Vibuild Pty Ltd v Kiama Municipal Council [2004] NSWLEC 396 | Case summary

1 This was a class 1 appeal No.11329 of 2003 between Vibuild Pty Ltd and Kiama Municipal Council in regard to the refusal of detached dual occupancy development at 27 Pacific Avenue, Werri Beach. The area had recently been sewered and this enabled the council to permit dual occupancy development. 2 A control plan, Development Control Plan No.7, had been adopted to deal with such applications. The use was permissible in the Residential 2(a) Zone under the Kiama Local Environmental Plan 1996. The site was opposite the beach reserve and was relatively flat. There was an existing two-storey fibro holiday cottage on the site. It was to be demolished. 3 One unit was towards the front of the lot containing, on the ground floor, two bedrooms, a living room and rumpus room and two bathrooms. On the first floor were three bedrooms, a lounge and kitchen and two bathrooms. It had a flat roof and was rendered block work walls. At the rear was a courtyard and garage serving the front unit. Off the driveway at the rear was another garage and the second unit which was a single-storey rendered block work building with a sheet metal hipped roof containing three bedrooms, a living room, kitchen and two bathrooms. 4 This rear unit had along the back fence a larger private courtyard than the front unit. The courtyard of this rear unit had a young Norfolk Island pine tree at its northern end about 10 m tall. This courtyard would be private whereas the front unit would probably prefer to use the front garden of the development because that was where the ground floor living room faced and it was towards the ocean. The private courtyard at the rear of the front unit was fully paved and would probably be used mainly as a service yard, although it was accessible off the rumpus room. 5 The driveway was on the northern side adjoining 28 Pacific Avenue, a two-storey solid brick house with tiled roof. Number 28 was setback 14.53 m from the street boundary and the existing house on the subject site was about the same. On the south side of No. 28 was No.26, another cottage. It was setback 14 m from the street boundary. The proposed front unit of the dual occupancy was setback 7.6 m to the front wall and 6.6 m to the front of its cantilevered balcony. 6 The issues were: 1. Non-compliance with Kiama Development Control Plan No. 7 for dual occupancy development: 1.1 The development application does not comply with Kiama DCP No. 7 in relation to cl 8.2(b) in that Unit 1 is two-storeys and has a height of more than 3.6 m to a distance of 22.5 m from the front property boundary. 1.2 The development application does not comply with cl 8.2(f) of Kiama DCP No.7 in that the property fronts a public reserve or foreshore area and the proposed front building line does not adhere to the building line set by existing development. 1.3 The development application does not comply with Kiama Development Control Plan No. 7 in relation to cl 8.3: s in that the front setback of Unit 1 is only 6.6 m contrary to council's adopted street building line of 7.6 m set in Kiama Development Control Plan No. 36; s in that the side boundaries of Unit 1 are not setback 4.38 m on either its northern or southern sides at a distance of greater than 16 m from the front boundary; the setbacks being 4.1 m on the northern side and 2.5 m on the southern side; s in that the upstairs WC of Unit 1 is setback only 2.5 m from the southern boundary when a setback of 4.28 m is required; s in that the upper living room of Unit 1 is setback only 3.68 m from the northern boundary when a setback of 5.41 m is required; s in that bedroom 5 of Unit 1 is setback only 1.6 m instead of the 2.1 m setback which is required; s in that the bathroom of Unit 2 is setback only 2.1 m rather than 2.6 m which is required; and s in that the rear setback of Unit 2 provides only 3 m to the deck rather than the 6 m which is required. 1.4 It has not been established by shadow diagrams that the development application complies with cl 8.5(c) of Kiama DCP No. 7 in relation to the sunlight provided to the private open space area of Unit 2. 1.5 The proposed development is not consistent with the objectives of DCP 7 set out in cl 2 of the plan, in particular: (b) to establish minimum standards for new development to assist in: s maintaining the existing quality and character of Kiama's urban and rural living areas; s protecting the residential amenity of the existing residents. 1.6 The departures from the requirements of DCP 7 have not been justified by the applicant. 2. Non-compliance with the Kiama Development Control Plan No. 36, building lines and foreshore building lines: 2.1 The development application does not comply with Kiama DCP No. 36: s in relation to cl 7.1 in that the front setback of Unit 1 is only 6.6 m contrary to council's adopted street building line of 7.6 m; s in relation to cl 7.4 in that the rear setback of Unit 2 is only 3 m contrary to council's adopted rear building line of 6 m or the rear building line of adjoining development. 2.2 The proposed development is contrary to the objectives set out in cl 5.0 of DCP 36 in particular: (a) to setback buildings and garages/carports from the street to provide adequate space for landscaping or open space, visual and acoustic privacy and vehicle parking, while assisting in establishing an attractive streetscape. (b) to protect the established character of a neighbourhood with a consistent view along the street and water frontage to promote an open street and waterscape. (c) to prevent dwelling houses and structure being sited inappropriately in relation to neighbouring dwellings and the waterfront. 2.3 It has not been demonstrated that the objectives of DCP 36 will be satisfied by the development and hence a variation to the requirements of the plan is not warranted, see cl 10.0. 3. Over development of the site: The bulk of the development on the site and the numerous departures from DCP 7 and DCP 36 evidence an over-development which will have unsatisfactory impacts on the neighbourhood. 4. The public interest: 4.1 The application is for one of the first dual occupancy developments at Werri Beach. 4.2 It is contrary to the public interest to permit a dual occupancy development which departs in so many ways from the requirements of DCP 7 and DCP 36. 7 The Court heard the respondent's evidence from: s Mr S Richardson, consultant town planner. s Mr Van Breda, the council's horticulturalist, but he was not required for cross-examination although his report was in evidence.

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 rjs

Vibuild Pty Ltd v Kiama Municipal Council

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Judgment (8 paragraphs)

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Cited By (3)