Drivas v City of Canada Bay Council

APPLICANT Mr C Gough, solicitor Storey & Gough LEGAL REPRESENTATIVES: RESPONDENT Mr P Jackson, solicitor Pike Pike & Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10046 of 2007 Peter Drivas v City of Canada Bay Council

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. The consequence of the Court's decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/

1 COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 against the refusal, on 20 January 2006, of Development Application 284 of 2005 by Canada Bay City Council (the Council) of a development application to demolish the existing building and erect a part two storey and part three storey dwelling at 41 Thompson Street, Drummoyne (the site). The proposed development is part three storey because of the protrusion of part of the proposed basement car parking above existing natural ground level.

2 On 26 March 2004, Roseth SC gave a decision in Drivas v Canada Bay [2004] NSWLEC 111 refusing an earlier application. He described the site and locality as follows: The site is 9m wide and 36m deep, with an area of 334m2. The adjoining property to the north is No 43 Thompson Street, a two-storey house of considerable bulk. The adjoining property to the south is No 39, a partly single partly two-storey house of modest size. The site is within the Bourketown Conservation Area, which extends over several street blocks and which, despite containing a variety of house sizes and styles, exhibits some uniformity and cohesion.

The houses in Thompson Street in the block in which the site is located have little uniformity. There are three two-storey houses, the remainder is single-storey with asymmetrical gabled fronts. Some have additions at the rear creating an upper level.

On the opposite side of the street the house types are also mixed, although they have more consistency of form and scale. At the northeast corner of Thompson and Broughton Streets there is a former corner shop and residence, which is listed as a heritage item.

3 During the course of the inspection of the site this morning, in the company of the parties, their legal representatives and those advising them, I had the opportunity of inspecting the site and the adjacent properties at 43 and 39 Thomson Street and understanding the concerns of the residents of those two properties about that which is currently proposed.

4 I indicated, during the course of that inspection, that, consistent with the approach the Court now adopts in Class 1 development application appeals, I turned my mind first to the question of whether the proposal was broadly capable of approval (either in its original proposed form or with some modification and, if it required modification, what those modifications might be).

5 The day's proceedings have continued on the basis of assessing how, if at all, modification of the proposal was necessary in order to render it acceptable.

7 A number of matters are called up for my consideration by the terms of the Drummoyne Area Comprehensive Development Control Plan (the DCP) adopted in 1999.

8 Consistent with the decision of the Court of Appeal in Zhang v Canterbury City Council (2001) 115 LGERA 373, the matters contained in the DCP must be the focal or starting point for my consideration.

9 One of the matters that is a principal departure from the provisions of the DCP by the proposed design is the fact that, in s 6.5 of the DCP dealing with building envelopes for single dwellings and attached dual occupancies, performance measure M3 deals with the question of maximum floor space ratio and provides a maximum floor space ratio of 0.5:1. The present proposal is 0.67:1.

10 The broad proposition that is then enlivened is that for a non-complying development to be granted the indulgence of non-compliance, a higher standard of good neighbourly respect is required of such a development.

11 During the course of the proceedings, a number of refinements have been accepted by the applicant and are no longer in contention.

12 I will record them in order that the consent to be granted as a result of this decision will accurately reflect, both in the revised plans and revised conditions of consent, the matters arising out of this decision. 13 First, the proposed pool is no longer part of the application and all matters and conditions relating to the proposed pool (and consequently its possible impact on the jacaranda located on 39 Thompson Street) are no longer required.

14 Second, as I observed to the parties during the course of the hearing, the proposal in the landscaping plan to plant a number of Leyland cypresses in the back on both sides of the property would have the long-term effect of rendering the private open space of the development cavernous and dark as well as having a significant impact on the amenity of the adjacent properties. Leyland cypresses are not generally appropriate in a closely settled urban area and they should be replaced with trees growing to a maximum of three and a half or four metres. That can be settled by a condition of consent.

15 Four matters remain for my determination, there having been a deal of discussion about alterations to the master bedroom area at the rear on the first floor of the dwelling. I record the following changes have been accepted by the applicant.

16 The planter boxes on each side at the rear on the first floor are to be removed. The balcony serving the master bedroom is to be narrowed so that its width in a front-to-rear dimension is one point two metres and that in the alternate dimension it will be confined to the area equal to the glazed area of the windows and doors commencing at the masonry element on that face at that level. There will be incorporated frosted glass privacy screens to a height of one point eight metres at that point on that slab. The remainder of the area is to be non-trafficable.

17 These changes will provide significant amelioration to both the view corridors and solar and general light access, firstly views from the property at 43 Thompson Street and solar and general light access to the property at 39 Thompson Street.

18 The remaining difference with respect to that section of the development concerns the degree to which the height of it should be reduced.

19 First, there is an agreement that the proposed pergola should be deleted. That will have the impact of removing as depicted on the shadow diagrams a significant overshadowing element that falls on the rear of 39 Thompson Street. It will also have the effect of deleting a significant interruption, if a broken interruption, to the view from the first floor rear verandah of 43 Thompson Street.

