Beaton v Waverley Council

[2006] NSWLEC 693

Land and Environment Court

of New South Wales

CITATION:

Beaton v Waverley Council [2006] NSWLEC 693

PARTIES:

APPLICANT
Brigitte Beaton

RESPONDENT
Waverley Council

FILE NUMBER(S):

10582 of 2006

CORAM:

Tuor C

KEY ISSUES:

Development Application :- demolish an existing timber house and construct a new house
established character and whether contemporary building appropriate
impact on adjoining residents

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Waverley Local Environmental Plan 1996

DATES OF HEARING:

25/10/2006

 
DATE OF JUDGMENT: 

11/08/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr Tomasetti, barrister
SOLICITORS
Surry Partners

RESPONDENT
Mr M. Staunton, solicitor
SOLICITORS
Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

8 November 2006

10582 of 2006 Brigitte Beaton v Waverley Council

JUDGMENT

1 This is an appeal against the refusal by Waverly Council (the council) of a development application to demolish an existing timber house and construct a new house at 12 Barclay Street, Waverley (the site).

Site and its context

2 The site, its context, the history of application and the planning controls are in the Statement of Basic Facts. Briefly, the site is on the northern side of Barclay Street between Leichhardt Street and Carlton Street. It is generally rectangular in shape with a street frontage of 10.7 m, a depth of 35.4 m and an area of 388 sqm. The site slopes steeply away from the street with the rear of the site being approximately 5.85 m higher than the front. Currently there is a single storey weatherboard cottage with driveway access along the side and a large brick shed in the northwest corner of the site.

3 Adjoining development to the west (10 Barclay Street) is a brick house built only a few hundred millimetres off the common boundary, which has windows along this boundary.

4 Adjoining development to the east (14 Barclay Street) is a single storey brick house.

5 Surrounding development is a mixture single and two storey detached and semi detached houses of varying heights, setbacks and architectural styles. In Barclay Street, particularly the southern side, there are a number of semi-detached houses from the Edwardian and Federation periods.

6 Development at the northern side of Barclay Street, particularly in the vicinity of the site, is more varied than the southern side.

Planning Framework

7 The site is zoned 2(a) Residential – Low Density under Waverley Local Environmental Plan 1996 (LEP 1996). The proposal is permissible with consent.

8 Waverley DCP No 2 – Dwelling House and Dual Occupancy Development (DCP 2) is also relevant. The proposal complies with the FSR, height and landscape area controls in DCP 2.

9 During the hearing the proposal was amended to generally comply with the side setback control in DCP 2, which requires a 1.5 m setback for three storey development. The parties agreed that the garage level constituted a storey and that this part of the development was therefore three (3) storeys.

10 The site is within the Bronte Beach Residential Character Study in DCP 2. This area is further divided into precincts, the site being in the Bronte Plateau Precinct, which is further split into two areas and the site is within the Southern Bronte Plateau area.

11 The area is described in DCP 2 as:

Detached and semi detached dwellings give rise to the predominant residential character. There are a small number of terraces and residential flat buildings in some areas of the plateau. The architectural styles are rich and diverse. Consequently there is a general lack of consistency in architectural style in this area. However, in some smaller street sections, groups of buildings with identical or similar architectural styles can still be found. The styles include Federation, Californian bungalow and contemporary.

12 Clause 5 of DCP 2 contains Desired Future Character Objectives and Performance Criteria for the area. Clause 9 has General Streetscape controls. In summary these controls seek to preserve established character, where this exists, with new development retaining existing bulk, scale, setback and height of building envelopes. DCP 2 permits contemporary buildings and recognises that different architectural styles may be appropriate.

Issues

13 The key issue between the parties was whether an established streetscape existed and whether a contemporary building was acceptable. The other issues in the Statement of Issues were resolved either by amended plans or the imposition of conditions.

Evidence

14 The Court visited the site and heard evidence form the following residents:

• Mr J. Garcia, 10 Barclay Street,
• Mr L. Mallia, 12 Barclay Street,
• Mr J. Churchill, 5 Barclay Street

15 The residents raised concerns about the bulk of the proposal, its three storey and contemporary appearance which they considered be out of character with the street. The residents also raises concerns about the impact of the proposal on their properties.

16 Expert evidence was provided by Mr P. Bull, town planner, for the council and Mr R. Dickson, architect and urban designer, for the applicant.

17 Mr Bull held the opinion that Barclay Street exhibited a consistent character and that the contemporary nature of the proposal was not acceptable. He agreed that the siting, massing, front and rear setbacks of the proposal were generally acceptable but considered the proposal’s roof form, extent of fenestration, external materials and details to be uncharacteristic of the street. He also considered the proposal to have primarily a “horizontal” emphasis where in his opinion buildings on the northern side of Barclay Street generally present as “vertical” forms.

