Julian Segal, and Lucille Melanie Segal v Waverley Council - [2004] NSWLEC 60

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Julian Segal, and Lucille Melanie Segal v Waverley Council [2004] NSWLEC 60

PARTIES:
APPLICANT
Julian Segal, and Lucille Melanie Segal
RESPONDENT
Waverley Council

FILE NUMBER(S): 10547 of 2003

CORAM: Watts C

KEY ISSUES:
Development Application :- Excavation
bulk and wall height
heritage impacts

LEGISLATION CITED: Waverley Local Environmental Plan 1996,(WLEP)
waverley Development Control Plan No. 2 Dwelling-House Development, (DCP2)
Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 121 LGERA 11

CASES CITED:

DATES OF HEARING: 29, 30 and 31 October 2003, 21 and 22 February 2004

DATE OF JUDGMENT: 02/27/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr I J Hemmings, barrister instructed by
Mr M T Mazzone, solicitor
of Morgan Lewis Alter
RESPONDENT
Mr GB Newport, barrister instructed by
Mr G McD Hartley, solicitor
of Staunton Beattie

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

10547 of 2003

Watts C

27 February 2004

Julian Segal and Lucille Melanie Segal
Applicant
v

Waverley Council
Respondent

Judgment

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the respondent Waverley Council (the council) to refuse a development application to demolish the existing dwelling on the land and to erect a new dwelling house at Lot B DP 320705 and Lot 1 DP 1004553, being No 55A Gardyne Street, Bronte.

2 I visited the site in company with the parties on the afternoon of the second day of proceedings.

The land
4 The land is situated on the western side of Gardyne Street to the north of Pacific Street, and comprises two allotments. Lot B has a width of 10.97m and a depth of 36.58m with an area of 401.4m2. The eastern Lot 1 within the road reserve purchased from the council, has a frontage of 6.38m, a depth of 3.72m and an area of 23.73m2. Lot 1 is a 2.68m high stratum defined by horizontal planes at 32.67m AHD and 35.35m AHD. The combined site area is thus 425.13m2.
5 Erected on the land is a part single-storey and two-storey dwelling with its floor level at 42.38m AHD and maximum ridge height of 48.08m AHD. There is a large balcony on the eastern street side at 42.26m AHD.
6 The land slopes up steeply from the road, rising over 10m from 35.27m AHD at the Gardyne Street footpath to 45.98m AHD near its rear western boundary. Gardyne Street is a split-level road with the western side set several metres above the level of the eastern side of the road. The footpath fronting the subject land on the western side of Gardyne Street is some 2.45m above the higher western carriageway.
7 Stepped access to the existing dwelling is available from the Gardyne Street footpath. No on-site parking is presently provided however, a subterranean garage was approved within Lot 1 (stratum) under BA275/97 that lapsed on 19 August 2001. A 2.5m high masonry retaining wall is located along the front of Lot B and a 1.3m height stone wall is situated along the western edge of the carriageway below, so that the front part of the land is elevated about 2.5m above the level of the (upper level) Gardyne Street footpath.
8 Two trees are growing on the rear western side of the land and there are lawn areas in both the front and rear yards. There are also two Banksia integrifoloia street trees in the Gardyne Street verge in front of Lot B and either within or above Lot 1.
9 Adjoining to the north at No 55 Gardyne Street, is a two-storey rendered brick and tile dwelling located 970mm from the No 55A/ 55 Gardyne Street boundary and 2.3m from the existing dwelling at No 55A Gardyne Street. The dwelling at No 55 Gardyne Street has a maximum ridge height of 50.20m AHD and a juliette balcony on the eastern (front) elevation at the first floor level and three small first floor windows along the southern elevation facing the land.
10 To the south is a brick and tile dwelling at No 57 Gardyne Street located 880mm from the No 55A/ 57 Gardyne Street boundary and 2.1m from the existing dwelling at No 55A Gardyne Street. No 57 Gardyne Street has a maximum ridge height of 47.39m AHD. The dwelling has three windows, on the northern elevation at ground floor level facing the subject. The rear yard is well vegetated and slopes up steeply to the rear west boundary.
11 Opposite the land fronting the lower level of Gardyne Street is a two-storey brick and tile residential flat building at No 38 Gardyne Street and a brick and tile dwelling at No 36 Gardyne Street. Due to the benched topography, these buildings are set well below the level of the subject land.
12 The rear yard of the subject land slopes steeply up to the west and to No 10 St Thomas Street. The common boundary fence is erected on a retaining wall, and both rear yards are well vegetated. Approval has been granted to demolish the existing dwelling and to erect a new dwelling at No 10 Gardyne Street.
13 The land is within the ‘Bronte Terraces’ Bronte Beach residential character study area. This area is described in the study as:

The terraces have steep slopes, which opened to a wide panoramic view of the Pacific Ocean and/or surrounding areas. This includes Gardyne Street, Pacific Street, and the eastern end of Hewitt Street, MacPherson Street, and other areas where curvilinear streets hug the hillside. Topography has resulted in curvilinear streets with stonewall terraces, which have become one of the strongest landscape features of the area.

While the residential character comprises various building forms, it is predominantly double storey, detached dwellings. However, there are also a small number of residential flight buildings. The juxtaposed layers of the built form, roof-scape and vegetation become elements that compose the view of Bronte terraces from a distance.

