144 Hewlett Pty Ltd v Waverley Council
[2005] NSWLEC 495
•08/16/2005
Land and Environment Court
of New South Wales
CITATION: 144 Hewlett Pty Ltd v Waverley Council [2005] NSWLEC 495
PARTIES: APPLICANT
144 Hewlett Pty Ltd
RESPONDENT
Waverley CouncilFILE NUMBER(S): 10261 of 2005
CORAM: Hussey C
KEY ISSUES: Appeal :- Section 96 modification application - development for 2-semi-detached dwellings - stretscape - views
LEGISLATION CITED: Waverley Local Environmental Plan 1996
Development Control Plan No. 2 - Dwelling Houses,
Development Control Plan No. 14 - Bicycle and Car Parking,
Development Control Plan No. 29 - Advertising and Notification of Development Applications.DATES OF HEARING: 30/06/2005 and 16/08/2005 EX TEMPORE JUDGMENT DATE: 08/16/2005
LEGAL REPRESENTATIVES: APPLICANT
Ms M-L Taylor, solicitor
SOLICITORS
Norman WaterhouseRESPONDENT
Mr M Staunton, solicitor
SOLICITORS
Staunton Beattie
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESHussey C
16 August 2005
10261 of 2005 144 Hewlett Pty Ltd v Waverley Council
JUDGMENT
Background
1 This appeal was lodged against council’s refusal to s 96 modification application to an approved development for 2 semi-detached dwellings at 144 Hewlett Street, Bronte.
2 The application has been the subject of a number of changes since the development consent was first granted and the modifications now sought involve:
- the shared driveway; and basement to be replaced by individual driveways and basements to each dwelling;
- an increase in the length of the first floor, street balcony from 1.5 to 2 m on dwelling 1;
- an extension of the ground and first floor of the rear dwelling 2 (east) by approximately 1 m;
- other matters such as changes to windows and additional excavated area in the basement.
3 For the assessment of the s 96 modification the parties agreed to Mr G Goodyer being the Court-appointed expert for planning and he prepared a detailed report which identified a number of aspects which he was dissatisfied with.
4 The appeal commenced with a site inspection and a number of the objectors were given the opportunity of expressing their concerns. Following this the matter was adjourned to allow the applicant the opportunity of making further amendments in response to the concerns raised.
- Waverley Local Environmental Plan 1996
Development Control Plan No. 2 - Dwelling Houses,
Development Control Plan No. 14 - Bicycle and Car Parking,
Development Control Plan No. 29 - Advertising and Notification of Development Applications.
The evidence
5 The first matter that had to be addressed by Mr Goodyer concerned whether the s 96 modification relates to substantially the same development. The main aspect of concern relates to the proposal having 2 separate garage door entries at the basement level. However, Mr Goodyer accepts that this application relates to substantially the same development and I accept his opinion so that the merits of the proposal can be assessed.
6 The main objection to the proposal concerns the proposed 2 m wide front balcony at the first level, which has a width of 2 m. Its extremities are identified by columns and a beam on the outer edge of the balcony.
7 The relevant controls in Pt 5 of DCP 2 – Dwelling-house Development objectives and controls related to front setbacks as follows:
- Objectives
- i) [Not relevant to front setbacks];
(ii) to permit flexibility in the siting of dwelling-houses,
(iii) to ensure that the siting of dwelling-houses is in visual harmony with surrounding buildings and the streetscape.
The objectives are not achieved unless:
C2 Dwelling-house maintain setbacks that ensure they are visually harmonious with other buildings in the streetscape.
Ways in which the design criteria may potentially be satisfied are:
S2 The front building-line is built to the predominant front building-line of buildings in the vicinity of the site. Where no predominant building line can be identified the front building-line achieves the objectives outlined above.
8 This part of the DCP provides design criteria and design solutions. Mr Goodyer has measured the adjoining building setbacks and says the proposed extremities of the 2 m wide balcony could be suitable in this context if the surrounding structure was of a ‘lighter’ design.
9 Based on the initial s 96 modification the objections were raised by the neighbour Mr Wills, No. 142, to this proposed balcony because of the impacts on his view corridors. The other objections were raised by Mr and Mrs Ellison from No. 142, their main concerns related to the rear of the property. Mr Wills objects because the balcony support structures and the initial proposed pergola obstruct some of his easterly views from the first level bedroom window.
10 However, it seems to me that the revised columns which are 300 mm x 150, together with the connecting head beam around the balcony, do not have any material affect on views from this bedroom window which has limitations in furniture arrangements due to its size. Otherwise this room has panoramic primary views over Bronte Beach in a southerly direction.
11 In my assessment of the relative view sharing principles it seems to me that in this situation some balancing is required between the aesthetic impact of the new dwelling and the impact into the view lines.
12 I note that the architect Mr Folk’s description of the house design is that due to the site constraints, which involve the new building being set back on the rock platform, gives it noticeable vertical dimension. The inclusion of the relatively slender columns and connecting beam together with the front façade treatment result in improved streetscape presentation.
13 In considering these competing interests it is apparent to me that the design of this new building is of a modern design which will enhance existing streetscape and improve the visual harmony. Therefore I consider it reasonable to allow the two metre wide balcony and proposed framing column and beam in this case.
14 The other objections concerned the rear extension of the building and its resultant non-compliance with the established rear building lines. The applicant has responded to this by further minor reduction so the encroachment is in the order of 600 mm.
15 As this control is to minimise adverse impacts on the neighbours it is obvious from the view that this relatively minor encroachment does not materially affect the neighbouring properties and I therefore consider it reasonable.
Conclusion
16 In summary then, I am satisfied that the further amendments proposed by the s 96 modification now demonstrate reasonable compliance with the relevant DCP objectives. Insofar as the first floor balcony is 0.5 m wider and framed by the columns and beam, nevertheless it appears substantially open, as preferred and these design elements are an essential part of this particular house design which addresses the site’s constraint resulting in my opinion in enhancement of the structure. In my assessment this new dwelling will introduce positive element in this section of the streetscape and merits consent.
17 With regard to the other minor amendments, I consider they demonstrate reasonable compliance with the controls without any other material impact on the neighbouring property so as to merit consent.
18 Therefore the orders of the Court are:
1. The appeal is upheld.
2. The s 96 modification to DA 542/2003 at 144 Hewlett Street, Bronte, is approved subject to the previous approved Condition 1 being deleted and replaced with the following:
(i) Compliance in all respects within Plan Nos. 1G, 2G, 3G and 4G dated 4 July 2005 and received by the NSW Land and Environment Court on 1 August 2005 and Plan No. DA 2e (in as much as it relates to relocation of the rear pool) dated 17 January 2005 and received by council on 20 January 2005, prepared by Campbell Luscombe Folk Lichtman Architects except where amended by the following conditions of consent.
3. The exhibits may be returned except Exhibits 3, A, B and C.
(ii) The additional conditions imposed by council in the notice of determination dated 4 March 2005 in respect of the s 96 application lodged on 29 October 2004 and 20 January 2005 in relation to the rear addition and front balcony being an open structure are deleted from the consent.
4. Each party pay their own costs.
_______________________
R Hussey
Commissioner of the Court
rjs
0
0
4