Cameron & Anor v Waverley Council

[2006] NSWLEC 473

Land and Environment Court

of New South Wales

CITATION:	Cameron & Anor v Waverley Council [2006] NSWLEC 473
PARTIES:	APPLICANT: John Cameron & Roslyn Marjorie Cameron RESPONDENT: Waverley Council
FILE NUMBER(S):	10259 of 2006
CORAM:	Watts C at 1
KEY ISSUES:	Deemed Refusal - Development Application :- Streetscape
LEGISLATION CITED:	Waverley Local Environmental Plan 1996, (WLEP) Waverley Development Control Plan No 2 - Dwelling House, (DCP2) Waverley Development Control Plan No 9 - Reducing Crime Through Design, (DCP9) Waverley Development Control Plan No 13 - Energy Smart Homes Policy, (DCP13) Waverley Development Control Plan No 19 - Waste Avoidance and Resource Recovery, (DCP19) Environmental Planning and Assessment Act 1979, ss79C and 96
DATES OF HEARING:	28/07/2006
EX TEMPORE JUDGMENT DATE:	07/28/2006
LEGAL REPRESENTATIVES:	APPLICANT: Mr J Ayling, barrister, instructed by Ms E Dawson, solicitor SOLICITORS: Gray and Perkins RESPONDENT: Mr S Patterson, solicitor SOLICITORS: Wilshire Webb

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

28 July 2006

10259 of 2006 - John Cameron & Roslyn Marjorie Cameron v Waverley Council

JUDGMENT

1 This is an appeal under s 96(6) of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Waverley Council (the council) of a modification application to alter and add to the front of a dwelling at No 9 Henry Street, Waverley.

2 I visited the land in company with the parties at the binding s 34-conference.

3 I have concluded that the modification application should be dismissed, as the proposed alterations and additions would be neither in harmony nor sympathy with the adjoining dwelling or the streetscape.

The land

4 The land is situated on the western side of Henry Street around 50m south of Victoria Street and addresses Queens Park at the rear and the west. It has side boundaries of 33.53m, an eastern frontage to Henry Street of 7.95m, and a western rear boundary of 8.51m, with an area of about 276m2.

5 Erected on the land is a semi-detached dwelling house, which is currently being added to at the rear. This dwelling is one of a pair and shares a common wall with the adjoining dwelling at No 11 Henry Street. Unlike the subject property, No 11 Henry Street has a driveway along the southern side and car parking is provided on the southern side of that dwelling. Presently, there is no vehicular access to the subject land and none may be provided to the side the existing dwelling.

6 The council has approved alterations and additions that would provide for a rear extension and within the existing dwelling fronting Henry Street, the lowering of the floor by 330mm and for the rearranging of the rooms in the existing dwelling. The rearward works are presently under construction. However, the applicant seeks, presently, to further modify the consent and to make alterations and additions to provide a larger room on the northern side of the existing retained dwelling fronting Henry Street to be used ostensively, as a study and for the main entrance to be placed on the southern side so that a view may be had from the entrance lobby along the southern boundary over a reflecting pool and in the distance Queens Park.

7 Nearby development includes an eclectic range of dwelling types including semi-detached and freestanding dwellings and residential flat buildings.

Relevant planning controls

Waverley Local Environmental Plan 1996, (WLEP)
8 Under the provisions of the WLEP the land is zoned residential 2(b) and the proposal is permissible with consent.
9 An objective of the WLEP is “to maintain and improve the amenity and existing characteristics of the locality.”
10 The relevant development control plans that apply to the subject land are:
· Waverley development Control Plan No 2 - Dwelling House, (DCP2);
· Waverley development Control Plan No 9 - Reducing Crime Through Design, (DCP9);
· Waverley Development Control Plan No 13 - Energy Smart Homes Policy, (DCP13);
· Waverley Development Control Plan No 19 - Waste Avoidance and Resource Recovery, (DCP19);

11 Under DCP2 the land is within the Queens Park Character Study Area.

The proposal and its history

12 A present modification application was lodged with the respondent council on 18 January 2006, to modify development consent No L-300/2002, to alter and add to the front part of the dwelling, to alter the front façade, including relocation of the front windows and door, internal reconfiguration of walls, with new windows and doors along the side elevation.

