Rahme v Canada Bay Council

Drivas v Canada Bay Council [2004] NSWLEC 111; CASES CITED: Pafburn v North Sydney Council [2005] NSWLEC 444 ; CSA Architects v Randwick City Council [2004] NSWLEC 179

APPLICANT Mr M. McMahon, solicitor of M E McMahon and Associates LEGAL REPRESENTATIVES:

RESPONDENT Mr S. Patterson, solicitor of Wilshire Webb Staunton Beattie

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10128 of 2007 Tony Rahme v Canada Bay Council This decision was given extemporaneously. It has been revised and edited prior to publication.

JUDGMENT 1 This is an appeal against the refusal by Canada Bay Council (the council) of a Development Application (642/06) to demolish an existing single-storey house and construct a new two-storey house with basement car parking at 41 Barnstaple Road, Five Dock (the site). 2 The site, its context, the history of the application and the planning controls are summarised in the Statement of Basic Facts. Briefly, the site is on the northern side of Barnstaple Road, opposite Five Dock Park. It has an area of 341 sq m and a splayed street frontage of 8.723 m. The width of the site is about 7 m. 3 Adjoining development to the east is a single-storey brick house (43 Barnstaple Road) and to the west is a two-storey brick house (39 Barnstaple Road). Planning framework 4 The site is zoned 2(a) under Drummoyne Local Environmental Plan 1986 (LEP 1986). The proposal is permissible with consent. Draft Canada Bay Local Environmental Plan (Draft LEP) has been exhibited but is not imminent or certain. I have therefore given it little weight. 5 The Drummoyne Comprehensive Development Control Plan 1999 (DCP 1999) applies to the site. The proposal generally complies with the relevant controls, including height, site coverage and landscaped area. The proposal does not comply with the floor space ratio (FSR) or side setback control. The evidence 6 On 24 April 2007, the Court heard evidence on site from the owners of the adjoining properties; Mrs di Bella of 43 Barnstaple Road and Mr and Mrs Davies of 39 Barnstaple Road. The Court also heard evidence on site from Mr M Lawani, council planner, and Mr A Betros, the planner for the applicant. 7 The main concerns of the residents and council can be summarised as the impact of the proposal on views from 39 Barnstaple Road and the extent of side setback. Council considered the impact on 43 Barnstaple Road to be generally acceptable. 8 Mr and Mrs Davies also raised concerns about the impact of the proposal on solar access to their property. The expert evidence was that this impact was acceptable and complied with council's controls. 9 As a result of the concerns raised by the residents and the expert evidence, I provided preliminary findings on site. The applicant agreed to prepare amended plans, which were notified to the adjoining residents. 10 Mrs Davis, Mr Lawani and Mr Betros provided further evidence in Court on 28 May 2007. Mrs Davies reiterated her concerns that the proposal would "profoundly" affect the amenity of her property. In particular, she was concerned about the view loss from the first floor eastern window of the living room, the noise and privacy impact from the proposed first floor balcony off the sunroom, the proximity of the stairwell to her bedroom window, the loss of solar access and the need to replace a security gate. 11 Council remained concerned about the size of the balcony off the sunroom, the setback of the first floor and the roof over the entry portico. It sought to impose conditions 2(a), (b) and (c) to address these concerns.

Side setback (condition 2a) 12 The proposal does not comply with the side boundary control of 0.9 m for a single storey and 1.5 m for a two storey dwelling in DCP 1999. Adjoining 39 Barnstaple Road the proposal is built along the boundary at ground level and set back between 1000mm and 1155 mm for part of the first floor. The stairwell which extends about 5 m is built to the boundary at the first floor. 13 The key difference between the experts was Mr Betros considered that the proposal met the performance criteria in DCP 1999 for setbacks, achieved a building envelope consistent with the DCP and was below the controls envisaged by the Draft LEP. 14 Mr Lawani considered a greater setback should be provided. His opinion on the original plans was that the ground and first floors should be set back about 900 mm on both levels. In relation to the amended plans he considered that the first floor south of the stair should be set back the same as the area north of the stair, being 1155 mm. 15 The performance criteria for setbacks for single dwellings and attached dual occupancy in DCP 1999 provides:

P2. setbacks for new developments complement the existing predominant street setbacks.

