Land and Environment Court New South Wales Medium Neutral Citation: Monahan & Anor v Warringah Council [2014] NSWLEC 1027 Hearing dates: 18 February 2014 Decision date: 21 February 2014 Jurisdiction: Class 1 Before: Morris C Decision: Appeal dismissed Catchwords: Modification of development consent: secondary dwelling, compliance with controls contained within DCP Legislation Cited: State Environmental Planning Policy (Affordable Rental Housing) 2009 Warringah Local Environmental Plan 2011 Land and Environment Court Act 1979 Environmental Planning and Assessment Act 1979 Cases Cited: Zhang v Canterbury City Council (2001) 115 LGERA 373 Texts Cited: Warringah Development Control Plan 2011 Category: Principal judgment Parties: Karen M Monahan Gordon A Monahan (Applicants) Warringah Council (Respondent) Representation: Mr R Bennett Pikes and Verekers Lawyers (Applicant) Mr K Webber Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 10935 of 2013 Judgment 1The Monahans lodged Development Application DA2013/0256 with Warringah Council seeking consent for construction of alterations and additions to an existing dwelling house and a secondary dwelling above the existing garage. Consent was granted for the alterations and additions to the dwelling house only and a condition imposed that has the effect of refusing the secondary dwelling. 2An application to modify the development consent to delete condition 9, that being the condition that deleted the secondary dwelling from the approved plans, was lodged with the council on 26 July 2013 and subsequently refused on 19 November 2013. The Monahans are appealing that decision. The site and its context 3The site is known as No 38 Plateau Road, Collaroy, is regular in shape with a double street frontage to Plateau Road at its eastern end and David Road to the west. It has a width of 14.25m, depth of 41.76m and site area of 595.1sqm. It currently contains a brick fronted, single storey dwelling house addressing Plateau Road and detached, metal, double garage with access from David Road. The garage is erected on a 1.98m setback to David Road. 4Surrounding development consists of one and two storey detached dwelling houses. On Plateau Road, those dwellings front that street whereas on David Road, dwellings on its western side front the street with garaging and boundary fencing being the most common form of development on the eastern side with that garaging associated with those dwellings fronting Plateau Road. There is a consistent building alignment of those dwellings located along the western side of David Road. 5Of the seventeen dual fronted properties bounded by Plateau Road, David Road and Anzac Avenue, all but two have David Road footpath crossings leading to garages or carports. There are four dual occupancies in the block and two of these contain dwellings which address David Road. The setbacks of those dwellings are 3.8m and 7.5m. A 5m setback is provided to the eastern side of David Road for the dual occupancy at the northern end of the road where it returns to Plateau Road, that development being oriented to the north. All of these developments are single storey. The other dual occupancy development is a two storey building located at the eastern end of the site and fronting Plateau Road. It is setback 15.2m from David Road and obtains its vehicular access from that roadway. 6According to the evidence of the planning experts (exhibit 2), the garaging and sheds on the eastern side of David Road and within the rear yards of those dwelling fronting Plateau Road are built on a range of setback varying from nil to 3.2m. All outbuildings are single storey and there are no two storey structures on the eastern side of David Road, other than those dwellings that front Plateau Road. Background and the proposal 7Development Consent to DA2013/0256 was granted by the council on 17 May 2013 and authorised the alterations and additions to the existing dwelling house that fronts Plateau Road. That part of the application that proposed the construction of a secondary dwelling over the garage was not approved. Condition 9 of the consent states: 9. The secondary dwelling shown on the approved plans above the existing garage is not approved and is to be deleted from the plans. Details demonstrating compliance are to be submitted to the Certifying Authority prior to the issue of the Construction Certificate. Reason: Compliance with D6 Access to Sunlight of Warringah Development Control Plan and to maintain the existing character of the David Rd Streetscape. 8The Monahans lodged an application under s96 of the Environmental Planning and Assessment Act 1979 (Act) seeking the deletion of condition 9. The application included modified plans for the secondary dwelling, which increased the setback of the secondary dwelling from the southern property boundary from 0.95m (existing garage) to 1.8m in an attempt to address overshadowing impacts on the neighbouring property to the south. 9Those plans provide for a 40.54sqm, one bedroom dwelling above the existing garage accessed from the backyard by an external stairway to the east of the building. The dwelling is offset from the walls of the garage due to the increased boundary setbacks and would be set back 3.55m from David Road. It has a skillion metal roof with a pitch of 15 degrees and the ridge height is 7.53m above the floor level of the garage. Walls would be weatherboard. 