Kim Chew v Willoughby City Council - [2017] NSWLEC 1015

Land and Environment Court

New South Wales

Medium Neutral Citation: Kim Chew v Willoughby City Council [2017] NSWLEC 1015
Hearing dates: 11 January 2017
Date of orders: 19 January 2017
Decision date: 19 January 2017
Jurisdiction: Class 1
Before: Smithson C
Decision:
1. The appeal is upheld.
2. Development Application DA-2016/225 for a carport at 17 Hercules Street, Chatswood is approved subject to the conditions in Annexure A.
3. The exhibits, except Exhibits B, C and 3, are returned.

Catchwords: DEVELOPMENT APPLICATION – carport forward of the building line; heritage conservation area
Legislation Cited: Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Land and Environment Court Act 1979
Willoughby Local Environmental Plan 2012
Category: Principal judgment
Parties: Kim Chew (Applicant)
Willoughby City Council (Respondent)
Representation:
Counsel:
Ms L Saw (Applicant)
Solicitor:
Mr K Webber, Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s): 2016/295188

Judgment

COMMISSIONER: This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal of a development application by Willoughby City Council (the Council), for the erection of a carport at 17 Hercules Street, Chatswood (the site).
The key issue associated with the appeal is that the carport is proposed within the front building setback area of a site situated within a Heritage Conservation Area.

Summary of the appeal

Development Application DA-2016/225 (the application) was submitted to the Council in June 2016. The application proposed the construction of a new single carport over an existing hard stand parking space situated within the front setback of the site. The proposed carport is an open structure with a tiled terracotta roof supported on four timber posts. It will be setback some 2m from the street and has a width of 3.15m and a height to the underside of the roof of up to 2.4m, and of 3.6m to the highest point of the roof pitch.
The site is located on the eastern side of Hercules Street and is identified as Lot 2 DP 848655 with an area of some 456 m². It has a frontage to Hercules Street of 9.59m.
The site is zoned R2 - Low density residential and is situated in the South Chatswood Heritage Conservation Area (HCA) under the Willoughby Local Environmental Plan 2012 (the LEP). As such the requirements of clause 5.10 Heritage conservation of the LEP apply which requires development consent for any work in a HCA. In particular, the Council referenced objective (1)(b) of cl 5.10 which is:

(b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, setting and views.

The site was previously part of 17A Hercules Street which was subdivided in 1993 to create the subject lot on which a single storey dual occupancy dwelling house was constructed. Extensions in the form of alterations and additions to this dwelling were approved and undertaken in 2014.
The 2014 application was accompanied by a Heritage Impact Assessment (HIA). One of the design options for the alterations in 2014 proposed a carport in the front setback area but this option was not pursued and there was no carport in the approved extensions.
The existing dwelling on the site being of relatively recent construction is not a heritage item and neither are adjoining dwellings at 15 and 17A Hercules Street or dwellings in the immediate vicinity. However, both 15 and 17A Hercules Street are examples of Victorian Italianate architecture and are contributory buildings within the HCA.
The majority of surrounding development comprises single storey detached dwellings. There are examples of carports located within the front setback area within the HCA however, in proximity to the site, these are on the opposite side of Hercules Street or within other streets in the HCA.
The application was notified and a submission objecting to the development was received from the adjoining property which previously contained the site, being 17A Hercules Street. This objection raised concerns with respect to the impacts of the development on the existing streetscape and on the HCA, in particular with the height, obstruction of dwellings, location forward of the building line and visual impact – essentially the same concerns raised by the Council.
The appeal was subject to mandatory conciliation in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979. A view was undertaken of the site, including from the front yard of No. 17A, and of three properties on the western side of Hercules Street which contain carports in the front building line.
As agreement was not reached during the conciliation phase, the conciliation conference was terminated pursuant to s 34AA(2)(b) and the proceedings dealt with as a hearing held forthwith, pursuant to s 34AA(2)(b)(i).

