Janson v Waverley Council

[2005] NSWLEC 429

Land and Environment Court

of New South Wales

CITATION:

Janson v Waverley Council [2005] NSWLEC 429

PARTIES:

APPLICANT
Joan Janson

RESPONDENT
Waverley Council

FILE NUMBER(S):

10415 of 2005

CORAM:

Moore C

KEY ISSUES:

Development Consent :-
Application to modify
Off-street parking
Streetscape
.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

21 July 2005

EX TEMPORE JUDGMENT DATE:

07/21/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr R Creighton, agent

RESPONDENT
Mr M Staunton, solicitor
Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

21 July 2005

05/10415 Joan Janson v Waverley Council

JUDGMENT

This decision was given as an extemporaneous decision at an on site hearing. It has been revised and edited prior to publication.

1 Commissioner: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act), against the refusal by Waverley Council (the council) of a review pursuant to s 82A of the Act. That review sought a deletion of a condition from a consent earlier granted to a Development Application for alterations and additions to an existing dwelling at 46 Belgrave Street, Bronte (the site).

2 The proposed alterations and additions fell to two separate elements. The first is the construction of alterations within the existing roof space of the building and the second the proposed addition of a hardstand parking space in front of the building.

3 It is in respect of the hardstand parking space that this appeal arises as the council required the deletion of that element by condition. It is against that deletion that the applicant comes to the Court.

4 I have had the advantage of consideration not merely of a view of the site but also of consideration of the Development Control Plan (the DCP), which applied at the time of the application and which, in essentially all relevant respects, is incorporated in a new Development Control Plan which replaced it.

5 There are two relevant provisions in the DCP.

6 The first relates to vehicle access and parking controls. The first of the objectives is in 9.0(i) of the DCP, which seeks to ensure off street car parking facilities are provided in circumstances where the design and size of the proposed garage, carport or other facility does not unreasonably detract from the appearance and quality of the dwelling house or streetscape.

7 In context of the present application, the site is the right hand element of a pair of semi-detached houses - two dwellings and three dwellings respectively removed from the intersection with the nearby cross street.

8 The two houses that are between the site and that street each have hardstand parking spaces in their front areas.

9 Those hardstand parking spaces having been approved by council whilst the DCP was in effect. The earlier in time of those two was at 50 Belgrave Street, and it was approved pursuant to documentation received by the council on the 14 December 1999 - that being a date during the period of operation of the relevant DCP.

10 I have in evidence before me a copy of the Development Application report dealt with by delegated authority in which there is no exception taken to any alleged compliance or otherwise with the provisions with the DCP.

11 I am informed (and see no reason to disbelieve) that the report on the hardstand area in front of 48 Belgrave Street noted in its report that there may have some inconsistency with the DCP but that had been superseded by precedent of the Development Application approval at 50 Belgrave Street.

12 The second element of the DCP is contained in Part 6 dealing with streetscape and visual impact where the objectives in 6.0(i) are to encourage dwelling house development to be of high standard incorporating good building design and detail and (ii) (particularly) to encourage development to be visually sympathetic to other buildings in its vicinity and to the streetscape of which it is part.

13 In the present instance, although there are a variety of pairs of semi-detached houses on the same side of the street as 44 and 46 Belgrave Street, their design originally (and certainly their present presentation) in the streetscape could be described at its most charitable as being eclectic.

14 With the works which are being undertaken to the pair of dwellings at 40 and 42 Belgrave Street, it is obvious from the nature of the garaging and the construction taking place on that site that there will be a significant difference between them and the pair of which the site forms part. Although I do not have the plans or detail, there will necessarily be a significant difference in the presentation of those dwellings to the other pairs of dwellings in the street in that there is garaged parking underneath each of them which must have involved some degree of excavation below those sites.

15 I am asked by the council to consider the design criterion contained in C4 of Part 6 of the DCP, which requires that semi-detached dwelling house development maintains the design integrity of the existing semi-detached pair and ensures that they visually present as pairs or groups of dwellings.

