Lucas v Waverley Council

[2009] NSWLEC 1390

Land and Environment Court

of New South Wales

CITATION:

Lucas v Waverley Council [2009] NSWLEC 1390

PARTIES:

APPLICANT
Peter Lucas

RESPONDENT
Waverley Council

FILE NUMBER(S):

10591 of 2009

CORAM:

Fakes C

KEY ISSUES:

DEVELOPMENT APPLICATION :- Garage and landscaping

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

29 October 2009

 
DATE OF JUDGMENT: 

27 November 2009

LEGAL REPRESENTATIVES:

APPLICANT
Ms J Reid (Solicitor)
SOLICITOR
Pikes Lawyers

RESPONDENT
Ms C Morton (Solicitor)
SOLICITOR
Sparke Helmore

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

27 October 2009

10591 of 2009 Peter Lucas v Waverley Council

JUDGMENT

1 COMMISSIONER: This is an appeal pursuant to s 97(1) of the Environmental Planning and Assessment Act 1979 (the Act) against Waverley Council’s (the council) refusal of a s 82A Review Application for Development Application 579/08 for a garage and landscaping at the front of 369 Bronte Road, Bronte (the site).

Background

2 There have been previous development applications relating to 369 Bronte Road. Relevant to this current matter is DA 812/04 where council granted Deferred Commencement Consent on 26 July 2005 for alterations and additions to the heritage listed dwelling on the property and the erection of 3 townhouses at the rear of the site. No off-street parking was indicated on the application.

3 Development Application 579/2008 was lodged with council on 3 October 2008 and sought approval for the construction of a double garage towards the front western side of the property with landscaping and safety railings above, the entry stairs re-positioned to the east of the garage, and garbage storage and water tank beneath landscaped terraces to the east of the stairs. Pedestrian access to the rear townhouses was retained along the eastern boundary.

4 Council refused this application on 6 February 2009. In refusing the application, the council also advised the owner that no approval existed for the provision of any off-street parking on the site.

5 A review of the determination of DA 579/2008 was lodged by the applicant, under s82A of the Environmental Planning and Assessment Act 1979, with council on 5 May 2009. The applicant sought consent to construct a garage, entry stairs, waste storage areas and landscaping within the front yard of the site. The plans submitted with the request for review reduced the width of the garage from a double garage to effectively a 11/2 width garage (a reduction of 770 mm from the original DA), set back the garage 1.8 m from the front boundary (an increase of 1.56 m from the original DA) and repositioned the front entry stairs to align with the front door of the dwelling (the approved position).

6 The review was advertised for 30 days in accordance with Waverley Development Control Plan 2006 (WDCP), Part C3 – Advertised and Notified Development. Four submissions were received that raised issues in relation to loss of street parking, increased noise levels, overdevelopment of the site, undesirable precedent, loss of character of a heritage dwelling, contrary to WDCP and that restoration should occur in accordance with approval.

7 The review application was considered at a meeting of the Waverley Council Development and Building Unit. At the inspection meeting on 8 August 2009, council resolved that the application be refused in accordance with the reasons given in paragraph 12 of this judgement. As a result of that refusal, the applicant lodged the appeal against the council that is now before the Court.

The site

8 The heritage listed dwelling is known as ‘Sonoma’. The site is listed under Schedule 5: Heritage Items of the Waverley Local Environmental Plan 1996 (WLEP). The Statement of Significance in the Waverley Heritage Study describes ‘Sonoma’ as an outstanding example of a well integrated, early twentieth century addition to a Late Victorian villa that features some excellent detailing, is little altered, and is attractively set on a prominent site. It is described as having high local significance.

9 The site is located on the southern, more elevated, side of Bronte Road to the west of the intersection of Evans Street, Gardyne Street and Bronte Road. Adjoining the site to the east are two 1960s style part four part three storey residential unit blocks with garages on the street frontage. To the west is a group of mostly two storey brick buildings previously used as a nursing home. These buildings are set back from the street behind a brick wall and landscaped grounds. At the rear of the property is a three storey residential flat building with car parking and garaging abutting the common boundary. Opposite the site, on the northern side of Bronte Rd at 424 Bronte Road is a two storey heritage listed dwelling. The northern section of Bronte Road between Murray Street and the intersection with Gardyne Street is a mixture of detached dwellings of varying styles and ages and a group of shops at the Murray Street end.

10 Photographs of the site prior to the commencement of restoration works show a vegetated embankment sloping from the bottom of a stone fronted verandah to a stone and metal picket front fence. The submitted plans show the front of the site falling approximately 3.25 m over a distance of about 7.5 m from the outer edge of the verandah to the inside of the proposed front fence.

11 Works associated with consent for DA 812/04 are well underway. The front yard of the property has been excavated to approximately street level as a result of engineering works required to stabilise the heritage listed dwelling. Stabilisation was necessary due to long-term water damage and sand erosion caused by water movement at depth.

