Azzopardi v Waverley Council
[2006] NSWLEC 682
•01/11/2006
Land and Environment Court
of New South Wales
CITATION: Azzopardi v Waverley Council [2006] NSWLEC 682 PARTIES: APPLICANT
RESPONDENT
Tim Azzopardi
Waverley CouncilFILE NUMBER(S): 10502 of 2006 CORAM: Hussey C KEY ISSUES: Development Application :- Rear lane garage/attic, orientation, height, bulk, scale, amenity impacts LEGISLATION CITED: Environmental Planning and Assessment Act
Waverley Local Environmental Plan 1996DATES OF HEARING: 30/10/2006
DATE OF JUDGMENT:
11/01/2006LEGAL REPRESENTATIVES: APPLICANT
Mr A Perkins, solicitor
SOLICITORS
Colin Biggers & PaisleyRESPONDENT
Mr S Patterson, solicitor
SOLICITORS
Wilshire Webb
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Hussey C
1 November 2006
JUDGMENT10502 of 2006 Tim Azzopardi v Waverley Council
Background
1 This appeal was lodged against council's refusal of a development application for the construction of a single garage, incorporating attic space within the roof area for a property situated at 58 Alt Street, Queens Park. The access to the garage is via the rear lane.
2 For the appeal a number of issues were identified which can be summarised as follows:
- Height, bulk and scale of the garage, including its orientation,
- Compliance with the desired future character provisions,
- Public interest; streetscape, precedence, loss of outlook, overshadowing, privacy loss.
3 The parties agreed to Ms D Laidlaw being the Court-appointed expert for planning and she prepared an initial assessment of the proposal, together with a final assessment after some amendments, which became Exhibit 2. Ms Laidlaw supports the conditional consent of the proposal.
The site
4 The site is located on the eastern side of Alt Street between Birrell and Cuthbert Streets. In addition, the site has a second frontage to Alt Lane. The site has a 4.96 m frontage to Alt Street, a 4.89 m frontage to Alt Lane and a depth of 42.21 m, providing a site area of 208 sq m. The site has a slope from the rear lane to the street.
5 The site contains a part one and two storey terrace dwelling currently undergoing alterations and additions in accordance with the consent granted to DA 740/04. The site previously contained a timber framed garage at the rear built to both side boundaries. That building has since been demolished.
6 Development in the surrounding area comprises a mixture of one and two storey semi-detached and freestanding dwellings. Most have a garage facing Alt Lane to the rear and are single storey in the immediate vicinity of the site. A few of the garages further to the north along Alt Lane have small attic spaces above the garage designed with small windows in the gable end facing the rear lane.
- The proposal
7 The proposed garage/attic comprises:
Ground Floor: the construction of a brick single garage adjacent to the rear lane extending to both side boundaries and having approximate dimensions of 4.8 m x 5.7 m.
First Floor: the construction of an additional floor over the proposed garage. The attic room will be sited up to both side boundaries and will have dormer windows with obscure glazing and fixed-timber louvres-located-within the proposed colorbond-pitched roof. It is also proposed to have an eyelid window, again with obscure glazing, within the western elevation of colorbond roof facing towards the rear of the dwelling on the subject property.
The proposed two storey outbuilding will have an overall height of 5800 mm to the ridge from natural ground level, and having a ceiling height of approximately 5600 mm from natural ground level.
The proposed attic above the garage contributes to the floor space ratio (FSR). The proposal has a calculated floor space ratio of 0.878:1 and is non-compliant with the permitted ratio of 0.845:1.
8 The relevant statutory instruments applying to the subject site are:
- Waverley Local Environmental Plan 1996, under which the site is zoned Residential 2(a).
The LEP contains specific aims in relation to housing, which relevantly includes:
(d) to ensure that new housing is compatible with surrounding development;…
(f) to improve the amenity of residential areas.
9 The relevant Development Control Plan applying to the subject site are:
- Waverley Development Control Plan No. 2 (Amendment 5) - Dwelling House and Dual Occupancy Development;
- Waverley Development Control Plan No. 9 - Reducing Crime Through Design;
- Waverley Development Control Plan No. 13 - Energy Smart Homes Policy;
- Waverley Development Control Plan No. 14 - Land Use and Transport;
- Waverley Development Control Plan No. 19 - Waste Avoidance and Resource Recovery.
10 It is apparent from the evidence that the proposal is permissible with consent in the zone and the recently adopted controls in DCP 2, Amendment 5 allow the type of garage with roof attic space as proposed. However the principal contested issue concerns the orientation of the ridgeline and associated impacts.
