Cracknell & Lonergan Architects Pty Ltd v Marrickville Council [2004] NSWLEC 161 | Case summary

2 The site, which is situated on the north-eastern corner of Hopetoun Street, comprises Lot 2 in DP 33389 is to be subdivided into four lots with each lot associated with one of the proposed dwellings. Three of the dwellings will have their frontages to Hopetoun Street and the fourth dwelling will present to both Trafalgar Street and Hopetoun Street. 3 The site has an area of 329.6 sq m and slopes gently from the north rising approximately 900 mm to the south. The existing building is used as a residential flat building containing four dwellings. 4 The original dwelling on the site was converted into three dwellings with council approval in 1939. Because residential flat buildings are, pursuant to the provisions of Marrickville Local Environmental Plan 2001, prohibited the site attracts the existing use provisions under Division 10 - Existing Uses of the Environmental Planning and Assessment Act 1979 ("the EPA Act"). 5 The application was advertised and three submissions comprising objections to the proposal were received by the council. Expressed concerns relate to lack of on-site parking, adverse impacts on the streetscape, excessive building bulk, overshadowing of neighbouring properties, loss of views and excessive size of proposed trees. The application was refused by the council on 2 March 2004. 6 On behalf of the respondent council Mr P Failes provided expert town planning evidence in written form and orally whilst on site. Also giving evidence on site and on behalf of his parents was the son of Mr and Mrs De Brito who reside in the adjoining dwelling at 257 Trafalgar Street. 7 On behalf of the applicant Mr J Lovell and Mr R Dickson provided expert town planning and urban design evidence in written form and orally whilst on site. In addition the Court was provided with a joint report prepared by the three experts. 8 Having considered all of the evidence and having inspected the site and its environs the following are the issues which require the particular attention of the Court in exercising its judgment as to whether the development consent as sought should be granted: 1. Whether there would be any adverse amenity impacts on adjoining properties. 2. Whether the design of the proposal in its landscaped setting would be appropriate in the streetscape. 3. Whether the provision of carparking would be satisfactory. 4. Whether the proposed dwellings would have satisfactory residential amenity particularly in relation to private open space and solar access. 5. Whether it would be appropriate to grant Torrens title subdivision. 9 The tendered Statement of Issues refers in a number of instances to various provisions of Development Control Plan No. 35 Urban Housing Volumes 1 and 2 and whether, in the context of these requirements, the proposal would be satisfactory. 10 Section 108(3) of the EPA Act provides that environmental planning instruments, where such instruments would derogate or have the effect of derogating from the incorporated provisions these have no force or effect while the incorporated provisions remain in force. The incorporated provisions are to be found in Pt V of the Environmental Planning and Assessment Regulation 2000. Sections 41 and 42 of these provisions provide for the enlargement, intensification, alteration or rebuilding of existing uses and the changing of an existing use to another use that would otherwise be prohibited but only with development consent. In other words apart from the need to obtain development consent there are no restrictions on any such application. Of course s 79C of the EPA Act is applicable. 11 Whilst a development control plan is not included in the definition of an environmental planning instrument it is my view that development control plans are effectively subject to the proviso in s 108(3) to the extent that any provisions therein which derogate from the essentially unrestricted incorporated provisions have no force or effect. 12 Section 72 of the EPA Act deals with the preparation of development control plans which among other things are to provide more detailed provisions than are contained in a local environmental plan. Clearly, development control plans are intended to be an extension of a local environmental plan and notwithstanding that they are, pursuant to s 79C of the EPA Act, one of the matters for consideration in dealing with development applications, they cannot attract greater importance than a local environmental plan. 13 In the circumstances a development control plan must be subject to the proviso in s 108(3). To conclude otherwise would be illogical. For example, the maximum floor space ratio provisions in cl 33 of the LEP are essentially replicated in s B1 of the DCP. There is no doubt that this LEP requirement would derogate from the incorporated provisions and cannot be applied. However, if the DCP were considered not to derogate then s B1 of the DCP would be applicable. Such an interpretation would be illogical and in my opinion this is not how the existing use provisions operate. 14 Applying this approach to the DCP and in particular to those DCP provisions referred to in the Statement of Issues, I conclude that they have no relevant force or effect in relation to this development application. This is because the particular provisions of the DCP relating to floor space ratio, set backs, landscaped area, private open space, solar access and on site parking impose restrictions on the development of this site and thus derogate from the incorporated provisions. 