Derek Moore v Lane Cove Council
[2003] NSWLEC 319
•07/21/2003
>
Land and Environment Court
of New South Wales
CITATION: Derek Moore v Lane Cove Council [2003] NSWLEC 319 PARTIES: APPLICANT
RESPONDENT
Derek Moore
Lane Cove CouncilFILE NUMBER(S): 10117 of 2003 CORAM: Hussey C KEY ISSUES: Development Application :- s 96 modification - alterations and additions to existing dwelling - substantially the same development
streetscape and public interest
LEGISLATION CITED: Environmental Planning and Assessment Act 1979; s97
Lane Cove LEP 1997CASES CITED: DATES OF HEARING: 17/07/03 - 18/07/03 EX TEMPORE
JUDGMENT DATE :
07/21/2003LEGAL REPRESENTATIVES:
APPLICANT
D R Parry, barrrister
instructed by Wool and AssociatesRESPONDENT
S N Griffiths, solicitor
instructed by Pike Pike & Fenwick
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
10117 of 2003
21 July 2003Hussey C
- Applicant
- Respondent
Introduction
1 This matter involves an appeal against council’s deemed refusal of a s. 96 modification for a development consent for alterations and additions to an existing dwelling and garage at 79 Johnson Crescent, Lane Cove. The appeal related to the garage component only.
2 In this case the consent allowed for alterations to two existing garages at the street frontage on the subject property. However, after issue of the construction certificate, the construction work undertaken has resulted in demolition of part of the side and front walls of the existing garage, which apparently was not envisaged by the council consent.
3 Consequently, this s. 96 modification now seeks approval for the alteration works undertaken and involves;
- the erection of a new concrete floor slab,
- demolition of the eastern and western walls of the garage and their replacement with new walls,
- demolition of the front wall and door of the garage and replacement with a new wall,
- realign the front elevation of the garage to provide a setback at the southwestern corner,
- erection of one metre high brick fences along approximately 7.5 m of the front of the property boundary.
4 The outstanding issues raised then concern;
- whether the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted,
- whether the modification of the development results in a garage that has a negative impact on the streetscape of Johnson Crescent, and the
- circumstances of the case and the public interest.
5 The site is zoned residential 2(a1) under the Lane Cove Local Environmental Plan 1997 and the development is permissible with consent. The objectives of this residential 2(a1) zone are set out in cl. 8 and include:
" to retain and where appropriate improve the existing residential amenity of the attached single family dwelling area and encouraging development that is in sympathy with the existing neighbourhood in the following respects: (i) setbacks, (iii) views, (vi) the provision of off street parking."
6 Council’s Code and Development Application Checklist for Dwelling Houses, Fences, Private Dwellings and Outbuildings, the (Code) is also applicable.
7 The aims and objectives of the Code include:
"to ensure a higher standard of development for dwelling houses in Lane Cove, to provide guidelines for development which retain and improve existing residential amenities of areas characterised by detached dwellings, and to provide appropriate controls which achieve a higher standard of residential amenity on matters such as privacy, views, solar access, open space and landscaping".
8 Detailed evidence on behalf of council was presented by:
Mr H Sanders, consulting town planner and his report is exhibit 1. Other submissions contained in exhibit 2 were considered.
9 For the applicant evidence was presented by;
Mr R Dixon, consulting architect/planner, and his report is exhibit F.
10 According to the council’s submissions, the alterations already undertaken do not relate to the same development and therefore the s96 modification should be refused, leaving other actions for dealing with these unauthorised works. Against this, Mr Dixon’s evidence is that the garage is substantially built on the approved foundations and building envelope and has the same building envelope and does relate to the same development, so as to merit consent.
11 In considering these competing positions, I note initially that the way in which the details of the proposal and description of the extent of works is presented on the plans is minimal in some respects, allowing a number of assumptions, which unfortunately has created some misunderstandings in interpretation.
12 The site is steeply sloping but the plan does not contain any specific site levels. Also it is apparent that the indicative notes regarding the existing structure subject to engineer’s inspection lacks specificity, which again has led to different interpretations of the proposal. Despite this lack of detail in the proposal, which I consider is unsatisfactory and unhelpful, nevertheless the council officers, Mr Sanders and Mr Dixon have been able to assess it, and accordingly I have considered their evidence.
13 The primary issue is whether the modification relates to substantially the same development, which was granted consent. In respect of the garage component, the consent provided for the alteration of the two existing garages to be effectively combined into one double garage but with the retention of the central middle pier and alteration to the front parapet. It also allowed for the rear extension of the garage by some 1.6 m.
14 However, the unauthorised works have resulted in additional work involving the demolition of the side and front walls, and provision of a new roof structure eliminating the central pier. Also the new concrete floor has been constructed over the existing floor.
15 Insofar as Mr Sanders says this was not substantially the same, his opinion was based on his understanding: “it is inherently contradictory for an application for alterations and additions to a structure to be considered as substantially the same as an application for a completely new structure,” but when questioned on this premise Mr Sanders admitted he had not undertaken an inspection from within the site and limited his observations from the roadway. In my opinion, this degree of inspection restricts a full consideration of the extent of the works.
16 However, it appears to me Mr Dixon has undertaken a more detailed and accurate assessment of the actual building works. Accordingly, his evidence is that the two side walls that were removed have been replaced by brick walls built on the original foundations, together with a new common level floor slab. Also the front wall position has been slightly offset from the boundary but substantially maintains the same street presentation.
17 Furthermore, Mr Dixon said the replacement walls were consistent with an architectural interpretation of the notation on the plans which provided for the existing structure to be subject to the engineer’s inspection.
