Duong & Ors v Burwood Council

CASES CITED: Zhang v Canterbury City Council [2001] NSWCA 167 Stockland Development v Manly Council (2004) NSWLEC 472

APPLICANT Mr K. Webber, solicitor of Wilshire Webb Staunton and Beattie LEGAL REPRESENTATIVES:

RESPONDENT Mr T. O'Connor, solicitor of Houston Dearn O'Connor

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10489 of 2008 Duong Thanh & Ors v Burwood Council This determination was given extemporaneously and it has been edited prior to publication

JUDGMENT 1 The applicant in these proceedings is seeking to demolish the existing dwelling house on the subject site known as 4 Weldon Street, Burwood and construct a new two storey dwelling.

2 The Council has raised issues in the proceedings that go to the streetscape and that also relate to the objectors concerns about solar and light access in particular to the property at No 6 and privacy for No 6 and No 2.

3 The Court, in its assessment must have regard to the council's planning regime. The subject site is zoned Residential (A) and the proposed development is permissible with Council consent. The locality can be described as an area that was developed approximately 1912 and later and that the majority of houses within the vicinity of the subject site are single storey although on the view this morning it could be seen that there are some two storey constructions. 4 The site, has an existing dwelling similar to the adjoining properties and those opposite the subject site and by all accounts by the same builder. There is a consistency in terms of the streetscape of the area. The site itself is some 560 square metres with a frontage of 12.75 to Weldon Street and a depth of approximately 43.7.

5 The current dwelling on the house is a relatively small dwelling of 168 square metres with a metal carport in the front setback area. The back boundary of the subject site adjoins a conservation area known as the Malvern Hill Conservation Area and there is also a draft conservation area or a proposal for a conservation area north on the opposite side of Fitzroy Street. The subject site itself however is not within a conservation area and whilst there are heritage items in the area they are not visible from the subject site but in other streets and not within this block. 6 The applicant submitted it's development application to the council and there were amendments undertaken to comply with council's building code. The officer's recommended approval of the development application.

7 The Council, however, considered that the proposed development was not appropriate and Council determined the development application on 22 April 2008, and the reasons for refusal of the application are that: 1. The approval of the development in the location proposed will not be in the public interest as evidenced by the objections received. 2. The demolition of the existing cottage and the construction of the new dwelling will be out of context with the surrounding area. 3. The development will result in the loss of privacy to the properties to the side and rear. 8 The reasons for refusal in fact became the contentions in these proceedings.

9 The application was referred to Council's heritage planner and it was stated the subject site is not heritage listed "as either a heritage item or an item in a heritage conservation area" or in a conservation area. It is, however, located in the vicinity of the heritage conservation area as the rear of the property abuts the Malvern Hill Heritage Conservation Area.

10 The heritage planner commenced as follows: Streetscape appraisal, Weldon Street abuts the boundary of the Malvern Hill Conservation Area. It is also located immediately south of an area of land which is currently under review being the Shaftesbury Road Study Area. It is not sufficiently close enough to the Malvern Hill Conservation Area to be appraised as being in the vicinity of it. Properties that are adjacent to No 4 are predominantly single storey Queen Anne dwellings or single storey brick faced inter-war dwellings. These properties are not under any heritage review at present and there are no plans to review the area. Therefore, based on the current status of the area there are no heritage considerations that may be placed on the subject property, nor on Weldon Street. Suggested amendments. It is noted that this property is not heritage listed however consideration may be given to amending the schedule of materials and finishes, which will improve the overall character of the new dwelling and improve its compatibility with surrounding buildings. The following materials and finishes should be amended and a sample submitted from approval by council prior to the release of the construction certificate. And these include the brick materials could be similar in character to adjacent dwellings in Weldon Street, which are Federation in character. The roof materials should be Federation or unglazed terracotta in character. The ground floor garage window could be reduced in scale to reflect a more appropriately domestic scaled window opening. All of the front elevation windows could be timber framed or timber grained. The garage door could be a timber panel door. As such those conditions are within the without prejudice conditions which the applicant is prepared to accept. The Court, as I said heard from a number of resident objectors on the site and their concerns relate to the streetscape, the bulk and scale of the dwelling and the fact that the streetscape is one that is predominantly single storey dwellings. The adjoining owners at No 6 expressed concern about light and solar access and privacy, and No 2 there was concern expressed about privacy and the bulk and scale of the proposed building. As I said the residents objections generally were unanimous in terms of concern for the streetscape and the adverse impact of the proposed new 2-storey dwelling. 11 The Court must assess the development application in the context of council's controls and according to the Zhang v Canterbury City Council [2001] NSWCA 167 Court of Appeal judgment, the Court must give central focus to the development control plan and its provisions.

