H and R Weir Building Consultants Pty Ltd v Ku-ring-gai MC

[2005] NSWLEC 22

Land and Environment Court

of New South Wales

CITATION:

H & R Weir Building Consultants Pty Ltd v Ku-ring-gai MC [2005] NSWLEC 22

PARTIES:

APPLICANT
H & R Weir Building Consultants Pty Ltd

RESPONDENT
Ku-ring-gai Municipal Council

FILE NUMBER(S):

11239 of 2004

CORAM:

Bly C

KEY ISSUES:

Development Consent :- erection of a garage forward of the existing building line - streetscape - setbacks - visual character

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Development Control Plan No 38 - Residential Design Manual

DATES OF HEARING:

31/01/2005

EX TEMPORE JUDGMENT DATE:

01/31/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr S Kondilios
of Maddocks Lawyers

RESPONDENT
Mr C Drury
of Phillips Fox

JUDGMENT:

- 4 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

31 January 2005

11239 of 2004 H & R Weir Building Consultants Pty Ltd v Ku-ring-gai Municipal Council

JUDGMENT

1 This appeal relates to development application number 482/04 which is for alterations and additions to the existing dwelling house at 32 Greenway Dr., West Pymble. More particularly the alterations and additions comprise an extension to the existing double garage which is incorporated within the house plus a new deck at the rear together with numerous alterations to bedrooms, bathrooms, family room and kitchen. The garage extension, which is the central aspect to this appeal, is to project about 3.5 metres in front of the existing garage. The matter was dealt with as an on site hearing.

2 The site is situated on the high side of Greenway Dr, as an irregular shape with an arced frontage and an area of 940 square metres. The site is described in the Ku-ring-gai Visual Character Study as being located within an area characterised by single and double storey attached dwellings with a mixture of architectural styles on single lots.

3 The site is zoned Residential 2(c) under the Ku-ring-gai Planning Scheme Ordinance in which zone the proposal is permissible with development consent. Relevantly applicable is Development Control Plan No 38 ("DCP 38").

4 The application was advertised and no objections were received although the respondent received letters of support from neighbouring property owners.

5 The single issue of concern in this case involves that of streetscape and more particularly the concern is that the location of the proposed garage forward of the existing building line will result in adverse impacts on the streetscape. In addition the garage does not comply with the minimum setback requirement of 12 m. The associated building line, setback and streetscape requirements are to be found in the DCP particularly in s 5.1.3 and 5.5.4.

6 In s 5.1.3, which deals with building setbacks the relevant assessment criteria require that development should be appropriately located on-site to maintain streetscape character. Similarly s 5.5.4 contains assessment criteria that require that the location of garages should consider existing trees, structures on adjacent sites, streetscape and visual character. More particularly in terms of the location of parking structures the design requirements include that garages must not be located forward of the established building line and here the proposed garage will be 3.5 m in front of the building line formed by the existing house. I will further comment on the established building line in the street shortly.

7 The design requirements associated with the building setback requirements provide that development must be appropriately located on the site having regard to: the existing setback of the adjoining properties; the setback pattern of the street block within which the proposal is situated; and council’s minimum setback requirements. As I have noted the garage will exceed the 12 m setback requirement for the high side of the street which is applicable here by about 450 mm.

8 Unfortunately the DCP does not assist by providing a definition of established building line. Notwithstanding this an examination of exhibit A1 that includes an aerial photograph which, with the agreement of the parties was amended by the superimposition thereon of the existing setbacks of adjoining and nearby properties. Generalising those setbacks revealed what could reasonably be described as the existing building line. In my opinion the proposed garage will be in compliance with this building line notwithstanding that it fails to meet the 12 m setback requirement.

9 Taking also into account the assessment criteria, the retention of existing trees and the relationship of the proposed garage with the garage structure on the adjacent site at No. 30 and accepting as I do Ms Gordon’s opinion I agree that in terms of streetscape generally the proposal would be satisfactory.

10 Whilst walking in the street in the vicinity of the site I noted, and Ms Gordon agreed, that part of the streetscape character in this locality includes garage doors facing the street and this proposal will be consistent with that.

11 Dealing more particularly with the design requirements associated with building line in s 5.1.3 the particular requirement is that development must be appropriately located on the site having regard to: the existing setback of adjoining properties, the setback pattern of the street block within which the proposal is situated; and council’s minimum and average setback requirements. Applying these requirements to this proposal I again refer to the established building line analysis, which I have already described and am comfortable that this approach of dealing with the established building line can be applied to the consideration of the setback pattern of the street. These two matters are, in my opinion, essentially the same. Again I accept Ms Gordon’s conclusions that refer to the setback of the proposed garage extension relative to the existing garage on the immediately adjoining property to the south, No 30. When one considers the existing setbacks of nearby properties especially those to the south the proposal would indeed be consistent with those setbacks.

12 I have no difficulty in accepting that the proposed garage arrangement would be satisfactory notwithstanding that the setback of the house to the north, No. 34, is setback even further than the existing house on this site. What will result from this proposal will be consistent with the effective stepping back of the existing setbacks from south to north. In the circumstances, I agree with Ms Gordon when she said that the proposed setbacks of the building from the street frontage are appropriate in the context of the streetscape and pattern of setbacks in the street notwithstanding the small breach of the setback control.

13 For these reasons I propose to uphold the appeal and grant the development consent as sought.

Orders

1. The appeal is upheld.

2. Development application No. 482/04 for alterations and additions to the existing dwelling house at 32 Greenway Drive, West Pymble is determined by the granting of development consent subject to the conditions in Annexure A hereto.

3. Exhibits A, A1 and 3 are retained.

___________________________

T A Bly

Commissioner of the Court

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