The issue

The Council’s concern with the application was that it did not comply with the relevant provisions of the Willoughby Development Control Plan (the DCP) in proposing the carport in the front setback area of a site located within a HCA. As a consequence it would have adverse impacts on existing dwellings and the streetscape.
The DCP contains general controls for development in Part C, controls for residential development in Part D, specific controls for Heritage Conservation Areas in Part H, and Design Principles for conservation in Attachment 2. Of particular relevance for the application were the following provisions:

C.4.6 Additional Controls for single dwellings, semi detached dwellings, boarding houses and dual occupancy development
Performance Criteria
Location of car parking structures
1. Garages and carports will not visually dominate or conceal a large proportion of the street facade. The structures should be designed to blend into the streetscape and should integrate with the overall design of the dwelling in terms of height, form, materials, detailing and colour.
Structures in the front setback
1. Car parking may be permitted in front of the building line where the preferred approach is open carports, pergola style structures or hard stand spaces. Such circumstances include:

sites which drop or rise steeply from the front boundary;

where the surrounding streetscape has a prevalence of car parking structures within the setback area;

the site is located on a state or regional road…;

corner sites…; and

where the only other practical alternative is at the rear of dwelling taking up private open space area.

Controls
Siting of car parking spaces
1. Car parking should be located:

as an integrated part of a new dwelling where site conditions permit on or behind the building line;

at the rear of the site where access is available off a rear laneway; or

within a side boundary setback area in a hardstand, garage or carport (which may be stacked or tandem form); or

in front of the building line as a single hardstand/single open sided carports, with a minimum 1m setback from the front boundary for landscaping; and to improve sight lines for pedestrians and exiting vehicles. (Where an additional setback is possible provision should be made to allow a vehicle standing area in front of the carport).

H.2.2 Design Elements
E. Carparking
Objectives

To allow for reasonable on site car parking while retaining the character and significance of the Heritage Conservation Area or Heritage Item;

To ensure that car parking facilities do not have any adverse visual impact upon heritage streetscapes; and

To ensure that garages, carports and driveways are visually discrete.

Requirements
ii) Location – Open stand car spaces may be provided forward of the building line;
– Garages and carports are to be located behind the building alignment wherever physically possible; and
– Where no alternative exists and the frontage of the property is of sufficient width, a single carport located forward of the building line, setback from the street and offset to side boundary may be considered.

iii) Scale – Garages and carports are to occupy no more than 20% of street frontages;
– Car parking structures should be diminutive in scale in relation to the residence; and
– Structures forward of the building line must be designed to minimise their bulk with a maximum eaves height of 2400mm. Flat restructures of sympathetic materials and details are acceptable.

iv) Appearance – Materials form and details of car parking structures are to harmonise with and be subservient to the residence.
H.2.2 South Chatswood Heritage Conservation Area: C11
Management policies
– Retain landscaped settings by minimising hard surfaces forward of the building line, locating carparking structures behind the building alignment, and maintaining the existing patterns of low/semi transparent fencing to the street.
Controls for future development - South Chatswood
Carparking: Use rear lane access or side access to garages and carports behind building line, open stand forward of building line
Attachment 2 – Design Principles for the Conservation of Environmental Heritage
1.3.1 Sympathetic Development
All new development affecting heritage items and properties in a heritage conservation area – whether alterations, additions or infill- should acknowledge the heritage values of the existing place or building and respond to the established heritage significance of the building, place and neighbouring area by seeking to avoid any reduction in its value or any undesirable intrusion into the streetscape.
The degree to which additions or changes to heritage items and properties in a heritage conservation area, should reflect the style of the significant fabric- whether the new work should blend in, be imperceptible, or be clearly distinguishable as new work- will be determined by the interplay of two basic considerations as these apply to the particular case. An alteration or extension must have regard to:

the architectural character and style of the building concerned; and

the characteristics of development in the locality.

1.3.4 Car Parking and Access
Garages and carports should preferably be located to the rear of the house and not dominate the streetscape. Priorities for accommodating the car are:

locate at rear, with access from rear lane;

locate at rear, with access from the front;

locate at side of house, setback behind house alignment; or

provide an uncovered, paved parking space at the front.

Car parking facilities forward of the main building should be open stand areas.
Simple, open, lightly framed, pergola-like structures are preferred to elaborate carports, even where these emulate elements of the main building design….

