Danzey v Waverley Council

[2006] NSWLEC 231

Land and Environment Court

of New South Wales

CITATION:	Danzey v Waverley Council [2006] NSWLEC 231
PARTIES:	APPLICANT Claude Joseph John Danzey RESPONDENT Waverley Council
FILE NUMBER(S):	11566 of 2005
CORAM:	Brown C
KEY ISSUES:	Appeal :- modification of consent - front building line - impact on streetscape/character - loss of views
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Waverley Local Environmental Plan 1996
DATES OF HEARING:	04/05/06, written submissions 05/06/06
DATE OF JUDGMENT:	06/06/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr M McMahon, solicitor SOLICITORS M E McMahon & Associates RESPONDENT Mr S Paterson, solicitor SOLICITORS Wilshire Webb

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

6 June 2006

11566 of 2005 Claude Joseph John Danzey v Waverley Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Waverley Council (the council) of an application to modify Development Application No. 512/2004 for a dual occupancy that involved alterations and additions to an existing dwelling at 7 Bronte Marine Drive, Bronte (the site).

2 The proceedings were conducted as an On Site Hearing and the judgement reflects the Statement of Basic Facts and the findings given on-site.

3 Development in the area comprises a mixture of two-storey dwelling houses and residential flat buildings. The opposite side of 7 Bronte Marine Drive forms part of a coastal walk along the foreshore of the Pacific Ocean.

4 Development Application No. 512/2004 was refused by the council on 6 September 2004. A s 82A Revue resulted in a deferred commencement consent being granted on 12 October 2005. The deferred commencement conditions required amendments to the roof structure and reductions in the floor area to increase the setback to Bronte Marine Drive. The deferred commencement conditions, the subject of this appeal are:

(b) Deletion of the additional floor space proposed to the first and second floors,
(c) A corresponding reduction in the length of the upper level decks.

5 The site is within a 2(a) Residential zone under Waverley Local Environmental Plan 1996. Clause 3(7) provides aims for housing.

6 Waverley Development Control Plan No. 2 - Dwelling Houses and Dual Occupancy Development (DCP 2) applies. Clause 7 provides requirements for floor space ratio (FSR), cl 8 provides requirements for setbacks and cl 9 provides requirements for streetscape.

7 The parties agreed to the appointment of Mr William Gawne as the Court appointed town planning expert. Mr Jake Dowse the project architect provided further evidence for the applicant.

8 Local residents Mr Michael Feneley of 107 Hewlett Street and Mr Robert and Ms Christine Shai-Lee of 103 Hewlett Street provided evidence on site. Both properties were inspected on the site view.

9 The council filed a Statement of Issues containing four issues. These can be grouped into the following main areas:

1) whether the amendments by the applicant are acceptable in terms of streetscape and character of the area, and
2) whether the amendments by the applicant unacceptably impact on views from Hewlett Street.

10 The issue of the impact on the streetscape and character of the area was the significant issue in the proceedings. Mr Gawne states that the bulk of the increased building envelope and floor area is located over the levels at the street frontage of the building and adds unacceptably to the bulk when viewed from Bronte Marine Drive. He suggests that the additional floor space proposed to the first-floor level should be removed with a corresponding reduction in the length of the first-floor balcony and upper level deck. He accepts that the roof profile and additional floor space at the second level can be retained because of the setback of around 11 metres to Bronte Marine Drive.

11 Mr Dowse disagreed that any floor space needed to be removed. He stated that the setback to Bronte Marine Drive was inconsistent and that the proposed development generally reflected the setback of new development and the likely future development in this part of Bronte Marine Drive.

12 With the benefit of the site view, I accept the evidence of Mr Gawne. The relevant sections of a DCP 2 relate to setbacks. No numerical requirements are contained in DCP 2 for street setbacks but instead the appropriate setback is determined through a qualitative assessment. Strategy S8.1.3 states:

Dwelling houses are setback from the street that ensure that they are consistent with other buildings in the street.

13 Control C8.1.3 states that a frontage building lines:

shall be built to the predominant front building lines of buildings in the vicinity. Where no predominant building line can be identified the front building line shall achieve the objectives for setbacks outlined above.

14 While Strategy S8.1.3 and Control C8.1.3 strictly apply to dwelling houses, their requirements are appropriate in this case because of the residential context of the subject site.

15 The Court had the benefit of plan showing an approximation of the predominant front building line based on the existing residential development. Even though this section of Bronte Marine Drive has a mixture of new, renovated and older style dwellings, the area has a generally consistent front setback for dwellings although not necessarily running parallel to the street. The predominant building line is essentially an ark-shape. If the proposed lower level extensions of the development are compared to this building line, the proposed additions clearly extend beyond this line. I accept that this has an unnecessary and undesirable impact on the streetscape and character of the area.

16 I also accept Mr Gawne’s evidence that the upper level can be retained in the form proposed by the applicant because it is setback a considerable distance from the street and would not have any discernible impact on the streetscape.

17 The applicant filed plans to reflect the Courts findings on 5 June 2006 and these have been marked as Exhibit B.

18 The potential loss of views from 103 and 107 Hewlett Street was assessed from the dwellings based on an estimation of the proposed roof form. Both had dwellings have extensive views to the south over Bronte beach. While there was some dispute as to the extent of roof form to be considered by the Court, I accept that even in the worst case scenario of the roof extending a further 1.9 metres, the loss of views from both dwellings is negligible.

19 The orders of the Court are:

1. The appeal is partly upheld and partly dismissed.

2. Development consent dated 27 September, 2005 issued by Waverley Council to Development Application DA512/2004 for conversion of the existing dwelling at 7 Bronte Marine Drive, Bronte, to a dual occupancy and alterations and additions (the consent) is amended by deleting Attachment A and by inserting in lieu thereof Plans by Jake Dowse Architects numbered 0303-L&E 1-6.

3. Attachment B of the consent is amended by deleting the heading “Upon satisfying the consent authority as to the matters in Attachment A, the following condition will apply” and by inserting in lieu thereof “Development consent is granted subject to the following conditions.”

4. Condition A.1 of Attachment B of the consent is amended by deleting that condition and by inserting the following words in lieu thereof: “The development must be in accordance with the architectural plans in Attachment A, except where amended by the following conditions of consent”.

5. The exhibits are returned exception of Exhibit B.

____________
G T Brown
Commissioner of the Court