Codrington v Ku-ring-gai Council

[2005] NSWLEC 157

Land and Environment Court

of New South Wales

CITATION:

Codrington v Ku-ring-gai Council [2005] NSWLEC 157

PARTIES:

APPLICANT
Matthew and Bindi Codrington

RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S):

11600 of 2004

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Alterations to an existing house - construction of a pool and carport

DATES OF HEARING:

07/04/2005

EX TEMPORE JUDGMENT DATE:

07/04/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr S Kondolis, solicitor
SOLICITORS
Maddocks

RESPONDENT
Mr R Graham, solicitor
SOLICITORS
Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

7 April 2005

11600 of 2004 Matthew and Bindi Codrington v
Ku-ring-gai Council


JUDGMENT

1 This is an appeal against council’s refusal of a development application for alterations to an existing dwelling, construction of a pool and carport at No. 61 Fairlawn Avenue, Turramurra. The appeal concerns the carport component because it is located at the front of the property and encroaches on the designated 12 m building line.

2 For the appeal, the parties have agreed to the appointment of Ms K Gordon as the Court-appointed expert for planning and she has undertaken a detailed assessment of the proposal in terms of the prevailing controls, namely Development Control Plan 38, resulting in her conclusion that the proposal merits conditional consent.

3 However, Mr Aitken, council’s planner is still dissatisfied as he does not consider this proposal has sufficient regard to the DCP 38 “provision that where access to the rear is available, then the parking should be behind the building line.”

4 Having considered these competing positions, I note that s 5.5.3 of the DCP provides:

5.5.3 Design of Carports and Garages

The design of carport and garage structures should be sympathetic to existing development on-site and consider adjacent building as well as proximity to drainage systems. Carport and garage structures should not dominate the site or the streetscape.

The location of a carport or garage must have regard to:

• the location of trees both on site and on the relevant adjacent site(s);
• the position of windows and other structures on adjacent sites;
• established streetscape; and
• the heritage significance of heritage items and their setting and the heritage significance of conservation areas. Garages must not be located forward of the established building line:
• where it is not possible to provide parking behind the building line only open sided carports will be considered in locations forward of the established building line;
• setbacks from the street alignments should be maximised
• Reverse egress to public streets is discouraged on busy roads and will not be permitted where the street has:
• regional/ sub-arterial or state/arterial status under Council’s road hierarchy;
• sight distances that are restrictive such as at bends or crests; or
• where the required sight distances are not available;
Battleaxe lots will be required to provide sufficient turning space to allow vehicles to egress the site in a forward direction.

Note: Turning areas where provided are to be designed to permit on-site turning via one reversing movement only. Refer to Australian standard 2890.1-1993 or similar design car turning paths.

5 Accordingly, the position of the building line is a relevant consideration in my assessment. Where Mr Aitken takes a more restrictive approach that the building line is the projection of the subject building, Ms Gordon says that alternatively, due regard has to be given to the position of the neighbouring structures to establish the prevailing building line, so that the streetscape impacts are realistically assessed.

6 I also consider that cl 5.5.3 allows locational flexibility because it does allow carports in the front of houses and in this case the non-conformity is approximately 1 m.

7 In this current context I agree with the approach of Ms Gordon because the adjoining house at No. 63 is relatively new and has a prominent double garage forward of the building line which has a significant streetscape impact.

8 On this basis I consider a reasonable interpretation of the DCP allows utilisation of the prevailing building line, which is shown on the DA plan. Accordingly this results in an encroachment of approximately 1 m over this prevailing building.

9 The design then, of the carport is of an open nature, with the brick piers complying with the nominal 12 m setback and the roof overhang is the only non-complying element. This roof is of a pitched design and tiled and complies with the DCP.

10 In considering the merits of this proposal I also note the following provisions of 5.5.4 of the DCP:

5.5.4 Location of Parking Structures

The location of carports or garages needs to consider existing trees, structures on adjacent sites, streetscape, visual character and heritage issues.

11 It is apparent to me that the DCP differentiates between garages and carports and is less restrictive for the location of the carport.

12 Following on then, this section also requires that regard is given to “the established streetscape”.

13 I have undertaken a view and note that in this localised part of the Fairlawn Avenue, there are a number of new houses, which have staggered building lines, but where the double garages are prominent and are forward of the building line.

14 There are also a number of carports that are well forward of the building line and in fact two are at the building line and very dominant in the streetscape.

15 Ms Gordon has assessed this part of streetscape impact in details and says

2.9 Of relevance, the assessment criteria for this control seeks to maintain streetscape character and allow for additional landscaping (including trees). The amended location of the carport places it slightly forward of the adjoining garage at No. 63 Fairlawn Avenue (by approximately 6OO mm at its closest point), and up 1.3 m - 2.0 m forward of the dwelling on the subject site. The carport design is complementary to the existing dwelling and its ridge height is only marginally above the eaves line of the dwelling, making it suitably subservient to the dwelling in design.
2.10 It is proposed to plant Pyrus ussuriensis 'Bradford' to the north of driveway, which has a maturity height of 4m. The planting of an additional Pyrus ussuriensis 'Bradford' immediately adjacent to the front boundary to the south of the driveway would result in a tree canopy that would screen the carport to such a degree that its projection forward of the dwelling would be less noticeable. A condition to this effect is therefore recommended to be placed on any consent. Subject to this recommended condition it is considered that the carport will not detract from the landscaped setting of the dwelling as viewed from the street.
2.11 The amended carport location has no detrimental impacts with regard to solar access to adjoining properties or amenity and as such is consistent with the assessment criteria of the control.

16 Furthermore she says that with some further revision of the landscape then:

2.18 … in my opinion, subject to the additional tree required by the aforementioned recommended condition, the proposed amended carport will not dominate the site or streetscape and it will be sympathetic to the existing development onsite. As such the proposal will satisfy the assessment criteria of the clause, justifying a variation to the design requirements in this case. Therefore the proposal satisfies Particular ii.

17 She concludes that:

the amended carport will be complementary to the existing dwelling and suitably subservient to it. Given this and the landscape setting provided, the carport will make a suitable contribution to the streetscape and character of the area, satisfying the objectives contained in Schedule 9 of the KPSO.

18 However, during the hearing the applicant conceded that the access driveway could be tapered and reduced in area so as to improve the garden setting. Also the proposed landscape could be further enhanced to screen the carport.

19 In my assessment then, I accept Ms Gordon’s conclusion that this proposal demonstrates reasonable compliance with the DCP objectives for the location of a carport, which I consider is somewhat less restrictive than the location of a garage forward of the building line. But this is in the context of the subject site, where the adjoining garage is predominant and also there is significant screening by the existing mature vegetation on site. This contributes to the streetscape character and minimises any adverse on visual impacts for the relatively small roof structure component.

20 As I have stated, I accept Ms Gordon’s detailed assessment and opinion that this proposal merits conditional consent and the conditions should reflect the revised driveway and enhanced landscape.

21 Therefore the orders of the Court are:

1. The appeal is upheld.

2. Development Application No. 835/04 for alterations, construction of a pool and carport at 61 Fairlawn Avenue, Turramurra, is granted subject to the conditions in Annexure A.

3. The exhibits may be returned except Exhibits A, B, C and 3.

________________
R Hussey
Commissioner of the Court
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