12 Council refused the s 82A review of the Development Application No.579/08 as it considered the proposal did not satisfy several aims and objectives of the WLEP, WDCP and several subclauses of s 79C(1) of the Act. In summary, the reasons for refusal were:

• The proposed garage and associated works detract from the significance of, and the view to, the heritage item and will have an unacceptable impact on the streetscape
• The proposal does not improve the amenity of the residential area and ensure the works are compatible with surrounding development
• The proposal does not comply with heritage provisions of the WLEP
• Concerns about vehicular access, parking, transport and associated strategies and controls to integrate carparking and off street parking without compromising street character, landscape quality, urban design and heritage conservation
• Inadequate deep soil planting to encourage tree planting and other soft landscaping
• The proposal is not considered to be in the public interest.

13 In essence, the main contentions from the council are that the proposed garage will impact unreasonably on the heritage listed dwelling, the amenity of the locality, the streetscape and the public interest. The applicant contends that, subject to conditions, the proposal will not impact unreasonably on the heritage listed dwelling and the streetscape, that there is benefit to the public by providing off-street parking and that the development will enhance the amenity of the area. An image of the proposed development tendered by the applicant is attached as Annexure A. The image is of the site as it would be seen from approximately the middle of Bronte Road to the north-east of the site.

14 The relevant environmental planning instrument is the Waverley Local Environmental Plan 1996 (WLEP). One of the general aims under cl 2 of this LEP is

(c) to improve the amenity, safety and environmental quality of the built and natural environment.

13 Clause 3(6) lists specific aims of the plan in relation to heritage conservation. The relevant aims are:

(b) to integrate heritage conservation into the planning and development processes,
(d) to ensure that development does not adversely affect the heritage significance of heritage items, heritage conservation areas and archaeological sites and their settings,
(f) to provide for the control of development associated with or in proximity to heritage items and heritage conservation areas.

14 Clause 3(7) lists specific aims in relation to housing. Relevant to council’s contentions is:

(f) to improve the amenity of residential areas

15 Clause 3(11) lists specific aims in relation to traffic and transport. Relevant aims are:

(a) to minimise the adverse impact of traffic on all land users by ensuring adequate consideration is given to the impact of traffic when development applications are assessed,
(b) to encourage land use patterns which reduce the need to travel by motor vehicle and increase the use of public transport, bicycles and walking to reduce the adverse impact of travel on the environment
(e) to minimise conflict between pedestrians and vehicles by ensuring adequate consideration is given to the location of vehicular entry and exit points

16 The site is zoned 2(b) Residential – Medium Density. The objectives of this zone are:

(b) to maintain and improve the amenity and existing characteristics of the locality, and

15 Part 4 of the WLEP relates to ‘Heritage provisions’. Clause 45 deals with ‘Protection of heritage items, heritage conservation areas and relics’.

(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 the proposed development would affect the heritage significance of the heritage item or heritage conservation area.

17 Clause 49 addresses ‘Development in the vicinity of heritage items, heritage conservation areas, archaeological sites or potential archaeological sites’.

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.

18 Part H of the WDCP deals with Heritage.

16 Waverley Development Control Plan 2006 (Amendment No. 4) Part D Residential: D2 Multi-Unit Housing is also relevant.

Clause 4.2 deals with ‘Vehicular Access and Parking’
4.2.1 Objectives
• To integrate adequate carparking without compromising street character, landscape quality, or pedestrian amenity and safety.
• Encourage increased use of public transport and bicycles.

4.2.2 Strategy
• Ensure that the building façade is the dominant streetscape element.
• Provide a carpark entry that is secondary to pedestrian building entry.
• Limit the number of carpark entry points to a development.
• Reduce the width of driveways.
• Provide carparking at a rate that corresponds to the development’s proximity to public transport and commercial centres.
• Respond to the predominant pattern and treatment of carpark entries in the streetscape.

Clause 4.6 Landscaping and Deep Soil Planting
4.6.1 Objectives
• Encourage mature and substantial tree planting to improve the amenity of developments.
• Allow for soft landscaping to provide screening between buildings.
• Ensure that landscaped areas are useable and maintainable spaces that contribute to the open space of the area.

4.6.2 Strategy
• Maximise the area of deep soil on the site to allow for mature tree growth.
• Provide landscaped areas of useable size and proportions.
• Integrate on-site stormwater management with the design of the landscaped areas.

4.6.3 Controls
(a) A minimum of 30% of the site area is to be provided as deep soil zone. Of this:
• A minimum of 50% is to be located at the rear of the site.
• A minimum of 30% is to be located at the front of the site.
• A minimum 2m wide strip soft landscaping is to be located along one side boundary.

19 Part I1 WDCP deals with ‘Land Use and Transport’. Relevant clauses are:

Clause 1.2 Objectives
(a) Establish controls for parking that reflect the characteristics of the LGA in terms of urban form, land use and proximity to public transport.
(b) Ensure the provision of off-street parking is subject to consideration of urban design, streetscape and heritage conservation.
(c) Establish parking policies that encourage walking, cycling, and public transport usage thereby reducing car dependency.

