Dobrosavljevic v Waverley Council

[2006] NSWLEC 87

Land and Environment Court

of New South Wales

CITATION:	Dobrosavljevic v Waverley Council [2006] NSWLEC 87
PARTIES:	APPLICANT Ned Dobrosavljevic RESPONDENT Waverley Council
FILE NUMBER(S):	11151 of 2005
CORAM:	Brown C
KEY ISSUES:	Development Application :- - alteration to existing dwelling - construction of carport - streetscape - design - loss of on street parking
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Waverley Local Environmental Plan 1996
DATES OF HEARING:	27/02/06
EX TEMPORE JUDGMENT DATE:	02/27/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr I Hemmings, barrister SOLICITORS Patrick Hargraves & Co RESPONDENT Mr A Simpson, solicitor SOLICITORS Pike, Pike and Fenwick

JUDGMENT:

Appeal No. 11151 of 2005

1

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

27 February 2006

11151 of 2005 Ned Dobrosavljevic v Waverley Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal of DA 478/2005 by Waverley Council (the council) for alterations to the front of an existing dwelling house and the construction of a carport at 47 Watson St., Bondi (the site). The carport is located at the street alignment and necessitates modifications to the existing dwelling.

2 The proceedings were conducted as an On Site Hearing on 27 February 2006 and the judgement reflects the relevant matters in the Statement of Basic Facts and the findings on the issues given on site.

3 The site has a frontage of 7.62 metres, side boundaries of 41.35 metres giving a total area of 315 square metres. A dwelling is located on the site and is currently undergoing alterations and additions based on the approval of DA 40/05. A condition of this approval was the deletion of the alterations to the dwelling and the carport proposed in this application.

4 Development in the immediate area comprises a mixture of one and two-storey residential single detached dwellings of various styles and age and on various size lots. A number of dwellings have been the subject of alterations and additions over a relatively long period of time.

5 The site is zoned Residential 2(a) - Low Density under Waverley local Environmental Plan 1996 (the LEP). The proposed use is permissible within this zone.

6 The proposal is also subject to Waverley Council Development Control Plan No. 2 - Dwelling Houses and Dual Occupancy Development (DCP 2). Clause 12 provides requirements for Vehicular Access and Parking.

7 Waverley Council Development Control Plan No. 14 - Land Use and Transport (DCP 14) also applies although the relevant requirements for this appeal are similar, if not identical to those within DCP 2.

8 The council filed a Statement of Issues containing five separate issues and particulars. The issues can be grouped into the following main areas:

1) whether the proposed development has an unacceptable impact on the streetscape and particularly, whether the proposed development integrates with the design of the dwelling,
2) whether the proposed development reduces on street parking.

9 The parties are agreed to the appointment of Mr Lindsay Fletcher as the Court appointed town planning expert. Leave was granted for the applicant to provide additional evidence from Mr Anthony Betros, a town planner.

10 Mr Fletcher notes that the proposed carport requires the partial demolition of most of the verandah and a significant part of the front wall of the existing dwelling house. In his opinion, this conflicts with the DCP strategies that garages and carports are not to detract from the architectural integrity of the dwelling and not to dominate the streetscape. Consequently, the proposal is unacceptable from a town planning viewpoint.

11 Mr Betros comes to the opposite conclusion. He states that the design, in association with the dwelling, presents an integrated approach to the provision of off street parking. It is consistent with other off street parking examples along both sides of Watson St and, in his opinion the proposal has greater regard to streetscape and its relationship with the dwelling than others similar examples in the street.

12 In considering this issue, cl 12 of DCP 2 provides requirements for vehicular access and parking. The relevant objective seeks " to ensure that the design and size of off street car parking facilities does not unreasonably detract from the appearance and quality of the dwelling house or streetscape”.

13 The clause provides strategies to address the objectives. The relevant strategies state, "no part of a building is to be altered or demolished to primarily provide car parking except where topography or appropriate building design allows" (S12.2) and "all car accommodation is to the located behind front building line" (S12.3).

14 On the question of streetscape, I agree with the conclusions of Mr Fletcher. In coming to this conclusion, I accept that reasonable attempts have been made to integrate the carport into the existing building however, in my view, this does not overcome the unacceptable streetscape impacts created by the proposed development.

15 The carport is located totally within the setback to Watson St. While other examples of garages within the building line area were shown to the Court on the site view, these examples are relatively old and were approved under different planning regimes. DCP 2 and DCP 14 clearly provide a different approach to this issue.

16 Even though the character of the area is varied, the retention of the facade of the existing dwelling is consistent with the philosophy in DCP 2 and DCP 14 of not allowing the provision of off street parking to detract from the appearance of the dwelling and the streetscape qualities of an area.

17 The provision of off street parking is not a proposition that is supported by DCP 2 in all cases. Where an allotment has no existing off street parking, and off street parking is not characteristic of the streetscape, vehicular access from the street is not allowed (S12.4). While the parties disputed whether parking was characteristic in Watson St, I am not convinced that the even if it was characteristic of the streetscape (and there must be some doubt about such a conclusion), the particular characteristics of this application and the impacts on the dwelling and the streetscape would still support the refusal of the application.

18 Overall, the proposal is inconsistent with the relevant objectives in cl 12 of DCP 2 and strategies S12.2, S12.3 and S12.4.

19 The loss of on street parking through the provision of an access driveway was also raised, as an issue however, in my opinion, would not support the refusal of the application for this reason alone.

20 For the foregoing reasons, the Orders of the Court are:

1) The appeal is dismissed.
2) DA 478/2005 for alterations to the front of an existing dwelling house and the construction of a carport at 47 Watson St., Bondi is refused.
3) The exhibits are returned.

______________
G T Brown
Commissioner of the Court