GLW Pty Ltd v Waverley Council
[2011] NSWLEC 1153
•15 April 2011
Land and Environment Court
New South Wales
Case Title: GLW Pty Ltd v Waverley Council Medium Neutral Citation: [2011] NSWLEC 1153 Hearing Date(s): 14 April 2011 Decision Date: 15 April 2011 Jurisdiction: Class 1 Before: Pearson C
Decision: Appeal dismissed
Catchwords: Development modification - garage - impact on streetscape - consistency with planning controls - whether two car spaces required
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Civil Procedure Act 2005Cases Cited: Zhang v Canterbury City Council (2001) 115 LGERA 373
Texts Cited: Category: Principal judgment Parties: GLW Pty Ltd (Applicant)
Waverley Council (Respondent)Representation - Counsel: - Solicitors: Solicitors
B Hones (Applicant)
S Patterson (Respondent)File number(s): 10109 of 2011 Publication Restriction:
Judgment
This determination was given extemporaneously and has been edited prior to publication
COMMISSIONER: This is an appeal under s 96(6) of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Waverley Council of an application to modify development consent DA 203/2010 granted for the demolition of a dwelling house and the erection of a two-storey, four bedroom dwelling house with garage and pool for Lot 11 DP 386, 3 Campbell Street Waverley (the site).
The appeal was lodged on 11 February 2011. The matter was set down for a conciliation conference to be conducted under s 34AA of the Land and Environment Court Act 1979 (the Court Act), which commenced on 7 February 2011. Section 34AA modifies the application of the provisions of s34 of the Court Act for proceedings pending in Class 1 of the Court's jurisdiction relating to appeals, objections and applications under ss 97 and 97AA of the Environmental Planning and Assessment Act 1979 . Section 97AA, which now provides for appeals by an applicant dissatisfied with a council's determination of a s 96 modification application, commenced on 28 February 2011. This being an appeal pursuant to s 96(6) of the Act lodged before the commencement of s 97AA, and there being no applicable savings or transitional provisions which would enable the matter to be dealt with under s 34AA of the Court Act, the matter has proceeded in accordance with the provisions of s 34 of the Court Act .
The parties were unable to reach agreement and the conciliation conference was terminated. The parties consented under s 34(4)(b) of the Court Act to my disposing of the proceedings, and consented pursuant to s 34(12) of the Court Act to evidence from the site view forming part of the evidence in the proceedings.
The appeal to the Court was lodged in the name of "3 Campbell Street Pty Ltd", which is the owner of the property. The application made to the respondent for modification of the development consent was made in the name of GLW Group Pty Ltd with the written consent of 3 Campbell Street Pty Ltd as owner. The applicant's representative advises that 3 Campbell Street Pty Ltd and GLW Group Pty Ltd have a common director. On the application of the applicant (which was not opposed by the respondent), who has provided an authority signed by Mr Garth Patterson, sole director of GLW Group Pty Ltd, I order pursuant to s 64 of the Civil Procedure Act 2005 that the application is amended to change the name of the applicant so that these proceedings are in the name of GLW Group Pty Ltd.
The site and locality
The site is on the western side of Campbell Street Waverley, approximately 40m to the north of Victoria Street. The locality consists of 1920s interwar bungalow style construction on the eastern side of Campbell Street, and a mix of single storey Federation and two-storey more contemporary buildings on the western side of Campbell Street. The site has a rear side boundary adjoining a church at 2839 Victoria Road. The church and 2 Campbell Street, which is across the road from the site, are listed as heritage items under the Waverley Local Environmental Plan 1996 (the LEP). The boundary of the Charing Cross Conservation Area under the LEP is on the south side boundary of 1 and 3 Campbell Street.
Background
Development application DA203/10 included a double garage at the front of the site incorporated into the design of the proposal, set 1m back from the front boundary. During the council's assessment of the development application, advice was provided by Mr Colin Brady, Heritage Architect & Urban Planning Adviser, who noted:
In relation to Campbell Street it is noted that the proposed double garage projects well forward of the existing building line in the street, an aspect further emphasised by the double width of the garage and the raised parapet and deck above. This is considered to have a detrimental impact on the streetscape and setting and to be in contravention of DCP cl 5.7.3 requiring car accommodation to be behind the front building line. There appears the ability to locate the basement garage beneath the main body of the residence and to limit the visual impact of the garage entry on the street front.
Mr Brady recommended:
To maintain the setting, streetscape and aesthetic qualities of Campbell Street it is recommended that
-the ongrade basement garage is set back to the existing building line.
-the garage is amended to reduce visual impact upon the building frontage and the streetscape.
The council granted development consent subject to a deferred commencement condition:
(a) The proposed double garage including the works to the south side boundary and all associated structure forward of the main building line are not approved and shall be deleted.
