s Mrs J Theobald, objector and resident at 28 Pacific Avenue.
s There was a letter of objection from the owner of 26 Pacific Avenue, however, they did not appear. The letter related to the front building setback not conforming with existing buildings and concern over shadows.
8 The applicant's evidence was heard from:
s Mr D C Wetherall, consultant town planner, building surveyor and valuer.
9 The issue causing the most concern was the front setback.
10 The applicant's evidence was that the council had recently adopted DCP 36 - Building Lines and Foreshore Building Lines, and it said where there was inconsistency between control plans it should prevail and it set 7.6 m as the setback in Pacific Avenue.
11 The respondent's case was that DCP 36 applied to single dwellings and not dual occupancies and DCP 7 required new units to adhere to the building line set by existing development.
12 The primary impacts of not complying with this, according to the council's evidence, was the disturbance of the established streetscape by a building projecting 7 m in front of existing houses and if one included a first floor balcony and a ground floor terrace, about 8 m.
13 Mrs Theobald was concerned about the cut off to the view that her house and others enjoyed by being setback about the same all along the street or in this part of the street. In Mrs Theobald's case she could currently see the full length of the beach to the south, including the headland at the southern end of the beach, although towards the north trees obscured some of the view to the north.
14 Another concern of Mrs Theobald and the council was that the second storey of the proposal extended more than 16 m from the street front boundary as set down as the Unit in DCP 7. In fact it went back 22.5 m. This control was intended to keep the bulk of buildings in a dual occupancy development so that the rear units had to be single-storey and below 3.6 m, probably in order to avoid overshadowing and dominance of backyards of single houses on adjoining lots.
15 Mrs Theobald and the council's evidence was that although the proposal only brought its two-storey section back to about the rear alignment of the houses on Nos. 26 and 28 Pacific Avenue, the real impact was the second storey being able to be so large because the building did not comply with the front setback to match existing houses and then did not comply with the 16 m rule and further did not comply with the side setback requirements in many places. This all added much more bulk to the second storey than was intended by the controls and contributed to the impact.
16 Also the driveway had no side setback for landscaping along more than half its length. The development control plan required that to provide separation and screening which contributed to the improvement of the streetscape and softening the built form and giving separation between houses.
17 The applicant pressed Development Control Plan 36 on the front setback and also indicated that setbacks along Pacific Avenue varied along its considerable length. Further that Werri Beach was in transition and many of the older holiday cottages would be demolished in the coming years and 7.6 m would become the established building line.
18 Whilst there was considerable evidence on other issues, overall the Court has come to the conclusion the determinative matter was the front setback. The planning documents of council may not be as well co-ordinated as one might hope but the Court accepts that the provisions of Development Control Plan No. 7 are specifically for dual occupancy development. It is the primary control in this appeal, after of course the Kiama Local Environmental Plan 1996.
19 Dual occupancy when inserted into the Residential 2(a) Zone, which is usually low density, inserts higher density development which creates additional impacts due to its increased size of building over the normal single house and reduced landscape area. An overall objective of the control in cl 2 is to maintain the existing quality and character of the precinct in which it is located and to protect the residential amenity of existing residents. There is also some consideration under State Environmental Planning Policy No. 71, Coastal Protection, to maintain the scenic quality of coastal development.
20 Clause 8.2(b) of Development Control Plan 7 relates to the conversion of existing houses to dual occupancy and the Court accepts that the appropriate clause is 8.2(f) which requires properties fronting public reserves or foreshore areas to conform to front building lines set by existing development.
21 Although the front setbacks along the long length of Pacific Avenue do vary, DCP 36 appreciates that there is variation between 4 m and about 16 m in the areas that deals with. The relevant precinct of this proposal has setbacks in the order of 12 to 14 m, except for a single-storey shop in a Business Zone two doors from the subject proposal. But the shop has 8.7 m setback and is single-storey and the two-storey house behind it is at about the 15 m setback line.
22 This proposal, by being forward so far and having the bulk it has, will create unacceptable impacts on the streetscape and its neighbours sufficient on those grounds alone for refusal. Therefore the orders of the Court are:
1. The appeal is dismissed.
2. The exhibits are returned to the parties except Exhibits 2, 3, 5, A and B.
___________________
K G Hoffman
Commissioner of the Court
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