10The council refused that application on 19 November 2013 for the following reason: 1. Warringah Development Control Plan - B7 Front Boundary Setbacks Pursuant to Section 79(1)(c) of the Environmental Planning and Assessment Act 1979, the proposed development is inconsistent with the required front setback to David Road and objectives of clause B7 Front Boundary Setbacks of the Warringah Development Control Plan 2011. 11This appeal is made under s97AA of the Act and commenced on site as a conciliation conference under the provisions of s34 of the Land and Environment Court Act 1979 (LEC Act). No agreement was reached and the conference was terminated. A hearing was held later that day in accordance with the provisions of s34(4)(b)(i), with the parties agreeing that the evidence provided during the conciliation conference would be evidence in the proceedings. 12As a result of discussions held during the conciliation phase, the applicants proposed four additional conditions in relation to the siting and design of the secondary dwelling. That would involve: * Extension of the proposed privacy screen along the outer edge of the entire stairway; * Increased setback to southern boundary by 2.3m achieved by moving the dwelling further to the north and therefore further offset from the garage walls; * The lower section of the window to the bathroom to be fixed and opaque and the top section, 1.65m above finished floor level, to be opaque louvres; * The bedroom window within the southern elevation is to be deleted. 13These amendments are part of the Court's consideration of the application. The issues 14The contentions in the case reflect the reasons for refusal of the s96 application and specifically state: (1)The proposed secondary dwelling does not comply with the 6.5m front setback control. (2)The proposal is not compatible with the existing character of development on David Road (the "secondary street") and hence does not qualify for a variation for a 3.5m secondary street front setback. (3)The non-complying setback does not create a sense of openness in the street. (4)The non-complying setback does not maintain the visual continuity and pattern of buildings and landscape elements on David Road. (5)The non-complying setback does not protect and enhance the visual quality of the David Road streetscape. 15In addition, the council contends that the proposal should be refused having regard to the contents of the submissions which it received in response to notification of the application to the extent that these submissions are consistent with the contentions set out above. The planning controls 16The site is within Zone R2 Low Density Residential under the provisions of Warringah Local Environmental Plan 2011 (LEP). Secondary dwellings are not permitted within the R2 zone. 17State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPPARH) applies to the site. Division 2 of that policy provides for consent to be granted for the purpose of secondary dwellings within the R2 zone subject to provisions of that division because a dwelling house is permitted within that zone (clauses20-22). 18It is common ground that the application meets all relevant requirements contained within SEPPARH. 19Warringah Development Control Plan 2011 (DCP) applies to all land to which the LEP applies (clause A.3). Clause A.4 states that the provisions of the DCP are in addition and complementary to the provisions of the LEP and if there is an inconsistency between the two documents, the LEP shall prevail. 20Clause A.5 sets out the objectives of the DCP as follows: The overriding objective of the DCP is to create and maintain a high level of environmental quality throughout Warringah. Development should result in an increased level of local amenity and environmental sustainability. The other objectives of this plan are: Objectives * To ensure development responds to the characteristics of the site and the qualities of the surrounding neighbourhood * To ensure new development is a good neighbour, creates a unified landscape, contributes to the street, reinforces the importance of pedestrian areas and creates an attractive design outcome * To inspire design innovation for residential, commercial and industrial development * To provide a high level of access to and within development. * To protect environmentally sensitive areas from overdevelopment or visually intrusive development so that scenic qualities, as well as the biological and ecological values of those areas, are maintained * To achieve environmentally, economically and socially sustainable development for the community of Warringah 21Specific provisions of the DCP, relevant to the contentions in the case, are contained in Clause B7 - Front Boundary Setbacks with a 6.5m setback required for all R2 land not specifically identified in maps adopted for the purposes of the clause. The objectives of the control are: * To create a sense of openness. * To maintain the visual continuity and pattern of buildings and landscape elements. * To protect and enhance the visual quality of streetscapes and public spaces. * To achieve reasonable view sharing. 22An Exceptions provision applies and reads as follows: On corner allotments or sites with a double street frontage, where the minimum front building setback is 6.5 metres to both frontages, the front building setback may be reduced to a minimum of 3.5 metres for the secondary frontage, but secondary street variations must consider the character of the secondary street and the predominant setbacks existing to that street. 