(b) In this regard the on-site garaging is to be restricted to a single garage door within the main front bay of the building's street faade. The garage opening is to be consistent with the symmetry of the main front bay (eg 3m wide) and setback a minimum of 3m from the street alignment. The purpose of these changes are to provide for a presentation to the street where the garage is a recessive element and the street faade more vertically proportioned, reflective of and sympathetic to the adjoining heritage items and conservation area.
(c) The front landscaping to the site shall be improved to provide consistent fencing to the street frontage up to 1.2m high and a minimum of 50% soft landscaping at ground level to the front yard.
The applicant provided amended plans. On 7 October 2010 the respondent notified the applicant that the development consent was effective, and amended condition 1 to reflect the approved plans.
The applicant applied on 23 November 2010 under s 96(1A) of the Act to modify the development consent. The modifications proposed, as summarised in the applicant's Statement of Facts and Contentions, were:
(a) the garage door is widened from 2.74m to 4.8m
(b) by widening the door a second car parking space is available within the garage area
(c) the garage door is recessed 2.485m from the main faade in lieu of 3m approved by Council
(d) the southern garage wall and planter box above will be 50mm in lieu of 900mm from the southern boundary
(e) the northern garage wall and planter box above is moved northerly by a distance of 785mm
(f) the upper permanent planter boxes have been widened and are lowered 600mm.
Issues
The issues between the parties are whether the proposed widening of the garage entrance will have an unacceptable impact on the streetscape; whether it is consistent with the relevant planning controls; and whether the applicable requirement for a four bedroom dwelling is two car spaces.
The respondent contends that the proposal does not have a minimal environmental effect, and that accordingly the application should have been made under s 96(2) of the Act. The parties agreed that if I were to determine that approval could be granted to the application it would be appropriate to adjourn the proceedings to allow notification in accordance with Part C3 Advertising and Notification of the Waverley Development Control Plan 2010 (the DCP) so that any submissions could be considered as required by s 96(2)(d) of the Act.
Planning controls
The site is zoned Residential 2(a) under the Waverley Local Environmental Plan 1996 (the LEP). Clause 3(6) of the LEP provides specific aims in relation to heritage conservation. Clause 3(7) provides specific aims in relation to housing. Clause 49 provides:
49. The Council must take into consideration the likely effect of the proposed development on the heritage significance of a heritage item, heritage conservation area, archaeological site or potential archaeological site, and on its setting, when determining an application for consent to carry out development on land in its vicinity.
The Waverley Development Control Plan 2010 (the DCP) applies. The relevant provisions are Part D1 Dwelling House and Dual Occupancy; Part 5.3 Setbacks; Part 5.4 Streetscapes and Visual Impact; Part 5.7 Vehicular Access and Parking; Part I1 Land Use and Transport; Part 3.1 Residential Parking Provision Zones; Part 3.2 Parking Provision Rates; and Part 5.0 Urban Design, Streetscape and Heritage Conservation.
Evidence
The site view included a view of the houses along the western and eastern sides of Campbell Street, part of Zarita Avenue, and part of Victoria Street near the intersection of Campbell Street and to the intersection with Bronte Road.
Expert evidence was given on behalf of the applicant by Ms Ruth Daniell, architect, and on behalf of the council by Mr Philip Bull, planner.
Ms Daniell's evidence was that the proposed garage would not be overly dominant in the streetscape. In the context of a mixed streetscape the double garage door would not be overly dominant to the streetscape as there are varied building forms, heights and setbacks. The garage door setback of 2.485m from the street boundary is considered acceptable for two reasons. These are that the setback of the masonry frame and garage door, and setback of the approved house, form part of an intermediate setback between No. 1 and No. 5 which is acceptable for infill design practice; and secondly, that the 1.43m setback of the garage door from the masonry frame is greater, but referential to the streetscape language of the veranda depth of the adjacent property, No.1 Campbell Street. The double garage door is recessed behind the masonry frame by 1.485m, and the effect of this is that the door would be partly shadowed by the recess. The proposal for the double garage only increases the width of the masonry forward of the house by 900mm.
Ms Daniell's opinion was that the proposed double garage does not increase the height. The height of the approved single garage and adjoining store room are the same height as the proposed double garage structure and store room. In her opinion, the issue of whether the proposed garage is dominant should be considered in relation to the design of the approved house with its stepped forms, building setbacks and articulated form and pitched roofs. The two floors of the house are elevated above the garage level.
In relation to the respondent's contention that the proposed double garage is bigger than the front bay of the house and dominates the street faade of the house and has no proportional relationship to the new house's street faade, Ms Daniell's opinion was that she has always viewed the single storey masonry forward visually as a base to the building and as such it can be heavier, stronger in character, and wider. The approved house has varied elements forming asymmetrical compositions. Ms Daniell considered the design to be architecturally well composed with the centreline of the proposed garage door having a relationship with the centreline of the gable.