11 This concern arises with the subject application because the proposal is for the ridgeline of the garage to be parallel to the laneway alignment. The submissions from council and the objectors is that the controls prescribe a maximum side wall height, which should result in the ridge line having a transverse orientation to the laneway alignment, similar to the majority of existing neighbouring garage roofs.
12 In so far as reference was made to the preceding development controls under which a previous consent was granted, it seems to me that the most relevant controls for this current application are contained in DCP 2, Amendment 5. This DCP contains aims, objectives, strategies and controls, together with the Queens Park Residential Character Study (QPRCS) for the subject area. From this, there is a set of ‘desired future character objectives’ and each objective is assigned a number of specific ‘performance criteria’ that should be used to achieve the objectives.
13 The QPRCS relevantly refers to streetscape considerations for laneways as follows:
4. The narrow, corridor like rear access lanes are dominated by garage doors, high fences and wall, landscape screening, and a variety of building setbacks. (Fig. 4.9).
14 The desired future character objectives for streetscape elements include:
2.2 To encourage dwelling styles that integrate with the established front, rear and side streetscapes …
2.5 To progressively improve the existing cluttered character of rear access lanes.
15 The performance criteria for streetscape includes:
2.4 Where side setbacks between two dwellings result in two narrow paths, shared access and removal of side fences is encouraged, to widen and improve the functionality of the space.
16 Of particular relevance in this matter, cl 18 deals with Laneway Development and Ancillary Buildings. The proposal is within this classification and the stated objectives are:
- To avoid excessive development of landscape areas and open space of dwellings.
- To minimise the adverse impact that laneway development and ancillary buildings may have on adjoining properties.
- To ensure laneway development is compatible with the streetscape of the laneway and primary Street.
Note: Laneway development and ancillary buildings are not to be used as a separate dwelling, or for commercial or industrial purposes.
17 The associated controls in C 18.1 include:
C 18.2: provides that the side wall height of laneway development shall not exceed 3.6 m wall height and maximum height to the ridge shall not exceed 5.6 m.
- Laneway development should be a minor and secondary building associated with the main dwelling.
- Laneway development should be designed with simple built forms, built at all very close to the lane alignment and should not provide a strong visual element when viewed from the primary street frontage.
- Laneway development design should incorporate a pitched roof.
18 In her initial assessment of the proposal, Ms Laidlaw referred in detail to the section 18 provisions of DCP 2 as follows:
“There are no definitions for `side wall height' or `height' (as in `height to the ridge') however there are definitions of `Building height' and `External wall height'.
- Building height. 'the greatest distance measured vertically from any point on the building (not being a vent or chimney) to the natural ground level immediately below that point'.
- 'External wall height': 'the height measured vertically from natural ground level to the outer face of any wall at the point at which it joins the roof form, including parapets'
Also, as relevant:
- Natural ground level is defined as `the existing ground level on the site prior to variation by way of excavation or filling, or that level accepted or determined by Council.
I have not been provided with a survey showing levels prior to works commencing on the site. The applicant submits that the side wall height is 5.6 metres, which would mean that the applicant has effectively adopted the finished level at the lane as `natural ground level'. The Council's issues say the wall height is 5.8 metres, which suggests Council has allowed for some fall in level, away from the lane. The question of whether or not the building is 5.6 metres or 5.8 metres can only be determined by submission of a survey of levels. I add, however, that the slight fall to the west would suggest that the height is something slightly greater than, 5.6 metres.
The side wall height exceeds the 3.6 metre maximum if it is assumed that the definition of `external wall height' above, refers to `any point at which the external wall joins any part of the roof’, with the 'roof' in that interpretation being only the tiled/pitched element. Under that interpretation, the external wall height would be in the order of 5.6 metres.
An alternative interpretation, is that the definition effectively treats the gable end wall as part of the roof form, and thus requires the measurement to be taken from natural ground to the first point at which the wall joins the roof form, that being the eaveline. Under this interpretation the proposal would comply.