16 It clearly envisages, from the diagram contained in figure 7, that development (where there are effectively mirror image pairs of semi-detached housing) shall be in a fashion that either preserves the mirror imaging or provides a process where by, in the fullness of redevelopment, that mirror imaging will be preserved.

17 I have had the opportunity, during a period of discussions that were taking place between the parties about a number of issues I have raised, to observe these two dwellings from the southern side of Belgrave Street.

18 With respect to the pair of dwellings which includes the site, there are, at the present time, significant visual presentational differences in their design. The site has no visible development in its roof space but 44 has a significant and sympathetically designed above roofline construction to create a first storey addition.

19 The steps which lead from the street to the site are higher and tiled differently to and clearly have a significantly different visual presentation to the street than those at 44.

20 The balustrades to the front verandah area to each of the dwellings presents significantly differences visually to the street.

21 The front fencing elements and the brick elements of each of the dwellings also present significantly differently to the street. The brickwork at 44 Belgrave Street remains as open-faced brick work. The brickwork to the site has been bagged and has some form of oxide colouring in that bagging.

22 I am satisfied that there is no significant present coincidence of identity between the two dwellings but I am also satisfied that there is still sufficient integrity maintained in the presentation of the overall perception of the original design for there to be significant differences between the two dwellings without destruction of the original integrity.

23 I then turn to consider the question as whether the addition of the proposed hardstand parking space would, in adding a further difference between the two dwellings, cause the integrity of design to be eroded in an unacceptable fashion.

24 I have concluded that subject to a number of additional conditions that it would not do so. Fundamental to my consideration in this regard is a matter that I raised with the applicant and that is the possibility of incorporation of a panel lift door in a natural wooden treatment consistent with the general colouring presentation to street of the present front of the building in order to avoid the perception of void under the building when no vehicle was parked in the hardstand parking space.

25 Mr Creighton obtained instructions from his client that his client was not prepared to consent to a condition to reflect that position.

26 As far as I am concerned, with a car parked in the hardstand space, the difference in perception will be minimized. However, if the car were to be absent and the aperture were not to be enclosed in some fashion or treated in some fashion to reduce the impact of the open void that is proposed to be created underneath the veranda, I am satisfied that there would be a significant unacceptable difference between the two buildings.

27 I note the proposal by the applicant to attend to address that by colouring whether by bagging or painting or in some other fashion. The brick wall that would be created, at the innermost point of the car aperture, would not, in my opinion, create a satisfactory treatment to rectify that perception of void.

28 The applicant's adviser, Mr Rowan, proposes in his statement of evidence a number of softening matters that are contained in par 4.8 of his report,

29 Having considered those, I am satisfied that they, together with a requirement for the installation of a door of the nature that I have discussed, would render the proposal acceptable because of the significant differences between the two houses as they are presently but differences that are not radically anti-pathetic and which are still leave the two dwellings capable of being read as a pair of semi-detached dwellings.

30 The final matter which I raised with Mr Creighton (and to which his client has agreed) is that any vehicle parked in the proposed hardstand parking space for the dwelling should not protrude beyond the front property line and such a requirement should be incorporated in conditions.

31 Hence, the result is that the appeal will be upheld and the condition sought to be deleted from the consent will be deleted - but in lieu thereof a number of additional conditions will be substituted.

32 I therefore direct that:

1. the applicant file and serve amended plans reflecting the required door treatment and the additional landscaping contained in Mr Rowan’s report and those plans are to be filed and served by Friday, 5 August;
2. the respondent is to file and serve revised conditions of consent incorporating the matters that have been dealt with within this decision, settled with the applicant, by 5 August;
3. the matter is set down for callover on 10 August;
4. if directions 1 and 2 are complied with, I will make orders in Chambers and vacate the callover;
5. the parties are given liberty to re-list the matter before me on two days notice at 9 a.m. if required to settle any matters which might arise from this decision; and
6. the exhibits are returned.
Tim Moore
Commissioner of the Court