Donald v Leichhardt Council

Case •

[2012] NSWLEC 1326

•

29 November 2012

Land and Environment Court


New South Wales

Medium Neutral Citation: Donald v Leichhardt Council [2012] NSWLEC 1326
Hearing dates:26 November 2012
Decision date: 29 November 2012
Jurisdiction:Class 1
Before: O'Neill C
Decision:

1. The appeal is upheld.

2. Modification application M/2011/193 for a double garage in the front setback of 20 Wharf Road, Birchgrove is approved, subject to the conditions in Annexure A.

3. The exhibits, other than exhibit 2, are returned.

Catchwords: MODIFICATION APPLICATION: application to modify consent for a single garage in the front setback to a double garage.
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Category:Principal judgment
Parties: Mr Jonathan Donald (Applicant)
Leichhardt Council (Respondent)
Representation: Mr Ashley Stafford (Barrister) (Applicant)
Ms Roslyn McCulloch (Solicitor) (Respondent)
Solicitors
Pikes and Verekers Lawyers (Respondent)
File Number(s):11067 of 2012

Judgment

  1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97AA of the Environmental Planning and Assessment Act1979 against the refusal of Modification Application No. M/2011/193 (the proposal) by Leichhardt Council (the Council) to modify an existing consent for a single garage by extending the sandstone wall 2.93 m along the road frontage to create a double garage, at 20 Wharf Road, Birchgrove (the site).

  1. The appeal was subject to mandatory conciliation on 26 November 2012, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979. As no agreement was reached during the conciliation phase, the conciliation conference was terminated pursuant to s34AA(2)(b) and the proceedings dealt with forthwith pursuant to s 34AA(2)(b)(i). The parties consented to the admission of evidence given during the conciliation conference in the hearing, pursuant to s 34(12) LEC Act.

Issues

  1. The Council's contention in the matter can be summarised as:

  • The proposal will have an adverse impact on the visual setting of the existing dwelling and on the heritage significance of the heritage conservation area (HCA).

  1. The Council's contention that the proposal will result in the loss of one on-street parking space was resolved during the conciliation conference by an agreed condition of consent requiring a distance of 5.4 m between the driveway crossings of 20 and 22 Wharf Road.

The site and its context

  1. The site is on the southern, high side of Wharf Road and contains a single storey Inter-War bungalow. The site is 450.7 m2 in area and has a frontage of 15.39 m to Wharf Road.

  1. The houses on the southern side of Wharf Road are generally perched well above the street level, with garages and retaining walls along the street boundary. Both 22 and 24 Wharf Road, to the west of the site, have sandstone retaining walls along their front boundaries and both include double garage door openings.

  1. The houses on the southern side of Wharf Road, at the eastern end of the road, front Ballast Point Road and have garages and rear fences fronting Wharf Road.

  1. The ground floor level of the dwelling at 20 Wharf Road is approximately 3.4 m above the level of the footpath.

  1. The street elevation of 20 Wharf Road is not parallel to Wharf Road and consequently there is a greater front setback on the western side of the site when compared to the eastern side. This is because the subdivision of the lots in the vicinity of the site and including the site, follow the alignment of the properties at the eastern end of Wharf Road, despite the change in alignment of Wharf Road at the rear of 49 Ballast Point Road. Consequently, the dwellings on the southern side of Wharf Road, including 16-18, 20 and 22 progressively step forward toward the street, compared to the front alignment of the dwelling immediately to the east. As a result, when viewing the site from the east, the street elevation and part of the side (eastern) elevation of each dwelling is visible. The design of the dwelling at 20 Wharf Road has responded to the stepping front alignments and the views across the harbour by incorporating a feature bay window and wrap around verandah on the north-eastern corner.

  1. 22 Wharf Road aligns with its street boundary and is forward of 20 Wharf Road, which obscures views of 20 Wharf Road when viewed from the western end of Wharf Road.

Background and the proposal

  1. The existing consent, D/2003/383 approved 10 February 2004, includes a single garage and storage area on the western side of the front setback, running parallel to the side boundary and at an angle to Wharf Road, with a garden terrace over. The retaining wall, including the garage door opening, is 6370 mm wide along the front boundary.

  1. The proposal is for a double garage perpendicular to the street front boundary, which moves the double garage door opening further to the east. The remaining triangular area at the north-western corner of the site, adjacent to the garage, is to be used for the on-site detention tank (OSD). The proposal re-configures the entry and stairs to the dwelling. The proposal includes a garden terrace over the proposed double garage and OSD, which is 120 mm higher than the approved terrace. The retaining wall, including the double garage door opening, is 9300 mm along the front boundary, which is an increase in length of 2930 mm when compared to the existing consent. The garage door opening within the wall is 5400 mm wide.

Planning Framework

  1. The site is located within the Residential zone pursuant to Leichhardt Local Environmental Plan 2000 (LEP 2000) and the proposal is permissible with consent.

