Johnson v Ku-ring-gai Council

[2005] NSWLEC 421

Land and Environment Court

of New South Wales

CITATION:

Johnson v Ku-ring-gai Council [2005] NSWLEC 421

PARTIES:

APPLICANT
David and Melissa Johnson

RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S):

10349 of 2005

CORAM:

Bly C

KEY ISSUES:

Development Application :- Alterations and additions to existing dwelling house - proposed carport in front of existing building line - streetscape and character

LEGISLATION CITED:

Ku-ring-gai Planning Scheme Ordinance
Ku-ring-gai Residential Design Manual - DCP 38
Development Control Plan 43 - Car Parking

DATES OF HEARING:

05/07/2005

 
DATE OF JUDGMENT: 

08/05/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr S Kondilios, solicitor
SOLICITORS
Maddocks

RESPONDENT
Mr B Tobin, solicitor
SOLICITORS
Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

5 August 2005

10349 of 2005 David and Melissa Johnson v
Ku-ring-gai Council

JUDGMENT

The appeal

1 This appeal relates to Development Application No. 120/05 which is for alterations and additions to an existing two-storey dwelling house at 14 Coronga Crescent, Killara.

2 The proposed additions to the house mainly comprise a large ground and first floor extension at the rear and an open sided carport at the front. The 6 m x 6 m two-car carport is to be positioned 2 m in front of the dwelling house and setback 1 m from the side boundary of the site. Because of the topography of the site the carport is to be excavated into the site to a maximum depth of about 1.5 m.

The site

3 The site comprises Lot 64 in DP 11443. It has a frontage of about 16 m a depth of about 49 m and an area of about 788 sq m. Its slopes gently downward from the rear to its Coronga Crescent frontage.

4 According to the statement of basic facts the locality in which the site is located is described in the Ku-ring-gai Visual Character Study as comprising an area characterised by single dwellings on single lots constructed mainly during the period 1920 to 1945. Coronga Crescent comprises an intact streetscape displaying a relatively uniform architectural style and period. The following are distinguishing features within the streetscape:

(a) Consistent generous front setbacks;
(b) Large proportion of open space mostly to the rear of the residence and mature established gardens;
(c) Low brick, timber or herbaceous front boundary fences; and
(d) Driveway and single car accommodation located at the side of residences or integrated into the dwellings.

Statutory provisions

5 The site is included in the Residential 2B Zone under the Ku-ring-gai Planning Scheme Ordinance. In this zone the subject proposal is permissible with development consent.

6 Also applicable to the site is the Ku-ring-gai Residential Design Manual – Development Control Plan 38 ("the Residential Design DCP") and Development Control Plan 43 (Car Parking) ("the Car Parking DCP").

Advertising

7 The application was advertised and two submissions were received from the neighbours at Nos. 12 and 16 Coronga Crescent, Kilara. Matters of concern raised in these objections include: water penetration into an adjoining garage at No. 12; impacts associated with the construction of the carport on established vegetation; the removal of a large tree; and potential overshadowing of No. 16.

8 Whilst on site I considered the residents’ concerns and do not believe any of them to be critical. The most significant of these matters involves a mature tree on No. 12 could that be affected by the reconstruction of the driveway. Despite this I accept that, with proper supervision during the reconstruction works, the tree is unlikely to be adversely affected.

Council’s decision

9 The application was refused by the council for reasons relating to: removal of trees; adverse impacts on the streetscape and local character resulting from the location of the proposed carport; and non-compliance with setback requirements.

10 The tree issue was not pressed and the associated streetscape, character and setback issues involving the location of the proposed carport became the single issue for the determination of the Court.

The evidence

11 Whilst the case was intended to proceed on the basis of there being no expert evidence I was assisted by Mr I Glendinning, the applicant’s consultant town planner and by Mr R Kinninmont, a council town planner.

12 Mr Kinninmont adopted a report prepared for the council by another council officer that recommended refusal of the application and Mr Glendinning provided a so-called “Statement in Response to Issues”.

The proposed carport

13 The respondent emphasized the need for the Court to take into account the provisions of the Residential Design DCP. The relevantly applicable provisions of this development control plan are as follows:

14 In relation to streetscape, s 5 Design Elements of the Residential Design DCP has the following objectives:

a) To ensure that the development is sensitive to the landscape setting, environmental conditions and established character of the street and locality.
b) To ensure that the appearance of new development is of a high visual quality, enhances the streetscape and complements good quality surrounding development.
c) To conserve the natural, built and cultural significance of streetscapes of heritage value.

15 The visual character Assessment Criteria in s 5.1.1 require that:

Development should conserve and enhance the visual character of the street with particular reference to the integrating of:
• Architectural plans;
• Building scale and setbacks;
• Landscape plans; and
• Fencing styles.

16 The associated Design Requirements effectively require the consideration of the prominent characteristics of the neighbourhood and the reinforcement of the tree dominated streetscape and character of Ku-ring-gai. The degree of visibility of on-site development is an important consideration in maintaining visual character when viewed from the street, public reserves and adjacent properties.

17 The building setbacks Assessment Criteria in s 5.1.3 require that development should be appropriately located on site to:

• Maintain streetscape character;
• Ensure the amenity of neighbouring properties is maintained or enhanced;
• Allow for the provision of landscaping and provide room for additional tree plantings to grow to maturity;
• Facilitate solar access;
• Protect significant vegetation;
• Facilitate efficient use of the site; and
• Minimise bushfire hazard.

18 The associated Building Line (Front Setback) Design Requirements provided that in Urban Conservation Areas the predominant building line or setback pattern of the existing streetscape shall prevail. More particularly:

Development must be appropriately located on the site having regard to the existing setback of adjoining properties, the setback pattern of the street lot within which the proposal is situated and council's minimum and average setback requirements.