P3. side and rear setbacks enable adjoining dwellings to maintain privacy and sunlight access. 16 The minimum standard for side setbacks in DCP 1999 provides:

Side boundary setbacks for all building walls are a minimum of 900 mm for single storey and 1.5 m for two-storey dwellings. Lesser setbacks may be permitted where the wall does not contain windows and the level or width of the site or other exceptional site conditions make compliance impractical. 17 The site is narrow, having a width of about 7 m. The existing house on the site is single-storey and set back about 18 to 20 cm from the boundary to 39 Barnstaple Road. The proposal to build to the boundary at ground level would have a similar impact to the current arrangement, particularly if a boundary fence were to be constructed. There are no windows proposed along the boundary at ground level and the windows at the upper level are glass brick and highlight windows. There is therefore no privacy impact.

18 The amended plans have sought to increase the setback of the first floor to the south of the stairwell and to move the stairwell to reduce the impact on the outlook from the upstairs study of 39 Barnstaple Road. This has resulted in an increased impact on the bedroom window, however this window enjoys an outlook to the north and is therefore acceptable. 19 I acknowledge that the proposal will impact on the amenity of 39 Barnstaple Road, as the property currently enjoys views to the east over the existing single storey house. However the question is whether this impact is reasonable, given the planning controls. I accept Mr Betros' evidence that the proposal meets the performance criteria for setbacks in DCP 1999. The overshadowing or privacy impacts are acceptable the proposal is generally consistent with the setback of other dwellings in the area. 20 The first floor of 39 Barnstaple Road is built to within about 20 cm of its western boundary and there are other two-storey houses in the area, which are also built in close proximity to their side boundaries. This appears to be a reasonable approach to the area, given the narrow width of the sites, and is reflected in council's planning control, which permits a lesser setback if windows are not provided or the width of the site is narrow. 21 I do not accept that council's proposal to increase the width of part of the upper floor from 1000 mm to 1155 mm or the chamfer off the stairs would have any material benefit on the amenity of 39 Barnstaple Road, and it would reduce the amenity and functionality of the proposal. I have therefore deleted condition 2(a).

Balcony (condition 2b) 22 In relation to the balcony off the sunroom, I do not consider that the size of the balcony and its location off the sunroom as well as its separation from 39 Barnstaple Road would provide unacceptable visual or aural privacy impacts. There is no consistent form of balcony in the street, but the majority appear to stretch along the whole façade and to be within 1.0 to 1.5 m of adjoining properties. The impact of the balcony proposed would have less impact on 39 Barnstaple Road than the original proposal or other types of balconies in the area. I also consider that the design of the balcony is not inconsistent or would adversely impact on the streetscape. I have therefore deleted condition 2(b).

View loss 23 In relation to the impact on the views from 39 Barnstaple Road, I note that the experts consider that acceptable view sharing is achieved. The balcony will intrude into the view from the first floor living area side window of 39 Barnstaple Road, however the obstruction is from a glass balustrade or people using the balcony. 24 The majority of the view from 39 Barnstaple Road from the living area window is to the city and to the park, which will be maintained. I therefore accept the expert evidence that reasonable view sharing is achieved, given the extent of view maintained and that the view loss is from a side window.

Portico roof (condition 2c) 25 The only other issue relates to the design of the portico roof. Mr Lawani considered that a pitched roof would be more in keeping with the design of the house and the streetscape. While there is some merit in this argument, there is no consistent streetscape and the portico roof does not have any impacts on adjoining properties. 26 There is therefore no compelling statutory reason or context argument that requires the change suggested by Mr Lawani other than a difference of opinion as to which form better relates to the design of the building. This is best left to the designer of the proposal. I have therefore deleted condition 2(c). 27 Mr Patterson, for the council, referred to Drivas v Canada Bay Council [2004] NSWLEC 111, Pafburn v North Sydney Council [2005] NSWLEC 444 and CSA Architects v Randwick City Council [2004] NSWLEC 179. The key principle within these judgments is whether the impacts of a proposal are reasonable given the planning controls and whether a different design would reduce the impact. In applying these judgments and for the reasons above, I consider that the amended plans have reduced the impact of the proposal to an acceptable level. Orders 28 The orders of the Court are therefore:

1. The appeal is upheld. 2. Development Application (642/06) to demolish existing structure and construct a two storey house over basement parking at 41 Barnstable Road, Five Dock is approved subject to conditions in Annexure A. 3. Exhibits, except Exhibits C and 5, may be returned.

      Annelise Tuor
      Commissioner of the Court
      ljr

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