Relevant planning controls

Waverley Local Environmental Plan 1996, (WLEP)
14 Under WLEP, gazetted 6 December 1996, the land is zoned 2(a) Residential - Low Density and the proposed use is permissible with consent.
15 Under Clause 2 of the WLEP the general aims are:

(a)

to replace all existing local environmental planning controls which apply to the land to which this Plan applies with a single local environmental plan,

(b)

to provide a framework for more flexible planning controls,

(c)

to improve the amenity, safety and environmental quality of the built and natural environment,

(d)

to provide for the economic and efficient use of land,

(e)

to ensure development proceeds in an ecologically sustainable and equitable manner,

(f)

to provide the opportunity for all members of the public to participate in the planning decisions of the Council, and

(g)

to provide an appropriate balance and distribution of land uses.

(a)

to provide for a range of residential densities,

(b)

to encourage a range of housing types to meet the changing housing needs of the community,

(c)

to encourage the development of new rental housing where appropriate,

(d)

to ensure that new housing is compatible with surrounding development,

(e)

to increase the population by maintaining and increasing the number and variety of dwellings to a level which is commensurate with the capacity of the natural environment and the present and likely future social and physical infrastructure of the Council's area, and

(f)

to improve the amenity of residential areas.

(a)

to allow for housing only in the form of dwelling-houses and boarding houses,

(b)

to maintain and improve the amenity and existing characteristics of localities predominantly characterised by dwelling-houses, and

(c)

to allow certain non-residential uses of low intensity which are compatible with the character and scale of low density housing.

(1) A person must not carry out development on public roads, shown uncoloured on the Zoning map, except with the consent of the Council.
(2) Consent to a development application required by subdause (1) may only be granted if the Council is of the opinion that the development:
(a) is compatible with the nature of development permissible on neighbouring land and the development standards applicable to development on neighbouring land, and
(b) is consistent with the aims of this Plan and the objectives of the zoning applying to neighbouring land.

If an application is made to the council for consent to carry out any development:

(a)

within view of Port Jackson, Bondi Beach, Tamarama Beach, Bronte Beach or the South Pacific Ocean, adjacent to any arterial road (as shown on the Zoning map) or public reserve, or on land within Zone No 6(a), the Council must make an assessment of the probable aesthetic appearance of any building or work that will result from the proposed development, or

(b)

...

20 Division 4 of Part 3 of the WLEP deals with "environmental considerations". Under this heading it may be inferred that the proposal would not give rise to any unusual concerns relating to the consumption of non-renewable resources or global warming; water pollution; air pollution; ozone depleting substances; or waste management as there was no issue in this regard.

21 Part 4 of the WLEP deals with heritage. The land itself, on which it is proposed to erect the new dwelling, being Lot B, is not an identified as an heritage item and is not located within a heritage conservation area. However, Lot 1, within Gardyne Street, is within a landscape item and site L42 in Schedule 5 of the WLEP and is described as “Sandstone Retaining Wall, Split-Level Road Design and Street Trees, Gardyne Street, Bronte.” [Note: Exhibit 2 Tab 5 p 94].

22 The hearing was adjourned to allow the council to search the history of the listing and to attempt to determine “whether the ‘retaining wall’ referred to in the listing proposal includes the footpath retaining wall” . The answer is contained in Exhibit 18. The experts agreed that the footpath retaining wall is located within the Heritage Conservation Area-Landscape, identified as L42 on the Heritage Map. The experts could not agree that the “footpath retaining wall” was part of the heritage item as described by the words against item L42 in Schedule 5 of the WLEP. The evidence was not conclusive, however, it seems likely that the sandstone retaining wall referred to in the description of the landscape item L42 would include the retaining wall between the lower and upper roads within Gardyne Street.

The Heritage Map shows the whole of Gardyne Street being the area edged green on the map as a Heritage Conservation Area-Landscape;
The Heritage Map appears to use the identifier “L42 to cross reference the Heritage Map to Schedule 5 of the WLEP (Jan 2003 edition);
In the WLEP, L42 is listed under Schedule 5-Heritage Items –C-Landscape Items and Sites;
Schedule 5 of the WLEP does not specifically identify Heritage Conservation Areas, although the terms “heritage conservation area” and “heritage item” are defined in Schedule 2 of the WLEP;

24 It would seem appropriate that development of Lot 1, and the footpath retaining wall in front of the land within the council verge, should be considered as either directly affecting or within the vicinity of a heritage landscape item.

25 Also under s 39(2) of the Land and Environment Court Act 1979, I am satisfied that I may assume the necessary power to give owners’ consent in respect of work to be carried out on council owned land outside Lot 1, within the road reserve and to consider a development application relating to that proposed work. That work would include demolition of the existing sandstone wall, perhaps some excavation, the construction of new sandstone retaining walls and construction of a new driveway and asphaltic paving.

(1) The following development may be carried out only with development consent:

(a)

demolishing, defacing, damaging or moving a heritage item or a building, work, relic, tree or place within a heritage conservation area, or

(b)

altering a heritage item or a building, work or relic within a heritage conservation area by making structural changes to its exterior, or

(c)

altering a heritage item or a building, work or relic within a heritage conservation area by making non-structural changes to the detail, fabric, finish or appearance of its exterior, except changes resulting from any maintenance necessary for its ongoing protective care which does not adversely affect its heritage significance, or

(d)

moving a relic or excavating land for the purpose of discovering or moving any such relic, or

(e)

erecting a building on, or subdividing, land on which a heritage item is located or which is within a heritage conservation area.

2.