The Council argued that the application could not be supported from a heritage perspective. Specifically, that the proposed carport would have unacceptable impacts on the streetscape character and heritage significance of the HCA and would not meet the provisions of the DCP which were aimed at avoiding such impacts.
The parties agreed that the DCP established a hierarchy of preference in determining how car parking should be accommodated within the HCA. In order this was: at the rear with access from a rear lane; at the rear with access from the front; at the side of the house setback behind the front building line; or provided in an uncovered paved parking space at the front, as currently existed on the site.
It was further agreed that the DCP did not however, preclude carports in front of dwellings, and that locating a carport at the rear or side of the dwelling on the site would be not possible. Therefore, if a carport was to be provided, it could only essentially be in the location proposed.
There was no objection to the design of the carport per se only to its location, and the impact that location would have on the dwelling on the site, on adjacent dwellings, and on the streetscape.
Specifically, the site did not meet any of the circumstances contemplated by the DCP at C.4.6 where carports could be considered forward of the building line; ie. because of the topography of the site, there is a prevalence of parking structures within the front setback area, the site is on a state or regional road, is a corner site, or the only other practical alternative is at the rear of the dwelling taking up private open space.
The DCP otherwise requires carports to be located behind the building alignment wherever physically possible and, where not possible, single carports forward of the building line can be considered providing they are setback from the street and offset to a side boundary. The proposed carport does not, and can not, meet these requirements.
In the Council’s view, this application was one of the circumstances contemplated by the DCP where only an uncovered paved parking space should be provided on the site. This was because of the insufficient width of the frontage which did not allow the offsetting of the carport to the side boundary in a manner which enabled the dwelling behind it to be seen.
The Council contended that the structure would therefore be visually dominant when viewed from the street and thus have an adverse visual impact within the HCA being an undesirable intrusion into the streetscape. The Council also contended that the carport would obstruct views from the street to the facades of the adjoining dwellings and detract from their contribution to the HCA.
The applicant argued that flexibility to apply the provisions of the DCP under section 79C(3A)(b) of the Act was appropriate in the circumstances. Specifically, Ms Saw, counsel for the applicant, submitted that the proposal provided an acceptable alternative given the physical constraints of the site and that a fair and balanced assessment would conclude that the alternative was reasonable. She noted that the parties agreed that the site was anomalous in the streetscape and was very constrained in terms of where a carport could be located whereby the location proposed was the only option. She argued that the carport design complimented the architectural styles within the HCA and also that it was appropriate to consider both sides of Hercules Street. In doing so, there was precedent in terms of other carports forward of the building line in the street, including close to the site.

