provides that a dual occupancy development will have a floor space ratio no greater than 0.5:1. It also provides that, where - a) an application is made to alter or add to a dwelling-house to create 2 attached dwellings; and b) the floor space ratio of the dwelling-house, before alteration or addition, exceeds 0.5:1, Council may consent to the application if the floor space ratio of the dwellings to be created is not greater than the floor space ratio of the dwelling-house before alteration or addition. Twenty five percent (25%) of the site must be covered by absorbent surfaces. Such surfaces must be either lawn or landscaping. Where sewerage services are to be provided via an on-site sewage management system the pervious area required to be set aside for the satisfactory operation of that system (including areas for treatment and disposal, and for buffers to them) must not be included in the site area used in the above density calculations but must be an additional site area to that which would be otherwise required. C5.6 Element – Adjoining and Adjacent Development Element Objective To ensure that new development is consistent with the character and amenity of existing development in the locality. Performance Criteria Development must be compatible with the scale, height and character of adjoining and adjacent development. Prescriptive Measures Council will only consider Dual Occupancy development in urban areas where, in its opinion, it has been demonstrated that the following objectives have been met: a) adequate provision for reasonable protection of existing views from neighbouring houses; b) adequate provision for privacy of the proposed dwelling-house(s) and any adjacent dwelling-house(s); c) adequate provision for access to natural light and solar access for the proposed dwelling-house(s) and any adjacent dwelling-house(s); d) maintenance of the character and neighbourhood amenity of the adjoining residential area; Where an application proposes the construction of a second dwelling on already developed land and the surrounding development is single storey, Council will require the proposed building to be single storey. To achieve the above objectives the site characteristics, including slope and aspect, must be taken into consideration in assessing the appropriate height and number of storeys. Findings 18 DCP 2002 requires developments to satisfy the element objectives and this "will usually be achieved by meeting the prescriptive measures". In this case, there was no disagreement that the proposed development satisfied that the majority of the relevant prescriptive measures in DCP 2002. These relate to lot size and frontage, height, building height plane and FSR. The only relevant departure related to the front setback where the prescriptive measure required a set back of 6.5 m whereas the proposal provides a setback of 4.25 m to the edge of the front verandah. 19 I am satisfied that the variation to the front setback is acceptable and satisfies the element objective as the front setback aligns with the existing dwelling on the site and also the existing dwelling to the west. 20 The question to be answered is whether the relevant element objectives are met. Even though there are no significant departures from the relevant prescriptive measures, it does not follow that the proposal is then acceptable. Pt A of DCP 2002 uses the word "usually", suggesting that compliance with the prescriptive measures is not sufficient, in itself for approval. 21 The relevant element objectives have a common thread in that the character of the area is to be considered. Pt C5.2 Element – Character element objective requires a development to be "compatible in character with development in the locality", Pt C5.3 Element – Density Control element objective requires a development to promote a "low density residential character" and Pt C5.6 Element – Adjoining and Adjacent Development element objective requires a development to be "consistent with the character and amenity of existing development in the locality" 22 With the benefit of the site view I am satisfied that the character of the surrounding area can be described as almost exclusively single storey residential dwellings with an occasional two-storey residential dwelling. The two-storey residential dwellings are limited to a recent dual occupancy development in Gordon Street and an older style residential dwelling further to the west along Gordon Street. I do not however accept the argument that even though the existing character of the area is made up of almost exclusively single storey residential dwellings that this should be the test for any assessment of character. To adopt this approach would be to largely ignore the current planning controls that clearly anticipate two-storey residential dwelling through the height, building height plan and FSR prescriptive measures in DCP 2002. 23 A large part of the council's case centred on Pt C5.6 Element – Adjoining and Adjacent Development and specifically the requirement that Where an application proposes the construction of a second dwelling on already developed land and the surrounding development is single storey, Council will require the proposed building to be single storey. 24 When questioned on the basis for this requirement (and considering that the current planning controls that clearly anticipate two-storey residential dwelling) Mr Dawson stated that it was his opinion that the planning controls specifically attempted to avoid the situation where the construction of a second dwelling for a dual occupancy development should be the "driver" for two-storey development in the area. 25 While Mr Dawson's explanation is consistent with the wording of this part of Pt C5.6 Element – Adjoining and Adjacent Development, it does not explain, in terms of the general issue of character, why DCP 2002 does not place any restrictions on a new detached two-storey dual occupancy development (providing that an existing dwelling does not form part of the proposed development). 