Development consent is not required by this clause if the Council is of the opinion that the proposed development would not adversely affect the heritage significance of the heritage item or heritage conservation area.

3.

When determining whether a development application is required by this clause, the Council must take into consideration the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area.

4.

The Council may refuse to grant a consent required by this clause until it has considered a conservation plan so as to enable the Council to fully consider the impact of the proposal on the heritage significance of the item and its setting, or on the heritage conservation area.

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.

Waverley Development Control Plan No 2 Dwelling-House Development, (DCP2)
29 DCP2 came into force on 9 June 1999 and was most recently amended 1 May 2003, and applies land zoned residential under the WLEP.
30 DCP2 comprises fifteen parts. Part 1 provides background and introductory material including its relationship to other planning instruments, the aims of the DCP2 and definitions.
31 Part 2 of DCP2 provides for the requirements for development applications.
32 Parts 3 to 14 of DCP2 deal with individual design elements under the following headings:

building height;
size and bulk of dwelling houses;
setbacks;
streetscape and visual impacts;
front fences;
privacy and noise control;
vehicular access and parking;
landscaped open space;
energy efficiency and solar access;
safety and security;
outbuildings; and
access for people with disabilities.

The proposal and its history
34 Development application No LD-407/2001 was lodged with the respondent council on 8 June 2001, to demolish the existing building on the land and to erect a new dwelling house. It has been amended by plan Nos 010700/IDA01/B; IDA02/B; IDA03/C; IDA04/B; IDA05/D; IDA06/B dated received 16 February 2004, prepared by Ron G Weinstock, Architect in Exhibit F.
35 The proposed dwelling house would comprise five levels.
36 The lowest level of the proposed building is at 32.83m AHD, about at the level of the upper carriageway of Gardyne Street. This level includes a double garage with entry across Lot 1 and as indicated in the statement of environmental effects parking is to be provided for four cars. Mr Fletcher calculated the gross floor area of this level (excluding 30m2 allowed for garaging) as 155.73m2, [Note: Exhibit 3 and confirmed in Exhibit L].
37 The second level is proposed at about 36m AHD and no floor plans have been provided. Mr Fletcher for the council, estimated the GFA of this level to be about 77.26m2, [Note: Exhibit L]
38 The third ‘ground floor’ level is proposed at 38.95m AHD. On this level are proposed the stairwell, lift and hall areas as well as Bedroom 4 with an ensuite and a guest room including a bar. Mr Fletcher calculated the gross floor area of this level as 92.99m2, [Note: Exhibit 3 and L]
39 The fourth level is proposed at 42.18m AHD and would comprise the main living areas including a living room, kitchen, family room, laundry, store, WC, entry and the stairwell and lift linking with other floor levels. This floor level is slightly below the existing floor level at 42.38m AHD. Mr Fletcher calculated the GFA of this level as 149.9m2, [Note: Exhibit L]. He agreed with the figure of Mr Layman.
40 The fifth floor level is proposed at 45.24m AHD and would comprise the bedrooms and a playroom. The master bedroom would be at the front or eastern side and would include a separate study, dressing room and ensuite bathroom. To the west of the central hall, stairwell and lift overrun would be a playroom with access to a bathroom and bedrooms two and three at the rear or western end of the dwelling. A small paved terrace/courtyard is proposed off Bedrooms 2 and 3. The gross floor area of this level would be 143.75m2, [Note: Exhibits 3 and L].
41 There was dispute between the parties as to whether those parts of the development that do not add to the bulk are excluded from the calculation of gross floor area, (GFA) under the DCP2 definition. Mr Layman was of the opinion that the overall GFA would be 293.65m2 giving a FSR of 0.69:1 and Mr Fletcher calculated the GFA to be 619.63m2 giving a FSR of 1.457:1, [Note: Exhibit L joint conference on GFAs and FSRs]. Essentially, Mr Layman adopted a similar approach to the GFA and FSR calculations as the planning officer of the council, which I accept, given the wording of the definitions within DCP2.
42 The proposal would be five levels with the roof level being at 49.210m AHD and some 16.38m in height from the garage floor level to the ridge of the roof, and would involve a 10m excavation. The opening at the face of the western retaining wall on the street would be 4.875m and at the entrance door to the basement car park 3,610m.
43 It is proposed to construct the floors of reinforced concrete, with rendered and face brick walls, and ‘Colorcote’ ‘zincalume’ panels with a corrugated steel ‘Colorbond’ roof and aluminium framed windows.

44 Ms M Hosking Landscape Designer prepared the landscaping plan.
45 Mr Fletcher prepared a compliance table, [Note Exhibit 3 p 14]:

Site area 425.13m2
Development requirement	DCP2	Proposal	Compliance
Gross floor area	280.6m2	645.19m2	No
Floor space ratio	0.66:1	1.52:1	No
Building height Wall height Maximum height	7.5m 9.5m	8.5m 9.5m	No Yes
Setbacks East (street) South West (rear) North	Predominant in street 1.5m Predominant in street 1.5m	10.5m 0.905m 2.815m 0.960m	Yes No No No
Car parking	0-2 spaces	2 spaces (Now 4 spaces)	Yes

46 He concluded that the proposal does not comply with the provisions of DCP2 including particularly the requirements relating to FSR, height and boundary setbacks.

