Jenkins v Clarence Valley Council

Land and Environment Court (NSW)|2013-11-20

Judgment 1This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the decision of the respondent Council on 23 February 2013 to refuse consent to development application DA 2012/0464 for "detached extension to existing residence" at 29 Mary Street Grafton (the site). 2The site has a total area of 1,004 sqm, and is located at the south western end of Mary Street. An easement to drain sewerage runs along the north eastern side boundary from the rear boundary to approximately half way along the site, and then across the site to the adjoining lot on which Nos 27 and 27A Mary Street are located. The existing building is identified as a heritage item under the Clarence Valley Local Environmental Plan 2011 (the LEP). 3Surrounding development in Mary Street includes on the western side at No 21: a 2 storey residential flat building comprising 5 units; Nos 25/27: four single storey detached villas accessed off a central driveway; No 31: two detached single storey units at the front of the site with 4 multi-residential units in a building at the rear of the site; No 33: single storey weatherboard cottage; No 35: single storey weatherboard cottage; No 37: single storey dwelling at the front and 2 storey dwelling at the rear; No 39: 3 attached dwelling units; and No 41/43: 2 single storey attached dwellings. The single storey dwellings on 33, 35, 37 and 41/43 are heritage items under the LEP. On the eastern side there is a mixture of one and two storey dwellings, including one dual occupancy and 4 dwellings that are heritage items under the LEP. 4The existing building on the site contains a home office, study, bedroom, living room, kitchen and bathroom/laundry. The proposed development consists of two additional detached buildings at the rear of the existing dwelling. The development application as lodged with the Council proposed that the smaller building located next to the existing dwelling would contain a living room, and a double garage, with two driveways on each side of the site, and the larger building at the rear of the site would contain 12 bedrooms each with an ensuite, a living area, and a laundry. 5The issues considered in the assessment of the development application by the Council were whether the proposed development is a "dwelling" as defined and anticipated by the planning controls, or whether it is another defined use; and secondly the impact of the proposed development on surrounding residential uses. In its notification of refusal of the application, the Council stated its reasons as being that the development proposed was not in keeping with the character of a dwelling house; the proposal was an over-development of the site and did not comply with the required amount of landscaped area; insufficient vehicle parking areas had been provided; the development was non-compliant with the Building Code of Australia; and valid concerns had been raised in submissions that were unable to be resolved. 6The applicant lodged the appeal on 16 August 2013. On 13 September 2013 the applicant obtained leave to amend the application to rely on amended plans. The development as now proposed includes glazed links between the existing dwelling and the two proposed new buildings, with the link between the smaller and larger new buildings to be demountable, to enable access to the sewer easement. The internal layout of the existing dwelling has been modified to remove the kitchen and dining room, so that as now proposed the existing building would contain one bedroom, a bathroom, a home office and a media room. The proposed double garage has been replaced by a single carport, with a single driveway on the southern side of the site. The larger building at the rear of the site is unchanged. The location and arrangement of the existing dwelling and the proposed two new buildings on the site, and the proposed driveway access and parking, are shown on the extract from the site plan that is Annexure A to these reasons. 7On 16 September 2013 by notice of motion the applicant sought an order under r 28.2 of the Uniform Civil Procedure Rules 2005 for a separate question on the issue of whether the development is a "dwelling house". The Council neither opposed nor consented to the separate hearing of the preliminary question. On 20 September 2013 Pepper J dismissed the application: Jenkins v Clarence Valley Council [2013] NSWLEC 161. 8The issues in dispute between the parties are first, whether the proposed development is a "dwelling house", and permissible under the LEP; and if it is, whether the impacts of the proposed development on the heritage item are acceptable; whether the proposed development is inappropriate due to its bulk and scale and suitability for the site; whether the development is consistent with the objectives of the zone; whether the provision of a single carport is sufficient; the amount of landscaped area proposed to be provided; and whether the proposed buildings comply with the requirements of the Building Code of Australia (BCA).

Evidence 9The conciliation under s 34AA of the Land and Environment Court Act 1979 (the Court Act) was terminated and the matter proceeded to a hearing. 10The evidence included a view of the subject site and along Mary Street, including a view from the adjoining property at 27A Mary Street. Evidence was given on site by the owners of 27 and 27A Mary Street, and 8 and 9 Schaeffer Close, properties at the rear of the site. That evidence was consistent with the written objections made to the development application contained in the Council's bundle of documents (exhibit 2). The concerns expressed related to the scale and bulk of the proposed development in its proximity to Nos 27 and 27A, privacy and overlooking, stormwater flows to the properties in Schaeffer Close, possible future use as a motel or bed and breakfast, and traffic and parking. 11The applicant relied on expert evidence provided by Ms Ruth Daniell (heritage), Mr Bernard Cohen (building compliance) and Mr Kerry Nash (planning). The applicant, Mr Peter Jenkins, affirmed an affidavit outlining his intended use of the proposed development, and gave oral evidence. 12The Council relied on expert evidence provided by Ms Deborah Wray (heritage), Mr Kerry Harre (building compliance) and Ms Cheryl Sisson (planning). 13Ms Daniell and Ms Wray provided a joint report (exhibit 3) and gave oral evidence. Mr Nash and Ms Sissons provided a joint report (exhibit 5) and gave oral evidence. Mr Cohen and Mr Harre provided a joint report (exhibit 4) and gave oral evidence.

