Universal Child Care Pty Ltd v Leichhardt Municipal Council

Universal Child Care Pty Ltd v Leichhardt Municipal Council - [2007] NSWLEC 808 - NSWLEC 2007 case summary — Zoe

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Planning controls - DCP 2000 21 As already noted, Pt C - Non-Residential Development, of DCP 2000 applies to non-residential development irrespective of the zoning of the land. Relevant to the issue of character and streetscape, Pt C1.1 contains a number of provisions that assist in dealing with applications for non-residential development. The relevant principle and guidelines therein respectively require that: o Design new development to integrate well with the locality and respect the streetscape, general built form and character of the area. o On large sites where redevelopment for non-residential purposes is proposed, the development should respect the existing street pattern and provide buildings which front streets integrating with the surrounding existing development rather than creating isolated enclaves. o New buildings should respect the height and building envelope of neighbouring existing buildings and should be graded and articulated in such a manner as to harmonise with the new and existing surroundings. 22 Section C 1.2 deals with car parking and the associated principles require that: o Where on-site car parking or service areas are required, ensure that the layout and design does not detract from the amenity of adjoining areas. o Ensure that design of parking and servicing areas is efficient, safe, convenient, discreet and suitably landscaped. 23 The associated car parking controls require that development proposals should: o Integrate the design of car parking into the overall site and building design. o Where non-residential development is within … a residential zone, locate and design parking areas to … respect the character of the existing residential areas and streetscape character by means of siting, design and landscaping. o Surface parking should be visually articulated by the use of soft and hard landscaping and the use of different surface treatments. 24 Section C 1.3 deals with landscaping and the relevant principles require: o Ensure that new non-residential development provides landscaped areas that: (a) improve the quality of the development and,

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(b) reduce the impact of the development on adjacent residential areas. 25 The associated controls require that: o Where an "interface" situation occurs, use landscape screening, (such as lattice work) or plant a "landscape buffer" of trees and shrubs, to reduce visual impact of the development and maintain visual and acoustic privacy of residential areas. 26 Section C 1.4 deals with building elevations and materials and the relevant principle requires that: o Design to respect the elevational character and appearance of the streetscape and locality. 27 The stated rationale and guidelines for this principle relevantly include: o New development should provide interesting, articulated and proportioned facades where elevations to the street and public places do not comprise "dead frontage" but provide openings where activity behind can be perceived. o Larger commercial development sites offer an opportunity to create their own character. However the edges of the sites should respect the existing adjacent elevational details. o In order to achieve compatibility of elevational details, proportions and scale of new or altered buildings, and maintain the existing characteristics of 19th and 20th century development it is necessary to respond to the vertical and horizontal rhythms established by existing buildings and streets. Rhythms are recurrent design lines that establish a design pattern and reinforce the character of a particular street or section of street. Elevational relief and modelling details also contribute to fitting in with the streetscape. o Design the vertical elements of facades of new buildings to relate to the scale of the building proposed and that of adjoining development. o Relate the horizontal elements of the facade of new buildings to the horizontal control lines of adjoining development. 28 The associated controls include: o Design elevational features such as fenestration and doors to be in proportion with the scale and size of the new building and any adjoining buildings and the streetscape

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The expert evidence 52 Ms Lillie raises a number of concerns with the proposed development in relation to its impacts on the amenity of the residential properties adjoining the site o The proposed two-storey building vastly overshadows the rear open space of 151 Balmain Road, contrary to the requirements of DCP 2000. This overshadowing is a result of the height of the building and its position close to the site's rear boundary. o The requirements of DCP 2000 should be applied irrespective of who owns the affected property. o The neighbours to the rear of the site at 19 (to some extent), 21 and 23 Waratah Street will be unreasonably enclosed as a result of the proposed building's bulk and scale. o The proposal exceeds the 3.6 m maximum wall height and the building's height contributes to the loss of amenity for neighbours. The limited articulation of the building will not be read from the adjoining rear properties and from 151 Balmain Road. o No landscaping is provided to soften the appearance of the building. o Non-residential land uses should not be permitted at the expense of neighbour amenity especially when they do not comply with the planning controls. 53 Mr Darroch's contradictory evidence includes: o The location of the building towards the rear of the site is what currently occurs on the nearby school and college sites. Also the existing warehouse that dominates the site is developed to within 1.3 m of the rear boundary. o Landscaping has not been provided along the rear boundary because of the provision of stormwater drainage facilities (to the benefit of the neighbours at the rear). o The positioning of the proposed building at the rear of the site whilst eliminating solar access to the rear yards at the winter solstice enables the habitable windows to maintain their solar access. The absence of solar access to rear yards is relatively common in narrow east-west facing residential properties. o The applicant acquired the dwelling at 151 Balmain Road at market value so that the current owner would suffer no loss of amenity and no loss of value.

At a glance

Court

Decision date

Before

Source

Judgment (61 paragraphs)

Parties

Cited By (2)