Hanna & Anor v Council of the City of Ryde

CASES CITED: Willis v City of Ryde Council [2009] NSWLEC 1103

APPLICANT Mr J Hanna (Agent) LEGAL REPRESENTATIVES: RESPONDENT Mr J Strati, Solicitor Council of the City of Ryde

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10115 of 2010 John & Sarah Hanna v City of Ryde Council

JUDGMENT Background. 1 This appeal was lodged against council's refusal of a development application for the use of an existing dwelling at 9 Clive Road, Eastwood as a duplex. It also involves the demolition of existing outbuildings and a shed in the rear yard so as to enable construction of a double carport and associated driveway. 2 The application is similar to another application refused by council and then refused by the Court in Appeal No 10006 of 2009. 3 The issues raised by council are summarised as follows: Insufficient information/detailing has been provided to enable full assessment. Private open space is inadequate. Suitability of the parking and access arrangements. Drainage.

The site 4 The site is described as Lot 85 DP 8043. It is located on the northern side of Clive Road with a frontage of 16.764m and an area of 840.99 sq m. 5 There is an existing 2 - storey dwelling on the site with an attached, drive through garage on the eastern side. The site slopes away from the street towards the rear boundary where there is a natural depression.

The proposal 6 The dwelling has apparently undergone some alterations and this proposal is to use it as a duplex on the basis that the upper (Unit 1) and lower (Unit 2) levels comprise the separate dwellings. The application proposes the construction of an open carport in the rear yard for 2 vehicles. Access to this is along the existing driveway from the street, through the existing garage and via a new gravel/'grasscrete' driveway incorporating a turning area. 7 Private open space is to provide for Unit 2 in 2 sections either side of the carport. The private open space for Unit 1 is to be in part in the front setback area and in part in the rear, north-eastern corner as shown on the plan in Attachment A

Planning controls 8 The primary control is the Ryde PSO under which the site is zoned 2(a) Residential. A Draft LEP 2008, which is the city-wide instrument applies to the site and it includes the site in the Zone R2 (Low Density Residential) zone. 9 DCP 2006 also applies to the site and the following parts are relevant: Part 3.3; Dwelling Houses and Duplex Buildings Part 5.2; Eastwood House Estate Heritage Conservation Area Part 8.2; Stormwater Management Part 9.3; Car Parking 10 The site is within the Eastwood House Heritage Conservation Area (conservation area) where the objectives include: To retain the homogeneous bungalow and Federation streetscape characterised by uniform single storey dwellings with regular setbacks and spacing. To provide guidelines for development which reflect the existing pattern of development while providing for additional floor area without compromising the character of the street…

The evidence 11 Evidence was presented by: Mr C Young; Team leader, council assessments (town planner). Mr E Zoghbi; Consulting engineer. Mr K Willis; Consulting town planner for the applicant.

Adequacy of information 12 This issue relates to the accuracy and detailing of the development application plans to enable proper assessment. In particular the location of existing trees in the rear yard relative to proposed fencing for the individual units and also details of the stormwater drainage system. In this regard, reference was made to Part 5.2.3.3 of the DCP, which in relation to the conservation area requires "Alterations, additions and infill development should not result in excessive site cover that eliminates useable landscaped area and private open space". 13 The application does not contain accurate site levels, which causes some uncertainty assessing the levels of the proposed carport and its associated driveway and any drainage impacts.

Private open space 14 Mr Young does not consider the proposed open space satisfies the following Part 3.3, 2.12 of the DCP, which requires that developments provide "useful outdoor spaces for liveability by co-ordinating the design of private open space, external living areas … and other landscaped areas with the design of the building". Nor does it satisfy the requirement for private open space to be "located adjacent to internal living rooms". 15 Mr Willis contends that the proposed separate areas of private open space are adequate and the respective owners can subsequently decide on the landscaping for their level of privacy. In this regard he refers to the existing landscaping of other properties nearby. 16 In considering these disparate opinions it is apparent to me that the DCP controls require each new unit to be provided with a reasonable amount of usable private open space. Insofar as the carport fragments the open space for Unit 2, which diminishes its utility, nevertheless it is in relatively close proximity to the living areas. 17 However, the main private open space for Unit 1 is proposed in the front yard area, which is not adjacent to or conveniently connected to the living rooms/ kitchen of this unit that are located at the rear of the dwelling. I therefore agree with Mr Young that allowing the private open space in the front setback would result in poor amenity, be impractical and inconsistent with the predominant use of the other front yard areas of neighbouring dwellings in this conservation area. 18 The other portion of the private open space for Unit 1 is in the rear corner, some 60m from the front of the dwelling. I also agree with Mr Young that this does not represent a convenient and useable private open space area. Consequently, it is apparent to me that this unit would not have access to an attractive outdoor entertaining area, which is characteristic of the neighbourhood. Furthermore, if a clothesline was erected in this rear area, the 60m trip through the front door, along the front yard and then down sloping allotment, it would be unattractive and also result in a poor level of amenity, in my assessment. 19 The question of the acceptability of this form of private open space was previously considered by Brown C in the matter of Willis v City of Ryde Council [2009] NSWLEC 1103, where he stated: 17 Mr Young states that the proposal to use part of the front setback area as the private open space area for Dwelling 1 is unacceptable as this area should be kept as an open and landscaped setting. The proposal for some of the rear yard area to be made available for Dwelling 1 is not suitable because there is no direct connection between Dwelling 1 and this part of the yard. Mr Willis states that an enclosed area could be provided within the front setback area and adequate privacy could be achieved through advanced hedge planting of this area. He notes other screen hedge planting within the front setback area in Clive Road. Alternatively, the rear yard could be split to provide outdoor areas from each of the dwellings with access provided via a path on either side of the dwellings. 18 On this issue I agree with Mr Young. If a second dwelling is to be approved, it is a fundamental requirement that the dwelling should have ready and convenient access from that dwelling to an area of private open space and ideally from the living areas of the dwelling. I do not accept that the configuration of the dwellings, in this case, allows this to occur. It is inappropriate that access to private open space to the rear yard from Dwelling 1 should be in such a circuitous and convoluted manner. Similarly, I do not accept that the use of the front setback area is appropriate given the conservation area context in which it is located. While the front balcony area may be used for some recreational purposes, it is limited or unsuitable in its use for matters such as more active recreation and clothes drying. While I acknowledge that some hedge planting had occurred in the street, there was no evidence to suggest that this was used as the only area of private open space for the dwellings in question. 19 The lack of useful outdoor spaces for liveability, the inability to readily access private open space and the unsuitability of using the front setback area for private open space is a sufficient reason in itself to refuse the development application.