Consideration 14The development application was made on the basis that the proposed development is for the purpose of a "dwelling house". The building compliance experts agreed that if the proposed development is a single dwelling, it complies with the BCA requirements for a Class 1(a) building; if it is not a single dwelling and is another class of building, it does not comply with the BCA. While other forms of residential development, including development for the purpose of "boarding houses", "group homes", "hostels", "multi dwelling housing", and "tourist and visitor accommodation", are also permissible in the R1 zone, the applicant accepts that if the proposed development cannot properly be characterised as being for the purpose of a "dwelling house", and accordingly cannot be assessed as a Class 1(a) building under the BCA, consent cannot be granted. 15The first issue to be determined is whether the proposed development is for the purpose of a "dwelling house".

Is the proposed development a "dwelling house"? 16Development for the purpose of a "dwelling house" is permissible with consent in the R1 zone under the LEP. That term is defined as follows: dwelling house means a building containing only one dwelling. Note. Dwelling houses are a type of residential accommodation-see the definition of that term in this Dictionary 17A "dwelling" is defined: dwelling means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile. 18The Council contends that the proposed development is not a "dwelling house". That contention has two limbs, first, whether the development is capable of being a dwelling house within the LEP definition, and secondly whether the proposed development is in keeping with the character of a dwelling house given its configuration and elements. If the proposed development is not a "dwelling house", the Council contends that it would not fall within any other nominated use which is permissible with, or without, consent, in the R1 zone, and as an innominate use, would not be permissible. 19The Council submits that dwelling houses are development which the LEP, and the common understanding of the term, contemplate consisting of one primary building. Although the existing structure and two proposed new structures are on the amended plans connected in one sense, given the nature, appearance and function of the two glazed links, the development still consists of three separate buildings and therefore cannot be said to consist of "a building containing only one dwelling". The Council submits that given its scale, design and form the development is not in keeping with the character of a "dwelling house": elements not in keeping with a dwelling house include the three separate structures, the glazed links, the layout of the development as a whole, the 12 new bedrooms, including the proportion of space occupied by those bedrooms compared to the size of other elements of the development, and the ensuite bathrooms attached to every one of the 12 new bedrooms. 20The applicant submits that there are two aspects to the definition of "dwelling house": first, requiring a focus on the proposed use of the development, that is, as a domicile for the applicant and his extended family; and secondly, requiring an assessment based on the layout and design reflected in the plans. 21In relation to the intentions for future occupation of the development, Mr Jenkins states in his affidavit that he provides home and community based psychological services from his home office at 29 Mary Street; he resides at 29 Mary Street "part time five to six days a week, including the daytime and some nights overnight"; and his wife resides at 29 Mary Street on a "part time basis". When not at 29 Mary Street he and his wife live at XX Island View Close. His stepdaughter and her husband reside at Island View Close on a full time basis, and his two stepsons (aged 22 and 20) also reside there on a part time basis. He and his wife are registered foster carers with Life Without Borders, and fostered 16 children on a long and short term basis in the five years until 2012. If the proposed development is approved his intention is that 29 Mary Street will be the primary residence of himself and his wife; his stepdaughter and her husband (who are expecting their first child); his two stepsons; his wife's elderly parents; his elderly parents; and foster children in their care. 22In oral evidence Mr Jenkins stated that he has two addresses, 29 Mary Street and XX Island View Close. His wife does not stay overnight at 29 Mary Street, and he regards her as residing there during the day when she is there. One of his stepsons is at Island View Close every few months, and stays for about a week; he is currently living in Brisbane and has worked at Port Hedland. His other stepson also works at Port Hedland. He and his wife do not have any foster children in their care now; when they previously fostered children the maximum number they had in their care at any one time was five. 23The applicant submits that based on this evidence there is an element of permanence and domicile in the intention that the applicant and his family members will reside at 29 Mary Street. That includes any foster children, as a child in long or short term foster care placement does not have any other domicile and will occupy 29 Mary Street in the ordinary family household way. 24The most recent judicial consideration of the term "dwelling house" was undertaken by Pepper J in Dobrohotoff v Bennic [2013] NSWLEC 61. The issue before her Honour was whether the use of a property as a self-contained short term holiday rental fell within the permissible use of a "dwelling house" as defined in the Gosford Planning Scheme Ordinance. That term was defined to mean "a building containing 1, but not more than 1, dwelling". The term "dwelling" was defined in the same terms as in the LEP. Her Honour noted: [33] The definition of "dwelling" has two limbs. The first concerns the actual occupation or use of a room or rooms as a separate domicile and the second deals with the hypothetical test of whether a room or rooms are "so constructed or adapted as to be capable of being occupied or used" as a separate domicile (Leichhardt Municipal Council v Mansfield (1985) 57 LGRA 214 at 221; Warringah Shire Council v Jennings Group Ltd (1992) 75 LGRA 402 at 407; Wollongong City Council v Vic Vellar Nominees Pty Ltd [2010] NSWLEC 266; (2010) 178 LGERA 445 at [28] and Wollondilly Shire Council v 820 Cawdor Road Pty Ltd [2012] NSWLEC 71 at [19]).... 25As her Honour noted at [57], Dobrohotoff concerned the actual, and not the intended, use and occupation of the building, and so it was not necessary to address the second limb of the definition of "dwelling". It was not sufficient that the building on the property had the physical characteristics of a dwelling house, it also must be used for that purpose, and that was not demonstrated on the evidence before her Honour. Pepper J applied the reasoning in South Sydney Council v James (1979) 35 LGRA 432, and Ashfield Municipal Council v Australian College of Physical Education Ltd (1992) 76 LGRA 151, and concluded: 44 In the present case, however, the property was not a "dwelling-house" because it could not be fairly said, looking at its use as a whole as short term holiday accommodation, that, as a matter of fact, the property was being occupied in the same way that a family or other household group in the ordinary way of life would occupy it. A tenancy granted to persons who are residing in a group situation for periods of a week or less for the purpose of bucks and hens nights, parties or for the use of escorts or strippers, is, in my opinion, not consistent with a use or occupation by a family or household group in the ordinary way of life, and therefore, not consistent with the use of the property as that of a "dwelling-house" (Blacktown City Council v Haddad [2012] NSWLEC 224 at [35]). 