Waks and Anor v Marrickville Council

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

CASES CITED: Como v Marrickville City Council [2006] NSWLEC 105 ; Serhan v Marrickville City Council [2006] NSWLEC 237

DATES OF HEARING: 26/05/2006 and 13/07/2006

APPLICANT Mr C. Gough, solicitor of Storey and Gough LEGAL REPRESENTATIVES:

RESPONDENT Mr G. Chrsitmas, solicitor of Marrickville Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10070 of 2006 Sheree Waks and Borivoj Maksimovic v Marrickville Council

JUDGMENT This determination was given extemporaneously and it has been edited prior to publication

1 This judgment is for an appeal under s 97 of the Environmental Planning and Assessment Act. By way of background this matter has come back to me today for final consideration in terms of the development application for the property known as 13 Myra Road, Dulwich Hill. The proposal is for the demolition of the existing cottage on the subject lot which is on the corner of Myra Lane and Myra Road and for the subdivision of the land into two separate allotments. One lot would be an L-shaped allotment known as Lot 2 with frontage to Myra Lane of some 7 m and also an L-configuration such that there is a property boundary to Myra Road of some 4.5 m and a total site area of 187 sq m. Lot 1 is proposed on the corner of the lane and Myra Road to have an area of approximately 165.5 sq m.

2 Council's controls require the subdivision prior to the erection of the dwelling houses even though they would be joined by a party wall.

3 The matters before the Court relate to the streetscape presentation, the subdivision pattern and council also has expressed concerns about the built form in terms of the development and consistency with council's controls. A statement of issues was provided to the proceedings and there were a number of issues identified. However, following amended plans that first came before the Court on 26 May (these plans had been provided and amended at that time on the basis of the Court-appointed expert's comments, Ms Kerry Gordon) some of the original conditions contested were not considered to be matters that would be determinative in terms of a refusal of the development application.

4 The council's Issues are: (1) contrary to the subdivision pattern, (2) poor presentation to Myra Road, (3) poor amenity of the proposed dwelling, (4) inadequate open space for dwelling 1 and objections to the application. 5 The Court met on-site and heard from a number of resident objectors. Ms Rath from No. 24 represented Mr Sullivan. She considered the scale and bulk of the proposed dwelling to the size of the lots was inappropriate and expressed concern about the parking. Ms Long of 26 The Parade, corner of Myra, considered that the proposed development was out of keeping with the area in terms of the scale having two two-storey dwelling houses on this allotment of land incongruous and out of character with the area. Ms Gowan, the tenant of No. 24, expressed concern about the character, the extension of the existing dwelling that she is currently residing in and the impact of the proposed development on that extension back property area and that too there would be a two-storey dwelling overlooking her rear yard.

6 The Court undertook an extensive inspection of the area and had the opportunity of observing the overall character of the area.

7 On behalf of the council evidence was given to the Court by Mr Faridy, is council's assessment officer. He expressed concern about the proposed development and in particular the presentation of the dwellings to Myra Road and the fact that in his opinion this portion of Myra Road, that is, south of Myra Lane, has a distinctively different character to the rest of Myra Road. It can be seen by the extract of the zoning that the zone boundary is on the northern side of Myra Lane which is 2(b) and the potential of that 2(b) zone has been taken up with residential flat buildings of an older style and to the south of Myra Lane it is Residential A and dual occupancy development is permissible. It is noted that the control provides for 400 sq m for an attached dual occupancy.

8 The character of the area: I am satisfied that the proposed development is one that would not unreasonably impact on the character of the area and in fact the built form would form a transition between the Residential A area and the Residential B area. In this regard I am not saying that the proposed development is of a higher density as it will 'fit' into the Residential A area but it will present as a two-storey dwelling house to Myra Road.

9 The Court indicated its preliminary view at the end of the first day of these proceedings and those views were to the effect that it did not consider the built form was inappropriate but it did consider that the subdivision was one that did not warrant approval by the Court and the Court indicated its views on that occasion.

10 There was discussion as to whether an amended plan would be submitted such that it could be proposed as a strata title dual occupancy development and the Court provided the opportunity for the parties to discuss a point of law. Subsequently Mr Gough on behalf of the applicant has agreed with the respondent's solicitor, Mr Christmas, that this would constitute a different development application and that the correct process would be for the Court to determine this application and if, as such, there was a further application it would be submitted to the council for a dual occupancy development. The applicant has indicated that this is the preferred course of action.

11 I say at the beginning of my assessment or preface my further findings by saying that clearly any further application (and it is well understood by the applicant) would require it to be submitted to the council and assessed and determined by the council as a separate development application.

12 As I previously indicated, the existing subdivision pattern of the area is such that the proposed subdivision would be inappropriate and I have previously indicated this for a similar subdivision in the matter of Como v Marrickville City Council [2006] NSWLEC 105 and also a judgment of Serhan v Marrickville City Council [2006] NSWLEC 237 where I refer to subdivision principles. The fundamental subdivision pattern exists far longer than any development and when one has regard to the subdivision pattern in the area it is inappropriate for an L-shaped allotment with the size of the proposed lots to be allowed within the context of this area. The proposed subdivision would be out of character and the subdivision pattern is determinative in this matter as to why the application should be refused.

