Bailey v Hurstville City Council

CASES CITED: Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 ; Zhang v Canterbury City Council (2001) 115 LGERA 373

APPLICANT Ms D Holm, solicitor COLICITORS McKees Legal Solutions LEGAL REPRESENTATIVES: RESPONDENT Mr P Rigg, solicitor SOLICITORS Deacons

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10482 of 2006 Colleen Kay Bailey v Hurstville City Council

JUDGMENT 1 COMMISSIONER: This is appeal against the refusal by Hurstville City Council (the council) of DA 00718/2004 for the erection of a second dwelling to create a detached dual occupancy development at 21 Mavis Ave, Peakhurst (the site). The site 2 The site is Lot 97 in DP 15624. It is a corner site with a frontage of 15.24 metres to Mavis Ave and a frontage of 45.72 metres to Tournay St and a total site area of 696.49 square metres. There is a fall from the north east corner at the front of the site to the south west corner at the rear.

3 A single storey fibro dwelling with tiled roof and attached carport is located on the site towards the Mavis Ave frontage. A fibro garage is located behind the existing dwelling.

4 The area is predominantly residential characterised by single and double storey dwelling houses of varying age and architectural style. A number of dual occupancy developments are located amongst the existing dwelling houses.

The proposal 5 The proposal provides for the demolition of the existing fibro garage and the erection of a 2 storey, four-bedroom dwelling with attached garage at the rear of the existing dwelling to create a detached dual occupancy. The new dwelling will have its street presentation to Tournay St. Relevant planning controls 6 The site is within the Zone 2 (Residential Zone) under Hurstville Local Environmental Plan 1994 (LEP 1994). Clause 8(3) provides that consent may only be granted if a development is consistent with the objectives of the zone and consideration given to the extent to which the development is consistent with those objectives. The relevant objective is: (a) to preserve and enhance the character and amenity of established residential areas, 7 Clause 9 provides that consent may only be granted after consideration of any relevant planning and design principles or policies adopted by the council.

8 Clause 11A provides specific requirements for dual occupancies. Clause 11A(3) provides that a second detached dwelling is prohibited except on lots that have a rear lane or dual street access. Clause 11A(4) provides that the minimum allotment size for the erection of a dual occupancy is 630 square metres and a minimum allotment width of at least 15 metres. There was no disagreement that the proposed development satisfied these requirements.

9 Development Control Plan No. 11 - Dual Occupancy Housing (DCP 11) applies and provides specific requirements for dual occupancy housing, specifically number of storeys, setbacks, external wall height, parking arrangements and floor-to-ceiling heights. DCP 11 provides different controls for different forms of dual occupancy developments. Part 3 Option 5 provides requirements for corner sites and relevantly the requirement for a 1.5 storey building.

10 Development Control Plan No. 22 -Energy Efficiency (DCP 22) applies in relation to solar access. 11 Hurstville City Council Interim Residential Development Code (the Code) applies by way of cl 9 of LEP 1994. The site falls within Development Area B where "Any dwelling at the rear of the site must not have more than one storey". The issues 12 The council filed a Statement of Issues containing seven individual issues and a number of sub issues. The issues centred around the non-compliance with the requirement in Part 3 Option 5 of DCP 11 to provide a building of 1.5 storeys. The non-compliance results in breaches of the external wall height, amount of cut and floor-to-ceiling heights requirements in DCP 11. The evidence 13 Ms Angelina Aversa - Morassut, a town planner with the council provided evidence for the council. The applicant provided no expert town planning evidence however cross-examined Ms Aversa - Morassut on her evidence. 2 storey v 1.5 storey 14 The Building Envelope and Site Requirements for dual occupancy developments are found in cl 2.1 of DCP 11. The Design Solutions and Controls in cl 2.1 require new development to take the form of one of six options set out in the Table of Controls, detailed and illustrated In Section 3. The relevant option is "Option 5 - Corner sites only". Greater detail is provided for Option 5 in p37 through an axonometric perspective and typical building envelope. This provides for the rear dwelling (or Dwelling 2 in Option 5) to have an overall height of 7.5 metres (compared to 9 metres for Dwelling 1 in Option 5). If the rear dwelling has two levels of accommodation, it must adopt a "room in the roof style" construction that provides for the appearance of a single storey dwelling with dormer windows. Clause 2.1.3(g) requires that "if habitable roof space is proposed, a minimum floor-to-ceiling height clearance of 1.7 metres is required and this can include the space created by a gable end". 15 The principal issue between the parties is essentially a question of the weight to be given to DCP 11. The council argues that the two storey construction will be out of character with that envisaged by the councils planning controls. Further, the non-compliance will also result in unacceptable levels of overshadowing. The applicant disagrees and argues that the proposal will be consistent with the character of the area as there are number of two-storey dwellings in the immediate area, including a relatively new dwelling directly opposite the site in Tournay St.