13 On 9 October 2002, the applicant had been granted development consent No L-300/2002 to alter and add to the existing semi-detached dwelling to include an additional storey, towards the rear, with balconies, pond, and garage. Before this consent had issued, on 30 September 2002, amended plans were received which deleted the garage. It was these amended plans, without the garage, that received the council’s consent. However, the lowered floor level within the existing dwelling had been maintained.

14 Previously, a development application No BA 597/1997 to erect a new two-storey dwelling, garage and swimming pool on the land had been received in 1997. That application was considered by the DBU on 21 November 1997. At that meeting consideration was deferred to allow the applicant to address concerns as to the size and bulk of the works and the detrimental impact on the architectural integrity to the adjoining semi-detached cottage and the streetscape in general.

15 The applicant had requested a review of this determination, and the then, Building Board (now DCC) gave consideration to the proposal on 24 February 1998. The Building Board expressed concern and required any proposed first floor addition be setback behind the main roof of the existing dwelling fronting Henry Street. This was to maintain the architectural integrity of the existing pair of semi-detached worker's cottages at Nos 9 and 11 Henry Street and to maintain the harmony of the streetscape in the vicinity. The applicant then withdrew the request for reconsideration.

16 A modification application was lodged on 25 October 2004 to alter and add to the front part of the approved dwelling alter the front facade, extend the first floor forward of the hipped ridgeline, and to provide a garage. By notice dated 1 February 2005, the council refused this modification application for the following reasons:

1. The proposal is not an acceptable development in its Residential 2(b) zoning under Waverley Local Environmental Plan 1996, in regard to objective (b) concerning local amenity.
2. The proposed development is considered contrary to the Council's Development Control Plan No 2 - Dwelling House Development in respect to the following provisions of the DCP:
(a) The control and objectives concerning Part 4 Size and Bulk of Dwelling Houses, in particular the non-compliance with the floor space control is not supported in this instance.
(b) The control and objectives concerning Part 9 Vehicular Access and Parking, in particular the location of the garaging detracts from the streetscape presentation of the building.
(c) The proposed works are inconsistent with the streetscape and heritage objectives of the Queens Park Residential Character Study.
3. The proposed development is considered contrary to the Council's Development Control Plan No. 14 - Land Use and Transport in respect to the Urban Design, Streetscape and Heritage Conservation provisions in Part 4 of the DCP.
4. The proposed development is unacceptable in its streetscape in regard to design, and bulk and scale.
5. The location of the proposed garage facilities is considered to create an unacceptable impact upon the existing streetscape.
6. The proposal will result in an unacceptable loss of on-street parking capacity in an area of high demand.
7. The proposal will create an unacceptable precedent within the existing residential area should approval be granted.
8. The proposal is not considered to be in the public interest.

17 The latest modification application was notified to nearby owners and occupants on 13 February 2006 for a period of fourteen (14) days, and the council received during the notification period, three (3) objections. These objections were from the owners or residents of Nos 2/7 Henry Street; No 11 Henry Street and Charing Cross Precinct. Concerns were expressed in relation to:

· misleading description of the proposal on the notification letter;

· nobody looked deeply at the plans;

· streetscape involving a pair of semi-detached dwellings;

· application appeared to be fast-tracked;

· the study dimensions would allow for a future garage;

· site coverage is excessive;

· condition of existing dwelling;

· damage to No 11 Henry Street;

· adjoins landscape item (Queens Park); and

· adjoining No 11 Henry Street the owners of which received an award for excellent design.

The council’s decision

18 When this appeal was filed the council had not determined the latest modification application and it is a ‘deemed refusal’. However, by notice dated 31 May 2006, the council did ‘approve’ the present modification application subject to the following:

Condition No 1 is deleted and replaced with the following condition:
1 Approved development
The development must be in accordance with Architectural plans Nos DA05-01 and DA05-02, prepared by Johann Wuher Pty Limited dated 21 December 2005, and received by Council on dated 18 January 2006, except where amended by the following conditions of consent.
The following additional conditions are imposed.
2 General modifications
The proposal shall be amended as follows:

The amendments shall be submitted for the approval of Council prior to the issue of a construction certificate under the Environmental Planning and Assessment Act 1979 .
3 Construction certificate
A construction certificate must be obtained from Council or an accredited certifier prior to undertaking the works approved under this modification.
ALL OTHER CONDITIONS FOR DEVELOPMENT CONSENT L-300/2002 DATED 9 OCTOBER 2002 ARE REAFFIRMED.