45 Furthermore, when considering the first limb of the definition of "dwelling", regard must be had to the notion of "domicile" contained within it (820 Cawdor Road at [24]), and the critical element of permanence. Inherent within the term "domicile" is, as a long line of authority in this jurisdiction has established, the notion of a permanent home or, at the very least, a significant degree of permanence of habitation or occupancy (Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277 at 288; North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd (1990) 21 NSWLR 532 at 538A-B; KJD York Management Services Pty Ltd v City of Sydney Council [2006] NSWLEC 218; (2006) 148 LGERA 117 at [8]-[18]; City of Sydney Council v Waldorf Apartments Hotel Sydney Pty Ltd [2008] NSWLEC 97; (2008) 158 LGERA 67 at [38]; Warlam Pty Ltd v Marrickville Council [2009] NSWLEC 23; (2009) 165 LGERA 184 at [35]-[36]; Najask Pty Ltd v Palerang Council [2009] NSWLEC 39; (2009) 165 LGERA 171 at [15]; Vic Vellar at [32]; Dooralong Residents Action Group Pty Limited v Wyong Shire Council [2011] NSWLEC 251; (2011) 186 LGERA 274 at [110]; 820 Cawdor Road at [24]; GrainCorp Operations Limited v Liverpool Plains Shire Council [2012] NSWLEC 143 at [20]-[27] and Haddad at [47]). 26The present application is concerned with an intended, and not actual, use and occupation, and thus the second limb of the definition of "dwelling" is relevant. 27The Council relied on the decision of the Court of Appeal in South Sydney Council v James (1979) 35 LGRA 432, where the term "dwelling house" was defined in the planning scheme as "a building designed for use as a dwelling for a single family". Reynolds JA held (at 439): Without attempting to paraphrase the word "designed" in this ordinance, it is my view that the appropriate question which the responsible authority should ask itself in considering a matter related to the alteration or erection of a building claimed to be a dwellinghouse within the meaning of the table to cl. 23 is whether as a matter of fact the plans and other available information show that the layout of the proposed building or the building as altered is such that it is appropriate for a family unit to live in it in the accepted way. On this aspect of the case an inquiry as to whether the person or persons who will or may occupy the building could properly be described as a single family is irrelevant. 28Reynolds JA concluded (at 440): In my opinion a building is used as a dwellinghouse within the meaning of cl. 23 if its use is such that it can fairly be said as a matter of fact that it is occupied in much the same way as it might be occupied by a family group in the ordinary way of life and that it is not a use and occupation more appropriately described in other categories of residential buildings. 29The definition of "dwelling house" considered in James was more limited than that applicable in the LEP. Samuels JA noted (at 443-4) that having regard to the drafting of the definitions in the planning scheme, there was a difference between the use of "intended" and "designed", and that accordingly the use of the word "designed" in the definition of "dwelling house" meant more than "intended", and meant at least "planned" and probably "constructed": In my opinion a dwellinghouse for the purposes of the scheme is a building planned or constructed for use as a dwelling for a single family. Or, if I may respectfully borrow from what Lord Parker CJ said in Belmont Farm's case, a dwellinghouse is a building designed for use as a dwelling for a single family "in the sense of its physical appearance and lay out". 30In Burwood Municipal Council v Aboriginal Hostels Ltd (1979) 39 LGRA 150, the Court of Appeal considered a two storey building providing accommodation for students ordinarily living in the country who were attending technical college or apprenticeship courses in Sydney, where they were supervised by house parents, and where an effort had been made to create "a family atmosphere". The issue was whether the building was used as a "dwellinghouse" or a "hostel". The term "dwelling" was defined in the same terms as the LEP. Samuels JA (with whom Hutley and Mahoney JJA agreed) observed (at 153) that the definition considered in James differed markedly, being expressed "not in terms of use, but only of physical character", however his Honour held that the test suggested by Reynolds JA and Glass JA in James disposed of the appeal. 31James was applied in Ashfield Municipal Council v Australian College of Physical Education Ltd (1992) 76 LGRA 151 by Pearlman CJ in considering whether residential accommodation offered by an educational institution for students constituted a boarding house rather than a dwelling house. Her Honour held (at 155): What has to be considered is the use and occupation of the premises on the facts adduced in evidence. When one considers the evidence that the premises are owned by the respondent, (which, of course, is not itself an occupant) whose students apply to it for an agreement to occupy a numbered room, for rent, with services provided, and with a sharing of common facilities in each house, it seems to me inescapable that what is more appropriately described here is letting the houses as lodgings and not using them in the same way as a family group in the ordinary way of life. 32In Blacktown City Council v Haddad [2012] NSWLEC 224 Pepper J considered whether a two storey building comprising 29 bedrooms was properly characterised as a "permanent group home" pursuant to the State Environmental Planning Policy (Affordable Rental Housing) 2009 (the Affordable Housing SEPP), which required that it be a "dwelling", that is "occupied by persons as a single household". The term "dwelling" was defined in the same terms as in the LEP. Her Honour applied the James test, and held that the development did not constitute a "dwelling": 42 I have reached this conclusion while nevertheless accepting the respondents' submission that the concept of a "dwelling" is mutable, and presently accommodates a changing conception of what comprises "a family group in the ordinary way of life". 43 I agree that the definition of a "dwelling" in the Standard Instrument expressly recognises that the members comprising a 'family group' need not be related to each other. A building accommodating, for example, friends living together in a share house arrangement, will readily constitute a "dwelling". It may even encompass persons living together who, while initially strangers, ultimately live together as a household unit under the rubric of flat-mates or house-mates. Modern 'families' reflect modern times and modern mores. 44 I also agree that bedrooms in modern dwellings often have ensuite bathrooms or toilets, their own televisions, telephones and other forms of entertainment and communication. This is no more than, as Biscoe J pithily described in Warlam Pty Ltd v Marrickville Council [2009] NSWLEC 23; (2009) 165 LGERA 184 (at [30]) "the evolution of the bedroom". These features do not mean, by themselves, that the proposed development does not constitute a "dwelling" as defined. 45 Similarly, I do not consider that, of itself, the number of proposed bedrooms in the development is necessarily fatal to its characterisation as a "dwelling" contained in the definition of "a permanent group home" for the purposes of the SEPP. As the respondents submitted, the SEPP is silent on the number of permissible bedrooms in this regard and the definition of "dwelling" contemplates the occupation of either a single or multiple rooms (see also cl 43(1) of the SEPP). 46 Having said this, and as elaborated below, the large number of proposed bedrooms - 29 - particularly when viewed in the context of other features of the development, is suggestive of a living arrangement that is inconsistent with any modern 'family' life in the ordinary way, that is to say, a dwelling. 