As I stated the LEP zones the subject site Residential (A). There are no standards as such within the LEP that have been brought to the court's attention. 12 The Council's single dwelling house code is considered relevant consistent with the findings of Stockland Development v Manly Council (2004) NSWLEC 472, where the former chief judge of this Court, McClellan CJ, provide guidelines in terms of the purpose and the weight that should be given to codes and policies. This code has been adopted as council policy and has been through an exhibition period and therefore, I should give it weight in my assessment of the application. The code has been amended from time to time and it is important in for 'building appearance' the Building and Development Committee resolved in September 2003, that this clause be suspended and not apply outside the conservation areas or heritage items. At Council meeting November 2006 it was resolved that this clause be applied to areas contained within the Shaftesbury Road East Study Area. As such the building appearance provisions of the code do not apply to the subject site as it is not within a heritage conservation area. 13 The Council has made a deliberate decision that all areas of its local government area should not have the same codes, rules and provisions applied as the conservation areas. Similarly, the streetscape provision, has the same note that it does not apply to or it is suspended for areas outside of conservation areas and heritage items.

14 The relevant controls within the code include sunlight, where development is to provide adequate sunlight for occupants of new buildings and minimise loss of winter sun to adjoining premises. The performance criteria include that: overshadowing in winter of adjoining premises is to be minimised... maximising setbacks of southern elevation walls at the upper level. Maximum use is to be made of north facing windows and first floor sections of dwellings are preferably to be incorporated within attic rooms to minimise overshadowing to the south and shadow diagrams are to accompany applications for two storey developments. 15 There are design controls for the height of walls not to exceed 2.4 metres above its first floor level. The southern elevation of the upper two storey section of a building on a minimum setback is to not exceed 10 metres in length and preferably should be further setback in part along such elevation.

16 The code also contains privacy provisions to maintain visual and acoustic privacy for adjacent and nearby residents. This includes: overlooking of adjoining yards and living areas from balconies at the upper level is to be minimised; building layouts are to be designed in relation to window placement; and sill heights and doors to maximise privacy and minimise noise affects. Screening devices are to be utilised to minimise overlooking and maintain privacy between living areas and open recreation areas. Greater separation between the building and those adjoining should be provided to increase privacy where necessary. 17 The height provision is to ensure new dwellings or alterations are in scale and maintain the character of existing development in the street, The performance criteria are: 1. New building work is minimise loss of privacy to adjoining premises. 2. Building heights are to relate to the general character of the houses in the immediate locality and in the street. 3. All building work is to be such as to minimise overshadowing to adjoining premises particularly to the south. 4. Attic rooms in the existing roof or a new roof may be permitted in particular circumstances in a single street that is substantially single storey in scale where such attic rooms have minimal effect on the street scape. 5. Floor to ceiling heights of the rooms are to satisfy the requirements of the Building Code of Australia and for the design controls floor to ceiling height of the upper levels not to exceed 2.4. (It is noted that the plans before the court are 2.44 ceiling height). The floor to ceiling height of a lower new level shall not exceed 2.7. (The proposed development is 2.7). 6. No new building is to be more than two storeys above natural ground level. 18 The other relevant provisions of the code relate to new dwellings, under the heading of floor area and site coverage control. "This is to control the building bulk dwellings and additions and to prevent overdevelopment and to provide for a site layout that gives usable open space and a building form compatible in size with that in the locality."

