Pinter v Wollondilly Shire Council

Development Control Plan No. 50 LEGISLATION CITED: Wollondilly Local Environmental Plan 1991

CASES CITED: Manly v Stockland [2004] NSWLEC 472

DATES OF HEARING: 09/02/2005 EX TEMPORE JUDGMENT DATE : 03/21/2005

APPLICANT Mr R Creighton, agent

LEGAL REPRESENTATIVES: RESPONDENT Ms P Hudson, solicitor SOLICITORS Marsdens Law Group

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11114 of 2004 James Pinter v Wollondilly Shire Council

1 This was a class one appeal No. 11114 of 2004 between J Pinter and Wollondilly Shire Council in regard to the refusal of an application to demolish an existing house and to erect two new single storey detached dual occupancy houses, side by side, facing the street with Torrens Title subdivision at No. 20B Milner Street, Tahmoor. 2 The existing lot is rectangular, 22.36 m frontage and 40.24 m depth, giving an area of about 900 sq m. Most old lots on the vicinity were 900 sq m to 1000 sq m in area. Some had been subdivided under the council's statutes and controls. 3 The subdivision of the proposal would create lot 1 and lot 2, each with 11.18 m frontage and 40.24 m depth, each having an area of 450 sq m. The land is generally flat and runs east-west, with the street being on the west. The neighbours on the north and south are both corner lots, the northern one being on the corner of Thirlmere Way and Milner and the southern neighbour being on the corner of King and Milner. 4 The northern neighbour had previously been approved and built as a subdivided attached single storey dual occupancy, giving two dwellings fronting Thirlmere Way. 5 The southern neighbour still has a single house with the backyard abutting No. 20B. The rear or east boundary had an original 1000 sq m lot with a new single house upon it. There were, further along Milner Street to the south, some other detached dual-occupancy single storey houses fronting the street and nearly opposite the site there was a medium density development with a single storey house fronting the street and others behind in battleaxe fashion. 6 The issues were: 1. The proposed development is unacceptable in that it is inconsistent with the "Objectives" and "Control B" of Part 5.4 "Site Area and Dimensions" of Wollondilly Development Control Plan No. 50 - Residential Development ("DCP 59").

Particulars (a) The area of the subject land is 900 sq m in circumstances where a minimum of 975 sq m is required. (b) The lot frontage is 22.365 m in circumstances where a minimum lot frontage of 24 m is required. (c) The proposed lot size for each of the subdivided lots is 450 sq m in circumstances where a minimum lot size of 487.5 sq m is required. (d) The proposed width of the subdivided lots is 11.182 m in circumstances where a minimum width of 12 m is required.

2. The proposed development will have an unacceptable impact on and is out of character with the existing and desired future streetscape.

Particulars (a) The majority of dual occupancies in the vicinity of the subject land primarily consist of dwellings located one behind the other (that is, the appearance of a single dwelling facing the street with a 20 m frontage), rather than dwellings side by side as proposed (refer to the objective of the 2(a) Residential "A" Zone in Wollondilly Local Environmental Plan 1991; "Objectives" in bullet points 1, 2 and 4 in Part 5.12 of DCP 50; "Objective" in bullet point 1 of Part 5.14 of DCP 50 and paragraph 1 of "Controls" in Part A (All Dwellings) of DCP 50 .

3. The proposed development is not innovative in terms of housing design, particularly having regard to:

(i) the lack of privacy between the townhouses for future residents and (ii) the inefficient use of space through poor design.