47 This inconsistency is amplified when regard is had to the notion of "domicile", implying, as it does, a degree of permanence (North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd (1990) 21 NSWLR 532 at 538A-B, GrainCorp Operations at [20] and Dooralong at [110], albeit in the context of residential accommodation). The tenancy arrangement for the proposed development is for a minimum of three months. Given the anticipated nature of the occupation, a potential turnover of tenants of three months is antithetical, in my view, with the type of permanence reasonably characteristic of ordinary family life, even in the 21st century. 33The applicant relied on the decision of McClelland CJ in Church of England Children's Homes Burwood v Burwood Municipal Council (1981) 43 LGRA 165, which concerned a proposal for the erection of a large single storey house to provide accommodation for eight to ten young people progressing from an existing home after they reached the age of 16, supervised by house parents. The term "dwelling" was defined in the same terms as the LEP. In concluding that the proposed building was for a dwellinghouse and did not require development consent, McClelland CJ considered the degree of permanence attaching to the technical legal sense of domicile, and noted (at 173) that the purpose of the proposal was "that the residents in the Burwood home will be able to stay there, within reasonable limits, so long as they have nowhere else to go until they become 'self sufficient adults'". The applicant submits that the present proposal is more like a family home than the proposal in Church of England Children's Homes in that the dwelling house will accommodate a family consisting of the applicant's blood and marriage related family members and foster children, and does not involve organisational staff members employed to provide services. 34The applicant's evidence is that it is his intention that the persons residing at the subject property would be himself and his wife; his two stepsons; his parents and parents in law; his stepdaughter and her husband and baby; and any foster children that he and his wife might have in their care in the future. There is no difficulty in accepting that the concept of what comprises a family group could include young adult children whose employment takes them away from the family home for a period, elderly parents, and foster children formally placed in care. As noted by Pepper J in Haddad, modern families reflect modern times and modern mores. If considered solely by reference to the intentions of the applicant as to future occupation, the proposed development could potentially be regarded as intended for use "by a family group in the ordinary way of life", in the terms used by Reynolds JA in James and adopted by Pearlman CJ in Ashfield Municipal Council v Australian College of Physical Education. 35However, the definition of "dwelling" does not include subjective intention, and in the absence of evidence as to actual use and occupation, for the proposed development to fall within the definition of "dwelling" it would have to be regarded as a "suite of rooms...so constructed or adapted as to be capable of being occupied or used as a separate domicile". The focus of that part of the definition on the design, or in the terms used by Samuels JA in James (at 444), the "character or structure" of the building, requires consideration of the plans for the proposed development. 36The planning experts agreed that the amended plans show one kitchen and one laundry; a single carport; a driveway on the southern side of the existing dwelling; and a glazed link between the existing dwelling and the two new pavilions. They disagreed as to whether the proposed development is for a "dwelling house". Ms Sissons was of the opinion that the proposal is not "a building", but rather three separate building pavilions each containing separate elements of residential use. In her opinion, by virtue of its design and scale the proposed development does not exhibit the characteristics of a dwelling house: the bedroom accommodation is the dominant component of the development, and displays the characteristics of a boarding house, group home or similar accommodation where residents live in the one complex but independently care for themselves, rather than being consistent with a single household with a mixture of adult persons and children who need adult care. Mr Nash's evidence was that the existing dwelling and two linked pavilions form a complete dwelling, and that the layout and size of the proposed development reflects the purpose outlined by the applicant to provide a domicile for his family, elderly parents and foster children, so that from a planning perspective the proposal clearly falls within the definition of a "dwelling" under the LEP. 37The amended plans (exhibit A) show that all of the proposed additional 12 bedrooms are located in the larger of the two proposed new structures, at the rear of the property behind the structure proposed for a new kitchen and dining area. All the new bedrooms are the same size, 3 x 3.5m (excluding the ensuite bathroom), and at 10.5 sqm, each is smaller than the standard specified in cl 29(2)(f) of the Affordable Housing SEPP for a boarding house room for a single lodger. Including the ensuite, the bedrooms range in size from 9 - 11.5 sqm. All the bedrooms are depicted on the plans as double rooms, however Mr Nash's oral evidence was that given their size, they are all single bedrooms. There is no indication on the plans of any storage areas in this proposed building other than the wardrobe in each bedroom. Each bedroom has two full height glazed panels approximately 1.8m wide on the external façade, incorporating two awning windows at approximately 2.1m above floor level. All the bedrooms open internally on to a single central corridor, with a centrally located space approximately 30 sqm which, if circulation area requirements are considered, would not be large enough to provide sufficient living space for the up to 24 occupants of this part of the proposed development. The only other living space (apart from the kitchen and dining area in the middle building) is the media room and the 9 sqm living area proposed for the existing dwelling. The only external open space area available for children or for other outdoor activities are the 1.5m and 3.5m grassed strips along the sides of the building, and the area adjoining the existing dwelling at the front of the block. 38As was the case in Haddad, neither the number of proposed new bedrooms, nor the arrangement where each has an ensuite, would necessarily lead to the conclusion that what is proposed is not a "dwelling". However, the uniformity of room size, the small room size, and the absence of separate living space, make it difficult to envisage the number of residents, of the mixed range of ages and consequent different needs that would be expected, for example, for elderly parents or for a young couple with a baby, living there as intended by the applicant. When regard is had to the design and layout of the proposed buildings, I am not persuaded that what is proposed can be regarded as consistent with occupation or use by "a family group in the ordinary way of life". 39On that basis, the proposed development is not a "dwelling" as defined in the LEP, and could not be a "dwelling house" as defined in the LEP even if it could be said that the three buildings connected by demountable glazed links are "a building" for the purposes of that definition. 40The applicant accepts that if the proposed development is not for the purpose of a "dwelling house", and cannot be assessed as a Class 1(a) building under the BCA, consent cannot be granted, and this conclusion accordingly means that the appeal must be dismissed. If I am wrong, and the proposed development can properly be characterised as being for the purpose of "a dwelling house", for the reasons below I am not satisfied that it should be approved on the merits.