16 The role of a DCP is set out in some detail by the then Chief Judge in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 at pars 83 to 92 and includes a review of recent judgements on this issue. Relevantly, at par 87, His Honour states: A development control plan is a detailed planning document which reflects a council's expectation for parts of its area, which may be a larger area or confined to an individual site. The provision of a development control plan must be consistent with the provisions of any relevant local environmental planning. However, a development control plan may operate to confine the intensity of development otherwise permitted by a local environmental planning. 17 His Honour further states, at par 87, the principles relevant to consideration of development control plans. These include the matters raised in the preceding paragraph and a number of specific matters that determine weight to given to the development control. These are the level of consultation with interested persons, including the effected community, any inconsistency in which the development control plan has been applied by a council, the consistency with other policy outcomes adopted at a State, regional or local level and the consistency of decision-making.

18 The emphasis to be given to a DCP is addressed in Zhang v Canterbury City Council (2001) 115 LGERA 373. Spigelman CJ, at par 75, raises three important propositions. First, and although the Court has a wide-ranging discretion, the discretion is not unfettered. Secondly the provisions of a DCP are to be considered as a fundamental element in, or a focal point to, the decision-making process particularly, if there are no issues relating to compliance with a local environmental plan. Thirdly, a provision of the DCP directly pertinent to the application is entitled to significant weight in the decision-making process but it is not in itself determinative. 19 In this case, I accept that determinative weight should be given to the controls within DCP 11 as these controls provide for a different form of development to that proposed in the development application. While allowing for dual occupancy development on corner sites, the clear intent of DCP 11 is to provide a building form that has the general form of a single storey dwelling. The provisions in the Code support this intent for Area B where "Any dwelling at the rear of the site must not have more than one storey".

20 I also accept that the council's submission that a two-storey dwelling would be inconsistent with the established residential character of the area as envisaged by the councils planning controls. The proposed new dwelling would be located on an area of some 330 square metres whereas the minimum lot size for a single dwelling is 460 square metres. In my view, and notwithstanding the existence of two-storey dwellings near the site, the proposed two-storey dwelling will be seen as inconsistent with the established residential character of the area because of the significantly smaller site area.

21 There is also some merit in Mr Rigg's submission that the applicants desire to use a project home has resulted in a dwelling that breaches a fundamental control in DCP 11 even though the opportunity exists for a dwelling to be constructed with a similar floor area. I note that the proposal satisfies the DCP 11 requirements for setbacks and floor space ratio.

22 I am also not satisfied that adequate regard has been given to the question of overshadowing particularly to the private open space area of the existing dwelling on the site. I note that the shadow diagrams do not identify the shadow cast by the existing building at 23 and 23A Mavis St on this area of the site.

23 For the reasons in the preceding paragraphs, and pursuant to cl 8(3), I find that the proposed development is inconsistent with the objective (a) of the zone and as such the development application must be refused. Orders 24 The Orders of the Court are: 1) The appeal is dismissed. 2) DA 00718/2004 for the erection of a second dwelling to create a detached dual occupancy development at 21 Mavis Ave, Peakhurst is refused. 3) The exhibits are returned.

      G T Brown
      Commissioner of the Court

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