  1. The site is a heritage item, pursuant to LEP 2000 (Amendment 13), which was gazetted on 6 March 2009. The site is located within the Balmain Heritage Conservation Area (HCA). Clause 7(3) of LEP 2000 provides that development consent must not be granted for development unless the consent authority is satisfied that the development is consistent with the relevant objectives of the plan.

  1. Clause 15 of LEP 2000 provides the following relevant objectives for heritage conservation, including:

(a) to protect, conserve and enhance the cultural heritage and the evidence of cultural heritage, including places, buildings, works, relics, townscapes, landscapes, trees, potential archaeological sites and conservation areas, and provide measures for their conservation,
(b) to protect, conserve and enhance the character and identity of the suburbs, places and landscapes of Leichhardt, including the natural, scenic and cultural attributes of the Sydney Harbour foreshore and its creeks and waterways, surface rock, remnant bushland, ridgelines and skylines,
(c) to prevent undesirable incremental change, including demolition, which reduces the heritage significance of places, conservation areas or heritage items,
(d) to allow compatible and viable adaptation and re-use of the fabric of heritage significance,

  1. The proposal is subject to clause 16(7) of LEP 2000, 'Development in the vicinity of a heritage item', as 22 Wharf Road and nearby properties on the northern and southern side of Wharf Road are listed heritage items. Clause 16(7) states:

Consent must not be granted for development on land in the vicinity of a heritage item, unless the consent authority has made an assessment of the effect the carrying out of that development will have on the heritage significance of the heritage item and its setting as well as on any significant views to and from the heritage item.

  1. The proposal is subject to clause 16(8) of LEP 2000, 'Conservation Areas', which relates to development within a conservation area and states:

Consent must not be granted for the demolition, reconstruction, adaptation or erection of a building, the carrying out of a work, or the subdivision of land, within a conservation area unless the consent authority has made an assessment of the extent to which the carrying out of the development would affect the heritage significance of the conservation area, with particular regard to:
(a) the heritage significance of any building, work, relic, tree or place, archaeological site or potential archaeological site or Aboriginal site that would be affected, and the contribution it makes to the conservation area, and
(b) the compatibility of the proposed development with the conservation area, including the size, form, scale, orientation, siting, materials, landscaping and details of the proposed development.

  1. The site is subject to the provisions of Leichhardt Development Control Plan 2000 (DCP 2000), under which the site is located within the Birchgrove/Elkington Park Distinctive Neighbourhood.

  1. Part A - General Information of DCP 2000, includes A7.0 'Heritage Conservation', which includes the following relevant controls:

  • Only undertake work necessary to conserve the place, or to comply with safety or other regulations.
  • Minimise any alterations to the building and setting required for occupation.
  • Changes to a building's fabric are to be complementary to the architectural period and style of the building.

  1. Part B - Residential Development of DCP 2000 includes B1.3 'Design Element - car parking', which includes a control that car parking areas, such as garages and carports are to be located behind the main building alignment (the front wall of the dwelling).

  1. The proposal is subject to the provisions of Development Control Plan No. 21 (DCP 21) for Wharf Road, Birchgrove. DCP 21 supplements the controls of LEP 2000 and DCP 2000.

  1. DCP 21 includes a description of the problems presented by car parking in Wharf Road at subclause 2.5.1, which includes the following:

  • The increase in the number of garages over recent years has removed on-street parking spaces;
  • Garaging on the street alignment has an adverse visual impact; and
  • The lack of equity between properties as many properties have no off-street parking.

  1. Subclause 3.2.11 of DCP 21 'Front fences and walls' includes the following:

  • Significant existing structures add significant elements of existing fences should be conserved; and
  • Existing rock faces and stone retaining walls should be substantially retained.

  1. Clause 3.5 of DCP 21 includes a control for on-site parking to be located behind the front of the main building façade where there is a building setback of less than 7.5 m to the street.

Submissions

  1. A neighbour provided evidence on-site and her concerns can be summarised as follows:

  • Wharf Road is of heritage significance and a significant number of pedestrians walk along Wharf Road between the harbour parks;
  • The proposed double garage is unsympathetic to the heritage streetscape and the dwelling;
  • The dwelling is modest when compared to the dwellings to the west and the proposal would be disproportionate to the size and elevation of the dwelling and would obstruct views of it, particularly when approaching from the west;
  • The proposal will provide a private parking space at the expense of an on-street parking space.