Planning issues 41The Council submits that the proposed development is inappropriate due to its bulk and scale and represents an overdevelopment of the site; that it is uncharacteristic of the area and will impact on the amenity and privacy of the neighbouring development; that the proposed carparking is inadequate; and that the proposed landscaped area is inadequate for the scale of residential development. 42The applicant submits that the Council's position is unsustainable given that the site coverage of the proposed development is not inconsistent with the site coverage of existing development immediately adjoining the site and proximate to the site. The applicant submits that the proposed extension meets objectives (a), (b), (d) and (f) for residential development in Part C1 of the Clarence Valley Residential Development Control Plan 2011 (the DCP); it provides the one covered off street parking space required by cl G 2 and table G1 of the DCP, and there is no issue as to availability of kerbside parking. The applicant initially submitted that by including the area of porous cell paving blocks proposed for the driveway, the landscape area requirements of Part C 19 of the LEP are met; as discussed below, the position as to design and construction of the driveway changed during the course of the hearing in response to the evidence of the heritage experts. 43Mr Nash's evidence was that in the circumstances the proposal cannot be considered to be an overdevelopment of the site: the single storey height of the existing dwelling and the proposed additions is not an issue in terms of bulk and scale as the DCP contemplates 2 storey dwellings and multi unit housing in the R1 zone; in terms of site coverage the proposal is not inconsistent with the site coverage of existing developments immediately adjoining the site at 25-27 and 31, and those proximate, being 21, 37-37A and 39; and the allotments on the western side of Mary Street are very deep and have and can accommodate substantial development while also satisfying relevant controls such as setbacks and landscaped area. In considering the objectives of the DCP, Mr Nash was of the opinion that it was appropriate for additions to the single storey heritage item to be linked in the most sensitive manner possible as agreed between the heritage experts; in the context of the desire of the applicant to have a single storey addition it was reasonable to utilise the depth of the allotment to achieve a form of accommodation to suit his needs. With the exception of the small cottages at 33 and 35 Mary Street the built form character of the western side of Mary Street is characterised by deep allotments and is for multi unit housing, villa developments and dual occupancy developments that cover a substantial portion of the sites, and the proposed additions will present no differently to the street than those of its neighbours except that it will be single storey in height. The design of the building and scale will ensure no overlooking potential between adjoining development and the erection of a 1.8m high fence on the side and rear boundaries will significantly improve visual privacy for 25-27 Mary Street; while the multi unit development at the rear of 31 Mary Street will continue to overlook the site, the proposed roof eaves will provide sufficient screening to the north facing bedroom windows. 44Ms Sissons' evidence was that the proposed development introduces buildings of significant bulk and scale that are inappropriate for the site: the proposed new buildings are four times greater than the existing cottage and the extension would be the dominant structure/feature on the site and would overwhelm the scale of the existing dwelling. The land area is 1004 sqm in area; the existing dwelling has a gross floor area of 95.38 sqm; and based on the plans the new structures have a floor area of 379 sqm. In her opinion the development is an overdevelopment of the site: the new structures will occupy the majority of the rear yard of the site and will exceed the anticipated site coverage. The development in the immediate vicinity of the site was approved under previous planning instruments. The proposed development is inconsistent with objectives (a), (b), (d) and (f) of the DCP. 45In oral evidence Mr Nash and Ms Sissons addressed the issue of fencing, having regard to the evidence of the heritage experts that it should be timber. Mr Nash was of the opinion that a timber fence 1.8m high would be required to prevent overlooking and maintain privacy and amenity for both the residents of the site and the adjoining properties; at the front of the site where the existing dwelling is located a 1.2m fence would be appropriate. Ms Sissons considered that a 1.8m high fence would be very high in the context of the site with the minimal separation at the southern side, and a 1.5m high fence would be preferable to address privacy and allow a greater degree of light for No 27A. 46The planning experts agreed that Table G1 in the DCP requires one covered car space per dwelling. They disagreed as to whether the provision of a single carport was adequate. Ms Sissons was of the opinion that the nature and extent of the residential accommodation proposed would suit independent young adults or persons rather than small children, and it is more than possible that if the residents are unrelated persons each may own a vehicle, and visitors and residents would be forced to park on the street. Mr Nash was of the opinion that in addition to the covered off street car parking space there is the potential to use the driveway for tandem parking, and that there is no issue as to the availability of kerbside parking in Mary Street. 47The planning experts agreed that the required landscaped area is 45% of the site area as specified in Part C19 of the DCP. "Landscaped area" is defined in the LEP to mean "a part of a site used for growing plants, grasses and trees, but does not include any building, structure or hard paved area". In their joint report, the experts disagreed as to the calculation of landscaped area, Ms Sissons calculating it to be 42.7% of the site (3.6.2.6 of the joint report), while Mr Nash calculated it at 465 sqm or 46% of the site (3.6.2.9 of the joint report). Their disagreement related to the design and construction of the driveway. The applicant initially proposed using porous cell paving blocks for the driveway on the southern side of the existing dwelling. Mr Nash's evidence (at 3.6.2.9 of the joint report) was that these paving blocks support traffic, prevent soil compaction and minimise grass wear, and because they are porous and provide for the growth of grass would be indistinguishable from other areas of soft landscaping and lawn on the site. In his opinion this area satisfies the definition of "landscaped area" and should be included in the calculation. Ms Sissons disagreed, on the basis that while the pavers may present a softer visual appearance to the driveway they are still a solid basis for the traverse of vehicles and this area must be removed from any calculation of landscaped area. After hearing the evidence of the heritage experts, the applicant amended the application to change the design of the driveway to two gravel strips. On Mr Nash's calculations, changing the driveway design to two strips, whether gravel or concrete, would reduce the area potentially considered in the calculation of landscaped area by 16.16 sqm. The applicant submitted that using two gravel strips would mean that the landscaped area would be 44.91%, and come close to meeting the requirement of the DCP. 48The objectives of the R1 zone under the LEP are: To provide for the housing needs of the community. To provide for a variety of housing types and densities. To enable other land uses that provide facilities or services to meet the day to day needs of residents. 