Guarrera v Ashfield Municipal Council

[2007] NSWLEC 776

Land and Environment Court

of New South Wales

CITATION:

Guarrera v Ashfield Municipal Council [2007] NSWLEC 776

PARTIES:

APPLICANT
Anthony Benjamin Guarrera

RESPONDENT
Ashfield Municipal Council

FILE NUMBER(S):

10738 of 2007

CORAM:

Tuor C

KEY ISSUES:

Development Application :- alterations and additions to semi-detached dwellings.
Impact on streetscape and adjoining heritage item
Impact on residential amenity, privacy, overshadowing, visual bulk.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Ashfield Local Environmental Plan 1985

CASES CITED:

Project Venture Developments Pty Limited v Pittwater Council, (2005) NSWLEC 191

DATES OF HEARING:

8/11/2007

EX TEMPORE JUDGMENT DATE:

8 November 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr C. Gough, solicitor
of Storey & Gough

RESPONDENT
Mr S. Patterson, solicitor
of Wilshire Webb Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

8 November 2007

10738 of 2007 Anthony Benjamin Guarrera v Ashfield Municipal Council

JUDGMENT

1 This is an appeal against the refusal by Ashfield Council (the council) of a development application (2006/217) at 10-12 Yeo Street, Ashfield (the site). The application is described in the Statement of Facts and Contentions filed by council on 6 September 2007 as:

alterations and additions to existing semi-detached dwellings (dual occupancy), construction of first floor level to each, relocation of the existing garages and construction of a new brick fence.

2 The issues between the parties have been resolved and they are seeking consent orders from the Court. The concerns of the residents remain the only outstanding issue.

3 The Court visited the site and heard evidence from a number of residents. The Court also heard expert evidence from Mr D Furlong, the parties’ single expert on planning, and Mr G Patch, the parties’ single expert on heritage, who both considered the proposal to be acceptable when assessed against the planning framework.

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

Objections

5 The main concerns of the residents can be summarised as being the impact of a two storey, dual occupancy development on the streetscape of predominantly single storey detached houses and the loss of the existing semi-detached dwellings. The residents considered the proposal to be too high and bulky and out of scale with other development in the street. They considered that the absence of a conservation area listing for the street was an oversight of council. The residents were also concerned about the impact of the proposal on “Ambleside” (Ashfield Castle) a heritage item which adjoins the site to the rear.

6 Mr and Mrs Chapman were concerned about the bulk of the proposal when viewed from their and other residents’ properties and impacts of overshadowing and privacy on their north-facing garden and living area.

7 Mrs Yan was concerned about the relocation of the garage and its proximity to her entry.

Streetscape

8 Mr Patch and Mr Furlong considered that the height and bulk of the proposal were not out of character with the existing street or the desired future character envisaged by the planning controls. The proposal complies with the numerical controls of height, setback and floor space ratio (FSR) in both Ashfield Local Environmental Plan 1985 (LEP 1985) and Ashfield Development Control Plan 2007 (DCP 2007).

9 Clause 3.7(d) of Part C5 of DCP 2007 states:

The following tests will be applied to submitted designs:


d) building design, roof form, detailing and materials visible from public areas and adjoining properties are not in strong visual contrast with the positive and characteristic features of neighbouring properties.

Generally the materials and finishes of the building are to be similar to the traditional finishes predominating in Ashfield. Buildings will usually be in bichromatic (two colour) face brick with hipped terracotta tiled roofing. Avoid the use of reflective materials that may cause glare.

10 In response to cl 3.7(d), Mr Patch stated that:

Given the presence of a “Free Gothic” mansion together with “Interwar” cottages in the immediate environs of the site, there is a considerable range of architectural expression in the neighbouring properties. In my opinion the design, roof form, detailing and materials proposed will not give rise to adverse impacts on “the positive and characteristic features of neighbouring properties”. The materials proposed are in accord with the provisions of this clause.

11 Mr Furlong agreed with the opinion of Mr Patch. I accept the opinion of these experts. While I recognise the concerns of the residents, the area is not identified as a conservation area in a planning instrument or policy. The area exhibits a number of positive attributes and its non-listing as a conservation area may be questioned, however, this is a matter that needs to be addressed as part of council’s strategic planning process.

12 Although the area is comprises predominantly detached single storey houses, the proposed two storey development is one reasonably anticipated by the current planning controls. Senior Commissioner Roseth in Project Venture Developments Pty Limited v Pittwater Council, (2005) NSWLEC 191 examined the issue of compatibility. The proposal, though not the same as existing development, is considered by the experts to be compatible and meets the principles for compatibility expressed by Senior Commissioner Roseth.

13 Mr Patch considered that the proposal would not adversely impact on the heritage significance of Ashfield Castle. He stated:

….the views to be had of the rear of “Ashfield Council” are largely fragmentary, and while there will be some additional screening as a result of the proposal there will still be glimpses to be had over the “laid-up” roofs of the garages in oblique views. The Item also appears to have a distinct ‘façade’ and ‘back’ as evidenced by the level of detailing and could not be successfully argued that it was intended to be viewed ‘in the round’, in my opinion.

14 Mr Patch concluded that the impacts on Ashfield Castle would be negligible. In accept Mr Patch’s opinion.

Amenity impacts on adjoining properties

15 The overshadowing diagrams indicate a minor increase in overshadowing to 6 and 8 Yeo Avenue. This complies with the controls in DCP 2007.

16 The proposal has only a few windows at the upper level that face adjoining properties. These windows are either highlight windows, obscure or screened. This, combined with separation distances, will result in no unacceptable privacy impacts.

17 The bulk of the proposal is consistent with that of a two storey house and, while the upper storey will be visible from adjoining properties, the impact is not unreasonable given it is set back some 3.8 m from the side boundaries.

18 The location and impact of the garage adjoining 14 Yeo Avenue is not unreasonable. The structure is set back about 690 mm from the boundary, it is about 2.5 metres high with a skillion roof sloping away from 14 Yeo Avenue.

19 I am satisfied that the issues between the parties have been resolved and that the matters raised by the objectors are not such that would warrant refusal of the application. I accept the opinions of the experts and on this basis the consent orders sought by the parties may be issued.

20 The orders of the Court by consent are therefore:

1. The appeal is upheld.
2. Development Application No. DA-10.2006.217 proposing alterations and additions to existing semi-detached dwellings, construction of a first floor level to each, relocation of existing garages and construction of a new brick fence at Lot A, DP 343449, being 10-12 Yeo Avenue, Ashfield is determined by the grant of consent subject to conditions set out in Annexure A.
3. The exhibits except for Exhibits 6, 7 and A are returned to the parties.

___________________

Annelise Tuor
Commissioner of the Court
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