Dickson Designs Pty Limited v Waverley Council

[2008] NSWLEC 1295

Land and Environment Court

of New South Wales

CITATION:

Dickson Designs Pty Limited v Waverley Council [2008] NSWLEC 1295

PARTIES:

APPLICANT
Dickson Designs Pty Limited

RESPONDENT
Waverley Council

FILE NUMBER(S):

10407 of 2008

CORAM:

Tuor C

KEY ISSUES:

Development Application :- Alterations and additions to an existing dwelling for a single garage, impact on streetscape, landscaping, on-street parking, privacy and drainage

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Waverley Development Control Plan 2006

DATES OF HEARING:

8/07/2008

EX TEMPORE JUDGMENT DATE:

8 July 2008

LEGAL REPRESENTATIVES:

APPLICANT
Ms S Hill, solicitor
of Susan Hill & Associates Lawyers

RESPONDENT
Mr M Staunton, barrister
Solicitors
Wilshire Webb Staunton

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

8 July 2008

10407 of 2008 Dickson Designs Pty Limited v Waverley Council

JUDGMENT

1 This is an appeal against the refusal by Waverley Council (the council) of a development application for alterations and additions to an existing dwelling to provide a single garage at 12 Ethel Street, Vaucluse (the site).

2 A conference under s 34 of the Environmental Planning and Assessment Act 1979 was held on site and at council. No agreement was reached between the parties and the conference was terminated. Under s 34(4)(b) the parties consented to the appeal being then disposed of on the basis of what occurred at the conference.

3 The key issues between the parties were whether:

(i) the proposed garage would have an acceptable impact on the streetscape and the integrity of the existing building,
(ii) adequate landscaping was provided in the frontage, and
(iii) the loss of on-street parking was acceptable.

4 The adjoining owners at 8-10 Ethel Street also raised issues of privacy impacts on their property from the proposed balcony above the garage and drainage resulting from the driveway.

5 The site, its context, the history of the application and the planning controls are in the Statement of Facts and Contentions.

6 The Court heard expert planning evidence from Mr A Faruqi, for the council and Mr P Fryer, for the applicant. Mr Faruqi’s position can be summarised as:

The proposed on-site parking in the form of a garage will have a negative impact on the pleasant presentation of the existing building and will diminish the only reasonable amount of deep soil landscaping within the front setback which, in part compensates for the excessive floor space and hard surfaces proposed.

The existing building has a pleasant presentation to the street and Council would describe the building’s façade as P&O style, which is characterised by the semi-circular bay window in the front façade. This aspect of the building provides a pleasant quality to the streetscape with the key element being the curved window. The worst impact of the proposal is the degradation of this important stylistic heritage quality of this building.

7 Mr Faruqi considered the proposal to be inconsistent with the controls in Part A and Part I of Waverley Development Control Plan 2006 (DCP 2006), in particular Part I5.2 - Design of Parking and Access, which provides:

(a) all accommodation is to be located behind the front building line.
(b) no part of the building is to be altered or demolished to primarily provide car parking except where topography or appropriate building design allows.

8 Mr Faruqi acknowledged that “this means that a narrow block, like the subject site, (width of 6.3m) with an existing house on it, will not be capable of or be required to provide on-site car parking”. He considered this to be reasonable, given the controls.

9 Mr Fryer considered that the proposal would achieve an appropriate building design and therefore that the building could be altered. Further, he stated that the garage was behind the front building line and that the street is characterised by garages, some built to the street frontage.

10 Mr Fryer stated that the proposal met the requirements for landscaping in cl 5.8.2 of DCP 2006 as more than 50% of the area between the building and the street was landscaped of which more than 50% was soft landscaping. Mr Faruqi did not agree that the access stairs should be included as landscaping as they were not usable for passive or active recreation.

11 The experts agreed that the proposal would result in a loss of one on-street parking space and the provision of one off-street parking space. Ms Hill, for the applicant, submits that this meets the requirement in cl 5.7 of DCP 2006 to minimise loss of on-street parking. Mr Staunton, for the council, submits that the off-street parking is available only for private use and there would be a loss of parking for public use.

12 The key issue is whether the proposal will adversely impact on the streetscape. The street is characterised by garages which are forward of the front building line. Mr Fryer states:

It is of particular relevance to note the majority of dwellings in Ethel Street contain single or double garages or hardstand car spaces within the front setback areas. Whilst it cannot be said that every property has structures within the front setback area, I consider that it can be fairly said that the existence of car parking structures or hardstand areas within the front setback area is a feature of the street.

13 Clause 5.3 of DCP 2006 permits vehicle crossings only if off-street parking is characteristic. I accept that this is the case.

14 The proposal will convert a study at the front of the house for use as a garage. The proposal includes a 2.13 m extension forward of the front façade. The extension replaces an existing curved bay window. Mr Faruqi was particularly concerned that the bay window was an important part of the front façade and that its removal would adversely impact on the streetscape.

15 The alterations and additions approved as part of the original application (422/2004) have significantly altered the appearance of the existing building. The proposed extension is compatible with and integrated into the design of the building and achieves an appropriate building design as required by cl 5.2(b). I therefore accept Mr Fryer’s opinion that there is no defined architectural form of development in the street and the proposed changes will not adversely impact on the existing building or the streetscape.

16 The proposal is also consistent with the front building line of the adjoining property at 8-10 Ethel Street and therefore complies with cl 5.2 of DCP 2006.

17 In relation to the landscaping within the frontage, I accept that the access stairs are included under the definition of “landscaped area” and that the landscape are in the frontage therefore complies with the requirements of cl 5.8.2 of DCP 2006.

18 I acknowledge that greater landscaping could be achieved without the driveway and water tank and that the landscaping for the dwelling as a whole is significantly below the landscape area requirements for the site. However the previous approval (422/2004) did not require a landscape plan for the site or that the frontage be landscaped. The current appearance of the street frontage and the previous approval do not contribute to the streetscape in terms of landscaping. The proposal includes a landscape plan, which will soften the appearance of the garage and the street frontage from the street and adjoining properties. The proposal therefore meets the objectives of cl 5.8.2 “to contribute to the streetscape character”.

19 In relation to the loss of on-street parking, I accept Mr Staunton’s submission that the loss of one on-street parking space, which is accessible to the wider public, will impact on the supply of parking in the street. However, of itself, I do not consider this would warrant refusal of the application.

20 In relation to the issues raised by the objectors, the experts agreed that there would be no unreasonable privacy impacts from the balcony above the garage and that the drainage could be addressed by the dish drain and water tank that form part of the proposal.

21 The orders of the court are therefore:

1. The appeal is upheld.

2. The development application (518/2007) for alterations and additions to provide a single garage at 12 Ethel Street, Vaucluse is approved subject to the conditions in Annexure A.

3. The exhibits except Exhibits 3, 5, A and B may be returned.

___________________

Annelise Tuor
Commissioner of the Court
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