20 Clause 3.1 places the site in the Parking Provision Zone B described as having good accessibility to public transport and services, moderately high density, significant on-street parking subject to pressures from vehicular traffic. The rate of provision of parking is given as ‘moderate’.

21 Clause 3.2.1 – ‘ Car parking for residential land uses’ determines that the number of car spaces should fall within the maximum and minimum rates set out in Table 2 in this clause.

22 Clause 5.2 deals with design of parking and access. The relevant subclauses are:

(a) All car accommodation is to be located behind the front building line.
(d) The external appearance of any parking or loading structure or area is to be of a high standard and finish when viewed from the street. Landscaping is to be used to soften the impact of such structures/ areas.

23 Clause 5.3 – New vehicle crossings

(a) Vehicular crossings for dwelling houses are to be of single vehicle width only.
(d) No vehicular crossings or off-street parking (other than from rear lanes) are permitted in heritage conservation areas where there will be an adverse impact of streetscape continuity, the character of the built form or landscape setting.

18 Apart from the council’s environmental planning instruments, the council raised matters of compliance with s 79C of the Act in particular s 79C(1)(a)(i) and (ii), s 79C(1)(b),(c) and (e).

19 Six residents including a representative of the Bronte Beach Precinct committee gave evidence against the development at the on-site hearing. Their main issues were:

• the visual impact of the proposed garage on the heritage listed dwelling and the central stairway,
• safety concerns over the driveway crossing and its location in Bronte Road with respect to traffic volume and poor sight lines,
• that there are few heritage listed properties in Waverley LGA and that this house has a connection with the local community,
• it contravenes the planning controls with respect to the location of garages behind the building alignment, and
• that the original development approval did not include the construction of a garage.

The evidence - Planning

24 A Joint Planner’s Report was prepared by Mr John Coady, town planner for the applicant and Ms Ruth Holten, town planner, Waverley Council for the respondent. The planning experts determined that the issues in dispute are ‘streetscape’ and ‘amenity’. The joint conference did not consider the implications of the proposed garage for the heritage listing of the dwelling as this was covered by heritage specialists. However, the planners had regard for the fact that the dwelling is heritage listed.

25 The relevant sections of the Waverley planning instruments in contention are cll 2(c) and 3(7)(f) of the WLEP, zone 2(b) objective (b), WDCP Part D2 objective 4.2.1 and Part I1 objective 1.2. These relate in some way to the amenity of the residential area and locality and, in the WDCP, to street character.

26 With respect to streetscape, both parties agreed that there are many garages and carports in the immediate vicinity of the site with a range of setbacks from the street boundary. Some are located on the street frontage in front of the residential property, some are to the side of the dwelling and on the street frontage and others were located behind the building setback or underneath the buildings. Examples were given by both parties of particular addresses including heritage listed properties. A photographic study of the carparking arrangements in the surrounding area was tendered in evidence by the applicant. Ms Holten, in oral evidence, described the area as ‘eclectic’ in character.

27 Mr Coady contends that given the variety of number, variety and locations of garages in the streetscape and the area, the proposed garage will not be out of character with the existing streetscape or have an unacceptable impact on the streetscape. He referred to the garage on the street frontage at 424 Bronte Road, the heritage listed property across the road from the site. He contends therefore that the proposal is not inconsistent with the relevant clauses of the planning instruments listed in (21).

28 In Ms Holten’s opinion, the location of the garage within the landscaped front yard will dominate the streetscape due to its bulk and scale and result in a loss of the visual relationship between the dwelling and the streetscape. She contends that the dwelling will no longer be the predominant streetscape element on the site and that the carpark entry will dominate the pedestrian access and detracts from the grandeur of the central stairs. In response to Mr Coady’s comments about the garage at 424 Bronte Road, Ms Holten stated that the dwelling was not dominated by the garage as it was to the side of the building and obscured by planting. She also contends that a soil depth of approximately 350 mm in the planters within the front of the development will not allow the level of planting indicated in the landscape plans and thus will be inadequate in providing a suitable streetscape. In Ms Holten’s opinion, the proposed development is inconsistent with the elements of the planning instruments listed in (21).

29 With respect to amenity the only point of agreement between the planners was that the consent of DA 812/2004 approved alterations and additions to the existing dwelling and the construction of 3 townhouses to the rear of the site without the provision for off-street carparking.

30 On his estimation, Mr Coady contends that under WDCP Part I1 cl 3.2.1 Table 2, the parking demand for on-street parking spaces for 369 Bronte Road is 2.4 - 5 spaces given the three 2 bedroom townhouses and the 4 bedroom dwelling. He notes that there are only two on-street parking places in front of the site between a planter garden and a ‘No Stopping’ sign outside 367 Bronte Road that comply with the design standards specified in cl 2.4.4(a) of AS/NZ2890.1:2004. He estimates that it is possible to provide a 3-4 m driveway off Bronte Road to the proposed garage and retain two compliant kerbside spaces between that driveway and the ‘No Stopping’ sign. As the proposed garage could hold 2 cars and there would be no loss of compliant on-street parking, he contends that the amenity of the area would be enhanced and thus the proposal is consistent with the relevant clauses and objectives in (21).