(refer to Objectives (a), (c) and (d) in clause 2 of DCP 50). 7 The respondent's evidence was heard from Ms S David, senior planner for the council. The applicant's evidence was heard from Mr P North, consultant architect. 8 The hearing included a view of the subject property and the streetscape of Milner Street and other dual occupancy developments nearby. Two others, one in George Street, Tahmoor, was said to be similar to the proposal, except the subject proposal was on narrow allotments. 9 The similarity between the George Street development and the proposal was that the front elevations of the houses were somewhat alike to the proposal. One had a hip main roof with a full gable above the bedroom facing the street and a garage door at the front of the house recessed beneath the front verandah roof. The other house had a hip main roof with a Dutch gable at the peak facing the street and another lower Dutch gable above the bedroom facing the street. Once again, the garage door and the front door of the house were recessed beneath the front verandah roof. 10 Whilst the proposal's houses were of similar size and materials, they were of different colours and the front bedrooms were on opposite sides of the respective house so that the street front presentation of the pair was asymmetrical rather than looking like an exactly matched pair. Each house had a single bedroom, garage and entry at the front and three other bedrooms, an ensuite, a bathroom and a laundry along the side elevations. Facing the rear yards in each house there was an L-shaped combined kitchen, lounge and meals room with a recessed patio on the northern side. 11 One of the primary issues regulated from the narrow allotments of the proposal. Ms David said, in effect, it squeezed the front elevations of the buildings and narrowed the side setbacks so the effect was too-tightly packed houses in a streetscape consisting of wide frontages with much more side setback space between houses. 12 The desired existing appearance of wider lots and more space between houses would be eroded in the immediate vicinity of the proposal, and possibly right throughout the residential zone if this case set a precedent for other lots that were below the council's minimum area for subdivision and minimum frontage width. There were quite a number of under-sized lots in Tahmoor. A precedent that encouraged them to make similar applications could defeat the council's desired future character. 13 Ms David noted the other dual-occupancy developments in Milner Street and said they maintained wide frontages and considerable separation between houses that retained a sense of spaciousness in the streetscape created by the original subdivision. Ms David maintained that the council policies aimed at retaining the streetscape qualities and it was an appropriate planning objective. 14 In cross-examination, Ms David agreed the street-facing bedroom of each house was a habitable room as required under the planning controls for street surveillance and that was another planning objective to reduce crime in the streets. She said that living rooms were more regularly used than bedrooms and therefore surveillance was better from a living room, but she agreed a bedroom could allow it also. 15 On streetscape, she agreed that in the vicinity of two blocks from the site there were six corner dual occupancies, each one facing a separate street, four side-by-side dual occupancies and some battleaxe style. There was a mix of types, but she maintained they all had wide frontages that allowed them to fit the streetscape. 16 She agreed there were two narrow lot dual occupancies more than two blocks from the site. They were at Nos. 36 and 69 Thirlmere Way. Their lots were about 1 m less than the proposal's frontage per dwelling. She said they could not be accepted as good examples of dual occupancy to justify the proposal. 17 The George Street dual occupancies were 12.5 m frontage per dwelling. 18 It was put to her that the proposal at 11.18 m frontage per dwelling could not be noticeably different to the George Street houses. She said other streets already had some narrower lots, so narrower developments could fit in there. In Milner Street there were no narrow lots, so the 11.18 m was very noticeable there. 19 Ms David had done a streetscape elevation of Milner Street in Exhibit 1 of both the east and the west sides of the street from Thirlmere Way to King Street. She had inserted the elevations of the proposal in the appropriate position. She said the contrast of the proposal to the established streetscape was obvious. The proposal broke the rhythm of the wide frontages with houses wider than the proposal and all had greater, in some cases much greater, separation between houses. The proposed houses were only 900 mm off each side boundary. 20 Ms David noted also that the garage doors of the proposal occupied a greater percentage of the width of the street elevations than the other houses in the street and this emphasised the contrast to the pattern or rhythm of existing streetscape. 21 It was put to her the zone allows this type of development and, even on dual occupancy lots of the permissible 12 m width, the street-front elevation would have to be very similar with the width permitting only one habitable room facing the street, plus the front entry and a single width garage door. She said that was too simplistic when the overall width was important to the streetscape. 