19 Performance criteria include: - "new dwellings are to be generally in scale with those adjoining and nearby; - Out buildings are not to dominate; - Overall floor space controls are to be applied; - and the floor space ratio for dwelling houses is 0.5:1 and for dwellings plus car parking within the building, balcony's and outbuildings and garages 0.66:1." 20 The parking provision at the code is to ensure that off street parking is adequate and suitable. The design of parking facilities is compatible with that for dwellings in the street and the requirements is a minimum of one space per dwelling be provided. The parking controls also discourage double garages at the frontage of buildings.

21 Landscaped area controls include performance criteria and the objectives is to ensure the greening of Burwood continues and a softening of any new building form and the design controls of the two-thirds of the area between the front fence and the building is to be landscaped. Advanced trees are to be planted on the site to replace any that are removed. 22 There are also provisions for fencing and it has been agreed that the proposed development if approved should have a fence that is in character with the streetscape.

23 As I stated, the Court must have regard to Council's planning regime and what is contemplated within that planning regime. The site is not within a conservation area nor in the vicinity of heritage items and therefore does not call up an assessment in terms of impacts on heritage.

24 The streetscape is consistent in terms of its scale and in terms of the built form. At the same time the planning controls allow for a floor space ratio of 0.5:1, which on casual observance would appear to be greater than what currently exists in the street. In terms of whether this is an appropriate dwelling for the subject site under s 79C of the Environmental Planning and Assessment Act 1979, the suitability of the development for the site is a matter relevant to my consideration in the context of what council's controls provide for. 25 Council made a most conscious decision in 2003 that the streetscape provisions and the building form provisions of its code should not apply to developments outside of a conservation area. This decision means that the subject site does not have the benefit of the provisions within that code but nonetheless an endeavour should be made to ensure that the development of the subject site does fit in a harmonious way with the streetscape and the adjoining properties.

26 These are preliminary findings, and the applicant has offered to amend the plans such that the elevation to the streetscape would be amended to provide for an improved fit with the streetscape. I am satisfied that the subject site is one that is capable of accommodating a two storey development given its size and dimensions. However the building form and the detailing of the building form should be modified to ameliorate the impact on the streetscape. Council may make a decision later to include this area as part of a conservation area but from the heritage specialist's advice it is clear there has been no decision that this be a conservation area and the restrictions that normally apply to conservation areas therefore do not apply to the subject site. 27 The planning process should provide for certainty for applicants when they are prospective purchasers of properties and seeking to redevelop properties. If one buys a property within a conservation area there is an expectation that the property would need to be retained and that alterations and additions be in sympathy and consistent with the streetscape and character of a conservation area.

28 Despite the decision to exclude the site from a conservation area does not mean to say that streetscape is not important. I am of the view the current proposal should be to reduce the impact of the front portion, in particular over the front doors and the protruding vertical element and gable to the streetscape such that it provides a more recessive form. In doing so care must be also taken to ensure that the garage does not dominate the streetscape. Council has already required an amendment to the plan such that the double garage be deleted and a single garage with timber door be provided and thus is consistent with council's controls in terms of its code. 29 For the size of this dwelling house it is not a requirement of Council but it would appear to me that from the size of the dwelling house that it would be prudent to provide for tandem parking in the design however that is not a requirement of the Court but clearly it is something that would be worthwhile considering during the amendment process of these plans. The floor space or the floor plate would allow for tandem parking and a rearrangement of rooms as such. I note that council only requires one space for a dwelling house, however, this is a somewhat larg dwelling with an unusual large number of bedrooms.

30 Moving on to the issue of solar access and sunlight concerns. In this regard for the amended plan consideration needs to be given to providing an increase in the retention of solar access to the family room window of the adjoining property to the north at No. 6. While this is only a highlight window it provides amenity of the family room. As such this may require an increase in the setback of the upper bedroom. The shadow diagrams are then to be provided absent the awning and absent the impacts of any vegetation to demonstrate the level of solar access gained to the adjoining property at No. 6 in the family room area. 31 Similarly the position of windows of the subject site needs to be considered for the lower level lounge room such that they are offset or have an increased sill height. This is the southern side of the subject dwelling and as such it is not relied upon for solar access and the plan is generally an open floor plan for the rear of the dwelling at the ground floor to provide adequate light.