49Clause 2.3(2) provides that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. 50The objectives for development in the Residential Zones are specified in Part C of the DCP: The following objectives should be met in designing development in residential zones: (a) Siting. Development which is responsive to site constraints and the surrounding environment. (b) Local Character and Identity. Development which is of a high quality and is sensitive to the character of the locality in which it is being developed. (c) Streetscape. Streetscapes which enhance the amenity of an area and preserve the established character of the locality where this is warranted. (d) Building Design. i. Building design that responds to the site and reflect a North Coast character. ii. The siting and design of buildings which provides visual and acoustic privacy for residents and their neighbours. (e) Building height and setbacks. Buildings which conform with the prevailing setbacks in the street and which are an appropriate scale and height so as to minimise adverse impacts on adjacent properties. (f) Open Space and Landscaping. To provide private areas of open space and accompanying landscaped areas to enhance the appearance and amenity of development. (g) Services and infrastructure. Services and infrastructure that are essential for the carrying out of the development are available and/or can be economically provided to service the land and the development. 51It was common ground that the proposed development meets the minimum setback requirements in C16 of the DCP, which requires 1.5m at the side and rear. The larger building with 12 bedrooms at the rear of the site is setback 1.5m from the southern and rear boundary, and 3.5m from the northern boundary. It was common ground that the proposed development also meets the maximum height requirements in C13 of the DCP, being single storey, and that two storey and multi unit housing would be permissible on the site. 52While the proposed development may meet these numerical requirements of the DCP applicable to the built form, the issue is whether it meets the objectives for development in residential zones which are implemented through these specific controls, or is, as contended by the Council, of inappropriate bulk and scale and an overdevelopment of the site. 53The proposed additional buildings are single storey, set behind the existing dwelling, and I accept the agreed evidence of the planners that there is no direct visual impact on the streetscape, in contrast to some of the existing developments in the locality including 21, 31, 37A and 39 Mary Street. While I agree with Mr Nash that there are existing developments adjoining and in the locality of the site with extensive site coverage, those developments were approved under earlier planning controls, and this application must be assessed against the current planning controls. Based on Ms Sissons' evidence the proposed and existing buildings would occupy 47% of the site. The proposed new structures will occupy the majority of the rear yard. The larger structure accommodating the 12 bedrooms, approximately 29.5m long, will be located 1.5m from the side boundary with 27 and 27A Mary Street, with six of the 12 bedrooms (including large full length windows) facing that boundary. The development on the adjoining property contains four single detached villas, one of which (No 27A) faces directly toward the backyard of the site. While it may be that a 1.8m high fence would prevent overlooking, there would still be amenity impacts from having development of this scale so close to the boundary for the living areas of that adjoining development. I agree with Ms Sissons that notwithstanding the numerical compliance, the bulk and scale of the proposed development are such that it is not consistent with objectives (a), (b) and (d) of Part C of the DCP. 54The proposed development does not, as accepted by the applicant given the amendment to the proposed design and construction of the driveway, meet the 45% landscaped area requirement at C19.1 of the DCP as a minimum for all development in the R1 zone. There is no landscape plan available to indicate what is proposed, however given the limited setbacks along the rear boundary and along the sides of the larger rear structure, and the use of the area on the southern side of the existing dwelling for the driveway, the only area of any size available for landscaping would be that on the northern side of the existing dwelling. Given the large number of persons, of differing ages, proposed to be accommodated, and the proportion of the site occupied by the proposed buildings, I am not satisfied that the proposed development can provide private areas of open space and accompanying landscaping "to enhance the appearance and amenity of development" so as to achieve objective (f) of Part C of the DCP. 55Having regard to the site coverage, the bulk and scale particularly of the larger rear structure, the limited setbacks on the southern side, and the limited open space and landscaped area, the proposed development does not satisfy the objectives (a), (b), (d) and (f) for development in residential zones under Part C of the DCP. I agree with the Council that the proposed development is inappropriate due to its bulk and scale and is an overdevelopment of the site. 56While the proposed development provides the single car space required under Table G1 of the DCP for a dwelling house, I agree with the Council that it does not meet the objective in A2(c) of the DCP, which is "to ensure that there is adequate provision for car parking facilities...". It does not meet the car parking and vehicle access objectives for residential zones, which include in G1(a) "to ensure that the car parking demands generated by development are met on site". I agree with Ms Sissons that the nature and extent of the residential accommodation proposed are such that it is unlikely that the single car parking space could meet the demand generated by the development. While I accept that Mary Street is a wide road with wide grassed verges so that there would be kerbside parking available, reliance on that would not be consistent with the objective in G1(a) of the DCP. Reliance on kerbside parking would also support the conclusion that the proposed development is an overdevelopment of the site. 57The proposed development is inappropriate due to its bulk and scale, inadequate landscaped area, and failure to make adequate provision for car parking, and is an overdevelopment of the site. I am not satisfied that it is appropriate for consent to be granted.

