Barron v Randwick City Council
[2008] NSWLEC 1222
•10 June 2008
Land and Environment Court
of New South Wales
CITATION: Barron v Randwick City Council [2008] NSWLEC 1222 PARTIES: APPLICANT
RESPONDENT
Jacqueline Barron
Randwick City CouncilFILE NUMBER(S): 10218 of 2008 CORAM: Hussey C KEY ISSUES: Designated Development :- Dwelling alterations, garage entry, streetscape and amenity. LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Randwick Local Environmental Plan 1998
Randwick Development Control Plan – Dwelling houses and attached dual occupancies
Randwick Development Control Plan – Parking.
Randwick Draft Development Control Plan – Dwelling Houses and Attached Dual Occupancy.DATES OF HEARING: 30/05/2008
DATE OF JUDGMENT:
10 June 2008LEGAL REPRESENTATIVES: APPLICANT
Mr G. Green, solicitor
of Pike Pike and FenwickRESPONDENT
Ms A. Pearman, barrister
Instructed by Ms T. Ritt
of Shaw Reynolds Bowen and Gerathy
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESHussey C
10 June 2008
JUDGMENT10218 of 2008 Jacqueline Barron v Randwick City Council
Background
1 This appeal was lodged against Council’s refusal of a development application for alterations and extensions for a dwelling at 7 Denning Street, South Coogee. The property extends through to Garnet Street at the rear.
2 The proposal involves the removal of garaging accessed from Denning Street, together with the construction of a single storey study at the front of the site. It also involves the construction of a new double garage, with terrace above and access directly from Garnet Street.
3 Insofar as a number of issues were initially raised, the threshold issue concerns the suitability of the proposed entry/garage from Garnet Street in terms the streetscape and traffic impacts in this street and public interest considerations.
The Site
4 The site is located on the eastern side of Denning Street, and extends to a wide sloping vegetated strip of public land fronting the western side of Garnet Street at the rear of the site. It is generally rectangular in shape with a Denning Street frontage of 10.61m, length of approximately 44m and Garnet Street frontage of 10.03m. The property has a total area of 449.6 sq m.
5 There is a single storey dwelling and separate garage on the site with both vehicular and pedestrian access from Denning Street.
6 Garnet Street has a relatively steep cross-fall from west to east. This has resulted in a steep, 7-8m wide, vegetated footpath on the western side, adjacent to the subject property. The footpath gradient transitions via a sandstone wall embankment, to a narrow road carriageway, which allows restricted parking along the western side and one traffic lane. The properties on the eastern side are lower and have access from a variety of driveways.
7 There is a row of Canary Island Date Palm trees on the western footpath which are in the order of 6m high. One of these palms is situated approximately 6m from the edge of the proposed cutting to access the driveway/garage from Garnet Street.
8 The following controls are relevant:
- Randwick Local Environmental Plan 1998; under which the subject property is zoned Residential 2A (Residential A Zone) and dwelling houses are permissible with consent.
- The following objectives for this Zone No 2A are relevant:
- (a) to maintain the character of established residential areas , and
(c) to enable redevelopment for low density housing forms, including dwelling houses, dual occupancy, semi-detached housing, and the like, where such development does not compromise the amenity of surrounding residential areas and is compatible with the dominant character of existing development… - Randwick Development Control Plan – Dwelling houses and attached dual occupancies. Part 4 contains the building design controls, including 4.1 where the stated landscaping objectives include:
- To retain and enhance existing trees and established landscaping…- Part 4.7 deals with garages and driveways, wherein there are the following:
4.7.1 Objectives:
- To provide convenient and safe parking and access.- Performance requirements
- Be compatible in scale, form, materials and finishes with the associated dwelling. - Randwick Development Control Plan – Parking.
- Randwick Draft Development Control Plan – Dwelling Houses and Attached Dual Occupancy.
9 Detailed evidence for the applicant was presented by:
- Mr R Staas, Consulting heritage architect.
- Mr J Shillito, Consulting planner.
10 Evidence for the council was presented by:
- Ms L Simpson, Council’s heritage planner,
- Mr Stuart McDonald, Consulting planner.
11 In addition, a number of objections to the proposal were lodged by residents and they are summarised as:
- The construction of the garage and associated access driveway on the western side of Garnet Street is inconsistent and incompatible with the streetscape and will reduce roadside parking space.
- There is no need for this access as alternate garaging with access from Denning Street is approved.
- The ambience and historic streetscape of Garnet Street are unique and will be irreparably damaged by the impact of the development.
- The embankment is an important green space in an otherwise overdeveloped area and should not be alienated from the community by allowing its use as a large driveway.
- The proposed garage/access will impact on the historic remnant of the commemorative Canary Island Date Palms, planted in 1915.
- The proposal will cause adverse impacts by the removal of part of the dry sandstone wall.
- The approval of the development will increase the risk of landslip due to the extensive excavation in this sandy embankment area.
12 One of the main objections to the proposal concerns the reasonableness and necessity to allow the Garnet Street access considering that council has approved vehicular access to a new garage from Denning Street. In this regard, Mr Staas says in supporting the proposal that it will improve the streetscape in Denning Street with the more attractive presentation of the new study rather than the garage.
13 From my observations at the view, it is apparent the majority of other neighbouring dwellings on the eastern side of Denning Street have vehicular entrances/garages from the street. In the circumstances, I consider the proposed elimination of the garage from the Denning Street only offers a marginal improvement in this established streetscape.