The evidence

Expert advice was provided to the Court by Mr John Boers, planning and heritage expert for the applicant, and Ms Candice Pon, town planner and Mr John Brunton, heritage expert for the Council.
The experts agreed that the carport would occupy 32.8% of the frontage measured between the posts, or some 39% of the frontage if measured between the eaves. It therefore did not comply with the 20% maximum width of frontage required by the DCP.
The experts also agreed that, prior to the subdivision to create No. 17, lots on the eastern side of Hercules Street reflected a consistent pattern of subdivision with prevailing large lot sizes and frontages and relatively consistent architecture of houses largely defining the streetscape character.
Mr Boers argued that the streetscape had lost the attributes of consistency of size and subdivision pattern on the eastern side of Hercules Street as a result of the subdivision of No. 17A to create the subject narrow site with No. 17 being a relatively new infill element. Specifically that, whilst 5-15 Hercules Street retained consistency in streetscape, this terminated at the site.
Ms Pond raised concerns in relation to the impact of the proposed carport on the existing facade of the dwelling obscuring bay windows and part of the front gable, which were typical features of the HCA. In her view, it would also obscure the facades of the adjoining dwellings to the north and south. She considered the architectural features of the dwelling on the site to be complimentary to adjoining dwellings which assisted in integrating the dwelling with the existing and desired future character. By contrast, the proposed carport, being forward of the building line and partially obscuring dwellings, would be inconsistent with and dominate the streetscape, and would not be harmonious with development on the eastern side of Hercules Street which did not have a prevalence of car parking structures within the front setback area. Therefore it would be a dominant structure in comparison to the narrow frontage and would not be subservient to the dwelling on the site.
Mr Boers argued that the windows of the dwelling on the site were not traditional bay windows and were not the key elements of the dwelling. These key elements were the pitched roof, reflected in the carport design, and the generous landscape setting which would be retained. He considered the structure to be sympathetic infill and argued the proposal would result in the partial obscuring of one form of sympathetic infill, being the dwelling on the site, with another form of infill with sympathetic elements, being the carport.
The applicant also argued that there were no alternative carport locations possible onsite and the carport was designed to complement existing development in the street. In Mr Boers view, the carport structure would not significantly impact on the streetscape as it would still allow the front and side of the dwelling to be visible given it would be an open structure and would read as a subservient element. He pointed out that the structure largely only comprised a roof element with four posts and that the roof would reflect the roof pitch of the dwelling, have terracotta tiles characteristic of the HCA, and be below the roof line of the dwelling. It would therefore neither visually conflict with nor dominate the dwelling. It was also setback 2m from the front property boundary and therefore would not be a visually prominent streetscape element.
The experts agreed that the site is anomalous and atypical of lots on the eastern side of the street and that there were carports in the front building line on the western side of Hercules Street, at No.’s 4, 10 and 24.
However, Mr Brunton argued that the existing anomaly of a narrow lot with a new dwelling on the eastern side of Hercules Street in this location should not be further accentuated or emphasised by approval of the carport. He argued that the impact of the new dwelling on No. 17 had been minimised because of its setback of 10.3m from the street whilst the carport was setback only 2m with a height of up to 3.4m which would make it visible above the surrounding fences. Whilst agreeing that the carport’s design may be sympathetic to the design of the dwelling on the site, he felt that, as a consequence, it was not a subservient element as the DCP sought.
The parties agreed that the dwelling on the site was a ‘neutral’ element in its streetscape contribution within the HCA given it was relatively new infill. It was also agreed that neither 17 Hercules Street nor any other dwelling in close proximity were items of environmental heritage. Mr Boers therefore argued that the site had relatively less sensitivity in terms of heritage impact than a carport on a heritage listed site or if it was proposed in front of dwellings at 5-15 Hercules Street which were consistent in their widths and original housing stock.
Mr Boers also argued that the carport would not significantly obstruct views from the street to the facades of the adjoining dwellings at No. 17A or 15 Hercules Street as its open section continued to a height of 2.25m to 2.4m, which was above the average eye height level of 1.7m. Further, the proposal would not have any adverse amenity impacts, such as overshadowing nor breach any numeric planning controls such as FSR.
Mr Brunton did not believe erection of a carport on the site was an acceptable option in any location. He argued that the provisions of the DCP do not envisage a carport erected forward of the alignment of dwellings except in certain circumstances where the site had an appropriate width, the carport would have a reasonable setback from the street, or the structure would be offset to adjoin a side boundary. The proposal did not comply with any of these criteria.