47 The council’s planning officer, Mr L Melim, also prepared a compliance table, [Note: Exhibit 2 p 303:

Component	Proposed	Permitted (maximum)	Required (minimum)	Compliance technical	Compliance performance
Site area	425.13m2	N/A
Floor space ratio, (FSR)	1.14:1 (484.18m2)
FSR excluding floor space below ground	0.68:1 (288.962)	0.66:1 (280.59m2)	No	Yes
Building height (ridge) Building height (external wall)	Max 9.5m Max 8.5m	9.5m 7.5	- -	Yes No	Yes Yes
Setbacks North side South side Front building Front garage Rear	Min 0.96m Min 0.91m 12.9m 0.6m 2.8m	N/A N/A N/A	1.5m for 3 storeys 0.9m for 2 storeys - - -	No No Yes Yes Yes	Yes Yes Yes Yes Yes
Car parking	4 spaces	2 spaces	Yes	No

Notification
48 On 3 July 2001 the application was notified to nearby owners and occupants and the council received eighteen (18) submissions. Concerns included:

The proposal will result in the destruction of the heritage listed sandstone retaining wall;
The provision of a garage opening in the sandstone retaining wall will adversely affect the streetscape and set an undesirable precedent;
The proposal provides for an excessive amount of excavation;
The excavation and construction of the proposal will block off traffic and pedestrian access on the upper side of Gardyne Street for months (if not years);
Concern regarding the use of clear glass on the northern elevation of the playroom on the proposed upper floor level and the resultant loss of privacy to the family room of the adjoining property located to the north;
Loss of privacy to the adjoining property to the south;
The proposal exceeds the allowable FSR under DCP2;
The proposal is a gross overdevelopment of the site;
The proposal exceeds the maximum external wall height of 7.5m under DCP2;
Loss of existing trees located on the footpath;
The sale of public land for private use;
The potential for the owners of No 55A Gardyne Street to restrict access to the footpath that traverses their property;
Access to and from the proposed garage and the potential for an accident to occur when vehicles enter or leave the garage; and
The proposed one and a half arc roof is ugly and out of character with the existing architecture of the neighbourhood.

49 On 24 April 2002 the applicant submitted additional information to the council in support of the proposal. Further plans were filed 16 February 2004.

Site Description
Existing freestanding residence of transitional Federation/ California Bungalow with double gable fronted tile roof, painted brick walls and remnant window and joinery detailing. Later works include wire glass balustrading to painted brick boundary fencing and a similarly detailed deck to the front of the building. The residence is set above Gardyne Street the footpath easement of which is retained by a continuation of the stone walling extending along much of the street.

Current Status
The building is not listed on Waverley Council LEP 1996 Schedule 5, however the sandstone retaining wall to the footpath is listed as an item of landscape significance in Waverley Council LEP 1996 Schedule 5.

Proposed Development
The application proposes demolition of the existing residence and construction of a new three-storey residence set above a basement carpark and intermediate floor level. Four of the proposed levels are set into the existing hillside. Access to the basement garage includes a concrete walled cutting into the footpath easement.

Comments
By virtue of the building being substantially set into the hillside the development provides for a residence of limited height relative to the adjacent existing residences. The new house is a contemporary design incorporating rolled metal-clad roof forms, exposed steel wall frames, lined brickwork and framed adjustable louvred screens, the composition set on lower levels of exposed concrete framing.
Whilst the residence is similar to nearby recent developments in Bronte, the entry to the basement garage involves a high degree of intrusion upon the existing listed stone retaining wall and the footpath easement.

Reference to the plans indicates that no attempt has been made to construct new walling about the driveway in a form and material sympathetic to the proportions and finishes of the existing wall. Further intrusion upon the significance of the stonewall results from a proposed concrete stairway linked to the garage entry by a new rendered brick wall. The combined effect of garage entry, linking wall and new stair is to remove virtually all the existing stonewall and replace it with an unsympathetic form of construction.

A previously approved application provided for stone facing to the street frontage of the garage, the stonework being linked to the existing stonewall.

Reviewing the proposed plans it appears that the impact of the works to the street front has exacerbated by the decision to locate a lift deep within the house plan and to separate vehicle and pedestrian entry. Given the substantial extent of excavation inherent in the proposal it would appear that alternate design solutions, reducing the impact of the proposal, would also be economically viable. A revision of planning is required to minimise intrusion upon the, existing street retaining wall, Items that should be considered are:

Provision of a single vehicle entry with internal turntable (either electrically or manually operated.)
Consideration of other vehicle management devices such as a car stacker.
Provision of a combined entry for vehicle and pedestrian access and elimination of the stairs proposed through the roadside retaining' wall.
Design of the vehicle entry in a form and finish, which removes a minimum of the retaining wall and replaces this with matching stone cladding and a sympathetic door.

Recommendations

It is recommended that the applicant address the above issues in order to reduce the impact of the proposed development upon the listed heritage item. (The street front stone retaining wall).

The council’s decision
51 By notice dated 31 March 2003 the council refused the application for the following reasons:

1. The proposal will adversely affect the significance of the heritage listed sandstone retaining wall.

2. The proposed garage opening in the sandstone retaining wall will create an undesirable precedent.

3. The amount of excavation required to provide the basement carpark and the ground floor level is considered excessive and will adversely affect the amenity of the adjoining properties.

4. The proposed excavation and construction will have a significant impact on pedestrian safety and vehicle movements for an extended period.

5. The proposal does not comply with the objectives of the Bronte Beach Residential Character Study.

6. The proposal exceeds the maximum floor space ratio for the site under DCP No. 2.

7.

The proposal is not in the public interest with regard to the matters raised in the submissions received by Council.