Section 18.2 of the DCP, version 5, however, refers to `side wall height' and specifically the context of laneway development. Although there is some validity to the alternate view, on balance I would therefore conclude that the DCP does require the side wall, inclusive of any gable end, to not exceed 3.6 metres. The proposal would not, under this interpretation comply, although it would comfortably comply with the interpretation based on Figure 6.lb”.The DCP at Section 18.2, is silent as to how such `gable end walls' are to be treated. It should be noted however, that the section of the DCP dealing generally with `building height' includes a wall height control, and `Figure 6.lb' which is to be read in conjunction with that control, suggests that `gable ends' be excluded from `wall height'. This interpretation is reinforced by reference to the diagram accompanying the earlier version 4 of the DCP, where the control is the same and the diagram quite clearly shows a gable end wall excluded from the wall height limitation. I note the advice of the Council's Development and Building Unit ('DBU') that `the DBU do not interpret the roof gables to be "wall" for the purposes of assessing the specified height controls in the DCP'.
19 Ms Laidlaw’s conclusions and reasons for supporting the proposal are then as follows:
B. Queens Park character statement
(a) On a conservative interpretation of the side wall height control, the proposal does not comply, because it reaches a maximum wall height of around 5.6 metres, compared to a control of 3.6 metres;“A. Compliance issues
(b) There is an alternative interpretation, which has some foundation when the DCP is read in its entirety, that this control does not apply to gable end walls, and if this interpretation was adopted, the proposal would comply;
(c) There is arguably a variation to the overall height limit of 5.6 metres, with the overall height being said by Council to be 5.8 metres;
(d) Confirmation as to whether the overall height is 5.6 metres or 5.8 metres would depend on the applicant supplying a survey to show the pre-development' levels of the rear of the site;
(e) If the attic is `storage' then I interpret that there is no variation to the FSR control;
(f) If the attic is to be used for non storage purposes, then there would be a variation to the control, in the order of 7 square metres. Again, the actual floor space needs to be measured off the corrected architectural plans (with the building as well as site width corrected);
(g) I consider that any FSR variation would be minor, and of limited significance in determining the merit of this proposal. Also relevant here is that as any 'excess' FSR is a `space inside a roof' the impact of bulk and scale (being the impact most closely associated with FSR) is less than would otherwise be the case;
(h) I consider that the `side wall height' issues have a more significant bearing on the assessment of overall merit, as set out in separate headings below;
(i) The 'overall height ' should be reduced, if necessary, to comply with the 5.6 metres, measured from natural ground, and this needs to be confirmed by reference to a survey of levels prior to development occurring.
(a) I do not believe the Queens Park character statement supports the view that what is proposed is out of character or inappropriate.
C. Amenity impacts
(a) I have noted the very strong concerns and objections of the immediate neighbours, however I do not believe that the development produces such adverse impacts as to warrant refusal on a pure merit basis. Modification of the roof form is appropriate however (see further comments below) and such modification would take into account the objectives and provisions of the DCP side wall height control, under the more 'conservative interpretation' .
Conclusions
D. Streetscape and character
(a) I believe that the form of garage sought by the applicant is generally consistent with the Queens Park character statement and is generally sympathetic to the laneway character. This view takes into account the low wall height at the laneway frontage, and the raking back of the roof form, which maintain a more open character than that which would be achieved by having a higher wall adjacent to the lane.
E. Circumstances of the proposal(b) The appropriateness of this form of structure also depends, however, on what the controls permit, and this leads back to the debate as to what the `side wall height' control requires. Irrespective of this question, however, the conservative interpretation referred to in A(a) could be achieved by architectural treatments other than the reorientation of the ridgeline to be perpendicular to the lane (the approach that several of the residents seek). On that basis therefore, the proposal can be said to be not fundamentally' out of character with the form sought by the DCP, but on one interpretation (ie A(a)) it is contrary to a specific numeric control. The objectives of that control could be respected by a minor amendment to the design as described below.
(a) Taking account all of the circumstances applicable to this particular proposal including its history of approval under `less stringent' provisions, these being circumstances which differentiates this DA from any subsequent DA that might be submitted along this lane, it is my view that the proposal is a reasonable one, subject to the amendment I have described under F. below.
F. Recommended amendments
(a) I recommend that the roof design be amended so as to provide for a cutting back of the roof form at the side boundaries. Such an approach would:
- allow more sky to be seen at the edges of the building for Nos. 2-4 Cuthbert Street and Nos. 56/60 Alt Street, in a similar manner as would be achieved if the ridgeline were rotated through 90 degrees.
- avoid or reduce any prospect of a 'continuous wall ' or ridgeline being formed along the lane, leading to a 'closed in' appearance;
- maintain the clear benefit of having the reduced wall height adjacent to the lane;
- respond to the objectives of the side wall height control, and reduce the level of non compliance with the 'conservative' interpretation;
Reduce the significance of the visual bulk, viz a viz the FSR control.