15 Turning now to the issue of whether there would be any adverse amenity impacts on adjoining properties it is first to be recognised that a number of neighbouring residents have expressed concerns and I have already described these. This matter was not pressed by the respondent because the experts have considered these matters and formed the opinion that the suggested impacts either do not exist or are not significant or have otherwise been resolved. I have independently considered these matters whilst on site and am satisfied that they do not raise any determinative concerns. 16 Dealing next with the streetscape and character issue which incorporates matters such as building bulk, building design, set backs and landscape setting, I agree with the evidence of Mr Dickson. I am of the opinion that the architectural design of the buildings' facades are sympathetic and would be appropriate in the existing streetscape. More particularly the proposal contains architectural elements such as verandahs, balconies and set backs that are evident in other buildings, particularly two storey dwellings, in the street. I do not accept that the two buildings would present as having an excessive bulk or scale and in terms of their appearance I believe that they will make a quality contribution to the streetscapes of Hopetoun and Trafalgar Streets. 17 In relation to carparking, only one off-street carparking space is to be provided for the four dwellings. I have decided that whilst it may have been preferable for a greater number of off-street parking spaces to be provided this is not a deficiency fatal to the application. 18 In reaching this conclusion I took into account a number of factors. First, the site is located within close proximity to the Petersham Railway Station. Second, there is essentially only one off-street parking space presently provided on the site for the three or four existing dwellings. Third, there is some spare capacity for vehicle parking in the street. Fourth, whilst there are some houses with off-street parking the more common characteristic of houses is to have no on-site parking. 19 Regarding the amenity of the proposed four dwellings, particularly private open space and solar access, I have no concerns in relation to dwelling four which has a northern and eastern orientation. Whilst the private open space of this dwelling immediately adjoins Trafalgar Street taking into account its size and the provision of landscaping and fencing as is now proposed this would be satisfactory. 20 As for dwellings 1, 2 and 3, taking into account that they have open space essentially at the front and the rear as well as first floor balconies, I am satisfied that each would have a sufficient area and dimensions commensurate with the nature and size of the dwellings themselves. 21 However apart from morning solar access to its first floor balcony, dwelling 4 will receive no winter solar access to its private open space. Whilst it will receive a very tiny amount of solar penetration into two east facing windows it will receive no other winter sunshine. Dwelling 3 will receive some morning winter solar access to its east facing first floor balcony and its east side ground floor terrace and landscaped area. There will also be some limited solar penetration into the east facing windows. There will be no winter solar access to its rear courtyard, although I do expect that there could be some limited afternoon solar penetration into the dining room. As for dwelling 1, it will receive essentially the same solar access on its eastern side as for dwelling 2, but will receive probably in excess of one hour's sunshine into its rear courtyard and some limited solar penetration into its dining room. 22 Whilst solar access is not optimal, taking an overview of the entire development I have not been persuaded that solar access is such as to comprise a reason warranting refusal of the application. In this regard I gave some weight to the explanation provided by Mr Lovell as to how the site constraints including the desirability of retaining the principal structure on the site and the site's orientation and frontages led to a design providing private open space in the south-western corner of the site behind terrace style buildings fronting Hopetoun Street. 23 Finally, in relation to the subdivision proposal I agree with the submission made on behalf of the respondent that this should not be approved taking into account the existing subdivision pattern and typical lot sizes in the locality. 24 The proposed lot sizes range between some 72 sq m and 95 sq m. Whereas the typical lot sizes in the immediate locality are, according to Mr Failes, in the range of 225 sq m and 351 sq m. The proposed lots would thus be out of character with the area, notwithstanding that I have decided that the development of this site as a whole would not be out of character. I agree with the concerns that in the long term the separate redevelopment of these small lots could be problematical and it would be far better to retain the existing 330 sq m lot as a single lot having an area very much the same as those lots surrounding. 25 It is therefore the decision of the Court that:

The appeal is upheld.
Development Application No. 200300814 for the part demolition plus alterations and additions to the existing building at 255 Trafalgar Street, Petersham, to create two, two storey buildings each containing two dwellings is determined by the granting of development consent subject to the conditions in Annexure "A" hereto.
Exhibits 8 and A are returned.

Cracknell & Lonergan Architects Pty Ltd v Marrickville Council

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Judgment (8 paragraphs)

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