The hearing
52 The appeal was filed on 15 May 2003.

Mr P N Pether, resident of No 59 Gardyne Street, Bronte [Note: Exhibit 2 Tab 10 p 319-320];
Mr G J Greenup, resident of No 3/38 Pacific Street, Bronte, Vice President, Bronte Beach Heritage Society [Note: Exhibit 2 Tab 10 p 332-5];
Mr L Fletcher, consultant town planner [Note: Exhibit 3, 11 and 14];
Mr Betteridge, heritage consultant [Note: Exhibit 5];
Mr McLaren, traffic engineer [Note: Exhibit 8];
Mr I Stapleton, heritage consultant [Note: Exhibits 6 and ].

Mr Brooks, heritage consultant [Note: Exhibit B];
Mr McMillan, construction manager [Note: Exhibit C];
Mr J Gill, traffic engineer [Note: Exhibit D];
Mr Layman consultant town planner [Note: Exhibit E].

The issues
56 On 26 June 2003 the council filed a statement of issues.

1. The proposal will adversely affect the significance of the heritage listed sandstone retaining wall identified within Waverley Local Environment Plan 1996 Schedule 5 as an item of landscape significance. The wall constructed in the 1920's remains in its consistent and uninterrupted form to the eastern end of Gardyne Street.

2. The proposed garage opening in the sandstone retaining wall will create an undesirable precedent. The impact upon the setting and the identified item is cumulative with progressive loss of fabric, form and scale.

3. The amount of excavation required to provide the basement carpark and the ground floor level is considered excessive.

4. The proposed excavation and construction will have a significant impact on pedestrian safety and vehicle movements for an extended period.

5. Having regard to the width of the split-level section of Gardyne Street, any large truck parked on the roadway will block the road for other uses for extensive periods of time.

6. Due to the nature of the road system in the area, it is not possible for any truck to access the site from Pacific Avenue and therefore all construction trucks will need to reverse down the narrow high level of Gardyne Street from St Thomas Street to manoeuvre adjacent to the site.

7. Due to the width of the road, it is not considered practicable for a truck to manoeuvre onto the site from the roadway in Gardyne Street.

8. The works will impact on the pedestrian safety of the area, as the only footpath on this side of Gardyne Street will be removed during construction.

9. The large amount of excavation required to build the house and garage on site will result in the above disruptions to vehicle and pedestrian movements in the area continuing for extensive periods of time.

10. The proposal does not comply with the objectives of the Bronte Beach Residential Character Study contained in Development Control Plan No. 2. In this regard the subject property is located in the Bronte Terraces being the escarpments and areas with curvilinear streets hugging the hillside. The Bronte Beach Residential Character Study states that "The topography has resulted in curvilinear streets with stone wall terraces, which have become one of the strongest landscape features of the area" and the proposal will adversely affect the existing stonewall.

11. The proposal exceeds the maximum floor space ratio for the site under Development Control Plan No.2.

12. The design of the building does not comply with the objectives in the Bronte Beach Residential Character Study contained in Development Control Plan No. 2 relating to "Streetscape and Architectural Style" within the Bronte Terraces area.

13.

The proposal is not in the public interest with regard to the matters raised in the submissions received by Council.

The evidence and findings

Bulk and height
58 I accept the evidence of Mr Layman, who confirmed the approach of the council officer Mr Melim, in calculating FSR that the proposal would exceed the DCP2 FSR by around 8.37m2. The DCP2 definition excludes those areas of the building that do not contribute to the bulk of the building. The proposal would be setback from the side boundaries by distances that reflect the development in the area. The bulk would be similar to a two-storey extension of one of the single-storey houses in the street.
59 The wall height exceeds the requirement of DCP2 by around 1m at the northeastern corner of Bedroom 1 on the upper floor level. This diminishes to nil breach about 3.5m further to the west on the northern elevation as shown on IDA06B in Exhibit F.
60 As a result I am satisfied that some flexibility should be applied to the indicia of bulk and height. I am satisfied that the objectives of bulk and height under the DCP2 would be met and the application should not be refused for these reasons.
61 Privacy issues have been address in the amended plans in Exhibit F, by removing or screening windows and increasing the height of the fence. The parties largely agreed that there were no other planning issues other than heritage impacts that would cause the proposal to be refused consent.

Heritage impacts
62 The main issue here is whether the opening in the footpath retaining wall within Gardyne Street should be approved. Mr Stapleton for the council maintained that such an opening should not be permitted, as it would affect the heritage significance of the landscape item L42. He agreed that the opening as now proposed in the Exhibit F plans is an improvement over the opening shown in the plans in Exhibit A and it could be further improved by design changes that he outlined but still it should be refused consent. Mr Books, for the applicant, considered that the opening should be granted development consent.
63 Under cl 45 of the WLEP development consent is required for the present application. Under cl 45(3) of the WLEP the council, or the Court on appeal, when determining whether a development application is required, must take into consideration the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area. By providing an opening for the proposed car park the proposal would affect the heritage landscape item L42 and a development application and consent is required. [Note: Exhibit 2 Tab 5 p 73].
64 Clause 49 of the WLEP relevantly requires the council, or the Court on appeal, to take into consideration the likely effect of the proposed development on the heritage significance of a heritage item, heritage conservation area and on its setting, when determining an application for consent to carry out development on land in its vicinity.
65 In the joint heritage statement Messrs Stapleton, Betteridge and Brooks could not agree as to whether the footpath retaining wall in front of the land was described by the words in Schedule 5, heritage landscape item L42 to the WLEP. All agreed that the footpath retaining wall is within the boundary of that heritage landscape item L42. I am confident that the retaining wall referred to in L42 is the one retaining wall between the upper and lower road in Gardyne Street. There being no strong evidence to the contrary, I am satisfied that the footpath retaining wall is not a listed heritage item in its own right but forms part of the heritage landscape item L42.
66 Mr Stapleton in a further report, dated 2 December 2003, was of the opinion that “…the Schedule 5 listings should be considered as names and locations rather than definitive lists of the components of each place.” [Note: Exhibit 19 p 4]. I accept that approach.
67 And he concluded that:

1.