20 Having considered the evidence and the submissions, it is apparent to me that the threshold issue concerns the interpretation of the Laneway Development controls in cl 18 of the DCP. The Court-appointed expert, Ms Liadlaw identified some ambiguity with the allowable side wall heights, where they extend as gable ends to the roof.
21 However, in my assessment of the DCP controls, I note its introductory comments that there are a number of elements of performance criteria specified to achieve the desired future character objectives. In this case the controls allow a building envelope where the side wall heights shall not exceed 3.6 m and a maximum height to the ridge shall not exceed 5.6 m. Also, the laneway development should be a minor and secondary building associated with the main building and it should incorporate a pitched roof.
22 Insofar as the side wall it is not specifically defined, my interpretation is that this refers to the wall along the common boundary (alongside) adjoining properties. The front wall then is the opening on the laneway and the rear wall is the internal wall facing the courtyard and existing dwelling.
23 On this interpretation, the DCP permits a maximum height of the side wall of 3.6 m. The subject application does not reasonably comply with this because its gabled end has a maximum height of 5.6 m. Accordingly, I do not accept Ms Laidlaw's opinion that this height of wall is acceptable, notwithstanding her opinion that the amenity and streetscape impacts are reasonable.
24 The application of this side wall control with a maximum height of 3.6 m, together with the designated pitched roof results in a significantly different form and scale of garage/attic building, than that currently proposed. In this regard the DCP also defines:
"Pitched roof" means a roof having a minimum pitch greater than 10% and a maximum of 35 %.
25 When the combined controls of a 3.6 m side wall and maximum roof pitch of 35% are utilised on a relatively flat lot, it most likely facilitates a transverse ridge line which is likely to be lower than the maximum 5.6 m height, when applied to narrower width lots. Application of this designated 35% roof pitch allows the ridge to rise approximately 1 m above the springing point.
26 Although there was no so specific reference to the proposed roof pitch at the hearing, it appears that this is one of the fundamental elements that defines the allowable building profile for this area. The proposal has a much steeper roof pitch, which rises approximately 3 m above the springing point. Therefore, if significant weight is given to the wall height and roof pitch so as to achieve the desired future character, then it is unlikely the maximum ridge height would be achieved on narrower allotments, such as the proposal.
27 Notwithstanding this, the controls do require pitched roofs and I acknowledge that there are different ways of defining a pitched roof, but the DCP is explicit in its definition of a maximum pitch of 35%, which I assume is intentionally restrictive on the amount of allowable attic area.
28 Consequently my assessment of the suite of controls is that it dictates transverse ridge lines or garages with limited storage/attic space, restricted by the roof pitch. This orientation of the transverse ridgeline is consistent with that depicted in Fig. 4.19. It is also consistent with the council submissions and the views expressed by the objectors, whereby the majority of existing garages fronting the laneway have transverse ridge lines, which conforms with the objectors understanding of the desired future character of the area.
29 In summary then, I do not consider this proposal merits consent because it does not reasonably satisfy the provisions of DCP 2, Version 5. My assessment is that the proposed 5.6 m gabled end walls form part of the side wall unreasonably exceed the allowable 3.6 m height. Also, the roof pitch exceeds the maximum allowable of 35%, which unnecessarily increases overshadowing, privacy and visual disamenity impacts to neighbouring properties.
30 Instead, it seems to me that the DCP controls now generally encourage the transverse orientation of garage ridge lines by way of the 3.6 m side wall control, so that any higher gabled walls are at the front and rear boundaries, so as to face the laneway. It also designates a significantly flatter roof pitch than proposed, so that this suite of controls addresses the existing "cluttered" appearance and achieves the desired future character objectives.
31 As I do not consider that the proposal demonstrates satisfactory compliance with these DCP controls, I am also unable to conclude that the specific LEP aims for new housing to be compatible with surrounding development and to improve the amenity of residential areas is satisfied.
32 I acknowledge that if there is an alternative interpretation of the side wall control and roof pitch, so that the orientation of the proposal is compliant with its 5.6 m gable ends along the side boundaries, then Ms Laidlaw's merit assessment of the proposal would likely lead to the proposal’s approval, subject to conditions of consent to address privacy and visual impact matters.
Court orders
1. The appeal is dismissed.
2. Development consent to DA 171/06 for the construction of a single garage including attic space at 58 Alt Street, Queens Park, is refused.
3. Exhibits may be returned except for 2 and B.
___________________
R Hussey
Commissioner of the Court
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