20 Accordingly, I agree with this conclusion and do not consider that the proposed private open space in the subject matter reasonably satisfies the DCP requirements.

Parking/access arrangements. 21 Mr Zoghbi says that the proposed garaging arrangements are unsatisfactory because the proposed access through the existing garage is unsuitable and no passing bay is designated. He does not consider these proposals adequately satisfy the DCP and associated Australian Standards in AS 2890.1 : 2004. 22 Insofar as the plans indicate that the opening width of the garage is 2.6m, it is in fact 2.3m. According to Mr Zoghbi, a minimum width of 3m is required for an access way to comply with AS 2890.1: 2004. Whilst I accept Mr Willis's observation that a car could drive through the garage, I do not consider this situation represents a satisfactory level of safety and convenience for individual property owners. Its substantial non-compliance with AS provisions is a negative aspect of the proposal. 23 In addition to this, Mr Zoghbi says that where the length of a driveway exceeds 30m, as in the subject case, then AS 2890.1 requires a passing bay to allow 2 vehicles to pass simultaneously so as to avoid possible conflict of vehicles entering and leaving the site. Such passing bay width to be a minimum of 5.5m. As no satisfactory passing bay is proposed, he considers the application should be refused. 24 Despite discussions about the access way requirements, no identification of a passing bay has been made, except for the possibility of using the existing gravel area within the front setback area. 25 My assessment based on the evidence and observations at the view is that on - street parking limited and therefore reasonable access to off -street parking should be provided. Considering the length of the driveway is in the order of 40m, the driveway includes a 90o turn and it is to pass through the narrow, existing garage with limited visibility, then I consider a passing bay should be incorporated in an endeavour to provide each duplex with convenient independent access. 26 In terms of utilising the existing front setback area for passing, I consider this undesirable because it would not be sensibly placed to allow visibility of the 90o turn and garage manoeuvre. Also, it significantly reduces the visual amenity of the front landscape area and would not be consistent with the conservation area objectives, in my assessment.

Drainage 27 The Statement of Facts and Contentions clearly identified drainage as an issue and referred to Part 8.2, 9.1.1 wherein a drainage concept plan is required for any development application where there is greater than 50 sq m of additional impervious area proposed. The applicant has not addressed this part of the DCP as no such drainage concept plan was provided. 28 From the view it was apparent that the house drainage is likely to be conveyed towards the rear of the property and possibly directed to an absorption pit. But no details were presented. In my assessment, this is a serious omission because the proposed carport encroaches into the likely drainage disposal area and therefore some certainty is required to ensure the stormwater is controlled in an orderly manner. Also, the drainage disposal arrangements are required to assess any resultant impacts on the amenity of the proposed open space areas. 29 Apart from this, Part 8.2, 3.2.5 of the DCP addresses 'Paved Areas' on the basis that:' NOTE: Driveways constructed in gravel or "grass-crete" or pervious pavers will be considered to be impervious for drainage calculation purposes… 30 The subject proposal includes this specification driveway and on this basis there would be greater than 50 sq m of additional impervious area. However the applicant has chosen to argue against this DCP provision without any substantive engineering or technical evidence. Therefore I do not accept the applicant's submissions in this regard. 31 The contentions also identified that the land at the rear of the property formed part of a catchment overland flow system. Some details of this were discussed by reference to the Eastwood & Terrys Creek Floodplain Risk Management Study & Plan. - November 2009. Figure 9 of this study indicates that the back half of the land is within a 'medium flood risk precinct'. Consequently I consider this application is unsatisfactory because it has not addressed the drainage issue as required by the DCP. Conclusions 32 Having considered the evidence, the submissions and undertaken a view, I do not consider this application merits consent. I agree with the council's submissions that this proposal is an attempt to retrofit the duplex into the existing dwelling. 33 However the configuration of the existing dwelling does not allow for the connection of Unit 1 to a satisfactory area of private open space and would likely lead to a poor level of internal amenity and a diminution of the pleasant streetscape quality, if the front setback area was converted to an outdoor entertainment area and partially used for a passing bay along the common driveway. Likewise, I consider the proposed access driveway unsatisfactory for the aforementioned reasons. These matters result in non-compliances with the intent of the DCP and contribute to the failure of the application. 34 It is apparent that the applicant has substantially disregarded the DCP controls on drainage and as this land is subject to flooding events, I consider the lack of a drainage concept plan also contributes to the failure of the application. Court orders 35 The Court orders that: 1 The appeal is dismissed. 2 Development Application No LDA2009/0502 for the demolition of outbuildings, erection of a carport and use of the property at 9 Clive Road, Eastwood as a duplex is refused. 3 The exhibits may be returned except 1 and A.

      R Hussey
      Commissioner of the Court
      ljr

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