Kazem Daemi - Hamedami v Waverley Council

[2004] NSWLEC 617

Land and Environment Court

of New South Wales

CITATION:	Kazem Daemi - Hamedami v Waverley Council [2004] NSWLEC 617
PARTIES:	APPLICANT: Kazem Daemi - Hamedami RESPONDENT: Waverley Council
FILE NUMBER(S):	11048 of 2004
CORAM:	Watts C at 1
KEY ISSUES:	Development Application :- Streetscape and heritage impact
LEGISLATION CITED:	Waverley Local Environmental Plan 1996, (LEP 1996) - Environmental Planning and Assessment Act 1979, ss 79C and 97
CASES CITED:
DATES OF HEARING:	04/11/04
DATE OF JUDGMENT:	11/09/2004
LEGAL REPRESENTATIVES:	APPLICANT: Mr M Dean, solicitor SOLICITORS: Michell Sillar RESPONDENT: Ms A Penklis, solicitor SOLICITORS: Sparke Helmore Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

8 November 2004

11048 of 2004 - Kazem Daemi - Hamedami v Waverley Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Waverley Council (the council) to refuse a development application to construct a carport, involving the removal of the front verandah of an existing dwelling at Lot 101, DP 516914, being No 32 Gowrie Avenue, Bondi Junction, NSW, 2022.

2 I visited the land in company with the parties on the morning of the on-site hearing, which was held at the Council Chambers.

3 I have concluded that the application when considered under s 79C of the Environmental Planning and Assessment Act 1979 should fail as a result of its impact on the streetscape and the heritage character of the 'Woodstock' Urban Heritage Conservation Area.

The land

4 The land is situated on the northern side of Gowrie Avenue between the intersection of Waverley Crescent and Woodstock Street. The land is level. Erected on the land is a single-storey semi-detached dwelling, similar to many in the street. Front gardens of around 3m depth present to the street. There are grass verges beside the concrete footpath.

5 These dwelling houses in Gowrie Avenue are mainly single-storey, semi-detached built around 1908 of Federation style. They have shared pitch roofs with symmetrical gables. Below each gable facing the street, there is a round arch and verandah. The front wall of the main part of each of the houses is setback around 4.6m from the street alignment and by encroaching into the verandah it is possible to park a car in the front garden.

6 There are carports located in the front of semi-detached dwellings Nos 26, 28 and 30 Gowrie Avenue and apart from No 26, which has a horizontal fascia those at Nos 28 and 30 with gabled roofs would be similar to that proposed. The parties accepted that these carports were erected at least ten years ago and possibly thirteen or more years ago.

7 The locality is characterised by single-storey semi-detached dwelling houses. At northern end of the street there is a two-storey freestanding dwelling of Federation style. In the locality, there are also some examples of around 1960s multi-storey residential flat buildings of around eight storeys in height. One has been erected diagonally opposite the land in Gowrie Avenue.

Relevant planning controls

Waverley Local Environmental Plan 1996, (LEP 1996)

8 The land is within the Residential 2(a) zone and within ‘Woodstock’ Urban Heritage Conservation Area under the provisions of the LEP 1996, and the proposal is permissible with consent.

9 Other planning controls include:

· Development Control Plan No. 2 - Dwelling House Development, (DCP 2) - Part 9.

· Development Control Plan No. 14 -Bicycle and Car Parking, (DCP 14) - Part 4.

· Development Control Plan No. 18 - Heritage Conservation - Parts 6 to 8.

· Draft Development Control Plan No. 2 - Dwelling House and Dual Occupancy Development -Part 12. On exhibition and scheduled for consideration in December 2004.

The proposal and its history

10 Development application No 0413/03 was lodged with the respondent council on about 2 July 2003, to construct a carport, involving the removal of the front verandah of the existing dwelling on the land.

11 The proposed carport would be 4.23 metres in height, and the car space would have dimensions of 2.6m (width) x 4.6m (length as measured on site), [4.615m on plans].

12 The plans prepared by Krendel’s Drafting Services of Waverley show the removal of the brick balustrade between the brick haunches of the arch over the verandah. The clearance between the haunches of the arch would limit the width of the proposed car parking space to 2.6m. The verandah floor and sandstone base course is to be removed and a reinforced concrete slab cast in-situ between the front alignment and the main wall of the dwelling as the new floor for the carport. The grass verge on either side of the council footpath is to be infilled with reinforced concrete slabs and a new concrete crossover constructed at the kerb. A new tiled gabled roof is proposed to match the pitch and materials of the existing roof. The gable, which would present to the street, would incorporate a decorative arched opening.