31 In the Joint Report, Ms Holten concurs with the parking generation figures calculated by Mr Coady. At the hearing Ms Holten considered that the minimum requirement based on the table in WDCP Part I1 cl 3.2.1 is likely to be 3.4 spaces. However, she contends that the close proximity of bus services to Bondi Junction is a reasonable offset to providing parking on the site especially with regard to the heritage issues and the streetscape. As she is not a traffic engineer, she could not comment on Mr Coady’s opinions about the number of compliant on-street parking spaces, but did question the ability to maintain two car spaces and provide a driveway in the available space at the front of the site. Ms Holten also contends that the provision of the garage and the associated works will reduce the area for landscaping, in particular for deep soil planting at the front of the site. In Ms Holten’s opinion, the proposal is inconsistent with the elements of the planning instruments listed in (21).

32 In conclusion, there was no agreement between the planners on the points of contention.

The evidence – Heritage

33 A Joint Heritage Planners Expert Report was prepared by Mr Peter Lonergan, architect of Cracknell & Lonergan Architects and Heritage Consultants for the applicant and Mr Colin Brady, architect and heritage planner for the respondent.

34 The heritage planners agreed that:

• the proposed garage would have an impact on the heritage significance of ‘Sonoma’
• the current proposal does not obscure views of the heritage listed item from the street or obscure views from the residence to the street
• the proposed garage had a visual impact on the streetscape presentation of the residence ‘Sonoma’

35 The joint conference considered the impact of the proposed development and the effectiveness of amendments that could be conditioned to mitigate the impacts. The experts agreed that these amendments and conditions could include extending the setback to 3.5 m from the street, deleting the proposed glazed balustrading in favour of a thin metal rail in order to reduce the apparent height and bulk, reducing the apparent width of the garage by relocating the reinstated front gate posts, and refining the detailing by facing elements of the building with stone, providing a shallow pergola cantilevered over the garage entrance and painting the timber door in a deep colour sympathetic to the colour finishes of the residence.

36 In other evidence tendered by the respondent, that being Mr Brady’s assessment report of the s 82A review of the plans now before the Court, dated 14.07.09, Mr Brady noted his previous concerns regarding the proposed development. In a statement dated 15.10.08 he notes:

The structure removes the symmetry of the approach steps and terraced garden. The bulk of the garage would obscure views of the residence from the immediate street frontage. This impact will be further compounded by the need for safety fencing to the outer edges of the garage. Impact of the safety fence will only be partially alleviated by screen planting. Such planting will in turn further screen the residence.

37 Mr Brady then goes on in his report to discuss possible amendments as a result of a meeting with the applicant. These amendments include reducing the width of the garage, setting back of the balustrade, treatments to the doors and building surface and the possible introduction of metal picket gates forward of the garage door. There is no explicit acceptance or rejection of the proposal on heritage grounds in this report. At the hearing, Mr Brady did restate his earlier comments about the loss of symmetry.

38 The parties have drawn my attention to a number of cases they consider relevant in this matter. These are Segal & Anor v Waverley Council [2005] NSWCA 310; Zhang v Canterbury Council [2001] NSWCA 167 and Sailer v Waverley Council [2009] NSWLEC 1328. Also relevant are Darling v Waverley Council [2003] NSWLEC 327 and Julian Segal and Lucille Melanie Segal v Waverley Council [2004] NSWLEC 60 as these involve issues relevant to the matter at hand.

39 Darling, Julian Segal and Sailer, to greater or lesser degrees, all involve the provision of off-street parking and the impact on a heritage item in the Waverley LGA. Whilst there is a superficial commonality between these cases and the matter at hand, the Court of Appeal decision in Segal & Anor v Waverley Council [2005] NSWCA 310 confirmed that each case must be decided on its particular facts and circumstances. The circumstances in this matter are different in many respects.

Findings - Streetscape

40 The site inspection identified a number of facts relating to the streetscape and the view to the heritage listed dwelling. The site is in an elevated position on the southern side of Bronte Road. It is set back from the street some 7 to 8 metres. The best views of the dwelling are from directly in front and from the north-east, particularly from the opposite side of the road. The views to the property are restricted from the east due to the height of the blocks of units, the street front location of the garages for those units and the setback from the street of ‘Sonoma’. The view from the west and the north-west is obscured by a row of trees on the front eastern boundary of 367 Bronte Road and the setback from the street of ‘Sonoma’.

41 I agree with Ms Holten that the streetscape is an eclectic mixture of housing styles and housing types of a wide range of ages. There are many garages and carports on the street frontage in the immediate vicinity of the site. I also agree with Mr Coady’s evidence and the photographic study of garages in the streets surrounding the site that the proposed garage is not out of character with the existing streetscape of the area. This finding is not inconsistent with cl 4.2 WDCP D2.