Expert evidence

  1. The heritage experts agree on the following:

  • The proposal does not impact on the heritage significance of the adjoining heritage item at 22 Wharf Road to the west of the site, nor does it obscure any existing significant views of 22 Wharf Road;
  • The proposed raising of the terrace by 120 mm is acceptable;
  • The style and detailing of the proposal, including the three sliding panels of the garage door, the sandstone retaining wall, the design of the balustrade and front gate are appropriate to the style of the dwelling;
  • The proposal will appear the same as the approved single garage when viewed from the eastern end of the street and that the balustrade around the garden terrace will be visible over the existing masonry wall along the eastern boundary of 20 Wharf Road;
  • The proposal will not be visible from the western end of Wharf Road because 22 Wharf Road blocks views of the front setback of 20 Wharf Road when viewed from the west;
  • The double garage will be evident when viewed from across the street and that the garage and balustrade will obscure views from the opposite side of the street of the projecting gable on the western side of the street elevation, to a greater extent than the approved garage would have; and
  • The balustrade of the proposal will partially obscure views of the semi-detached dwellings to the east of the site, when viewed from across the road from the site.

  1. According to Mr McDonald, the proposal is out of scale with the character of the street. The proposed modification extends the wall on the street front by 2.93 m and this results in unacceptable bulk and scale. Mr McDonald says that the existing double width garage doors within the street front retaining walls of 22 and 24 Wharf Road do not justify another one being constructed at 20 Wharf Road. He says that double garage door openings are not the predominant form in the street and where they do occur, they are a discordant visual element.

  1. Mr McDonald says that the best outcome would be no off street parking structures at all and to retain an open setting reflecting the historic context of 20 Wharf Road and that any enclosed parking structure must radically alter the original landform in front of the house at 20 Wharf Road.

  1. Mr Staas disagrees and says that the intactness of the street is somewhat overstated, as the Council has approved a substantial number of garages within the street, including those cut into existing rock features on the high side of the street.

  1. In Mr Staas' opinion, the proposal has no appreciable additional impact on the streetscape of Wharf Road and the contribution the existing dwelling makes to the HCA and is not substantially altered by the proposal.

  1. Mr Staas says that the heritage listing of the property postdates the existing consent and therefore Council considered that the impact of the approved single garage on the heritage significance of the property to be acceptable.

Findings

  1. As the Council granted the existing consent, it follows that their assessment was that it was acceptable to locate a garage within the front setback of the site, notwithstanding the controls for on-site parking (DCP 2000 at B1.3 and DCP 21 at clause 3.5) which specify that on-site parking is to be located behind the front building alignment.

  1. The character of the high side of Wharf Road is significantly different to the character of the low side. The high side of Wharf Road, including the site and the properties to the west of the site, consists of dwellings perched high above the street level with rock outcrops, retaining walls and garaging at the street front, creating a consistent wall along the southern side of Wharf Road, which is relieved by garage door openings, carports, gates and landscaping. In my opinion, the proposal is consistent with the existing character of the high side of this section of Wharf Road.

  1. The topography and configuration of the site are important considerations in assessing the merits of this application. The site slopes steeply towards the street and the ground floor of the dwelling is approximately 3.4 m above the footpath. As the dwelling sits parallel to its side boundaries, its front elevation is not parallel with the front boundary and there is a greater front setback on the western side.

  1. I accept the heritage experts' view that the proposal has no impact on existing significant views of the dwelling from the east and north-east. Because the front alignment of the dwelling at 20 Wharf Road is forward of the front alignment of the adjoining semi-detached dwellings at 16-18 Wharf Road, the eastern and north-eastern views of the dwelling are the most prominent and significant views. This is acknowledged by the design of the dwelling, which responds to the configuration of the site by locating the feature bay window and wrap around verandah on the north eastern corner of the dwelling.

  1. I have given no weight in my decision to the changes made to the detailing of the front gate and balustrade, as I agree with Ms McCulloch's submission that these changes could also be made to the approved single garage, balustrade and front gate and therefore the more sympathetic detailing of the proposal is not a reason to grant approval. I accept the heritage experts' agreement that the detailing of the proposal is appropriate and in keeping with the style and period of the heritage listed dwelling.

  1. I agree with Mr Staas that the additional 2930 mm of sandstone wall has little appreciable impact on the streetscape of Wharf Road and that the contribution the existing dwelling makes to the Balmain HCA is not substantially altered by the proposal.

Conclusion

  1. The proposal takes advantage of the topography and configuration of the site, to create a level turfed area on the roof of the garage and an entry to the site adjacent to the garage. The garage and OSD are located below the floor level of the dwelling and the principal views of the dwelling from the east along Wharf Road are maintained.

  1. I am satisfied that the proposal is an appropriate response to the constraints and opportunities of the site and that it has an acceptable impact on the heritage significance of 20 Wharf Road and the Balmain HCA and can therefore be granted approval.

Orders

  1. The orders of the Court are:

1.   The appeal is upheld.

2.   Modification application M/2011/193 for a double garage in the front setback of 20 Wharf Road, Birchgrove is approved, subject to the conditions in Annexure A.

3.   The exhibits, other than exhibit 2, are returned.

____________

Susan O'Neill

Commissioner of the Court

ANNEXURE A

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Decision last updated: 29 November 2012

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