When the predominant setback pattern of the existing streetscape reflects setbacks which exceed the required minimum a greater setback suggested by the street character will apply.

19 Situated on the high side street a minimum front setback of 12 m is required. An average front setback of 14 m is also required for two-storey development such that at least 75% of the front elevation of the building achieves this setback. Reduced setbacks can be considered for steeply sloping sites but this is not relevantly applicable.

20 The Access and Parking objectives in s 5.5 require the provision of integrated and functional carparking facilities to minimise adverse visual and environmental impact on the streetscape. The associated Assessment Criteria and Design Requirements in s 5.5.1 require the provision of two carparking spaces behind the building line (i.e. front setback) for a single occupancy dwelling.

21 The Assessment Criteria in S 5.5.3 require that the design of carports and garages should be sympathetic to existing development on-site and consider adjacent buildings as well as proximity to drainage systems. Such structures should not dominate the site or the streetscape. The Associated Design Requirements include: the use of compatible materials, colour, scale and roof pitch; and the integration of structures within the development. In addition the provision of carparking in front of the building line is contemplated.

22 Section 5.5.4 requires that the location of carports and garages need to consider trees, structures on adjacent sites, streetscape and visual character. The associated design requirements again stipulate that garages must not be located forward of the established building line and:

• Where it is not possible to provide parking behind the building line only open sided carports will be considered in locations forward of the established building line,
• Setbacks from the street alignment should be maximised.

23 The proposed setback for the proposed carport from Coronga Crescent is 8.2 m although this could be increased by relocating the structure closer to the existing dwelling house, utilising, (as agreed by the applicant) 500 mm of the presently proposed 2 m separation. The existing 13.5 m wide dwelling house is predominantly set back 16.2 m from Coronga Crescent; with a 4 m wide element set back 14.2 m.

24 The adjoining dwelling houses at Nos. 12 and 16, to the east and west are setback more than 20 m from Coronga Crescent such setbacks being typical of the existing building line on the south side of Coronga Crescent.

25 Clearly the existing house extends in front of the 14 m average setback requirement of the Residential Design DCP. It is also not consistent with the greater predominant setback pattern of development on the south side of the street, with setbacks less than the required minimum. The proposed carport with a setback of 8.7 m would be positioned about 11 m in front of the two adjoining dwelling houses.

26 As already discussed the relevantly applicable building line is between the 12 m minimum and the 14 m average and the predominant setback pattern of development in the street is indicative of a building line in excess of this. The proposed carport is to be positioned substantially if not totally in front of these building lines.

27 Plainly, the positioning of the proposed carport is inconsistent with the building line design requirements of the Residential Design DCP. The questions thus arising are:

• Whether the proposed carport should be approved in the light of the design requirement that only open sided carports can be considered in front of the building line where it is not possible to provide parking behind the building line; and
• Whether the amenity, streetscape and character objectives of the Residential Design DCP would be met by having an open sided carport in the position proposed.

28 Dealing firstly with the question of whether it is possible to provide carparking behind the building line I note that there is an integrated single garage (5 m x 3.5 m) in the existing dwelling house. There is little doubt that this garage could be widened to accommodate two cars. Mr Kinninmont believed that it would not only be possible but it would also be reasonable for the applicant to carry out the necessary works to achieve this.

29 However, as argued by Mr Glendinning because of the extensive replanning of the layout of the house and the extensive building and structural works involved this would be unreasonable.

30 I agree with Mr Glendinning that the replanning and consequential works would be extensive. Significant elements of the ground floor of the house would need to be redesigned; with the extended garage occupying virtually the entirety of the proposed family room. To achieve the same floor space, a not unreasonable expectation, the building would need to be significantly extended into the rear yard. Major structural works would also be involved to support first floor walls.

31 In my view, taking into account the nature of development in this locality generally and the two car, carparking requirement of the Car Parking DCP it is not unreasonable for the owners of this property to seek to have two undercover carparking spaces.

32 In these circumstances I agree that whilst it would be possible to provide a two-car garage within the existing building this would be unreasonable. In this context I am satisfied that the proposed manner of providing for the carparking needs of the owners of this house is indicative of an efficient use of the site. Also the design, form, materials and colours of the proposed carport structure would be sympathetic to the existing dwelling house.

33 As described above the amenity, streetscape and character objectives require the maintenance or enhancement of the amenity of neighbouring properties and the streetscape character.

34 Even though the proposed carport would be apparent when viewed from neighbouring properties I do not accept that there would be any adverse amenity impacts on these properties.

35 Whilst the proposed carport will also be able to be seen from limited viewing positions in the street, taking into account its sympathetic design and architectural relationship to the existing dwelling house and it being partly excavated into the site it will be inconspicuous and will certainly not dominate the streetscape. This conclusion takes into account the existing and proposed landscaping on the site and the existing landscaping in the vicinity of the site which together provide an appropriate landscape setting for this proposed structure. These matters together indicate an appropriate and satisfactory visual quality of development that will not adversely affect the character of this tree dominated streetscape and locality.

36 Despite the significant non-compliance with the building line requirements of the Residential Design DCP I have decided that the proposed carport warrants approval subject to the conditions, which were agreed to by the applicant. These conditions include a condition requiring that the carport be set back an additional 500 mm.

Orders

37 The orders of the Court are therefore:

1. The appeal is upheld.
2. Development application No. 120/05 for alterations and additions to the existing dwelling house at 14 Coronga Crescent, Killara, is determined by the granting of development consent subject to the conditions in Annexure A hereto.
3. Exhibits A and 4 are retained.

_______________________
T A Bly
Commissioner of the Court
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