18 Apparently during the construction, the structural integrity of the side and front walls was assessed by consulting engineers, James Clements and Associates. In their letters of 14 May 2002 they state:
"We confirm having inspected the garage at the above mentioned site as requested. We also confirm having issued your company with instructions to remove existing brick walls of the garage down to the dampcourse level.
This decision to remove existing brickwork down to dampcourse was simply based on the following reasons.
(a) The existing brick walls of the garage were 110 mm wide with no engaged brick piers.
(b) The existing garage was lengthened and hence the rear wall of the garage had to be removed.
(c) Steel lintels supporting the brickwork over the front openings to the garage were corroded and had caused brickwork over to crack. Brickwork over the lintels had to be removed and the lintels replaced.
(d) No dampcourse was used in the original garage.
As the project engineer together with the builder it is our responsibility to ensure the renovated structure complies with the requirements of the Building Code of Australia and the relevant Australian standards and that good workmanship is maintained throughout the project.
It is also our responsibility to ensure that the site is a safe work environment for the various trades used in this project. This could not be guaranteed had the walls remained in place."
19 In my assessment then, the modified proposal results in a double garage with substantially the same building envelope as approved. The need for the new walls has apparently arisen due to the structural inadequacies identified by the structural engineer. This is an unknown contingency matter which can be dealt with by the s. 96 modification according to the line of authority in Windy Dropdown Pty Limited v Warringah Council, 111 LGERA.
20 Accordingly, I accept Mr Dixon’s evidence that this s. 96 modification does relate to substantially the same development. This is consistent with the opinion expressed in the council’s senior health and building surveyor’s memo, exhibit G, that DA 289/01 No. 79 Johnston Crescent.
It would be impossible to reasonably argue that the s. 96 modification proposal is not for the same development. The amendments, I have highlighted then, are to top the slab, to remove a step, to rebuild the walls in the same location, relocation of the front walls so it is off the footway, street reserve, filling in the space between the slab and the ground on the eastern and western elevation, and the extension of the height of the front parapet by 300 mm. Same size, same location.
21 The next issue concerns the merits of the proposal in terms of its streetscape impact. In this regard, Mr Sanders said the proposal is inconsistent with the LEP objectives and the code provisions which requires a 7.5 m setback for new garages or an open design to afford minimal impact on the streetscape.
22 But in s. 3.7 of the code, item 2 allows “a variation may be considered where unusual site constraint exists or if there is an established building line of less than 7.5 m and the proposal will have a minimal impact on the streetscape.”
23 Having considered these Code provisions, it then seems appropriate to consider this application in its locational context. There were two older garages on the site in close proximity to similar garages on neighbouring properties. Also the slope of the land precludes a garage at the desired 7.5 m setback.
24 Apparently, this context was considered by council initially in allowing the conversion of the two older garages into the double garage, albeit with a central pier, and that this resulting level of streetscape impact was considered satisfactory.
25 The modified proposal then presents substantially the same double garage without the central pier. In this regard I note the pier could be reinstated, but Mr Dixon said it would restrict manoeuvring without enhancing the streetscape.
26 Insofar as the zone objectives are to enhance the streetscape, there is no stated criteria in the controls to identify these desired outcomes.
27 From my consideration of the evidence and observations on the view, it appears to me that the modified garage does result in a development that enhances the streetscape when considered in the context of the two older garages. Furthermore, the 1.8 m setback on the south-western corner allows a marginal recession of the garages and also contributes to an improvement in the streetscape. I have also considered the applicant’s clarification that the garage door will be a darker colour to match the existing brickwork, and this will improve the streetscape impact according to Mr Dixon’s evidence.
28 Sofaras the s. 96 modification also provides for the replacement brick fence, there was no substantive evidence presented on this aspect, and in the absence of any challenge I accept it is satisfactory.
29 In summary then, I rely on Mr Dixon’s following conclusion, and he is an experienced urban designer, that,
- "the development is not only well in keeping with the scale and character of the surrounding development, it represents an improvement to the original site conditions. The improvement to the structural integrity of the garage, visual integration with the existing residences and improved lines of sight through the garage to areas to the north and to the garage for passing pedestrians all contribute to a positive impact upon the streetscape of Johnson Crescent."
30 The remaining issue concerns the public interest, which Mr Sanders related to the applicant’s failure to comply with the controls the council has consistently applied to previous applications for the site. Whilst he indicated a preference for an open carport as constructed elsewhere in Johnson Crescent, it appears from the evidence that these other developments are of a much different and larger scale.
31 But I consider that in the context of the current proposal where council has granted consent for conversion of the two garages into the double garage on the street frontage, it is appropriate to allow the variations in the code as exercised by council originally. I therefore consider that the details of the s. 96 modification are relatively minor in this context, which still results in the development providing an enhancement of the streetscape without any significant adverse impacts.
32 Also in considering these public interest submissions, I note that the controls are contained within the code, which I have considered. However, these provisions would likely have less weight than a development control plan, which in any case allows discretion depending on the merits of the case.
Orders33 For these reasons then I consider the s. 96 modification should be allowed.
34 The Court orders then are:
2. Development consent to DA number D289/01 is modified pursuant to s. 96 of the Environmental Planning and Assessment Act 1979 by the deletion of condition 6 and the insertion in its place of the following condition:1. The appeal is upheld.
- (6) That the development be generally in accordance with the three sheets of plans marked issue B drawn by P Wallace of Figtree Design for alterations and additions at 79 Johnson Crescent, Lane Cove, dated August 2001 and amended in July 2003, and the schedule of amendments prepared by Derek Moore dated 25 October 2002. For the avoidance of doubt and notwithstanding the depiction of ground levels on the eastern and western elevations to the garage at sheet 3 of the plans, approval is not granted by this consent for any alterations to ground levels to the east or west of the garage.
- 3. The exhibits may be returned except for exhibits D, F, G, K, L and 1.
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