Curve 9 Pty Ltd v Waverley Council
[2004] NSWLEC 673
•1 December 2004
NEW SOUTH WALES LAND AND ENVIRONMENT COURT
CITATION: Curve 9 Pty Ltd v Waverley Council [2004] NSWLEC 673
PARTIES:
APPLICANT
Curve 9 Pty Ltd
RESPONDENT
Waverley Council
CASE NUMBER: 10993 of 2004
CATCH WORDS: Development Consent
LEGISLATION CITED:
Waverley Local Environmental Plan 1996
CORAM: Tuor C.
DATES OF HEARING: 01/12/2004
EX TEMPORE DATE: 01/12/2004
LEGAL REPRESENTATIVES
APPLICANT
Mr Norton, barrister
SOLICITORS
Baron & Associates
RESPONDENT
Mr Staunton
SOLICITORS
Staunton & Beattie
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESTuor C
1 December 2004
10993 of 2004 Curve 9 Pty Ltd v Waverley Council
JUDGMENT
This is an appeal against Condition 2 of the development consent (DA-308/2004) granted by Waverley Council (the council) on 21 September 2004, for alterations and additions at 100 Curlewis Street, Bondi Beach.
Condition 2 requires:
“that the hardstand car space, associated driveway and modifications to the front (western) elevation of the dwelling and front fencing to accommodate the car space, be deleted, with amended plans be submitted prior to the issue of a construction certificate.”
A description of the site, its context and the history of the application are in the Statement of Basic Facts.
The proposal is to demolish the front wall of the existing semi and move it back approximately 600 mm to provide sufficient depth for a hardstand area for one car.
The site is zoned Residential 2(c1) – Medium and High Density under Waverley Local Environmental Plan 1996 (LEP 1996). Development Control Plan No. 2 – Dwelling House Development (DCP) also applies to the site.
The Statement of Issues before the Court contains three issues which can be summarised as:
1.Whether the proposal will have an acceptable impact on the uniformity of the pair of the semi detached houses and the streetscape.
2.Whether the angled crossover for the proposed car parking area is acceptable.
3.Whether the proposed crossover will have a detrimental impact on the existing street tree.
The hearing was held on site and the Court heard evidence from:
Mr M Faruqi, town planner for the council;
Mr B Usher, arborist for the council; and
Mr M Hartley, arborist for the applicant.
Section 6 of the DCP provides objectives in relation to streetscape, being:
(i) To encourage dwelling house development to be of a high standard incorporating good building design and detail and
(ii) To encourage dwelling house development to be of visual sympathetic to other buildings and to the streetscape in which it is part.
The existing streetscape is varied with a mixture of older style residential flat buildings, houses and some semi detached dwellings. A number of buildings have hardstand areas to provide off street car parking which generally results in a large part of the front of the site being occupied by hard paving and crossovers to the street. The evidence of Mr Faruqi is that the controls in the DCP do not seek to emulate this form of development.
In particular, Section 9 of the DCP does not have a minimum requirement for car parking in recognition that some sites may be too constrained to provide off street parking and also achieve an acceptable streetscape outcome.
C4 of Section 6 has specific controls in relation to semi detached dwellings. It states that:
Semi detached dwelling house development maintains the design integrity of existing semi detached dwellings development and ensures that they visually present as pairs or groups of dwellings.
The key question before the Court is whether the proposal will impact on the design integrity of these semis.
Mr Norton’s submission was that the existing semis do not exhibit design integrity as their fence and porch are different. He also stated that the proposal, by retaining the arch and the window, would keep the key design elements of the semis and that they would still read as a pair. He interpreted the design solution in C4 to mean that alterations to one semi could be an out appropriate example for the other semi.
Mr Faruqi held the contrary opinion that the changes to the semi and the hardstand area would have an unacceptable impact. In particular, he had concerns that the car park space would extend into the building with the car being parked partly under the porch and the area created by the setback of the bedroom wall. In his opinion this was not characteristic of other examples of hardstand areas and would have a negative impact on the integrity of semis and the streetscape.
In relation to the tree, the arborists disagreed on whether it would survive the excavation required to provide the driveway crossing. Essentially they agreed on what measures should be taken to seek to maintain the health of the tree. But Mr Usher believed that even minor root damage can cause decline. Mr Hartley considered that the tree’s roots would respond to the proposed measures without any long term impact on its health.
In relation to traffic, no expert evidence was provided but the parties held different opinions on whether the manoeuvring of the vehicle into and out of the site onto Curlewis Street was acceptable.
I find that the combination of these issues: the changes to the building; risk to the tree and less than satisfactory traffic access arrangements, places such constraints on the site that the provision of off street parking is not acceptable.
In particular, while there are other examples of hardstand areas in front of buildings in the street these do not make a positive contribution to the streetscape and are not the form of development that the DCP envisages.
This proposal has sought to maintain the integrity of the semi, however, the constraints of the site, particularly its depth, result in the car park area extending into the house. I do not consider that this is an appropriate development for one of a pair of semis nor an appropriate development for the other semi to follow. As such it does not meet C4 of the DCP.
In relation to the tree there is sufficient uncertainty as to its long term health and survival to not support the provision of the crossover.
In relation to traffic access, while I make no finding as to whether, if this was the only issue, it would be acceptable. It is a less than ideal solution and in combination with the other issues the application must fail.
While I recognise the applicant’s desire to have off-street parking, I do not accept that this is reasonable given the constraints of the site. In this area there is a high demand for on street parking, developments that do not provide off street parking and large numbers of people visiting the beach. Therefore the loss of one on street parking space that is generally available for public use is not justified by the provision of one off street parking space available to only one property.
The orders of the Court are:
1. The appeal is dismissed.
2.Development application for alterations and additions to 100 Curlewis Street, Bondi Beach, is approved subject to the conditions at Annexure “A”, including Condition 2.
3.The exhibits, except exhibit A, may be returned.
____________________
Annelise Tuor
Commissioner of the Court
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