23Clause D2 establishes minimum requirements for private open space and requires a minimum area of 35sqm for dwellings with 1 or 2 bedrooms and 60sqm for dwellings with 3 or more bedrooms. Clause D6 requires that at least 50% of the required area of private open space of each dwelling and adjoining developments are to receive a minimum of 3 hours of sunlight between 9am and 3pm on June 21. The evidence 24The conciliation conference was conducted on site and included a view of the locality and the adjacent property to the south. The owners of this property had lodged the objection with the council referred to at [15] and evidence was heard on that premises. The concerns were the loss of sunlight to the grassed areas of the backyard; overlooking from the windows within the southern elevation and the stairway and the height, bulk and scale of the building being out of character with the locality and streetscape. 25The conditions proposed by the applicant and described at [12] were offered to address the privacy and overshadowing concerns of the objector. 26Expert evidence was heard on site from Mr J Rannard for the applicant and Mr D Auster for the council. They agree that the overshadowing impacts on the adjoining property are acceptable and would meet the requirements of the DCP and that there are no views that will be unreasonably impacted by the proposal. 27They also agree that the existing character of the eastern side of David Road is established by a variety of front and rear fencing styles including paling fences and a number of garages built on or slightly set back from the street alignment whereas the character on its western side is characterised by a mixture of single and two-storey houses built at different times in a wide variety of styles with no particular architectural style predominating. Mr Auster notes that there are no two storey structures within the 6.5m front setback area on the eastern side and that the setback on the western side is very consistent. 28Mr Rannard says that the addition of a very modest secondary dwelling over the existing garage constitutes sound planning and will reinforce the residential character of David Road. He says that the exceptions provision in clause B7 should be applied because the site has two street frontages with minimum setbacks of 6.5m each; the proposed development considers and is sympathetic to the character of the secondary street and the predominant setbacks within that street. He considers the proposed 3.55m setback for the second storey to be adequate however says that relocating the entire secondary dwelling to the east by a further 950mm could satisfy the council's concerns. The small size, low scale and modest proportions of the secondary dwelling together with the 3.55m setback from the street alignment all work to make it a positive precedent for similar sites and that because the width of the street elevation of the secondary dwelling is less than half that of the David Road frontage, this ensures that a sense of openness is maintained, casual surveillance of the street is provided and the development would enhance the streetscape. It is Mr Rannard's view that if more secondary dwellings were built over other existing garages in a similar manner that would be consistent with the aims of SEPPARH. 29Mr Auster agrees that the sense of openness would be maintained however says that a second storey addition to the existing garage within the 6.5m setback will create an undesirable precedent for two storey buildings (as opposed to single storey garages and carports) within the front setback area, which will lead to a change in character of the area. He does not accept that the greater setback proposed by Mr Rannard would be appropriate as it would increase impacts on solar access to the southern neighbour and reduce the landscaped open space on the site below the required 40%. He does not agree that the proposal enhances the visual quality of the streetscape of David Road, currently characterised by landscaping and single storey garages and carports. 30Mr Rannard concedes that whilst many other buildings are built to or close to the eastern alignment of David Road, there are no other secondary dwellings built over existing garages within the area between the street alignment and the 6.5m setback line on the eastern side of the street, however is of the opinion that the proposed first floor addition to the existing garage would not be in conflict with the general character of the street. He says the secondary dwelling does not undermine or diminish the existing character or visual quality of David Road and will reinforce the residential character of David Road. Mr Auster disagrees and says that, whilst on its own, it will not unreasonably restrict the sense of openness, it will break the existing pattern of development by construction a two storey building 3.55m from the front boundary, will create a precedent to reduce the sense of openness afforded by the existing homogeneous streetscape of single storey structures and will not maintain the visual continuity, pattern of buildings or landscape elements. 