Kalisperis v Canterbury City Council
[2013] NSWLEC 1130
•18 July 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: Kalisperis & ors v Canterbury City Council [2013] NSWLEC 1130 Hearing dates: 18 July 2013 Decision date: 18 July 2013 Jurisdiction: Class 2 Before: Fakes C Decision: Appeal upheld subject to conditions
Catchwords: Building certificate: non-compliant verandah; setback; visual impact Legislation Cited: Environmental Planning and Assessment Act 1979 Category: Principal judgment Parties: Leo Kalisperis (First Applicant)
Lisa Kalisperis (Second Applicant)
Dionysia Kalisperis (Third Applicant)
Canterbury City Council (Respondent)Representation: Applicant: Mr Leo Kalisperis (Litigant in person)
Respondent: Mr Gary Green (Solicitor)
Respondent: Pikes & Verekers Lawyers
File Number(s): 10211 of 2013
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
COMMISSIONER: The applicants are appealing Canterbury City Council's decision to refuse an application for a Building Certificate for an unauthorised extension of the front porch/verandah on Lot 24 Sec 3 DP 3849, known as 9 Hopetoun Street, Hurlstone Park (the site).
The appeal is made under s 149F of the Environmental Planning and Assessment Act 1979 (the Act).
Relevant background and issues
In 2011 the applicants extended the front porch of their dwelling; in part to create a storage space for bikes and other items. The size of the extension appears to have been based on the size of a similar structure on the adjoining property at 11 Hopetoun Street. The applicants were of the belief that council approved the as-built verandah at No. 11.
The porch as constructed is setback 1.8 m from the street frontage. Its dimensions are 2.45 m x 3.45 m. The western edge (closest to the street) is approximately 1.44 m above ground level. The structure is white painted rendered brick with a tiled floor and metal balustrades. A 1.6 m wide staircase adjoins the porch to the north.
As the porch did not comply with council's controls, in November 2011 the council issued a Notice of Intention to issue an order pursuant to s 121B of the Act.
In order to regularise the porch extension, the applicants applied for a Building Certificate in January 2012.
Council refused this application in May 2012 for the following reasons:
- The as-built porch/verandah extends more than 1 metre from the predominant front setback and does not comply with Part 5.5 DCP No. 49 - Single Dwelling Code
- No balustrades - therefore non-compliance with the BCA
- Lack of information despite three written requests from council
A compliant balustrade has since been installed around the perimeter of the porch.
The remaining issue to be determined is whether the front porch is of an inappropriate size and has an unacceptable impact on the streetscape.
Site and locality
The site is zoned R3 Medium Density Residential under Canterbury Local Environmental Plan 2012. Extensions and alterations are permitted with consent.
The site is located on the eastern side of the street. The street falls gently to the south and then more steeply at its southern end. The site is located in a very gently sloping portion of the street.
The street is characterised by detached older style single storey dwellings. The dwellings on the eastern side of the street typically have an articulated front wall incorporating a covered verandah. With the exception of the site and No. 11, most verandahs do not project far forward of the average building line. The dwellings on the western side of the street have consistently smaller setbacks from the street.
Development controls
At the time the application for a Building Certificate was made, Development Control Plan 49 - Single Dwelling Code (DCP 49) was in place. The relevant objective concerning front boundary setbacks (s 5) is:
To maintain and enhance streetscapes, by providing appropriate spatial separation of dwellings and by reinforcing the established streetscape pattern of a consistent front setback and areas for front gardens.
The control requires that buildings follow the predominant setback and that the minimum front setback is 5.5m (cl 5.1, 5.2).
Clause 5.3 states:
An unroofed balcony/patio may encroach onto the front setback to a maximum of 1 metre.
Canterbury LEP 2012 was gazetted in December 2012. Council cites Canterbury DCP 2012 as being relevant.
Clause 2.1.7 xiv (minimum setback - detached dwellings on a regular lot, greater than 10m wide) states that:
Minimum setback 6m from front boundary, or the average of the existing setback of the nearest dwelling to either side of the site.
Clause 2.1.8 (Exceptions to setbacks) x. - Building element may encroach into required front setback area - single dwelling
Elements that articulate a front elevation of a dwelling house, such as awnings, balconies, patios, pergolas, porches, porticoes and verandahs, may project up to 1.5 m into the required front setback area (called the articulation zone).
The parties' positions
Essentially the applicants rely on the precedent established by the extension of the porch at No. 11 and their contention that, after five years of being built, the council failed to follow up the works and did not take any action in regards to it maintaining the building line.