20 The difference between the parties with respect to that element is a total of 260 mm. The applicant has conceded that it would be appropriate to lower the upper level floor by a total of 500 mm with the consequential lowering of the roof above - with the distribution of that to be achieved either by a lowering of the floor-to-ceiling element of the lower room or a lowering of the floor of the lower room. The Council suggests that parity with the slab height of the adjacent first floor verandah is required, hence the extra 260 mm.

21 I am not satisfied that there is any basis, on a strict parallel level requirement in order to bring parity between the two slabs, is necessary. However, I am not satisfied, equally, that it would not be unreasonable to require something more than the comparatively easily obtained 500 mm to be achieved. I have resisted the temptation to adopt a traditional King Solomon approach and simply split the difference.

22 I am satisfied that an additional 150 mm lowering would be appropriate and will provide a degree of additional solar and light benefit which would be the major and predominant reason for doing so to the property at 39 Thompson Street. I do not consider that there will be any significant alteration to the view impact as that which has already been agreed to by the applicant will provide significant amelioration in that regard.

23 Two matters arise with respect to the side setbacks and the side treatments.

24 I note that, during the course of the early discussions, the applicant agreed that the first floor level windows on the 39 Thompson Street side could be of obscure glazing.

25 I have also considered the windows on the 43 Thompson Street side.

26 First, it would seem to me that, as they serve a study which has a predominant and indeed dramatic outlook to the north and east towards the cityscape that there is no reason why its window to the 43 Thompson Street side should not be obscure glazed.

27 Second, the landing window to the staircase, which ought not to be used for purposes of overlooking but is certainly appropriate for the availability of light to the staircase, could also be obscure glazed.

28 That leaves two matters with respect to the side setbacks.

29 I am satisfied (and indeed I understand it now to be conceded by Mr Jackson, solicitor for the Council) that any significant alteration to the side setback on the 43 Thompson Street side would require and be tantamount to a refusal of the application because it would require radical redesign to the interior of the property.

30 I am satisfied that because the side setback on that side is consistent with the side setback on the adjoining property and, because the glazing on that side will now be obscure glazing, that it would be appropriate to permit the 900 mm setback at ground and first floor levels to remain on that side.

31 The applicant has conceded, with respect to the ground floor plan on the 39 Thompson Street side, that there should be a 900 mm setback which can be achieved by bringing the wall to the ensuite to the home office and the home office proper back to being consistent with the wall for the remainder of the dwelling on that side of the ground floor level.

32 I am satisfied that that is an appropriate treatment and indeed is consistent with the DCP.

33 I am satisfied, however, that, at the first floor, it would not be unreasonable to require that there be a further increase, as proposed by the Council, from 900 to 1500 mm along that side.

34 The bedrooms 2 and t3 are significantly generously sized and there would be no loss of residential amenity in achieving that additional setback whilst there would be, although in a random and eclectic streetscape, some value (although minor in a streetscape sense) of having that setback.

35 I am, however, also of the view that the increased access to light as opposed to sunlight that would be afforded to the residents at 39 Thompson Street is the principal reason for requiring such an additional setback.

36 I note, in this regard, that the elevation shown in the plans for the proposed new front fence shows the position of dominance of the proposed dwelling over the dwelling existing at 39 Thompson Street and it is not unreasonable, in a neighbourhood such as this, to have that additional degree of respect by setback and removal or softening of that dominance.

37 The final matter requiring determination relates to the void or element of the underground parking which protrudes above natural ground level.

38 I am satisfied that, given the other changes which are required to the drawings, it is unreasonable to require any alteration to this element.

39 Indeed, I have difficulty in contemplating what alteration might be required to bring that element of the proposal into conformity.

40 However, as I observed to the parties during the course of the hearing, I am satisfied that, for reasons relating in part to the presentation to the street and in part to matters of pedestrian safety raised by residents during the course of the on-site inspection, two matters require attention in this element of the design.

41 The first is a requirement that all driving into and exiting from the site by vehicles should be in a forward direction. To facilitate that for the more western of the two parking spaces in the basement, a turntable will be necessary to be installed.

42 The next matter relates to the view from such exiting vehicles (and, in tandem with that, the presentation of the front of the dwelling to the street).

43 I am satisfied that the proposed masonry wall element between the front pedestrian entrance, particularly, and the driveway should be of an open steel palisade type consistent with that which is located at either 37 or 35 Thompson Street.

44 It need not mimic either of them but be consistent with it across the frontage and the vegetation to be planted adjacent to and immediately inside that element of the fence together with any vegetation planted along the driveway should be limited to vegetation that will not obscure sight lines from vehicles exiting the underground parking area.

45 Subject to the making of those changes I am satisfied that the appeal should be upheld and development approval be granted to Development Application 284 of 2005 subject to revised conditions that remain to be settled between the parties to give effect to this decision together with the preparation and filing of revised plans also to give effect to this decision.

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