19 The appeal was filed on 31 March 2006 as a deemed refusal.

20 At the hearing, the court received a position paper on behalf of the respondent council from Mr P Bull, Area Manager (South) Development and Building Assessment of Waverley Council. Mr M Neustein, resident of No 21 Henry Street; Ms Y S Sharp; part owner of No 11 Henry Street; Mr A Sharp; (WAR Sharp) part owner of No 11 Henry Street, and Ms F Scott, resident of No 7 gave evidence.

21 On behalf of the applicant, Professor J Toon, consultant town planner, gave evidence.

22 Ms Z Flannery, Senior Planner Waverley Council prepared the statement of basic facts.

The issues

23 On 28 April 2006, the council filed a statement of issues:

Waverley Local Environmental Plan 1996

Particulars

Development Control Plan 2

Particulars

(a) The proposed modification does not comply with the objectives of Part 6.0 - Streetscape in that the proposed modification is not visually sympathetic to other buildings in its vicinity and to the streetscape of which it is a part; and
(b) the proposed development does not comply with Design Criteria C4 of Part 6.0 - Streetscape in that the proposed modification does not maintain the design integrity of the existing semi-detached dwelling and does not ensure that they visually present as a pair or group of dwellings.

Public Interest

4. The proposed modification should not be approved having regard to the matters raised in submissions received by Council.

24 The salient issue was whether the proposed changes to the façade would be appropriate in the streetscape and as it relates to the adjoining dwelling at No 11 Henry Street.

The evidence and findings

Streetscape

25 Professor Toon was of the opinion that Nos 9 and 11 Henry Street are a pair of terraced style dwellings, small of scale and inconspicuous in the streetscape. He considered both poorly built. He pointed to the fact that both had no heritage significance and that the façades have no aesthetic or architectural value.

26 He considered that the architect of the present modification application had attractively resolved the problem of aligning the entrance and the view. However, he indicated to achieve this end it would be necessary to move the openings in the front façade.

27 He considered the proposal to be “well-mannered… absolutely inoffensive and fully compatible with the adjoining building and the streetscape”, [Note: Exhibit C, p 3]. Also he stated that “…the proposed façade is balanced and, whilst not symmetrical, has a sense of repose that is fully consistent with the character of the building”, [Note: Exhibit C, p 3].

28 He concluded, [Note: Exhibit C, p 4]:

In my opinion, this is an excellent design solution that has planning merit, is acceptable in architectural design terms, is consistent with and sympathetic in design to the adjoining dwelling and retains the essential elements of the streetscape.

29 Mr Bull stated:

A reasonable planning strategy has been part implemented for No 11 Henry Street, and to now undermine this approach and allow ad-hoc works to the adjoining historic façade at 9 Henry Street would be most unreasonable to the neighbour and the street in general.

30 In oral evidence he clarified the use of the word ‘historic’ and that he distinguished the present building from items of environmental heritage. He simply meant that the existing building is old and its façade should be respected in any design for modifications of the existing consent.

31 Mr Neustein stressed the need to maintain the openings in the existing façade in order that the development at No 9 Henry Street would remain compatible with and in harmony with No 11 Henry Street and the streetscape in general. He was critical of recent façade changes to terraced buildings in Victoria Street around 70m to the north of the subject property.

32 Mr and Mrs Sharp of No 11 Henry Street stressed the need to maintain an harmonious relationship with their half of the semi-detached dwelling.

33 Ms Scott, resident of No 7 sought to maintain the amenity of her property.

34 I am satisfied that the council’s strategies as stated in DCP2, apply to all dwellings and require new works to be visually harmonious and sympathetic to other nearby dwellings and the streetscape. Nos 9 and 11 Henry Street present together in the street and Mr Bull was of the opinion that the proposed modifications would be detrimental to the pair of dwellings and to Henry Street.

35 I am satisfied that the modification proposal would be unsympathetic in the streetscape and not harmonious in its relationship to the adjoining dwelling at No 11 Henry Street.

36 For the above reasons, the appeal is dismissed.

Orders
37 My orders are:
1. The appeal under s 96(6) of the Environmental Planning and Assessment Act 1979 is dismissed.

2. Modification application to amend development consent No L-300/2002, and to alter and add to the front part of the dwelling, and the front façade, including relocation of the front windows and door, internal reconfiguration, at No 9 Henry Street, Waverley, is refused consent.

3. The exhibits except for Exhibits A and 4 are returned.

S J Watts

Commissioner of the Court

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