22 Her report noted that having a single garage and being in an urban fringe area where people tended to have more than one car per house, it was likely a second car would be stack-parked in the driveway of each house. That visual prominence would further accentuate the narrower look of the proposal compared to its neighbours. 23 It was pointed out that the proposal was walking distance to the railway station, so it might not be that two cars per dwelling was likely. 24 Ms David referred to the existing dual occupancies in Milner Street, south of the proposal that had street facades 10.8 m wide with 2.8 m separation between houses, compared to the proposal with 9.3 m wide elevations and 1.8 m separation. The 900 mm side setbacks of the proposal would be filled with concrete side paths, so no vegetation of any size could be planted to give visual separation as seen from the street. 25 This had another impact, Ms David said, because the side bedroom windows of the lot 2 house were opposite the kitchen window and laundry door of the lot 1 house. There would be privacy impacts, both visual and oral, for people in the bedrooms. She said laundries were used daily, including at night for families. The noise from washing machines and dryers or putting clothes out on a trolley to the clothesline must disturb sleep. She agreed the draft condition to delete the kitchen window and the laundry door and use a fixed glass laundry window and mechanical ventilation would resolve those concerns. 26 She agreed to Mr North's suggestion of having a 1.8 m dividing fence and using raised sills to the bedrooms and kitchen windows would solve the visual privacy impact but not the noise impact. 27 Mr North was not the architect for the original design. He suggested the changes for the high sill windows on the side elevations between proposed lots 1 and 2. He had adjusted the position of the sinks so a person at them looked out of the sliding glass doors to the backyard. That preserved a good outlook from the kitchens and the high sill windows retained cross ventilation and a view up to the sky. 28 He did not favour obscured glass on the high sill windows since people would not see over. On the low sill windows he agreed obscured glass may be needed as the floor level would enable a person to look over a 1.8 m high fence. He did not think noise from the kitchen or laundry would be regular enough at night to cause a nuisance to the bedrooms. He expected the washer and dryer would be used mostly by day or, if at night, the laundry door would be shut. Taking clothes to the line in the backyard was not a noisy activity. For convenience, he preferred to retain the laundry doors to the side paths. 29 The patios of the living rooms at the rear were only 150 mm max above ground level. The average person's eyes would still be below fence top. As a result, privacy between allotments would be preserved. 30 The prominence of the garage doors in the street elevations would not be as Ms David feared he said. In both cases the garage doors were recessed behind the veranda roofs so they would be in shade. Being only one car width, it was the minimum impact possible considering that dual occupancies seldom had side driveways. 31 The council had also sought a child-proof gate between the front door and the garage door to avoid an accident by a child coming out of the front door unseen by a driver whilst reversing out of the garage. To be effective in that regard, Mr North said that the gate and the fence would need to go out to the front boundary. In any case, he said, the living room and private open space were at the rear of the house. That is where small children would be. 32 Mr North was cross-examined on design excellence requirements of Development Control Plan 50. He said that test was in the recently adopted update of Development Control Plan 50 in Exhibit 1. That update had a savings clause that made the previous DCP 50 in Exhibit 2 adopted on 12 August 2002. It was the applicable control and it had no such test. 33 On streetscape, Mr North said the applicable streetscape was Milner Street between Thirlmere and King. The houses in that section had minimal side setbacks compared to elsewhere in the street. He thought the proposal would fit in. Also, on either side of the proposal, were long side boundaries of houses facing Thirlmere and King, so the site was different to the east side of Milner Street. He said DCP 50 encouraged higher density than existing and that must affect the existing streetscape character. 34 It was put to him that DCP 50 set site area and frontage minimums to control the impact of higher density on character of the streetscape and amenity of residential areas. Mr North said the proposal met the objectives of DCP 50 and the desired future character. The proposal had 8 m front setback instead of the 5 m normal front setback. This would give a sense of spaciousness to compensate for narrow lots and streetscape elevations. Milner Street did not have the regular rhythm of a Paddington row of terrace houses. For example, the house on the corner of Thirlmere and Milner next to the proposed house on lot 1 had a 9 m separation between buildings, then 2 m between the houses on proposed lots 1 and 2 and then 25 m from the house on lot 2 the house on the corner of Milner and King. Milner Street has a disjointed rhythm of house lot widths and house sizes, Mr North said. The proposal did not disturb that.