31In response to a question from the Court, Mr Bennett, for the applicant, advised that it would be possible to reduce the roof height through the use of a gable type structure rather than a skillion. This would have the effect of reducing the ridge height by approximately 1.4m provided the floor to ceiling height could be maintained to meet BCA standards. Conclusion and findings 32At the conclusion of the hearing, the main issue between the parties was the acceptability of the proposed setback to David Road. Mr Bennett submitted that the DCP did not apply to the application as it was made under SEPPARH and not the LEP quoting the provisions of Part A.4 of the DCP and its relationship with the LEP and says that, because the DCP underpins the LEP and the development is prohibited under the LEP, the DCP cannot apply. 33Firstly, I will address the applicability of the DCP. The fact that the application is made under the provisions of SEPPARH and not the LEP does not mean that the DCP has no effect. The DCP applies to all land to which the LEP applies (Part A.3). The site is included in such land. The front boundary setback provisions apply to all land zoned R2, not only development that is permissible under the LEP. This includes the site. 34One of the aims of SEPPARH is to facilitate the effective delivery of new affordable housing by providing incentives by way of expanded zoning permissibility, floor space ratio bonuses and non-discretionary development standards. It has the effect of permitting a prohibited form of development within the R2 zone. Provided the DCP provisions do not set standards that are more onerous than required under the environmental planning instrument, the provisions are matters to which the consent authority must have regard. (s79C(3A)). Further, the provisions of a DCP only have not effect if it is inconsistent or incompatible with a provision of any environmental planning instrument that applies to the same land. The setback control is not inconsistent or incompatible with any provision contained in either SEPPARH or the LEP. 35Section 79C(3A)(b) provides for flexibility in the approach of a particular set of standards and allows for reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development. In essence, a merit assessment of the setback against the objectives of the control is required. 36In accordance with the provisions of s79C(a)(iii), the DCP remains, consistent with the approach adopted in Zhang v Canterbury City Council (2001) 115 LGERA 373, a "fundamental element" or a "focal point" of the decision-making process. 37I now turn to a merit assessment of the application. This is required even if I am wrong in my consideration of the applicability of the DCP. I accept that the development as proposed meets all of the standards contained within SEPPARH, however, further consideration of the application is required under s79C of the Act. In addition to the provisions of that policy, this includes, as matters of particular relevance to the application, in addition to the DCP, the likely impacts of the development including the impacts on the natural and built environment and suitability of the site for the development. 38The objectives of the front setback control are set out at [21]. Having regard to the evidence, I accept the opinion of Mr Auster, that the proposed two storey addition to the existing garage on a 3.55m setback to David Road will not achieve the objectives of the control. The height of the proposed additions, particularly its northern wall will intrude into the visual continuity and pattern of buildings on the eastern side of David Road. It will not protect or enhance the visual quality of the streetscape but rather appear as a foreign element. Whilst there are a number of outbuildings forward of the 6.5m and 3.5m controls, those structures are single storey and do not rise far above the rear boundary fence heights. Those structures that are higher are erected further back on the site or comply with the control. 39In considering whether it would be appropriate to vary the control from 6.5m to 3.5m, I have regard to the character of David Road and the predominant setbacks in that street. On its eastern side, it is characterised wholly by single storey structures or no structures behind boundary fencing. Where variations to the setback control have been allowed, there are no two storey elements. Considering David Road as a whole, there is a consistent pattern of buildings and landscape elements and the proposal would be out of character with that pattern. The design of the proposal would be visually dominant and this dominance is emphasised by the increase in footprint as proposed through shifting the upper level of the building to address overshadowing impacts. For these reasons, I consider that it would not be appropriate to use the exceptions provision. 40In view of my findings as detailed above, I conclude that the development is out of character with the area, would have an adverse impact on the built environment in which it is located and that the site is not suitable for the development as proposed. For these reasons, it is not appropriate to modify the development consent. 41The Orders of the Court are: (1)The appeal is dismissed. (2)The application to modify development consent DA2013/0256 by the deletion of condition 9 is refused. (3)The exhibits, other than exhibits A and 3, are returned. ________________ Sue Morris 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. 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. Decision last updated: 21 February 2014