26 In balancing the requirements of DCP 2002 and the existing predominant single storey residential character of the area, I am satisfied that a two-storey residential dwelling can be erected on the site. The design of such a building however needs to be particularly sensitive to address the existing single storey residential character of the area. 27 In this regard, I am not satisfied that the proposed development is sufficiently sensitive to it's setting for the development application to be approved. DCP 2002 provides an FSR of 0.5: 1 for both single dwelling and dual occupancy development. In this case, the 277.4 sq m floor area for the proposed dwelling is located on approximately half of the site with the existing dwelling having a floor area of 103.2 sq m being located on the other half of the site. The effect on the character of the area is a disproportionate concentration of floor space over the site and a built form that is inconsistent with the existing character of the area and also the character anticipated by DCP 2002. 28 Even if a new two-storey dual occupancy development was constructed on the site, the floor area would likely be spread more evenly over the site thereby reducing the bulk, scale and massing when viewed from Burns Street and Wordsworth Street. The lack of increased setbacks at the upper level exacerbate the unacceptable bulk, scale and massing of the proposed dwelling. The existing dwelling is clearly a constraint on the development of the site that has not been fully taken into account in the proposed design even accepting that the FSR is below that allowable under DCP 2002. 29 This is a conclusion that can be comfortably drawn from the first question in the Planning Principle in Veloshin v Randwick Council [2007] NSWLEC 428 that asks: Are the impacts consistent with impacts that may be reasonably expected under the controls? (For complying proposals this question relates to whether the massing has been distributed so as to reduce impacts, rather than to increase them. For non-complying proposals the question cannot be answered unless the difference between the impacts of a complying and a non-complying development is quantified.) 30 For the reasons mentioned previously, I find that the proposal does not meet Pt C5.2 Element – Character element objective in that the development is not "compatible in character with development in the locality", Pt C5.3 Element – Density Control element objective in that the development does not promote a "low density residential character" and Pt C5.6 Element – Adjoining and Adjacent Development element objective in that the development is not "consistent with the character and amenity of existing development in the locality". 31 For this reason the appeal must fail however for completeness I will briefly deal with the other issues. Amenity impacts 32 The property at 91 Wordsworth Street, directly behind the site is the most significantly affected property. The impacts relate to potential overlooking and noise from the rear verandah and the first floor windows. With an inspection from this property and an understanding of the relationship with the proposed development, I accept that the concerns expressed by Mrs Simmons are valid. 33 While I acknowledge that the applicant has sought to partly address these concerns. The retention of the existing mango tree that provides some screening between the site and Mrs Simmons' property although I am not satisfied that any reliance should be placed on its the retention. There was no evidence to indicate that is retention can be guaranteed as part of the proposed development. Even though it was submitted that the retention of the mango tree was not necessary to provide an acceptable level of privacy, I am of the view that all measures should be taken to ensure its retention. Similarly, I am not satisfied that an appropriate response to the overlooking and noise issues associated with the rear verandah is to fully enclose this area with screens. 34 The impacts on 91 Wordsworth Street arise largely through the fundamental problem of excess floor area in this location. This mandates that the dwelling be located at a distance of only 4 m from the common boundary with Mrs Simmons' property. The potential amenity impacts through lack of separation are exacerbated by the use of the adjoining area as a lounge room. In my view, the design of the dwelling shows little attention to the proper allocation of space within the dwelling and the relationship with adjoining properties. 35 The overlooking and noise impacts from the front verandah to 22 and 24 Burns Street are not matters that would warrant further amendment to the proposed development. 36 The council and local residents raised the potential issue of holiday letting although Mr Seton, for the council, submitted that on instructions he would not make any submissions on this issue. Similarly, he had no instructions to withdraw the issue. As the development application was for a dual occupancy development, and no other use, I am satisfied that the use of the premises can be adequately controlled through conditions of consent, if approval was to be granted. Parking for the existing dwelling 37 While I did not understand there to be an issue with the number or location of car parking for the existing dwelling, the applicant opposed the requirements of the council to provide a gutter crossing and driveway for the existing dwelling. 38 As the proposed development includes the existing dwelling, I see no reason why the access arrangements should not be upgraded as part of the proposed development. Orders 39 For the reasons set out in the preceding paragraphs, the Orders of the Court are: 1) The appeal is dismissed. 2) Development Application DA 10.2007.63.1 for the erection of a new dwelling to create a detached dual occupancy development at 89 Wordsworth Street Byron Bay is refused. 3) The exhibits are returned. ____________ G T Brown Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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