32 Similarly the lounge room also has a window to the west and the window for the lounge room as I stated needs to be reconfigured to be either two windows with obscure glazing or a minimum sill height.

33 With respect to the impacts on privacy, I am satisfied that the positioning of the splay bay windows for the rumpus room and the meal areas will not result in unreasonable privacy impacts on the adjoining properties. There is vegetation and fences between these properties. There are other structures in the rear garden to obscure direct viewing to No. 2. There will be an angled view that may be obtained from the meals area but it is not of such significance that it would warrant refusal of the application and I am satisfied that it will not be an invasion of privacy of overlooking to the adjoining properties. In a suburban situation and there is generally some form of mutual overlooking between backyards of properties and this is to be expected. The southern window to the rumpus room is to be obscure glazing on a sill hight of 1.6 metre to prevent overlooking to No. 6. 34 I am satisfied there are no impacts of the proposed development in terms of the properties that front Tahlee Street subject to the backyard area should provide for tree planting to punctuate the rear view of the subject property when viewed from Tahlee Street.

35 The respondent submits that there is not enough certainty provided in providing preliminary findings. I am satisfied that I have had the opportunity of assessing this proposal in detail. Proposals that come to the Court are often put under the microscope in a much more scrutinised manner.

36 In my assessment of this application, I generally agree with the officer's report and I am satisfied the subject to design changes the proposed development can provide a 'fit' within this residential streetscape. While it will present as a different dwelling. It will not be mimicking the architecture of the older dwelling houses at the same time it is important that it respects the existing dwelling houses and provides for elements as required by the conditions of consent in No. 5 that have been recommended by the heritage specialist. 37 Similarly, landscaping forms an important element of this streetscape and it is important that this dwelling house provides a commensurate garden setting for its bulk and size within this streetscape. In this regard the paved areas should be minimised in terms of the front boundary setback area as required by council's controls. I note that council required the building to be brought forward in its assessment and as such this has decreased the opportunity for landscaping in the front setback area. But it is important that there be a contribution in terms of trees and shrubbery and soft landscaping area and not a totally hard paved front yard that would be quite out of keeping with the character of the area. Similarly, the fence needs to pick up elements of other fences in the street and be of a similar height consistent with the streetscape but a new fence in harmony new dwelling. 38 The Council Officer has recommended that there be materials and finishes provided prior to the construction certificate being issued. I am of the opinion that the materials and finishes are an important part of ensuring that new development fits into a streetscape and this should be provided as part of the amended plans to this Court and Council should be given the opportunity to comment on same as well the new plans in terms of the adjoining property to the south, that is solar access.

39 In summary the amended plans are to show the materials finishes and the design resolution of the front façade (bearing in mind that it is not to be a flat façade) by the removal of the dominant front columns forward of the front door area. Clearly this adds considerable bulk to the presentation of the dwelling from the streetscape and is unacceptable. The amended plans are to show the relocation and treatment of windows (rumpus and lounge room) on the southern boundary to mitigate overlooking and privacy concerns for No. 6.

40 The applicant is to file and serve the amended plans by 19 August to address the above matters. The hard stand area is to be reduced and there should be a landscape concept plan. Council is to provide some suggested species that would be consistent with the streetscape that do well in the area. 41 I appreciate that people do not necessarily embrace change. The role of the court is to ensure that new development is considered in the context of council's controls and impacts on adjoining properties and the streetscape.

42 In my assessment, subject to the above changes to ameliorate adverse impacts, I am satisfied the erection of the two storey single dwelling does not warrant refusal. Therefore on the receipt of amended plans that accord with my findings above and the receipt of conditions the appeal will be upheld.

          J S Murrell
          Commissioner of the Court
          ljr

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