An angry resident of View Street, Gymea is threatening legal action against Sutherland Shire Council because of a discrepancy in the council’s controls which have left her in a planning vacuum.
Last week ,the Sutherland Shire Independent Hearing and Assessment Panel recommended approval of a six two-storey townhouse development at 84-86 View Street which would allow the second storey to be developed to the full depth of the block, impacting on neighbours privacy and amenity.
The approval was given despite a resolution by Sutherland Council last month to amend its draft Development Control Plan introducing a the 60-40 clause which confines two-storey development to the front 60 per cent of the block with the remaining 40 per cent confined to single storey.
Following this, the council’s planning committee recommended refusal, citing overdevelopment, loss of privacy and loss of a large number of canopy trees.
The development application comes to Sutherland Shire Council on December 19 but the councillors say they can’t implement the new 60-40 cause on DAs because it has to be approved, for refused, by the Department of Planning.
“We are caught in the middle as even though the council unanimously voted on the 60-40 clause because they haven’t passed it on to pending DAs,” said Anita Gregor who lives at 82 View Street, next door to the site of the proposed development.
“But councillors have to power to put this DA on hold or for it to be rejected based on design principles in the LEP.”
Ms Gregor said the 60-40 depth control clause was included the the draft SSDCP 2015 in three out of the four DCP chapters, namely 1, Dwelling Houses; 2, Secondary Dwellings; 3, Dual Occupancy.
“But for some unknown reason the 60-40 clause was omitted from the draft DCP chapter 4 covering multi dwelling housing, that is townhouses,” she said.
“This allows the construction of boundary to boundary two-storey townhouses.
“This omission has severely disadvantaged residents of View Street.
“The controls relating to multi dwelling housing within the R2 zone (low density housing) aim to ensure that new development fits comfortably within the established landscaped character, neighbourhood character and streetscapes of these low density localities.
“This DA does not fit in because of the omission of the 60-40 clause.
“For this reason, the council should place on hold any approval of this DA until such time as the 60-40 clause is made consistent throughout the whole SSDCP 2016, chapters one to four.
“If the DA is approved in its current form my family faces loss of privacy.
“The driveway of the proposed development would impact unacceptably on the front living area of my house, where my sick mother spends most of her time, as it would be located too close to the common boundary.
“It would also mean the loss of up to 18 mature trees which are part of the council’s Green Web strategy.
“There are no dwellings in our street or neighbouring streets with two storeys from front boundary to rear boundary,” she said.
The majority, not all of the Independent Hearing Assessment Panel were of the view that the design was successful with some changes, including moving the proposed driveway.
But one panel member disagreed with the majority view, saying the second storey at the rear of the development was unacceptable in terms of bulk and scale because of its impacts on the rear yard of 82 View Street and on residents living at 301 and 303 President AVenue, immediately to the rear of the proposed development site in View Street.
The majority of panel members who were in support of approving the DA.
Ms Gregor said that the DA should be rejected and new plans be submitted to comply with the 60 per cent depth rule.
Councillors have told Ms Gregor that the 60-40 rule must be adopted by the Department of Planning before it can be applied.
But Ms Gregor said that she has a letter for the department stating that councillors have the power to implement the 60-40 ruling on current and future DAs.
Cr Peter Scaysbrook said while the draft DCP will be delegated to the Department of Planning, the department does not have any powers to direct council to suspend decisions relating to current DA’s, or those that may be lodged prior to the DCP being finalised.
“It is my understanding that the council adopted the draft DCP as a policy document for the assessment of DAs under the provisions of the Sutherland Shire LEP 2015 and this was not rescinded by the council,” Cr Scaysbrook said.
“It would appear that the council will continue to assess DA’s under these provisions.”
He said Ms Gregor would need to take her request up with the council directly, if she is seeking them to suspend any decision on current DA’s.
"Council expressed a unanimous view that a 60/40 rule be applied to Townhouse developments. I sincerely hope that view is given appropriate weight in the Department of Planning's consideration of this matter"
"This entire episode shows conclusively that the "one size fits all" approach to Planning Instruments is seriously flawed. Residents and their local representatives must have the power to negotiate specific outcomes for specific sites."
Ms Gregor is threatening legal action if the council approves the DA in its current form.
In a letter to the council, her lawyers Corbett Jessop Law said they will challenge the validity of any approval should council consent be given to the DA in its current form.
“The council’s clear oversight in adopting the draft DCP in September 2015 was confirmed by the council’s unanimous resolution of November 21, 2016 to amend the draft DCP: to allow the 60-40 control for developments of the nature of the DA.
“At the November 2016 resolution confirms that the draft DCP does not achieve zoning objectives it must be rejected by council as a guide to considering the DA.
“The council’s decision would then be open to legal challenge by our client and supporting objectors throughout the Gymea precinct and beyond.”