Mr Bruton noted that a carport had previously been erected on the site in a more appropriate location behind the building line but this was removed as part of the alterations and extensions undertaken in 2014. He referenced the HIA submitted with the 2014 application. That concluded that a carport proposed as part of that application within the building line (albeit in a different side location) would intrude into the visual curtilage of the adjoining dwelling.
The Council argued that development should be considered only in the context of the eastern side of Hercules Street as the western side had a substantially different subdivision pattern with narrower angular lots. However, Mr Boers argued that a streetscape had to include both sides of the street.
Mr Boers also argued that it was reasonable for the applicant to want a covered car space to provide protection for his car from weather elements and that this amenity consideration should be balanced with other planning and heritage considerations in order to find the best possible design solution to satisfy the relevant objectives of all. He believed the application achieved this.
Mr Brunton argued that property owners have always located such secondary buildings behind the front alignment of houses. Furthermore, that the need to house a vehicle on this narrow lot had been considered in the past and it had always been accepted that no building should be erected forward of the building alignment. This was the case in considering the original proposals in 1993 for the dual occupancy dwelling and in the alterations and additions to the dwelling in 2014. In both instances, carports had been considered and deleted. In his view, there had been no change in circumstances sufficient to warrant abandoning the traditional means of accommodating cars in the HCA.
In the HIA submitted for the 2014 alterations, it is stated that the elimination of a proposed carport at that time and its replacement with an open stand car space provided a wider breezeway near the bay window of the dwelling at No. 17A allowing a larger visual curtilage (for that dwelling). Further that the setback of the new addition did not encroach on the contributory buildings in the street and improved the streetscape contribution of the new dwelling.
However, the applicant pointed out that the same HIA noted that the site is long and narrow and that the subdivision pattern has compromised the bay window on the southern facade of No. 17A. The HIA further stated that the dwelling constructed in 1993 had little street presence. It also had a carport but to the side which was removed to accommodate the 2014 extensions. The initial proposal for the extensions in 2014 included a replacement carport in the front setback area, albeit further setback than the current proposal and to the side, which the HIA concluded would only have a minor impact on No. 17A but was within the tolerance of the Conservation Area. Nevertheless, the carport was deleted from that proposal.
The applicant also pointed out that the HIA states that No. 17 has no or little historical significance and does not make a significant contribution to the streetscape. In Mr Boers view, the key elements of the streetscape were the roof forms, including pitched roofs, and materials, including terracotta tiles, and the proposed carport incorporated these design elements
The Council accepted that the dwelling on the site may not make a contribution to the streetscape but argued that it integrated with it and didn’t ‘stand out’ whereas the carport will not only obscure the dwelling but dominate in the street. Furthermore, it would lose the benefits that the HIA noted resulted from deleting the carport in the 2014 application.
In terms of the other carports on the opposite side of Hercules Street, the Council argued that the carports were generally to the side of the dwelling, less than 39% of the frontage (other than No. 10) as they were on wider lots, were integrated into the dwelling, and/or did not dominate the streetscape or the dwelling on the same site but were ancillary to it.
The experts agreed that it was not possible to further setback the carport and that lowering it with a flat roof may increase the visibility of the dwelling behind it but would not be in sympathy with development in the street.
The experts also agreed that, should the Court approve the application, a condition would be required to retain the carport as an open structure and not enable it to be enclosed in the future.