18 Mr Dickson agreed that the southern side of Barclay exhibited a generally consistent character but did not consider that this character existed on the northern side of the street. He also considered that the northern side of the street had examples of “horizontal” development being the semi-detached houses, which straddle two allotments as well as development with a “vertical” emphasis.

19 Mr Dickson considered that while the proposal was contemporary in design this was consistent with other recent developments in the area and it was compatible in its bulk, height, setbacks, landscaping and materials with buildings in the street. He stated that the skillion roof was compatible with the style of building and would have less impact than a pitched roof. He noted that DCP 2 does not encourage imitation by contemporary buildings.

Findings

20 I accept Mr Dickson’s evidence. The northern side of Barclay Street does not exhibit an established character that would preclude a contemporary building. Nearby development exhibits no consistency in style, height or setback and has little architectural merit. While the majority of roofs are pitched, there is a mixture of gable and hip roofs and flat roof over garages which present little consistency on this side of the street.

21 DCP 2 clearly envisages that contemporary buildings may be appropriate in certain situations. The proposal, with the increased setback to 10 Barclay Street, meets the criteria in cl 9.2 of DCP 2, which provides:

The use of contemporary design may be acceptable provided it addresses the character of the locality in respect to:

• Bulk and scale of adjoining development;
• Siting pattern; and
• The character of the established streetscape.

22 The increased setback to 10 Barclay Street will reduce the bulk of the building, provide opportunity for landscaping along the southern end of the western boundary and reduce the impact on the south eastern rooms of 10 Barclay Street. The amended proposal is generally consistent with DCP 2, which requires a 1.5 m setback for 3 storey development, and can be achieved without significant changes to the plans. With this setback, I consider the bulk of the building to be acceptable.

23 I note that Mr Mallia submitted a further submission once the hearing had concluded stating that the first floor facing his property should also be setback 1.5 m. I do not consider this to be necessary as the proposal is technically two storeys in its south eastern corner, the ground floor is setback 1.5 m and the projection of the first floor provides a degree of articulation which further breaks up the bulk of the building.

24 Clause 3.9 of DCP 2 states:

Where a different architectural style is presented, the imitation or copying of elements of architectural character in the street is not encouraged without considering its integration to the style of the building.

25 This is illustrated by Figure 5.26 of DCP 2, which shows a development not dissimilar to the proposal.

26 While the street is dominated by pitched roofs they are not consistent in character. The proposed skillion roof integrates with the architectural style of the building, is likely to have less impact than a pitched roof and is acceptable given the varied context in which it fits.

27 Mr Mallia requested a privacy screen at the side of the front balcony of the proposal. Mr Dixon and Mr Bull did not raise any issues of privacy with the proposed development. From the information provided to the Court I do not understand that overlooking of the front window of 14 Barclay Street would result from the balcony or that a privacy screen is required. The balcony faces the street and as such is in a semi - public space where some overlooking is not considered to be unreasonable.

28 Mr Mallia raised concerns about the bulk of the building when viewed from his back courtyard. The proposal does not extend further to the north than No. 14 and its bulk is consistent with that anticipated by the planning controls. The fences along the boundary will remain the same height with the retaining wall setback from the common boundary. This will minimise bulk and prevent overlooking from the raised garden level of the proposal.

29 In relation to the other issues raised by the residents, Mr Churchill was concerned about overshadowing of his property in the morning. This was not raised as an issue by council. While there will be an increase in overshadowing this is consistent with the planning controls and from and from a development which complies with these controls.

30 Mr Garcia was concerned about the proximity of the development, particularly, the deck and swimming pool to his property which has windows in close proximity to the boundary. He was also concerned about the proposed 1.8 m boundary fence which would limit day light and air, prevent his windows being opened and access to the side of his house for maintenance. With regard to the fence, council proposed a condition which limits the height of the fence to 1.2 m or below the sill height of the windows. The applicant opposed the imposition of this condition, as there is already a 1.8m high fence along part of the boundary. I accept that it is reasonable that this existing fence can remain, however, the condition is appropriate for the new fence. The lower fence recognises the property rights of 12 Barclay Street while maintaining privacy, light and air and enabling side access to 10 Barclay Street, if suitable arrangements are made between the owners.

31 Mr Garcia’s concerns about the proximity of the deck have been dealt with by it being setback 4 m from the boundary and reduced in size. In relation to the proximity of the swimming pool and privacy impacts on his living areas, I accept Mr Bull and Mr Dickson’s evidence that these impacts and those of the deck are reasonable and do not warrant further amendment.

Orders

32 The orders of the Court are:

1. The appeal is upheld.
2. The development application to demolish an existing house and construct a part 2 part 3 storey house at 12 Barclay Street, Waverley, in accordance with the plans filed on 31 October 2006, is approved subject to the conditions in Annexure A.
3. The exhibits, except exhibits A, C and 4 may be returned.

___________________

Annelise Tuor
Commissioner of the Court
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