Heritage issues 58The Council contended that the proposed extension does not comply with the heritage conservation provisions in cl 5.10 of the LEP, and the provisions in Part C4.3, C5.4, F2, F4, F8.2, F10.1, F10.4, F10.5 and F10.8 of the DCP which require alterations and additions to heritage items to be sympathetic, well designed and appropriate to the values of the heritage item in the context of the setting in terms of size, scale, mass, height, roof form and pitch, colour scheme, materials, setbacks, landscaping, streetscape and architectural treatment. 59Clause 5.10 of the LEP includes as an objective "to conserve the heritage significance of heritage items, heritage conservation areas including associated fabric setting and views". Clause 5.10(4) provides: The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6). 60The existing dwelling is a heritage item under the LEP, and the site is located in a heritage conservation area under the LEP. There are no works proposed to alter the building fabric of the existing dwelling. 61Ms Daniell and Ms Wray agreed that the principal view of the heritage item is from Mary Street, and is not affected by the proposed development. They agreed that single storey pavilion additions are an accepted method of adding to single storey cottages, and this form is the most appropriate where large additions are proposed. They agreed that colour, texture and materials can be satisfactorily resolved. They agreed that the proposed development would not adversely affect the streetscape settings and views of the principal elevations of the heritage item when viewed from the public road. 62Ms Daniell and Ms Wray agreed that the heavy black metal security screens which have been installed on the existing dwelling are negative to its heritage significance, and that they should be removed. In their joint report they agreed that the rear and side boundary fencing should be a timber paling fence up to 1.8m high but preferably 1.52m. In oral evidence Ms Wray expressed the opinion that a 1.8m fence would be too high, as it would close down the garden for the adjoining development which faces north and enclose the site too heavily; Ms Daniell's opinion was that the fence should be up to 1.8m. They agreed that ribbon strips with grass were an appropriate form for a driveway at a heritage item. 63The main area of disagreement related to the interrelationship between curtilage and setting. In Ms Daniell's opinion the setting of 29 Mary Street is compromised by adjacent development at 27 and 31 Mary Street in both the style and site coverage; while those developments were not approved under the present controls, they provide the visual context for 29 Mary Street and impacts on the setting of the heritage item. The legal lot curtilage is retained; considered from the expanded curtilage, which includes views and vistas to and from the site and the heritage item, the primary view is from the street. However, when viewed from the south west, the heritage item is viewed in the context of the surrounding development, and it is already compromised. 64Ms Wray was of the opinion that the proposed development would negatively impact on the setting of the existing cottage as it is excessive in scale and overwhelms the setting, scale and context of the cottage; and the proposed buildings lack appropriate areas of open space in keeping with the established aesthetic character and setting of the heritage item. In Ms Wray's opinion while the streetscape would not be unduly affected, the scale of the proposed development would be overwhelming in relation to the existing cottage and would compromise the setting of the cottage and prevent a more sympathetic development in the future. While there are irregularities of development here and there the overriding character of the area is of a heritage nature, and the present development controls reflect that. The surrounding development would not be approved today. 65Having regard to the areas of agreement between the experts, and the impact of the existing adjoining and nearby development on the setting of the heritage item, I do not consider that any impact on the existing dwelling as a heritage item would be such as to warrant refusal of the application. However, I agree with the Council that the agreement of the heritage experts that fencing should preferably be lower than the height regarded by Mr Nash as required to prevent overlooking and maintain privacy and amenity for both the residents of the site and the adjoining properties adds support to the conclusion above that the proposed development is an overdevelopment of the site and inappropriate for it.