42 The s 82A plans show the proposed garage at a setback of 1.56m from the street frontage. The impact of this setback on views from the street to the house was discussed at the hearing. Ms Holten argued that with the proposed planter boxes and balustrading on top of the garage, the view from the street immediately in front of the garage would be limited to views of the upper section of the verandah and that this was an unacceptable outcome in terms of streetscape and amenity. Based on the discussions noted in the joint heritage planning report, a setback of 3.5m from the street was considered along with changes to the nature and setback of the balustrading. A plan of the sight lines from both setbacks was marked up. The 3.5 m setback with a repositioned planter box indicated this would enable views from the street to the bottom of the verandah. Requiring conditions to this effect will alleviate the non-compliance with cll 3.6 WLEP,4.2 WDCP Part D2 and 1.2 WDCP Part I1.

Findings – Amenity

43 There is some limited off-street parking at the front of the property. According to table 2 in cl 3.2.1 of WDCP Part I1, if the site is treated as a medium density development of three 2 bedroom townhouses and one 4 bedroom dwelling the minimum rate is 3.4 car spaces and the maximum is 4.5 for parking zone B. If treated as a single dwelling, the minimum is zero and the maximum is 2. It seems to me that the council has approved a medium density development on the site and that the provision of some off-street parking is not inconsistent with the provisions of the WDCP.

44 In terms of new vehicle crossings, it would appear from Mr Coady’s evidence at the hearing that a single vehicle width crossing could be constructed in a location that retains two on-street parking spaces that comply with AS/NZ28290.1:2004 and possibly three spaces for small vehicles. This would comply with the relevant provisions of Part I1 of the WDCP.

45 Clause 5.2 (a) of Part I1 of the WDCP states that ‘all car accommodation is to be located behind the front building line’. Similarly, cl 5.2.2 in Part H1 of the WDCP gives three possible options for the location of car parking in heritage conservation areas. Given the limited width of the site, its surroundings and the approved development at the rear of the site, it is not possible to comply with these elements of the WDCP. The objectives may be desirable but the pattern of development and size of blocks in the area would suggest that it would be unreasonable to comply with this in the circumstances of this case. There is no rear lane or side access to this property.

46 With respect to landscaping, the proposal before the Court indicates that the majority of the landscape will consist of a series of terraces. To the east of the front steps are three retained terraces over concrete formwork and another section behind the front fence. Having regard to the s 82A plans and the RLs for the terraces, the soil depth appears to range from 900 mm at the top of the slope to 430 mm in the second terrace to 450 mm in the third terrace and presumably natural ground level behind the front fence. On the western side, the plans show a terrace some 400 mm deep close to the house and of the same dimensions as the top terrace on the eastern side. Over the proposed garage, the plans show a grassed area surrounded on three sides with a planter box. The depth of soil on top of the garage is estimated to be about 350 mm with a raised hob to create a deeper planter box.

47 According to cl 4.6.3(b) in Part D2 of the WDCP, ‘the minimum depth of soil that can be included as landscaped open space is 1 m’. This is presumably what ‘deep soil planting’ means although the term is not defined in the definitions section of the WDCP. Therefore the depth of soil in the proposed development does not comply with the WDCP and supports Ms Holten’s contentions. At the hearing, the experts agreed that there was no reason not to increase the depth of the terraces on the eastern side of the property as long as appropriate control of the ground water was achieved. These discussions indicated soil depths in excess of 1 m could be achieved. Also discussed were possible increases in landscaped areas if the garage was to be set back and narrowed.

48 In terms of the controls for landscape in cl 4.6.3 (a) in Part D2 of the WDCP, Ms Holten admitted to having not calculated the percentage of the site proposed for deep soil planting. The relevant control states that a minimum of 30% of the site area is to be deep soil and of this, a minimum of 50% is to be at the rear of the property and a minimum of 30% to be at the front. By my calculations, this is a figure of 9% of the site to be deep soil planting at the front of the building. It would appear from the council’s submissions that a subsequent calculation of the proposed landscaping at the front of the site gives a figure of 6.2%. The modifications proposed at the hearing would increase that percentage to levels I consider would achieve council’s objectives in this regard.

49 At the hearing, the planning and heritage experts discussed the potential impacts of the landscape on views to the heritage listed dwelling. The applicant’s landscape architect was not present. There was a degree of tension between the desirability of trees and shrubs, hence the need for deep soil planting, and retaining views from the street to the building. The desirability for some symmetry in the landscape plan was also discussed in the context of the style of the dwelling. This tension was resolved by the parties agreeing to modifications of the landscape plans should the appeal be upheld and the application approved.

Findings – Heritage

50 The WLEP refers to heritage in several sections as outlined in (13) and (14). In cll 45(3) and 49, the WLEP states that the impact of development on the heritage item must be considered. In cl 3(6)(d) of the WLEP, the specific aim is to ensure that development does not adversely affect the heritage significance of heritage items. It was agreed, by the heritage experts in their joint report and at the hearing, that any development is likely to have an adverse impact on heritage significance. The decision to be made is whether the impact is acceptable or unreasonable when weighed up with the competing interests of the amenity to the applicant and the public interest.