In oral evidence Ms Daniell was asked about the expression that she used in the joint report, "overly dominant". Ms Daniell stated that in her opinion, the proposal was on a relative scale of dominance somewhere in the middle between not dominant at one end and overly dominant at the other. Ms Daniell pointed to Nos 13 and 15 Campbell Parade, which she said also have a strong masonry base, while acknowledging that the proposed development has a lighter top than those two buildings. Ms Daniell acknowledged in her oral evidence that the relationship between the centreline of the proposed garage door and the centreline of the gable was also a feature of the building as approved.
Mr Bull's evidence was that the proposed double garage would present as a dominant element of the building street faade whereas the approved single garage would appear as a recessive element. Applying the applicable statutory planning requirements, namely the site's location within the curtilage of the Charing Cross Conservation Area and the streetscape of late and early 20th century dwelling houses which establishes the character of the street, and the requirements in the DCP for new dwellings in respect to landscaping, streetscape and car parking, Mr Bull concluded that there was a strong statutory basis for requiring the garage to have some vertical proportional relationship to the main bay of the house above. In his opinion the objectives of the controls would also support this as they required new buildings to be visually sympathetic to other buildings in the vicinity and to the streetscape.
In relation to assessment of the impact of the proposal on the Charing Cross Conservation Area, Ms Daniell's evidence was that when assessing that impact the factors that require consideration are the effect on the curtilage, including significant views and vistas and disruptive visual contrasts. Ms Daniell expressed the opinion in the joint report that the proposed double garage is located on a separate site, and does not affect the legal lot curtilage of any property in the conservation area. The proposed double garage does not affect any significant views and vistas, the "expanded curtilage", of the commercial buildings and residential buildings in the conservation area.
Mr Bull's evidence on this issue was that the garage as currently approved is in part justified by the heritage context of the site and the general streetscape requirements for new houses in the DCP. The heritage context of the site is one factor that requires a more sympathetic approach to garaging, that being a single garage door, vertically integrated into the front faade of the main building. In Mr Bull's opinion garaging should be understated in infill housing in older streetscapes where the character was established before the advent of mass car ownership.
Consideration
The applicant submits that the objectives of the Residential 2(a) zone in assessing the impacts of the proposal on the heritage conservation area and heritage items as required by cl 49 of the LEP are addressed by the proposal. The streetscape is not uniform. The issue of setback to the southern boundary is relevant only in relation to the appearance of the new dwelling in the context of the heritage conservation area. The applicant submits that there is an approval for the built form, and the proposal is only broadening the base of that built form. The buildings at 13 and 15 Campbell Street also have a strong base. There is a need for car parking as identified in Pt I1 of the DCP, and an expectation that a four bedroom house would have two car spaces.
The respondent submits that the controls in the DCP should be applied. The essential issue in the appeal as identified by the experts is the differing streetscape presentations of the approved and the proposed garaging. In relation to setback the respondent agrees that the issue is how the proposed setback fits in the context of the streetscape, however the setback still has a role to play in relation to the adjoining houses at 1 and 5 Campbell Street.
Findings
It was common ground that the site is located in Parking Provision Zone B as defined at 3.1 in Part I1 of the DCP:
Description: Good accessibility to public transport and services, moderately high density, significant on-street parking subject pressures from traffic.
Location: Properties not included in Zone A or Zone C.
Rate of Provision: Moderate.
Part 3.2.1 provides that for a four bedroom dwelling in Zone B the minimum parking is zero and the maximum is two spaces.
Part 5.7 in D1 of the DCP makes provision for Vehicular Access and Parking. The objectives are set out at 5.7:
(a) Ensure that the design and size of off-street carparking facilities does not unreasonably detract from the appearance and quality of the dwelling-house or streetscape;
(b) Maximise pedestrian and vehicular safety;
(c) Minimise loss of on-street carparking; and
(d) Minimise loss of views from the public domain.
If the proposed off-street parking facilities or associated works will unreasonably detract from the appearance of the dwelling, streetscape or landscape, or from the heritage quality, or adversely impact on the pedestrian environment, or reduce the availability of on street car parking, a zero parking requirement may be imposed.
Note: The characteristics of some sites may mean that car parking should not be provided on site.
While the DCP provisions could support two car spaces for a four bedroom dwelling, they do not, in my view, establish an expectation that that would be the case. The assessment of the number of spaces that can be approved must take into account considerations of urban design, streetscape and heritage conservation (objective 1.2(b) in Pt I1), and also the appearance and quality of the dwelling and streetscape (objective (a) in Part 5.7).