In the applicants' view, the porch extension on their property is structurally sound and compliant with the relevant building codes. They contend that the verandah does not hinder any pedestrian or vehicular traffic, and does not create any visual privacy issues. As the street is relatively wide, they argue that the structure is not visually prominent. The applicants cite examples of other streets, setbacks, approvals and structures to justify his position.
The applicants maintain that the development is light, appealing and not incompatible with the streetscape, especially given the diversity of buildings within the street. They seek the retention of the structure in its current form and ask that the Court uphold the appeal on its merits.
Council's view remains that the verandah/ porch extension does not meet the minimum setbacks in the DCP and nor does it integrate with the rhythm of built elements in the street. In particular, council contends that it is very much out of character with the majority of verandahs on the western side of the street that do not project beyond the front building line.
Council considers that the height of the porch and its proximity to the front fence (1.8 m) exacerbates its intrusive prominence in the streetscape.
The council's position is that it has taken action against the owner of No 11 in regards to the non-compliant works, but in any event, it is not reasonable for the applicant to rely on non-compliant works as a precedent. The council is prepared to consider the building line at No 11 to be the 700 mm extension originally approved.
The council's views are that the porch be reduced in length so that it complies with the controls and follows the average building line.
Findings
Section 149F(3) of the Act states:
(3) On hearing the appeal, the Court may do one or more of the following:
(a) it may direct the council to issue a building certificate in such terms and on such conditions as the Court thinks fit;
(b) it may revoke, alter or confirm a notice under s 149C,
(c) it may make any other order that it considers appropriate.
After viewing the porch and the surrounding streetscape, hearing from the parties and considering the controls, I agree with council that the as-built form of the porch is visually intrusive and out of character with the streetscape. To that end, it does not meet the objective in s 5 DCP 49 - the DCP in force when the application for a building certificate was made to council. In addition, it substantially exceeds the more generous controls in CDCP 2012.
I agree with the council in that it is inappropriate to use a non-compliant nearby development as a precedent. While the applicants cite a number of other developments, some of which are in other streets, in my view, the relevant context is the established character and setbacks on the western side of Hopetoun Street.
It was agreed that the front setback controls generally apply to new dwellings. The existing setback is approximately 4.3 metres. Given this relatively small setback, the size, including the height, of the as-built porch dominates the front setback area. I agree with the council that some reduction in the length, and therefore the visual bulk, of the porch is appropriate.
Using the 700mm approved extension at No 11 as a guide to the building line, and taking into account the construction method and the location of supporting elements, the porch is to be reduced to a distance of 2.45 metres as measured from the external wall of the dwelling to which the verandah is attached. This reduction incorporates a lintel between the double brick side walls, which supports the paved deck of the porch. The lintel will form the edge of the relocated western wall of the porch. In my view this is a practical solution that limits the financial cost of compliance and achieves a generally compliant extension.
It was agreed that the southern wall of the porch could be retained as it forms the boundary of the applicant's driveway and includes a side gate. However, in order to reduce the overall visual bulk of the structure, the northern wall is to be shortened to the new setback and a metal railing installed for safety.
The increased setback from the street will enable the installation of landscaping, whether in containers or otherwise, to soften the appearance of the porch.
Orders
In accordance with s 149F(3)(a) of the Act, the Orders of the Court are:
(1) The appeal is upheld subject to the following conditions.
(i) The length of the as-built verandah/porch extension is to be reduced to a distance of 2.45m or the outermost edge of the existing supporting lintel (at approximately that distance) as measured from the external wall of the dwelling and indicated as 'A' on the attached plans. That is, the nominated supporting lintel is to be incorporated into the relocated western wall.
(ii) The southern wall of the as-built verandah/porch extension is to be retained so as to maintain the position of the existing gate.
(iii) The northern wall of the as-built verandah/porch extension is to be removed to be consistent with the reduced length in (i). A handrail is to be installed on the southern side of the front stairs.
(iv) The balustrade is to be reinstated around the perimeter of the reduced porch extension.
(2) On or before 31 October 2013, the applicant is to advise the council in writing that the works in (1) have been carried out.
(3) Council has 14 working days from the receipt of the notification in (2) to inspect the completed works.
(4) Within 30 days of the inspection in (3), and subject to the work complying with the conditions in (1), council is to issue a Building Certificate for the reduced verandah/porch extension on Lot 24 Sec 3 DP 3849, known as 9 Hopetoun Street, Hurlstone Park.
___________________________
Judy Fakes
Commissioner of the Court
Decision last updated: 22 July 2013
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