Findings

Having regard to the arguments of both parties, I have formed the view that the application is a reasonable balance between protecting the heritage streetscape of the HCA and providing an improved level of amenity for the applicant. For this, and the following reasons, I have concluded that, notwithstanding the non compliance with the numeric control for car parking relative to the width of the lot frontage and the fact that the DCP does not support carports forward of the building line in the HCA, given the relative uniqueness of the site, and the size and design of the carport, the application should be approved. In particular, I do not consider there are sufficient grounds warranting refusal of the application.
Were the carport screening a heritage listed item or a contributory building within the HCA then I would likely agree with the Council that it ought not be approved. This application is however, for a carport in front of a modern dwelling. Whilst the dwelling has elements that are sympathetic to adjoining contributory buildings so does the proposed carport and I therefore agree with the applicant that the partial screening of one sympathetic but contemporary structure, being the dwelling on the site, with another sympathetic structure meets the DCP objectives for the HCA.
I accept the Council’s argument that carports in the HCA must be ancillary to the dwelling, and integrated into the landscape and streetscape without dominating the dwelling or the street. In my opinion the application achieves this objective being a simple structure over a single car space at a lower height and width than the dwelling behind it and clearly ancillary but sympathetic to it.
Furthermore, approval to the application will not create an unacceptable precedent unless there are other lots relatively recently subdivided which are substantially narrower and smaller than their adjoining neighours with contemporary dwellings on them which also seek a carport in the front setback.
The carport will not screen a dwelling that contributes to the streetscape nor is it adjoined by heritage items. Nor do I consider that it would detract from the adjoining contributory dwellings to any greater extent than the existing dwelling on the site. Furthermore, I note that the dwelling was approved setback further than its neighbours which enables at least a 2m setback to the carport structure. Albeit a greater setback would be preferable, the parties agreed this could not be achieved and that there was nothing further the applicant could do to make the carport any more acceptable in the location proposed, and that this location was the only available option for a carport.
I also note that there are other carports forward of the front building line in the street, including at No. 10 Hercules Street, which is diagonally opposite the site and where the carport occupies in excess of the 39% of the frontage and also screens more of a contributory dwelling than the proposed application. Whilst I accept the Council’s argument that lots on the western side are generally narrower than on the eastern side, I agree with the applicant that the streetscape must be considered as both sides of the street and that the subject site is more akin to the size and width of lots on the western than the eastern side of Hercules Street.
The Council was unable to advise the Court as to the rationale for the DCP control which restricts carport widths to a maximum of 20% of the frontage of a lot, but assumed this was to ensure the dominance of the dwelling over a carport in the streetscape, which appears to be a reasonable rationale. However, where a frontage of less than 10m exists, a carport at only 20% of this width clearly isn’t possible. Whilst this may seemingly be the basis for the DCP therefore only supporting an open stand car space in lieu of a carport, that requirement would be reasonable to ensure contributory dwellings remain the dominant features of the HCA. Where a contemporary dwelling exists instead on the site, flexibility to vary DCP controls is, in my opinion, acceptable to apply where no other feasible option exists to provide weather shelter for a car and a sympathetic design is proposed.
I do not know the specific details of where a carport was previously existing or proposed on the site in 1993 and 2014 or the basis for the decisions which resulted in the current lack of a carport on site. Therefore the findings of the 2014 HIA are limited in their assistance to the Court. In any event, the current application must be considered on its merits.
In that regard, I am not persuaded that the streetscape impacts would be such that refusal is justified notwithstanding the site is located within a HCA. Development in Hercules Street is not homogenous on either side and a single open carport setback 2m from the street will have minimal bulk with a sympathetic pitched and tiled roof form its most dominant element.
I also agree with the applicant that the integrity of the streetscape has already been compromised by the approval of the application to allow excision of the site to create a separate narrow lot in 1993 with a new dwelling on it and that the carport is no less sympathetic infill than the dwelling. Furthermore, it is a simple open structure which will still enable much of the dwelling on the site to be viewed from the streetscape, particularly when the carport is not occupied. Even when it is, the dwelling would be already be screened by a parked car in the approved front parking space meaning the only additional visual impact of any significance is from the pitched terracotta roof. I find that impact to be acceptable.
This is notwithstanding that I accept that the carport will be located closer to the street than other carports in this section of the eastern side of Hercules Street but not in other sections and not on the opposite side. I also accept it will be partially visible from neighbouring properties but I note it will be partially screened by landscaping adjacent to the side boundaries and that the only significant visual element will be the roof. Also that the uniqueness of the site, in terms of its narrowness and contemporary development, is as a result of the former subdivision of the site from the adjoining neighour at No. 17A.
On balance therefore, I find the application meets the DCP objectives of allowing for reasonable on site car parking while retaining the character and significance of the Heritage Conservation Area, that the proposed carport will not have adverse visual impacts upon heritage streetscapes and, to the extent that is reasonable, the applicant has designed a carport which is sympathetic to its context and visually discrete within the constraints of the site.
In granting approval, I have imposed the agreed condition requiring retention of the carport as an open structure which is not able to be enclosed in the future.

Orders

The orders of the Court are:

The appeal is upheld.

Development Application 1 DA-2016/225 for a carport at 17 Hercules Street, Chatswood is approved subject to the conditions in Annexure A.

The exhibits, except Exhibits B, C and 3, are returned

__________________

Jenny Smithson

Commissioner of the Court

295188.16 Smithson (C) (168 KB, pdf)

Decision last updated: 19 January 2017

Medium Neutral Citation:	Kim Chew v Willoughby City Council [2017] NSWLEC 1015
Hearing dates:	11 January 2017
Date of orders:	19 January 2017
Decision date:	19 January 2017
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	1. The appeal is upheld. 2. Development Application DA-2016/225 for a carport at 17 Hercules Street, Chatswood is approved subject to the conditions in Annexure A. 3. The exhibits, except Exhibits B, C and 3, are returned.
Catchwords:	DEVELOPMENT APPLICATION – carport forward of the building line; heritage conservation area
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Willoughby Local Environmental Plan 2012
Category:	Principal judgment
Parties:	Kim Chew (Applicant) Willoughby City Council (Respondent)
Representation:	Counsel: Ms L Saw (Applicant) Solicitor: Mr K Webber, Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	2016/295188