13 However, by way of comment (and I state this is by way of comment as any further applications it is understood would be assessed by the council) in terms of the built form I am of the opinion that the proposal that could be amended to be satisfactory and appropriate in the context of the Residential A area and that a dual occupancy development as shown in the plans with amendments in my assessment would not be out of keeping with the streetscape and character of the area. I disagree with the council officer that these are two separate view sheds in terms of the Residential A and the Residential B parts of Myra Road and they are read together. It is clear where the higher residential flat buildings commence that there is a zone change. This property if developed as shown in the plans or a similar version thereof would still read as relating to the Residential A area.

14 As pointed out by Mr Christmas, council has a control that there is a minimum requirement of 400 sq m for an attached dual occupancy. It is noted that the subject site is some 351 sq m and as such would require a SEPP objection if a further development application is pursued by the applicants.

15 However, in terms of presentation to the street of Myra Road I am satisfied that the proposal with the deletion of the garage for house two and a roof structure over an open garage would be appropriate in the streetscape in the context of the area. It would not present as a predominance of garage doors and in that regard the plans as submitted would have to be amended to ameliorate the impact of garage doors on Myra Road.

16 Furthermore, I am satisfied that in terms of addressing the street the building will appear as a two-storey dwelling house with an attached dual occupancy as shown in the plans and would not be out of character or in sympathetic with the area. It is only on closer examination that one would then find that there are two separate allotments that both have a frontage then to Myra Lane and Myra Lane provides is more of a service lane to the garages of other properties. Myra Lane also provides a separation between the residential flat buildings to the north and, in terms of the amenity for houses Nos. 1 and 2, I am satisfied that this would not unreasonably impact on the amenity of those dwellings and Myra Lane will provide a frontage and a northern aspect for the main open space to both the dwelling houses.

17 Clearly there are matters within the plans that are currently before the Court that would require amendment in order for the presentation of the building to be appropriate. The FSR of the proposal should not exceed the 0.6:1 which would be a requirement in terms of council's controls to ensure that the built form is commensurate with the size of the allotment and does not overwhelm adjoining dwelling houses.

18 The materials and finishes as we saw on the view, they can also be important. It is not only the built form that must be appropriate but also the materials and finishes and one could see on the view the residential flat building adjoining an open space reserve that there are appropriate ways for materials and finishes to ensure the presentation of buildings is appropriate in the streetscape.

19 With respect to the brick wall to Myra Road it is considered that the boundary fence should be set back to provide for appropriate landscaping such that Myra Road is the formal presentation in terms of the streetscape and the size of that open space area for house one could be reduced to provide for adequate landscaping of some 1.5 to 2 m further back than the fence on the boundary on the corner. Also, a splay would be required to ensure that there is appropriate landscaping.

20 With respect to the properties adjoining, in particular No. 24, in terms of the shadow diagrams the proposed development would not impact on No. 24. Furthermore, in terms of privacy and overlooking I am satisfied with the blank wall that is provided to the southern elevation there is no overlooking in terms of windows to No. 24 and that a two-storey wall would be broken up by a roof structure to provide a car port or an open garage for house No. 2.

21 The site has opportunities and constraints. By providing the open space to the northern aspect it achieves appropriate solar access and amenity for two dwellings on the subject site. It is also important that any presentation of a future application would address Myra Road similar to the plan that I have before me such that it appears as a two-storey dwelling house. Even if the site was developed for one dwelling a two-storey dwelling house would not be inappropriate having regard to the streetscape context and reading the residential flat buildings to the north of Myra Lane.

22 The other issues that were raised by the council, that is, the dominance of garage doors, would be ameliorated by, as I stated, an open garage for one dwelling and just one garage door.

23 Any proposal should provide for a driveway which has partial shared use for the two dwellings. This will also provide for the presentation of a single dwelling house to Myra Road. There should be appropriate street tree plantings to reinforce the existing street trees in the area.

24 With respect to the objectors concerns I have addressed No. 24 and I am satisfied that the proposal would not unreasonably impact whether it is a single dwelling house or a dual occupancy development in terms of the built form that I see before me subject to my comments about the southern garage.

25 The character of the area: As I stated, I consider that it would not be an inappropriate infill development in the area in terms of the existing dwellings within the Residential A and also having regard to the residential flat buildings in the 2(b) zone.

26 I note in council's bundle of documents that the matter was also originally assessed as one that warrants approval and I concur with the built form outcome but I do not concur with the subdivision for the reasons that the subdivision would be completely out of character with the subdivision pattern within the area and subdivisions are something that should be respected and the small subdivision as proposed is contrived in terms of the L-shape configuration.

27 I have on previous occasions commented that a subdivision is not merely a line on a map and that it is a fundamental element in the future urban fabric and this applies to that goes the circumstances of this case as well.

28 Therefore on the basis of my assessment the formal orders of the Court are: (1) The appeal in respect of the property known as 39 Myra Road, Dulwich Hill, is dismissed. (2) The development application submitted to Marrickville Council and as amended for subdivision into 2 lots and the erection of two separate dwellings houses is determined by the refusal of consent. (3) The exhibits, with the exception of 2, 3 and A are returned to the parties.

              J S Murrell
              Commissioner of the Court
              Rjs/ljr

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