As the proposal is detrimental to heritage significance of the place, the proposal should be refused pursuant Clause 45(3) and Clause 49 as an unacceptable development in the conservation area. This consideration is additional to the effect the proposal will have on the heritage item.

2.

Irrespective of how they are worded, the words used against each item in Schedule 5 should be considered names identifying locations of heritage items rather than being comprehensive lists of the components of each heritage item.

3.

The concept of `characteristic element' should not be given any special status at the hearing as it is not a term defined, by the LEP, and it limits perception of components of the heritage item to a simplistic on or off status.

68 In cross-examination he suggested that the design might be improved by redesigning the upturned beam to be of ‘Edwardian’ style, so that the concrete beam would not exceed 400mm in height and with a stone course above it. The handrail above the edge beam, he said, should be arrised to make it appear more ‘Edwardian’.

69 He suggested the proposed ‘Tilt-a-Door’ might be changed to ‘high waisted’ boarded doors on a horizontal track to enable the doors to slide to one side. This he said would render the design “…more 1920s in character” , and less “1960s in style” .

70 The single-car entrance is to be cut through the retaining wall as is shown on the plans in Exhibit F. The opening at the face of the western retaining wall on the street would be 4.875m and at the entrance door to the basement car park 3,610m. The applicant was willing to be bound by condition requiring the garage doors to be designed as Mr Stapleton prescribed, with sliding high-waisted boarded doors of ‘Edwardian’ style. Over the opening the upturn reinforced concrete beam would support a course of rusticated sandstone, and the reveals would be as shown on plan and clad in rusticated sandstone. The floor of the driveway would be asphalted to match the road.

71 Mr Ford, tree specialist for the applicant, investigated the impact of the driveway and its retaining walls on the health and vigour of the southern Banksia integrifolia (Coast Banksia) growing in the council verge and was satisfied that it would survive, provided certain construction and maintenance measures are undertaken. The applicant agreed to a condition to that effect. The Court notes that the council has recently approved the removal of the northern street tree within the verge near the council stairs.

“…historic, scientific, cultural, social, archaeological, architectural, natural or aesthetic significance,”

Heritage Inventory Sheet

Well-constructed sandstone retaining wall of aesthetic and historical interest. Split-level road a response to the steep natural topography. Wall combines with planting and views to produce a cultural landscape feature of note. Local significance.

…it can be seen that the proposal will have notable impact on the aesthetic, social and rarity aspects of the significance of the place and is therefore undesirable.

…on the basis of the proposed amendments, there are no unacceptable or adverse impacts on the heritage significance of the heritage-listed item, being L42

arising from the proposal.

75 I am satisfied that under cl 49 of the WLEP the likely effect of the proposed development on the heritage significance of a heritage landscape item, and on its setting, would be slight given the limited size and design of the opening in relation to the whole of the heritage landscape item. I have reached this conclusion despite the opening being cut into the stone retaining wall and causing the removal of a Banksia integrifolia tree. I am satisfied that the proposal as amended would not have notable impact on the aesthetic, social or rarity aspects of the heritage landscape and I accept the evidence of Mr Brooks in this regard. The proposal represents reasonable adaptive reuse of the heritage landscape item and approval is warranted.

Precedent
77 The council argued that the proposed garage opening in the sandstone retaining wall would create an undesirable precedent, as there would be a cumulative impact upon the setting and the identified item with progressive loss of fabric, form and scale.
78 In Goldin & Another v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 121 LGERA 11 at para 28 his Honour Lloyd J said:

…if the Court is entertained with an application for a proposed development which is both objectionable in itself and where there isa sufficient probability that there will be further applications of a like kind then the fact that a consent would operate as a precedent may be taken into consideration.

Resident objections
80 The Court heard from local residents and their primary concerns have been addressed above. Traffic was not a significant issue in this appeal.

Principles
81 Principles that might be applied in similar situations include:

If a retaining wall were a defined heritage listed item it may be inappropriate to allow an opening through it;
An opening in a footpath retaining wall within a heritage landscape item, giving access to a garage may be designed in an appropriate and sympathetic manner, to limit the affect on heritage landscape item;
Sympathetic design in such a situation would depend on form, proportions, materials, textures and colour;
Even if there were other openings constructed in a footpath retaining wall within a heritage landscape item, the overall visual effect of the wall would remain if openings were small in comparison to the length of the heritage street landscape item, well designed and refusal would not be justified on heritage grounds.

Conditions

Orders

83 My orders are:

1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.

2. Development application No LD-407/2001 lodged with the respondent council on 8 June 2001, to demolish the existing dwelling on the land and to erect a new dwelling house at Lot B DP 320705 and Lot 1 DP 1004553, being No 55A Gardyne Street, Bronte, is approved subject to Conditions 1 to 50 in Annexure A.