35 It was put to him that the design was just a standard layout by a drafter and awareness of the streetscape had not been in the designer's mind. Mr North said he was not the architect of the proposal. He had been asked to give his professional opinion. Even though there were wide separations between houses elsewhere in Milner Street, he believed the proposal was acceptable and did respond to the existing streetscape for the reasons he had given.

36 In his photographs and listings of other narrow lot dual occupancies, he agreed he had not identified the dual occupancies in Milner Street that had wider lots. He said they had not been obvious to him as dual occupancies whilst the narrow lot developments were. He agreed it would not be possible to plant and grow any landscaping between the proposed houses on lots 1 and 2 due to the narrowness, the fence and the concrete side paths.

37 He agreed if the DCP 50 requirement for 3.4 m minimum between houses had been applied, some planting could be provided but only tall growing shrubs and not trees. Shrubs could provide privacy to side windows, but it would not change the streetscape he said.

38 It was put to Mr North that the laundry door and window of the proposed lot 1 was only 2 m away from the bedrooms 3 and 4 of lot 2. A noisy washing machine, or on spin dry when the load went off-centre and banged to a stop, or the noise of a dryer would disturb people in the bedrooms. Mr North said it would be an unusual occurrence and would only be a problem if the laundry door or window was open.

39 In coming to a conclusion on this appeal, I had some regard to the applicant's evidence and submissions that emphasise the relatively minor non-compliances with numeric requirements of allotment width, street frontage and allotment area. The consequences of these minor non-compliances, the applicant says, will be hardly detectable compared to a complying proposal like George Street dual occupancies shown in Appendix 4.2 Fig. 7 photograph.

40 The applicant put that in terms of dual occupancy controls in DCP 50, the proposal represents the intended future streetscape for the Residential 2A zone in the Wollondilly Local Environmental Plan 1991. Given the change that would bring to the existing streetscape of Milner Street and other streets in the area, the applicant said the proposal would fit in.

41 In considering that future possibility, I recalled that Mr North had not included the several wide-fronted dual occupancies in Milner Street in his report because they did not look like dual occupancies and, as a result, he did not check up on them. Also, he said not all of the information on the past approved dual occupancies was available on the council website and he had only checked more recent ones.

42 But the fact remained that the existing dual occupancies in Milner Street had achieved what Ms David said was the objective of the controls in DCP 50. They fitted into the streetscape character of detached houses with front setbacks and side setbacks to give space enough between them for planting of trees and shrubs, and lot widths so that houses did not appear crowded together.

43 The applicant put that DCP 50 allowed non-compliances with numeric controls as long as the objectives of the statute in DCP 50 are met. The applicant emphasised that all other aspects such as solar and daylight access, landscaping, outdoor private open space, vehicle access and parking were all met. The private open space area was particularly generous and the increased front setback compensated for any narrowness of the lots.

44 There was a habitable room facing the street to give street surveillance. The street front elevation of one habitable room, an entry and a single garage door was a typical layout for a dual occupancy where the houses were side by side facing the street. The reduced lot area and frontage width should not justify a refusal in the applicant's evidence.

45 The respondent put case law of Manly v Stockland [ 2004] NSWLEC 472, to justify refusal on those same bases. The respondent showed that those criteria of DCP 50, namely lot area and lot width, had been consistently applied. The other existing developments that did not comply with DCP 50 were earlier approvals under other statutes and controls that the council had deemed to not produce the desired planning outcome. The previous statutes and controls were listed in Exhibit 7, together with the dates and periods during which they were applicable.

46 Only once since its adoption in August 2002 had an exception to DCP 50 been granted and that was to allow a dual occupancy on a lot that exceeded 1,400 sq m.

47 The adoption of DCP 50 had been preceded by wide consultation in the community, so it reflected the expectations of the community for the future. This was expressed in objectives in cl 5.11, streetscape of DCP 50, cl 5.10 Part B, cl 5.15 Part A, as well as the objective for the Residential A Zone: "To provide an environment primarily for detached housing and to ensure the range of other development permitted in a residential area is compatible with the residential environment ."

48 I have formed the opinion that the zone objective sought to achieve what existed in Milner Street, that is a mix of different housing types that were difficult to identify one from the other.

49 Mr North had difficulty in identifying the wide-fronted dual occupancies and there were other medium-density developments with several dwellings behind a standard looking detached house on the street front. One was just near the site in King Street and one almost opposite the site in Milner Street. One had to look down the driveway to perceive them. A cursory glance along the street did not reveal them.

50 As Ms David said, the same narrow-fronted dual occupancies, put forward as justification for the proposal by Mr North, had been reviewed by council in the preparation of DCP 50 and council's disappointment with their streetscape appearance was one of the reasons for the adoption of the 12 m minimum lot width and minimum 487.5 sq m lot area. They were two of the most important controls in achieving the desired future character. Ms David's streetscape elevations indicated how the proposal ran counter to this.

51 No other allotments in Milner Street are as narrow as this proposal and no other houses in Milner Street are so close together as this proposal, such that no tall shrubs or trees could be grown between them to emphasise the detached dwelling character and give better privacy.

52 In this case, council's draft conditions had to resort to requiring bedroom windows to have high sills at 1.7 m above the floor level, and laundry doors and kitchen windows to be eliminated, to give acceptable privacy and noise reduction from domestic activity. The other aspects, where the proposal showed good compliance with council requirements, could not overcome what were fatal flaws.

53 The orders of the Court are: 1. The appeal is dismissed. 2. The exhibits are returned to the parties, except Exhibits A, D, 2, 4, 5, and 7.

              K G Hoffman
              Commissioner of the Court
              rjs

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.