Compliance with BCA requirements 66Mr Cohen and Mr Harre agreed that if the proposed building is a Class 1(a) building it complies with BCA requirements; if it is Class 3, it does not, and would require additional fire safety measures including an emergency lighting system, exit signs, portable fire extinguishers, an automatic smoke detection and alarm system, fire resistant walls, solid core and self closing doors, and appropriate noise and impact reduction treatment for walls. The issue in dispute was whether it is a Class 1(a) building. 67Mr Harre approached this question by reference solely to the plans. In his opinion, the layout of the building indicates that its intended use is for a number of unrelated persons for long term or transient use, which fits a classification as a Class 3 building. Once the building is constructed its layout lends itself to such a use, regardless of the intentions of the present applicant. 68Mr Cohen approached this question by reference to the intentions of the applicant as identified in his affidavit, and because the proposed building meets the requirements for a Class 1 building specified at 3.8.3.2 of the BCA: it provides a kitchen, a bath or shower (in the form of one bathroom in the existing dwelling, and 12 ensuites), clothes washing facilities (in the form of one laundry), and a closet pan and washbasin (in the form of one bathroom and the ensuites). When asked in oral evidence to respond to the plans in the absence of information as to the present applicant's intention, Mr Cohen's response was that he would think it was a motel, a Class 3 building. 69In my view the stated principles of classification in the BCA, that "the classification of a building or part of a building is determined by the purpose for which it is designed, constructed or adapted to be used" (Part A3.1 Volume 1 and Part 1.3.1 Volume 2 BCA) require consideration of the built form rather than the subjective intention of the owner, which can change from time to time including with changes in ownership, and I would agree with Mr Harre's approach. The fact that the proposed buildings include all the facilities that a Class 1 building must be provided with under Part 3.8.3 of the BCA does not mean that the structure is therefore a Class 1 building. I accept Mr Harre's evidence, and am satisfied that having regard to the design and scale, the proposal development is not a Class 1(a) building, being "a single dwelling being..." either a detached house or one of a group of two or more attached dwellings; and more than 12 persons would ordinarily be resident, meaning that it is not a Class 1(b) building.

Conclusion 70I am not satisfied that the proposed development is for the purpose of a "dwelling house" as defined in the LEP. That was the basis on which the application was made, and the applicant accepts that if the proposed development cannot properly be characterised as being for the purpose of a "dwelling house", and cannot be assessed as a Class 1(a) building under the BCA, consent cannot be granted. For the reasons outlined above, if the proposed development could properly be characterised as being for a "dwelling house", I am not satisfied, having regard to its bulk and scale, the inadequate landscaped area, and failure to make adequate provision for car parking, that development consent should be granted. 71The orders of the Court are:

The appeal is dismissed.
Development Application DA 2012/0464 for "detached extension to existing residence" at 29 Mary Street Grafton is refused.
The exhibits are returned except for exhibits 1, A, and B. Linda Pearson Commissioner of the Court ANNEXURE A DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 January 2014

(2010) 178 LGERA 445

(2006) 148 LGERA 117

(2009) 165 LGERA 184

(2009) 165 LGERA 171

(2011) 186 LGERA 274

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Judgment (8 paragraphs)

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Cases Cited (20)