Daou v Bankstown City Council

CASES CITED: Winton Property Group Limited v North Sydney Council [2001] NSWLEC 46; Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC75

APPLICANT Mr M. Arch, solicitor of Concordia Pacific LEGAL REPRESENTATIVES:

RESPONDENT Mr A. Seton, solicitor of Marsdens Law Group

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10702 of 2006 Roger Daou trading as Daou Designs and Developments v Bankstown City Council

JUDGMENT 1 This is an appeal against the refusal by Bankstown City Council (the council) of a development application (DA 1226/2006) for the demolition of an existing dwelling and the construction of an attached dual occupancy and front fence with Torrens Title subdivision at 5 Omega Place, Greenacre (the site).

2 The site is described as Lot 5 in DP 30426. It is rectangular in shape with a 14.63m frontage and a depth of 45.72m giving a total area of 668.9 sq m. A single storey house is located on the site. Development in the area consists predominantly of single storey houses. A dual occupancy development has recently been constructed nearby in Omega Place. Other recent dual occupancy and two storey developments are in adjoining streets.

3 The subject site is zoned 2(a) Residential under Bankstown Local Environmental Plan 2001 (the LEP). The proposed development is permissible within this zone with consent. Clause 11(3) provides that consent may only be granted if the consent authority has regard to the general objectives of the plan and the zone objectives. Clause 45 provides that consent may be granted only if the proposed development is compatible with the character and amenity of existing and likely future buildings on adjoining land in respect of a number of considerations including scale, bulk, design, height, siting, landscaping and privacy.

4 Clause 46 sets out objectives and standards for the purpose of establishing core residential development standards. Relevantly cl 46(5) of the LEP requires a 15 m minimum frontage and a 500 sq m minimum site area.

5 The proposal does not comply with the minimum frontage requirement and the applicant lodged an objection under State Environmental Planning Policy No. 1 (SEPP 1).

6 Bankstown Development Control Plan 2005 (the DCP) also applies to the application. It was agreed that the proposal satisfies all the relevant DCP requirements for setbacks, car spaces, private open space and height. The DCP reiterates the requirement for a 15 m frontage and also provides specific objectives.

7 Ms M Samuel, town planner, provided evidence for the Council and Mr R Marshman, town planner, provided evidence for the applicant.

i. whether the non-compliance with the frontage is acceptable and the SEPP 1 objection is well founded; ii. whether the proposal will be a precedent for other development; iii. whether the proposal has an acceptable bulk and scale impact on the existing and future character of the area.

9 In relation to the SEPP 1 objection cl 46(5) states that consent is not to be granted for the purpose of an attached dual occupancy if the allotment has a width of less than 15m at the front building line. As the proposed development is located on a lot with a width of 14.63m an objection under SEPP 1 was required and submitted with the application. Mr Seton, for the council, submitted that the SEPP 1 objection and the written evidence of Mr Marshman did not specifically address the objectives of the standard, however; Mr Seton accepted that this did not form an impediment to approval of the application.

10 The appropriate manner of dealing with a SEPP 1 objection is found in the judgment of Lloyd J in Winton Property Group Limited v North Sydney Council (2001) NSWLEC 46, at paragraph 46, where a number of questions are posed, including whether the proposal meets the objectives of the standard.

11 Relevantly cl 46(1) provides that the objectives of the standard are:

(b) to ensure that allotments are of sufficient size to accommodate proposed dwellings, setbacks to adjoining residential land, private open space and court yards, driveways, vehicle manoeuvring areas and the like, and (d) to limit the potential for villa, row house, terrace house and dual occupancy development in Zone 2(a), and (e) to ensure that dual occupancy, row house or villa development in Zone 2(a) retains the general low density scale and character of existing single dwelling development.

12 In relation to objective (b), Ms Samuels and Mr Marshman agreed that the proposal met the objective as, despite the small non-compliance with the required width, the site was of sufficient size to accommodate the proposed dwellings with setbacks that complied with the DCP requirements, private open space well in excess of the DCP requirement and satisfactory driveway and manoeuvring areas. Ms Samuels considered that the number of parking spaces and access thereto would have impacts on the street. However, this was not supported by traffic evidence.

13 In relation to objective (d), the experts agreed that this objective related to the intensity of development in an area. Ms Samuels considered that Omega Place was a quiet narrow street unsuited to intense dual occupancy development. Mr Seton submitted that dual occupancy was permitted in the 2(a) Zone but only subject to the other provisions of the plan. The objective sought to limit the proliferation of dual occupancy development in this zone.

14 The experts considered that objective (d) was linked to objective (e). Ms Samuels opinion was that the dual occupancy development, by providing two dwellings on a site instead of one dwelling, would increase the density of the area with additional noise and traffic impacts and was therefore not compatible with its low density character of single dwelling houses. Mr Marshman accepted that a dual occupancy achieved a greater density than single dwellings, but that under the DCP controls, the scale of the proposed dual occupancy development was identical to a single dwelling house permissible under the controls. In Mr Marshman's opinion the impact of the increased density of a dual occupancy development would not result in an unacceptable intensity of use, particularly as there were no adverse privacy, overshadowing or amenity impacts on adjoining properties or the area.

15 I find that the proposal and its likely impacts meet the objectives of the standard. The experts agree that the site is of sufficient size to accommodate the proposed development and meets objective (b).

16 The advocates referred to the decision of Lloyd J in Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC75. In considering this judgment, I find that the approval of the proposal would not create a precedent, which would make it difficult to refuse approval of other dual occupancy applications on sites with frontages below the minimum requirement. I acknowledge that there are other sites in Omega Place that do not meet the frontage requirement, however, applications for these sites would need to be assessed on their merits and would also need to meet the objectives of the standard. The frontage width would be but one consideration and would be assessed in conjunction with other matters such as the amenity impacts of a proposal, its floor space ratio, open space and height. For this application the objectives of the standard are met and the proposal is acceptable on a merit consideration. Other applications should only be approved on this basis and not as a result of any precedent from this application.

17 In relation to objective (e), the scale of the proposal is no different to that of a single dwelling house that could be erected under the planning controls. While it provides two dwellings the increase in density on the site would not result in unacceptable impacts in terms of noise or traffic. Its residential use is of little difference to a single dwelling on the site. There will be additional parking but this will not result in an intensity of use that does not retain the general low-density scale and character of existing single dwelling development.

18 In relation to bulk and scale, Ms Samuels raised concerns with the structures forward of the main building line. These structures were included in amended plans to address council's concerns about the symmetrical appearance of the original application. I agree that the removal of some of these decorative elements would improve the proposal, however, I do not consider that they add to the bulk and scale to such an extent to warrant refusal of the application or to render it incompatible with the existing or the future character envisaged under the planning controls. Orders 19 For the above reasons the orders of the Court are:

1. The appeal is upheld.
2. The development application (1226/2006) for the demolition of an existing dwelling and construction of an attached dual occupancy and front fence with Torrens Title subdivision at 5 Omega Place, Greenacre, is approved subject to the conditions in annexure "A".
3. The exhibits, except Exhibits 1, 2, 6, A and B may be returned.

      Annelise Tuor
      Commissioner of the Court
      ljr

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