51 The respondent drew my attention to the planning principles in Anglican Church Property Trust v Sydney City Council [2003] NSWLEC 353. Roseth SC and Brown C at 34 state

How can impact on the aesthetic and landmark significance of a heritage item be assessed? When is the impact acceptable? It seems to us that four main principles apply to such an assessment:·
First, new development should not unreasonably reduce public views of the heritage item and its setting. This is because the pleasure people derive from a landmark heritage building is by viewing it. If one cannot see a landmark, it ceases to be one.
Second, new development should not visually dominate the heritage building. A dominant new building, even when it does not obscure the heritage building, will render the experience of seeing the heritage building more complex and less delightful.
Third, new development should not unreasonably overshadow the heritage building.
Fourth, new development should relate to the character and form of the heritage item. This does not require imitating style or using the same materials. It requires only that new development should sit comfortably in a view that embraces both the old and the new.

52 If I was to have regard for these principles, given that the matter before the Court is not of the same ‘landmark’ significance as Anglican Church, it is my opinion that the additional setback of the proposed garage to 3.5 m from the street frontage and the proposed changes to the balustrading would ensure that the heritage listed dwelling will be visible from the street immediately in front of the garage and therefore satisfies the first principle. The second and fourth principles are satisfied to a degree if the bulk is reduced and the colour and nature of the materials used, including the landscaping, are sympathetic to the colour and style of the dwelling. The third principle is not applicable as the proposed garage is to be below the dwelling.

Findings – in conclusion

53 I have assessed the application in terms of the relevant provisions of the WLEP and the WDCP and the particular circumstances of the site. With respect to the findings in Zhang v Canterbury Council [2001] NSWCA 167, I accept that while the WDCP is the focal point for my consideration of this appeal, I am not required to adopt it uncritically if I am otherwise satisfied that I have properly assessed the matter in accordance with s 79C of the Act. In this regard, I have considered the provisions of the relevant environmental planning instruments and development control plan. I have assessed the likely impacts of the development on the built environment and have considered the suitability of the site for the development and the public interest.

54 In balancing the issues of heritage, public and private amenity and streetscape, in the particular circumstances of this appeal and given the constraints of the site, I find that the heritage significance of the locally listed dwelling ‘Sonoma’ is not compromised to such a degree by the proposed development to warrant the refusal of this application. In summary, the site is elevated, the garage will be below the level of the heritage listed dwelling, the setback of 3.5 m and the changes to the balustrading and landscaping will allow views to the house from the street frontage, there is no alternative space available on the site for off-street parking, the amenity of the property is improved and there is limited impact on on-street parking or the streetscape. This finding is conditional on the adoption of all except condition 2 (a) of council’s without prejudice conditions of consent attached as annexure B. The change is to enable 2 off-street vehicle spaces and gain one net parking space.

55 The orders of the Court are:

1. The appeal is upheld.
2. Development Application 579/08 for a garage entry stairs, waste storage areas and landscaping at the front of 369 Bronte Road, Bronte is approved subject to the conditions proposed by Waverley Council attached as Annexure B with the exception that condition 2 (a) is to be modified as follows:
The garage is to be amended to be setback a minimum 3.5 m from the front boundary, have a maximum 4.8 m external opening and be positioned adjacent to the western boundary to minimise the visual intrusion of the garage.
3. The exhibits are returned except for exhibit B.

___________________
J Fakes
Commissioner of the Court
ljr

Annexure A

Annexure ‘B’

Conditions of Consent

Lucas v Waverley Council

A. Approved Development

1. Approved Development

The development must be in accordance with:

(a) Architectural Plan Nos s82A 01-02, prepared by Julie Cracknel & Peter Lonergan Architects, dated April 2009, and received by Council on 5 May 2009, except where amended by the following conditions of consent; and

(b) Landscape Plan No. 2004/875/DA1and documentation prepared by Paul Scrivener, dated 25.08.08, and received by Council on 3 October 2008.

2. general modifications

The proposal shall be amended as follows:

(a) The garage is to be amended to be setback a minimum 3.5m from the front boundary, have a maximum 4.1m external width and be positioned adjacent to the western boundary to minimise the visual intrusion of the garage;

(b) The driveway crossing is to be a maximum width of 3m at the property boundary and then splaying to either side of the garage door and is to be positioned a minimum distance of 10.8m from the “No Stopping” sign located to the west of the property to maintain provision for two on-street parking spaces;

(c) The width of the entry stairs and the spacing of the gate posts is to align with the front door entry feature to maintain the proportional relationship and symmetry of the existing dwelling;

(d) Metal picket gates with a style matching the other proposed front gates are to be provided in front of the driveway to the garage to maintain the character of the dwelling;

(e) The finishes to the garage shall be amended as follows:

(i) Stone facing to the return walls from the front boundary to the front of the garage and limitation of stonework to the height of the stone fence columns.
(ii) Provision of a shallow metal or timber pergola located at the head of the garage door opening, having a maximum depth of 200mm and cantilevered a maximum of 600mm forward of the garage entry.
(iii) The timber panelled garage door shall be finished in a deep colour sympathetic to the colour finishes of the residence.
(iv) The height of the balustrade and the spacing of the vertical members are to be to the minimum required under the Building Code of Australia. The balustrade is to be constructed from metal railing in an open pattern.