13 There would be little or no landscaping between the front alignment and the main wall of the dwelling after the works were carried out.

Notification

14 The application was notified to nearby owners and occupants from 16 July 2003 for a period of thirty days as required by LEP 1996, and the council received two objections:

15 Concerns raised by the objectors are;

· loss of on-street parking;

· traffic congestion;

· out of character;

· adverse impact on Gowrie Avenue streetscape and conservation area; and

· loss of grass verge.

The council’s decision

16 By notice dated 12 December 2003, the council refused the application for the following reasons:

1. The proposed carport is inconsistent with the architectural character of the existing dwelling house and its historic streetscape.
2. The proposed is inconsistent with the streetscape objective and minimum dimensions required for car parking spaces in Part 9 of DCP 2.
3. The proposal will have an adverse impact on the adjoining streetscape and public domain.
4. The proposal is not considered to be in the public interest.

17 Under s 82A of the Act an application for review was submitted on 17 March 2004.

18 The Section 82A review application was publicly notified for a period of 30 days from 14 April 2004 and the council received two objections. Concerns raised were consistent with those raised in previous two objection letters.

19 The Section 82 review application was determined by refusal:

1. The proposed carport is inconsistent with the architectural character of the existing dwelling house and its historic streetscape and would adversely impact on the heritage significance of the Woodstock Conservation Area under the LEP 1996.

2. The proposal is inconsistent with the streetscape objective and minimum dimensions required for car parking spaces in Part 9 of DCP 2, the requirements for car parking in Australian Standard for Parking (AS2890.1-2004) and DCP 14.

3. The proposal would have an adverse impact on the adjoining streetscape and public domain.

4. The proposal is not considered in the public interest.

The hearing

20 The appeal was filed on 1 September 2004 and is within time.

21 At the hearing the court heard evidence on behalf of the respondent council from Ms A L Payne, resident of No 5 Gowrie Avenue, Bondi Junction. Mr P Bull, Waverley Council officer was also present.

22 Mr K Daemi – Hamedami, the applicant, told the Court of difficulties he experiences in parking near his dwelling. The applicant also made reference to the evidence Mr C Brady, consultant heritage architect and urban planner to the council, who had prepared a report to the council dated 21 November 2003 that was favourable to the applicant’s case, [Note: Exhibit 1 Tab 30].

23 The applicant’s case was supported by the evidence of Mrs Kaczka resident of No 34 Gowrie Avenue, who confirmed the difficulty in parking in the street.

The issues

24 On 8 October 2004 the council filed a statement of issues, [Note: Exhibit 1 Tab 1].

1. Whether the proposed development is inconsistent with, and will have an adverse impact upon, the architectural character of the existing dwelling house and its historic adjoining streetscape, having regard to the location of the subject site within the ‘Woodstock Street’ Urban Heritage Conservation Area (“Woodstock Conservation Area”) under the Waverley Local Environmental Plan 1996 (“LEP 1996”)?

Particulars
1.1 The subject site is located within the Woodstock Conservation Area under LEP 1996, pursuant to Amendment No. 20 to LEP 1996.
1.2 The streetscape of the locality comprises various examples of similarly designed semi-attached dwelling houses, built circa 1900 in early federation style. These semi-attached buildings, including the subject dwelling, comprise a shared pitch roof with a symmetrical gable to each dwelling. Below each gable there is a round arch and verandah to the street.
1.3 The proposed development would require the demolition of the base of the verandah within the gable and construction of the carport roof that would obscure the round-arch form within the main facade.
1.4 The proposal is therefore inconsistent with the existing historic streetscape of the locality, and will thereby have an adverse impact on the heritage significance of the Woodstock Conservation Area.

Particulars:
2.1 DCP 18 applies to land, which falls within a Heritage Conservation Area, as shown on the LEP 1996 Heritage Map.
2.2 The subject site falls within the Woodstock Conservation Area, pursuant to Amendment No. 20 to LEP 1996.
2.3 The proposed development does not comply with the design principles and guidelines specified in DCP 18, including:
Clause 6.6 - specifies that the design of a project needs to address streetscape issues (including the average position of garages if any, and the numbers of each style of architecture in the street) in relation to the earlier and/or original buildings and other elements; and
Clause 7.2 - sets out the priorities for accommodating a car, the last listed priority being the provision of an uncovered paved area at the front.