14 In my assessment, the proposed driveway/garage in Garnet Street will create significantly greater impacts. It is apparent that the neighbourhood is extensively built-up, with the dwellings obtaining variable access to garages due to the relatively steep road cross-fall. Accordingly, there are a number of distinct sections within Garnet Street as follows:
i) From the subject properties common boundary with No 6, the dwellings on the western side to the north have driveways across the footpath to basement garages, some of which have required removal of part of the dry sandstone wall. These properties only have street access from Garnet Street.
ii) Opposite these properties on the eastern side, there is a steep cross-fall, restricting vehicular access to these properties.
iii) To the south of the subject property from the common boundary with No 6, the western footpath is steeply sloping, vegetated with the palms and retained by the intact dry sandstone retaining wall. On-street parking is available in this section, adjacent to the wall.
iv) In the section to the south and on the eastern side, there is a predominance of lower level entries to garages.
15 Insofar as the sandstone wall and palms have some historical connections, they are not listed as heritage items, or are in the vicinity of any heritage items. Accordingly, Mr Staas supports the proposal on the basis that the DCP in Part 4.7 requires garaging and driveways not to dominate or detract from the appearance of the development and local streetscape. Also, the DCP encourages parking from the rear of a lot where this can be achieved.
16 Mr Staas says that the amount of wall to be demolished is not significant in the extent of the street and the wall has no statutory protection associated with it. Therefore the works are in keeping with the established character and is compatible with the other examples at this end of the street and with the eclectic character generally which is dominated on the opposite side of Garnet Street by garages. He considers the proposal will not result in unacceptable impact on the streetscape of Garnet Street.
17 Against this, Ms Simpson says the demolition of a 3m long section of the sandstone wall on the western end of the street will significantly impact on the streetscape of Garnet Street. In response to the DCP provisions regarding location of garages, she considers this proposal will significantly detract from the streetscape and should be refused.
18 Mr McDonald supports the position expressed by Ms Robinson. He says that the combination of the uninterrupted stone wall, embankment and trees on the western side give it a defining characteristic of an otherwise varied streetscape. Furthemore, the introduction of the driveway opening into the existing dominant stone wall, as well as extensive cut into the embankment will result in an unacceptable and avoidable diminishment of the streetscape character.
Conclusions.
19 Having considered the evidence, the submissions and undertaken a view, I do not consider this application merits consent for the following reasons.
20 In my assessment, the Garnet streetscape is characterised by the aforementioned, four distinct sections. Section ii) is enhanced by the vegetated embankment and stone retaining wall on the western footpath in the section to the south of the subject property, which is an interesting landscape feature. This irrespective of the fact that it is not listed as a heritage item or in a conservation area.
21 Whilst the proposal is permissible, I consider it will result in considerable adverse visual impacts. I distinguish the subject property from those to the north along Garnet Street because they do not have dual frontages. Also, it appears to me that while they likely cut through the stone wall many years ago, the extent and height of the cut was much less than that proposed. Therefore I give the existence of these driveways little precedential weight.
22 In the current proposal, the footpath is approximately 7 - 8m wide and the driveway would necessitate the excavation of a strip 3m wide, fanning out to approximately 6m near the road boundary to gain access to the large 2 car garage. The excavation of the footpath area would be in the order of 2.5 – 3m deep at the road boundary. Retaining walls are then required along the side of this excavation, across the footpath. I also note that this excavation is within approximately 6m of the trunk of one of the palms, which I consider increases risks to the tree.
23 Accordingly, I consider this excavation and demolition of part of the stone wall would form a cavity like entrance and be extremely noticeable in the streetscape, introducing adverse visual impacts, This is consistent with the evidence of Ms Robinson and Mr McDonald, which I rely on. Such impacts are not consistent with the zone objectives to maintain the character of established residential areas and this contributes to the failure of the application.
24 As I have acknowledged, it is possible to construct the driveway and garage off Garnet Street, but I consider it reasonable to take into account the relative balance between the competing private and public interests. It is apparent that the applicant can comfortably achieve the on-site garaging from Denning Street, with level type access to the dwelling – this is already approved and is consistent with the existing character of the area and creates minimal impacts.
25 Against this, the new garage off Garnet Street requires extensive excavation of the public footpath area and on-site for the garage, which then necessitates some 50 steps up to the dwelling. I accept the objector’s evidence that Garnet Street is an attractive, well-used public access way for the public to access the beach environs. In my opinion the garage and associated structures requiring a significant cutting of the footpath would be visually obtrusive and detract from the streetscape, on this busy pedestrian thoroughfare. This is not in the public interest.
26 I do not consider the DCP provision that rear access is encouraged is directly applicable in this case because Garnet Street does not have the character of a secondary laneway, access corridor. Instead it is a busy, narrow carriage roadway, where additional traffic and parking is not desirable on amenity, traffic and safety considerations.
27 The new crossing would also result in the loss of 1/2 on-street car parking spaces along the western side of Garnet Street. I accept that parking is limited in this area as there are some parking restriction signs in the vicinity of the proposed entry. Accordingly the loss of further spaces along this narrow carriageway is a negative aspect of the proposal.
28 In summary then, I am satisfied that the approval of this development with the new access way from Garnet Street, involving significant construction works both on the public footpath and inside the property would result in significant adverse impacts on the vegetated footpath area, the stone retaining wall and narrow road carriageway, which does not maintain the character of the area and therefore it fails.
- 1 The appeal is dismissed.
2 Development application DA/1023/2007 for the construction of a double garage with terrace above and accessed from Garnet Street, South Coogee is refused.
3 The exhibits may be returned except 1, 2 and C.
___________________
- R. Hussey
Commissioner of the Court
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