(f) The planter box to the terrace on the roof of the garage is to be limited to a height determined by a line extending from RL60.63 taken at the centre of the footpath immediately in front of the centre line of the garage to RL62.59 located at the outer edge of the front verandah to maintain sightlines to the dwelling;

(g) The first terraced garden (closest to the street) on the eastern side of the property shall have a base level of RL 59.0 and shall be filled with soil to RL 60.9. The second terraced garden on the eastern side of the property shall have a base level of RL 59.0 and shall be filled with soil to RL 61.35;

(h) The area on either side of the splayed driveway is to be landscaped excluding the pedestrian access between the driveway and the stairway giving access to the dwelling.

The amendments shall be submitted for the approval of Council prior to the issue of a Construction Certificate under the Environmental Planning and Assessment Act 1979.

3. amended landscape plan

The Landscape Plan is to be amended to reflect the matters contained in Condition 2 as well as the following changes:

(a) Tree species Eleocarpus reticulartis and Archontophoenix Cunninghamiana are to be amended having regard to the soil depth proposed for the planters.

The amended landscape plan is to be submitted to the Principal Certifying Authority with the plans for the Construction Certificate.

B. Compliance Prior to Issue of Construction Certificate

4. SECTION 94A CONTRIBUTION

A cash contribution is payable to Waverley Council pursuant to Section 94A of the Environmental Planning and Assessment Act 1979 and the ' Waverley Council Development Contributions Plan 2006' in accordance with the following:

(a) A cost report indicating the itemised cost of the development shall be completed and submitted to Council:

(i) Where the total development cost is less than $500,000:

"Waverley Council Cost Summary Report"; or,

(ii) Where the total development cost is $500,000 or more:

"Waverley Council Registered Quantity Surveyor's Detailed Cost Report".

(b) Prior to the issue of the Construction Certificate, evidence must be provided that the levy has been paid to Council in accordance with this condition or that the cost of works is less than $100,000.

Waverley Council Development Contributions Plan 2006 may be inspected at Waverley Council Customer Service Centre, 55 Spring Street, Bondi Junction.

Advisory Note

• A development valued at $100,000 or less will be exempt from the levy.
• A development valued at $100,001 - $200,000 will attract a levy of 0.5%.
• A development valued at $200,001 or more will attract a levy of 1% based on the full cost of the development.

5. security deposit

A deposit or guarantee satisfactory to Council for the amount of $2,000.00 must be provided as security for the payment of the cost of making good any damage that may be caused to any Council property as a consequence of this building work.

This deposit or guarantee must be established prior to the issue of the Construction Certificate. The full amount of the difference after recovery of Council's cost for any repair of damage to Council property will be refunded after satisfactory completion of the building work to the person who paid the deposit.

6. long service levy

A long service levy, as required under Section 34 of the Building and Construction Industry Long Service Payments Act, 1986, is to be paid in respect to this building work. In this regard, proof that the levy has been paid is to be submitted to Council prior to the issue of a Construction Certificate.

Note: Council acts as an agent for the Long Service Payment Corporation and the levy may be paid at Council's office. The levy rate is 0.35% of building work costing $25,000 or more.

7. NO BUILDING WORKS PRIOR TO RELEASE OF CONSTRUCTION CERTIFICATE

The building work, including demolition, must not be commenced until:

(a) a Construction Certificate has been obtained from Council or an Accredited Certifier in accordance with Section 81A(2) of the Environmental Planning & Assessment Act, 1979; and

(b) a Principal Certifying Authority has been appointed and Council has been notified of the appointment in accordance with Section 81(A)(2)(b) of the Environmental Planning & Assessment Act, 1979 and Form 7 of Schedule 1 of the Regulations; and

(c) Council is given at least two days Notice in writing of the intention to commence the building works.

The owner/applicant may make application to Council or an Accredited Certifier for the issue of a Construction Certificate and to be the Principle Certifying Authority.

8. hoarding required

A standard A-Class hoarding designed and 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 issue of the Construction Certificate.

Where the hoarding is to be erected over the footpath or any public place, the approval of Council must be obtained prior to the erection of the hoarding.

9. SITE WASTE AND RECYCLING MANAGEMENT PLAN

A Site Waste and Recycling Management Plan (SWRMP) Checklist Part 2 shall be submitted to the Principal Certifying Authority for approval in accordance with Part G1, Waverley DCP 2006 prior to the issue of the Construction Certificate. In this regard, Council expects demolition and excavated material to be reused and/or recycled wherever possible.