Commissioner of the Court

In the Land and

Environment Court

of New South Wales

No. 10547 of 2003

Julian Segal and
Lucille Melanie Segal

Applicant

Waverley Council

Respondent

Order

The Court orders that:

1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.

2. Development application No LD-407/2001 lodged with the respondent council on 8 June 2001, to demolish the existing dwelling on the land and to erect a new dwelling house at Lot B DP 320705 and Lot 1 DP 1004553, being No 55A Gardyne Street, Bronte, is approved subject to Conditions 1 to 50 in Annexure A.

3. The exhibits with the exception of Exhibits 1, 2, 10 and F are returned.

Ordered: 27 February 2004

By the Court

S. A. Dixon
Registrar
sw

Appeal No: 10072 of 2002

Conditions of development consent

Annexure A

Julian Segal and
Lucille Melanie Segal
v
Waverley Council

1. Compliance in all respects with Plan Nos 010700/IDA01/B; IDA02/B; IDA03/C; IDA04/B; IDA05/D; IDA06/B dated received 16 February 2004, prepared by Ron G Weinstock, Architect; statement of environmental effects prepared by Smyth Planning, dated June 2001, and statement of heritage issues prepared by Graham Brooks and Associates Pty Limited, dated 1 September 2003, except where amended by the following conditions, of consent.

3. A standard A-Class hoarding designed constructed in accordance with the requirements of the Work Cover Authority being erected on the street alignments of the property, prior to the commencement of building operations, and such hoardings to be maintained during the course of building operations. Details of the hoarding are to be provided to Council prior to the issue of a Construction Certificate.

4. The building and demolition work must only be done between the hours of lam and 5pm on Mondays to Saturdays and building work must not be carried out on Sundays and public holidays.

5. Excavation works involving the use of heavy earth movement equipment including rock breakers and the like must only be done between the hours of 7am and 5pm on Mondays to Fridays and 9am and 1 pm on Saturdays and work must not be carried out on Sundays or public holidays.

Environmental Planning & Assessment Act 1979

7. All building materials and any other items associated with the development are to be stored within the confines of the property. No materials are to be stored on Council's footpath, nature strip, or road reserve without having obtained prior approval. Applications or enquires for the occupation of Council's footpath can be obtained from Council's Technical Services Section.

8. All building work must be carried out in accordance with the provisions of the Building Code of Australia .

a) the name and contractor licence number of the licencee who has contracted to do, or intends to do, work; or
b) the name and permit number of the owner/builder who intends to do the work; and
c) any change to these arrangements for doing of the work.

10. The payment of a long service levy as required under Section 34 of the Building and Construction Industry Long Service Payments Act 1986 , in respect to this building work, and in this regard, proof that the levy has been paid is to be submitted to the Council prior to the issue of a Construction Certificate. Note : Council acts as an agent for the Long Services Payment Corporation and the levy may be paid at Council's office. The levy rate is 0.2% of building work costing $25,000 or more.

11. The builder or person who does the residential building work shall comply with the applicable requirements of Part 6 of the Home and Building Act 1969, whereby a person must not contract to do any residential building work unless a contract of insurance that complies with this Act is in force in relation to the proposed work. It is the responsibility of the builder or person who is to do the work to satisfy the principle certifying authority that they have complied with the applicant requirements of Part 6, before any work commences.

16. Toilet facilities being provided on the work site in accordance with the requirements of Sydney Water.

17. A final Occupation Certificate must be issued by the Principal Certifying Authority prior to occupation or use of the development. In issuing an Occupation Certificate, the Principal Certifying Authority must be satisfied that the requirements of Section 109H of the Environmental Planning and Assessment Act 1979 have been satisfied.

18. Structural details prepared and certified by a practicing Structural Engineer being furnished to Council or Accredited Certifier in connection with the excavation and shoring and the construction of the new dwelling house and garages prior to the issue of a Construction Certificate.

19. A report shall be prepared by a practising Structural Engineer and submitted to the principal certifying authority prior to the issue of a construction Certificate, detailing the proposed methods of excavation, shoring or pile construction, including details of vibration emissions and detailing any: possible damage which may occur to adjoining or nearby properties as a result of the proposed building and excavation works. Any practices or procedures specified in the structural engineer's report in relation to the avoidance or minimisation of structural damage to adjoining properties are to be fully complied with and incorporated into the plans and specifications together with the Construction Certificate. A copy of the Structural Engineer's report is to be submitted to Council, if the Council is not the principal certifying authority.

20. Driven type piles/shoring must not be provided unless a Geo-Technical Engineer's report is submitted to the principal certifying authority, prior to the issue of a Construction Certificate, stating that damage should not occur to any adjoining premises as a result of the proposed works.

22. No portion of the proposed dwelling and garages, including the footings and roof eaves, to encroach beyond the boundaries of the subject property.

23. The floor and wall surfaces of the proposed bathrooms and ensuite being protected against water in accordance with the Building Code of Australia . Note: Waterproofing is to be in accordance with AS 3740 – Water Proofing of Wet Areas within residential buildings.

24. All wet areas in the proposed bathrooms and ensuite to be examined and certified by an Accredited Certifier.

26. A Certificate of Survey prepared by a Registered Surveyor setting out the boundaries of the site and the actual situation of the building on the site, being submitted to the Principal Certifying Authority to certify the building is setback from the boundaries of the allotment in accordance with the plans with the development consent; and such Certificate to be submitted prior to the construction of the external walls above the ground floor level of the building.