The DCP makes specific provision for garages at 5.7.3:
Strategy:
5.7.3 Garages do not dominate the streetscape.
Controls:
Where the site allows, double garages/carports do not front the street.
All car accommodation is to be located behind the front building line.
Garages/carports are not located in elevated and highly prominent positions on site.
The location of garages within the building facade: single garage widths (up to 3m) are preferred to double garage widths. Double garage widths may be acceptable where the existing streetscape reflects this kind of development.
Existing sandstone walls and natural rock faces are generally not to be removed for the purpose of car accommodation and ancillary residential development.
The proposed garage fronts the street and is not consistent with the controls provided at 5.7.3 of Part D1 of the DCP. Based on the site view, the only other double garage doors in the locality are those at 15 Campbell Street and at 35 and 37 Campbell Street, which is further away and around a corner. There is no pattern of garaging in the street, with some houses having none, some a carport and others a single garage, in some instances with space for an additional vehicle in front. The proposal is not consistent with the control at 5.7.3 that single garage widths up to 3m are preferred, and double garage widths may be acceptable where the existing streetscape reflects this kind of development.
The site is in an area generally agreed to be an early 20th century streetscape. It was common ground, and clear from the view, that the dominant built form in the streetscape is detached dwellings. It was common ground that the setback to the southern boundary of the proposed garage does not comply with the 900mm required by Part 5.3.1(a) of Part D1 of the DCP. In his evidence Mr Bull agreed that the approved dwelling has only a 50mm setback on the northern boundary, however he considered this acceptable given that it was a 5m part of the wall, single storey, and set back from the street. I accept Ms Daniell's evidence provided in detail in table form in her Heritage Impact Statement dated November 2010, which was confirmed by the view, that there is no consistent pattern to side setbacks in the streetscape. In oral evidence Ms Daniell gave as examples the rear part of No. 1 which has a nil setback; No. 5, where part of the porch comes to the side boundary; and Nos 13 and 15, which appear to have a separation of approximately 900mm. While I agree that there is no consistent pattern, I accept Mr Bull's evidence that maintaining the 900mm setback on the southern boundary as approved would assist in visual separation of the buildings at No.1 and No. 3, which would be consistent with the streetscape.
Both experts addressed the controls at Part 5.4.1(b) of Part D1 of the DCP, in particular:
Facades incorporate bays or units in their design structure through vertical lines such as blade walls and changes in the Horizontal lines set by such things as window and door heads of surrounding dwellings shall be reflected in the design of facades for new buildings.
I agree with Mr Bull that the proposed garage, being integrated into the main faade of the new dwelling, should be considered in the context of this control, the strategy of which is stated as being to ensure that new buildings "are visually harmonious with other dwellings in their vicinity". There was disagreement as to how this control applied to the proposed design, which Ms Daniell described as having varied elements forming asymmetrical compositions, and to the approved design, which Mr Bull described as having a vertical proportional relationship to the main bay of the house above. Ms Daniell was of the opinion that the proposed design relationship, including the more solid masonry base, was completely acceptable.
While not determinative, the provisions of the DCP are a fundamental element and a focal point of the decision making process: Zhang v Canterbury City Council (2001) 115 LGERA 373 . The proposal does not comply with the numerical controls relating to setback and to location of garages and the width of garage doors. While I accept that the garage door is recessed, the solid masonry faade extending to the side boundary is, in my view, a dominant element. There are no similarly positioned double garages in the part of Campbell Street from Victoria Street to the intersection with Zarita Avenue, and no dwellings of similar design as described by Ms Daniell with a single storey solid masonry base. I am not satisfied that the proposal meets the objectives of the controls at 5.4.1, namely being visually harmonious with other dwellings in the vicinity; or the objective in 5.7.3, which is that garages not dominate the landscape; or that it is appropriate to depart from the controls provided in the DCP. Accordingly the proposed modification should not be approved.
I note that part (c) of the deferred commencement condition related to the provision of landscaping to the street frontage. The respondent's Statement of Facts and Contentions in Reply included the particular that the proposed modification would reduce the opportunity for landscaping, thereby reducing the landscape amenity of the street. In the joint report Mr Bull noted that the proposed scheme would provide landscaping, including soft landscaping, that would comply with the numerical requirements of the DCP, and the issue of landscaping was not addressed in evidence or submissions.
Conclusion
The orders of the Court are:
(1)The appeal is dismissed.
(2)Application 203/10A to modify development consent DA 203/2010 for the demolition of a dwelling house and the erection of a two storey dwelling house with garage and pool for lot 11 DP 386, 3 Campbell Street Waverley, is refused.
(3)The exhibits may be returned except for exhibits A, B, C, E and 2.
Linda Pearson
Commissioner of the Court