Particulars:
3.1 DCP 2 requires garages, carports and hardstand areas to have minimum internal dimensions of 5.5m x 2.5m.
3.2 DCP 14 requires minimum dimensions for parking spaces of 5.5m x 2.5m.
3.3 Draft Development Control Plan No.2 - Dwelling House and Dual Occupancy Development (“Draft DCP 2”) also requires garages, carports and hardstand areas to have minimum internal dimensions of 5.5m x 2.5m per vehicle.
3.4 The proposed development, being a carport of dimensions 2.6m x 4.61 m, does not satisfy the minimum requirements of either DCP 2 or DCP 14.

Particulars:
4.1 Part 9 of DCP 2 provides for the following objectives:

4.2 DCP 2 provides that these objectives are not satisfied unless:

4.3 Reference should also be made to the requirements of Draft DCP 2, which provides that no off-street parking (other than from rear lanes) is permitted in heritage; conservation areas where there will be an adverse impact on existing streetscape. Furthermore, Draft DCP 2 provides that where an allotment has no off-street parking, and off-street parking is not characteristic of the streetscape, vehicular access from the street is not allowed.
4.4 The proposed development does not meet the objectives of DCP 2 in the following respects:

(a) As particularised in issue 1 above, the proposed development will detract from the appearance of the architectural character of the existing dwelling house and its historic adjoining streetscape.
(b) The proposed development has the potential to cause obstruction on the public domain (footpath) through potential overhang of vehicles, due its non-satisfaction of the minimum dimension requirements set by DCP 2.

25 The salient issues related to the streetscape and heritage impact of the proposal.

The evidence and findings

Streetscape and heritage impact of the proposal

26 Mr Dean, for the applicant, submitted that the only heritage report on the development application was that prepared by Mr C Brady, consultant heritage architect and urban planner to the council who had recommended conditional approval of the application. Mr Dean referred to Mr Brady’s comments including;

· the proposal would impact on the street elevation of the semi-detached residences and result in an asymmetric relationship;

· several residences in the group have similar carports forward of the building line; and

· the applicant has taken care in the detailing of the proposal, which is of a form responsive to the existing residence.

27 Ms A Penklis, respondent’s solicitor, referred to the objectives contained in LEP 1996, DCP2 and the proposed amendment of DCP2 which to be considered by the council in December this year. In this context she submitted that the proposal would have a “…substantial impact on the character of the street and the historic streetscape if approved”.

28 Addressing the heritage architect’s report, she submitted that it was only one officer’s opinion and contrary to the recommendation in that report the council refused the application and subsequently refused the s 82A reconsideration application as well.

29 She described the street as being “quite unique” and despite the changes made to neighbouring properties over time “…the council would like to preserve what is intact”.

30 I am satisfied that the proposal combined with three other carports nearby, with the front garden and grass verges removed, would cause the street to take on a utilitarian appearance different to that which exists and this would be contrary to the objectives of the LEP 1996 including;

· to conserve the environmental heritage of the council’s area;

· to integrate heritage conservation into the planning and development control processes;

· to ensure that development does not adversely affect the heritage significance of …heritage conservation areas and their settings;

· to control the demolition of heritage …buildings and works within heritage conservation areas; and

· to provide for the control of development associated with or in proximity to …heritage conservation areas.

31 I am also satisfied that the proposal would change the streetscape and be contrary to the aim of the DCP2, [Note: Exhibit 1 Tab 53 p 5]; to ensure that alterations and additions to existing dwellings are sympathetic in form and character with other dwellings in their vicinity.

32 There are many semi-detached dwellings in the street without carports at the front that remain intact and these create an harmonious landscaped streetscape.

33 For the above reasons, I am satisfied that the appeal should be dismissed and the proposal should not be approved. I am satisfied that the proposal which would add another carport, would be inconsistent with, and would be likely to have an adverse impact upon, the consistency of the ‘Woodstock Street’ Urban Heritage Conservation Area.