27. The display of suitable numbers in a location clearly visible from the street to distinguish the building on the subject land.

28. A smoke alarm system is to be installed within the building in accordance with the requirements of the Building Code of Australia .

29. To reduce the incidence of hot tap water scalding and, for the purpose of energy efficiency, all new or replacement hot water systems shall deliver hot water to a maximum 50 degrees Celsius at the outlet of all sanitary fixtures used for personal hygiene.

Building Code of Australia

33. In accordance with the requirements of Council's Stormwater Management Policy, provision is to be made for on-site stormwater detention (OSD). The applicant is advised that the on-site stormwater detention systems must be designed and constructed in accordance with the requirements of Council's OSD Technical Specification and relevant information can be obtained from Council's Planning & Environmental Services Department. Full details of OSD must be submitted prior to the issue of a Construction Certificate.

34. A waste management plan shall be submitted to Council for approval in accordance with Council's Development Control Plan No 19 (controls for site minimisation and management). The plan is to provide for the location and design of waste facilities, and the disposal of construction and demolition waste, and must be submitted and approved prior to the issue of the Construction Certificate or undertaking any demolition works.

35. The approved waste management plan for the site must be compiled with at all times during construction. The builder/construction company shall be provided with at least one copy of the waste management plan.

37. A construction schedule detailing the timetable for, and the method of, excavation and construction of the garage is to be supplied for the approval of the Manager-Technical Services, prior to the release of the construction certificate.

38. Details of means of providing safe public access via the upper level footpath during construction are to be supplied for the approval of the Manager - Technical -Services prior to the release of the Construction Certificate.

39. The applicant/owner to conform to the requirements, of various public authorities in respect to any service adjustments that may be necessary and a copy of written approval from these authorities should be forwarded to Council prior to work beginning.

41. The turfed area and landscape areas are to be to the satisfaction of the Council's Park Manager and he should be consulted regarding this prior to the work being undertaken.

42. The finish of the retaining wall forming the entrance is to be sandstone blocks in lieu of rendered concrete so as to integrate the garage into the existing embankment.

43. No approval is given to the replacement of the stairs on the northern side of the garage linking the street and the high level footpath.

44. A balustrade is to be provided along the eastern edge of the upper footpath with the extent and detail of the type of balustrade being to the satisfaction of the Manager - Technical Services and heritage adviser.

45. Prior to the commencement of any works (including the excavation stage) the applicant is to obtain a structural assessment of the Gardyne Street road pavement and central roadway retaining structure along the frontage of the subject site. Photographic evidence of existing conditions should be included. The structural assessment shall identify, inter alia , the load bearing strength of the roadway elements and what measures would be necessary to retain its structural integrity during the excavation and construction stages of the development. The structural engineer shall take due account of the excavation / construction sequence for the arrival & departure of construction plant, equipment, vehicles as well as the number of trucks involved in the cartage of excavated material from the site. The full impact of dynamic and static loads are to be assessed during excavation / construction phases for the subject development. A bond, as determined by Council, shall be paid by the applicant to rectify any structural damage to the public road that occurs during the excavation and construction phases of the project. Further costs will be claimed against the applicant should the cost of rectification works exceed the bond amount.

46. The applicant shall, at the completion of the proposed development and prior to occupation, undertake a further structural assessment of the frontage road pavement and central roadway retaining wall integrity and provide Council copies of that assessment. Photographic evidence of post development conditions should be included.

48. The owner will construct a white wooden handrail similar to that on the public stairs with open mesh stainless steel wire or vertical stainless steel wire, between the footpath ad the garage opening complying with the Building Code of Australia.

“Guidelines for Photographic Recording of Heritage Sites, Buildings and Structures (2001)”.

50. Prior to commencement of the works the applicant is to provide the detailed design of the upturned beam supporting the footpath in front of the land so that the concrete beam would not exceed 400mm in height with stone coursing over, of the ‘high waisted’ boarded doors on a horizontal track to enable the doors to slide to one side, and asphaltic finish to the driveway, which are to be to the satisfaction of Council’s Manager-Technical Services and Council’s Heritage Advisor.

Citations

Julian Segal, and Lucille Melanie Segal v Waverley Council [2004] NSWLEC 60

Most Recent Citation

Cases Citing This Decision

2

Lucas v Waverley Council [2009] NSWLEC 1390

Segal & Anor v Waverley Council [2004] NSWLEC 363

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0

Statutory Material Cited

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CITATION:	Julian Segal, and Lucille Melanie Segal v Waverley Council [2004] NSWLEC 60
PARTIES:	APPLICANT Julian Segal, and Lucille Melanie Segal RESPONDENT Waverley Council
FILE NUMBER(S):	10547 of 2003
CORAM:	Watts C
KEY ISSUES:	Development Application :- Excavation bulk and wall height heritage impacts
LEGISLATION CITED:	Waverley Local Environmental Plan 1996,(WLEP) waverley Development Control Plan No. 2 Dwelling-House Development, (DCP2) Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 121 LGERA 11
CASES CITED:
DATES OF HEARING:	29, 30 and 31 October 2003, 21 and 22 February 2004
DATE OF JUDGMENT:	02/27/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr I J Hemmings, barrister instructed by Mr M T Mazzone, solicitor of Morgan Lewis Alter RESPONDENT Mr GB Newport, barrister instructed by Mr G McD Hartley, solicitor of Staunton Beattie