34 Under the Draft DCP2 carports are to be designed so as to not detract from the architectural integrity of the dwelling, [Note: Exhibit 1, Tab 51, p 79, Strategy S12.2]. In this regard I am satisfied that the gabled roof of the proposal, if well built and carefully detailed to match the main house, would not offend this strategy. I consider problematic the demolition of the verandah floor and part of the sandstone foundations that would be required to provide for the carport floor. Also, there is no detail provided as to how the step from the carport to the main entrance is to be negotiated. In this regard I do not support Mr Brady’s conclusions as to the superior detailing of the proposal. The drawings do not show the required detailing and the architectural character of the existing dwelling house might be impacted upon were those details known.

Lack of on-street car parking

35 Mr Dean referred of his client’s evidence concerning the difficulty in parking on the street near his dwelling especially during peak times of the delivery and pick up of children at the nearby childcare centre at Nos 13-15 Gowrie Avenue. He supported his client’s contention of difficulties in on-street car parking by referring to a report on the increase in parking demand in the street, if the childcare centre were increased from 19 to 35 children as presently proposed, prepared by ERM, [Note: Exhibit B].

36 Ms Penklis submitted on the evidence of Ms Payne that all residents in the street have the same parking difficulties as Mr Daemi – Hamedami. However, she submitted that this proposal would not, in the long term, solve that problem, as it would tend to exacerbate on-street car parking problems, for other residents, by providing crossovers in lieu of on-street car parking spaces that are used more each day than private spaces. She submitted also that vehicles being backed out of carports would be more dangerous than if those same vehicles were parked on street.

37 She submitted that many of the traffic issues of which Mr Daemi – Hamedami complained, have developed as a result of the intensification of the childcare centre and she admitted, “…the council needs to address that”. She reiterated that the solution was not for residents to provide carports in front of their dwellings. She offered as a possible solution a resident parking scheme.

38 Unfortunately, the private difficulties of Mr Daemi – Hamedami in parking near his dwelling, and his personal hardship of living in the street, are not relevant to this planning appeal.

Dimensions of the car space

39 Mr Dean submitted that no objection was taken to the dimensions of the proposed car space in the original planning report prepared by Mr W Bamfield of the council on 2 July 2003, [Note: Exhibit 1 Tab 31]. He submitted that this, now, should not be a reason to refuse the application, especially as the council has recently approved an undersized car space at No 11 Fern Street, [Note: Report on that application, Exhibit A].

40 Ms Penklis submitted that the 4.6m setback from the front alignment of the main wall of the dwelling of would be inadequate to accommodate car parking. Despite the owner needing only to park a small car, she submitted, that if the application were approved “…future owners could be driving larger cars”. These larger cars when parked might project over the footpath creating a safety concern for pedestrians.

41 I am satisfied that the proposed car parking space of 4.6m length might enable a very small car to be parked but this would be less than the recommended ‘small car space’ length of 5.0m, [Exhibit 1 Tab 56 p 13 para (a)(iii) AS/ NZS 2890.1:2004], and less than the recommended length of a car parking space of 5.5m, [Exhibit 1 Tab 55 p 35 Design Solution S2]. Also, it would be less that the minimum length of a car parking space under DCP14, which adopts the Australian Standard, of 5.5m, [Note: Exhibit 1 Tab 52 p 16 para 4.2.1].

42 There is likelihood that once consent were granted, and given that the consent travels with the land, that cars with lengths of greater than 4.6m might be parked in the space and as a result would overhang the street alignment and partly encroach the footpath. This is to be avoided. The fact that the council approved a car space at No 11 Fern Street, Waverley, is but one factor to be taken into account, in assessing the present application. However, it is noted that the approved car space at No 11 Fern Street was at 5.01m, greater in length than that proposed. That space also would at least comply with the length of a ‘small car space’ under the Australian Standard.

43 Weighing up the private need for on-site car parking with the need to maintain the streetscape within the conservation area, I have concluded that the public interest must be served and the application is refused.

44 I am satisfied that the streetscape and heritage impacts of the proposal to erect a carport in front of the dwelling at No 32 Gowrie Avenue outweigh the need of Mr Daemi – Hamedami to park his car off street. For the above reasons, the appeal is dismissed.

Orders
45 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed.

2. Development application No 0413/03 lodged with the respondent council on about 2 July 2003, to construct a carport, involving the removal of the front verandah of an existing dwelling at Lot 101, DP 516914, being No 32 Gowrie Avenue, Bondi Junction, NSW, 2022, is refused consent.

3. The exhibits are retained.

S J Watts

Commissioner of the Court

sw