The builder and all subcontractors shall comply with the approved SWRMP (Part 1 and 2) at all times during construction. At least one copy of the SWRMP is to be available on site at all times during construction.

10. Construction Vehicle Plan of Management

Submission of a "Construction Vehicle Plan of Management" for the routing and control of construction vehicles accessing and exiting the site. Such plan to address the hours of operation, the employees' vehicles, holding areas for vehicles wanting to access the site and truck works and provide a means of ensuring vehicular and pedestrian access to adjoining resident's properties for the duration of the works. The "Construction Vehicle Plan of Management" is to be approved by Council prior to the issue of a Construction Certificate and the undertaking of any demolition, remediation or construction on the site.

11. STORMWATER MANAGEMENT

Certification is to be provided from a suitably qualified professional, that the stormwater system has been designed in accordance with the Water Management Technical Guidelines. Stormwater system details are to be submitted in accordance with the Waverley Development Control Plan 2006 (Amendment No. 2) - Part B, Clause 11, prior to the issue of a Construction Certificate.

12. ENGINEERING DETAILS

Structural details prepared and certified by a practicing Structural Engineer being furnished to Council or Accredited Certifier in connection with the garage and storage areas prior to the issue of a Construction Certificate.

13. MATERIALS AND FINISHES FOR HERITAGE BUILDINGS

Samples of external materials and finishes shall be submitted to Council for approval. In this regard, materials and finishes are to be:

(a) Restricted to the range of heritage colours sympathetic to the historical character of the area; and
(b) The timber finishes to the garage entry and waste disposal enclosure are to be soft colour finishes or stains cohesive to the surrounding stone and painted render.

The applicant is to confer with Council prior to the preparation of the samples.

14. landscaped slabs

Details shall be submitted to the Principal Certifying Authority prior to the issue of the Construction Certificate indicating the proposed method of water-proofing and drainage of the concrete slabs for that part of the garage roof, rainwater tank enclosure and garbage enclosure over which landscaping is proposed.

C. Compliance Prior to and During Construction

15. PRIOR TO SITE WORKS

The Principal Certifying Authority must be informed in writing before any site works, building or demolition commences of:

(a) the name and contractor licence number of the licensee 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.

16. home building act

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, 1989. In this regard 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 Principal Certifying Authority that they have complied with the applicant requirements of Part 6, before any work commences.

17. CONSTRUCTION SIGNS

Prior to commencement of any works on the site and during construction a sign shall be erected on the main frontage of the site detailing the name, address and contact details (including a telephone number) of the Principal Certifying Authority and principal contractor (the coordinator of the building works). The sign shall be clearly legible from the adjoining street/public areas and maintained throughout the building works.

18. EXCAVATION AND BACKFILLING

All excavations and backfilling associated with the erection or demolition of a building must be executed safely and in accordance with the appropriate professional standards and must be properly guarded and protected to prevent them from being dangerous to life or property.

19. obstruction to public areas

If a public place or pedestrian vehicular traffic may be obstructed because of the carrying out of work involved in the erection or demolition of a building; or a public place is required to be enclosed in connection with the erection or demolition of a building; then:

(a) a hoarding fence must be erected between the building site and the public place of the proposed building and the public place. If necessary, an awning sufficient to prevent any substance from, or in connection with, the work falling into the public place, is also to be erected;

(b) the work is to be kept lit during the time between sunset and sunrise if the work may be of a sort of danger to persons using the public place; and

(c) a hoarding, fence or awning is to be removed when it is no longer required for the purpose it was provided.

20. NO USE OF ORGANOCHLORIN PESTICIDES

The use of organochlorin pesticides as termite barriers in new development is prohibited pursuant to Council Policy. Only physical barriers are to be used for termite control. The building shall comply with Australian Standard 3660: Protection of building from subterranean termites - prevention, detection and treatment of infestation.

21. COMPLIANCE WITH WORKCOVER NSW REQUIREMENTS

All site works complying with the occupational health and safety requirements of WorkCover NSW.

22. SOIL AND WATER MANAGEMENT PLAN

A Soil and Water Management Plan (also known as an Erosion and Sediment Control Plan) shall be prepared according to SSROC's Soil and Water Management Brochure and the DECC's Managing Urban Stormwater: Construction Activities. This Plan shall be implemented prior to commencement of any works or activities. All controls in the Plan shall be maintained at all time. A copy of the Soil and Water Management Plan must be kept on site at all times and made available to Council officers on request.

23. SOIL AND WATER MANAGEMENT SIGN

Throughout the construction/remediation/demolition period, Council's warning sign for soil and water management must be displayed on the most prominent point of the building site, visible to both the street and site works. A copy of the sign is available from Council.

24. STOCKPILES

Stockpiles of topsoil, sand, aggregate, soil or other material shall not be located on any drainage line or easement, natural watercourse, footpath or roadway and shall be protected with adequate sediment controls.

25. ALL BUILDING MATERIALS STORED ON SITE

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 prior Council approval.

26. CONSTRUCTION HOURS

Demolition and building work must only be undertaken between the hours of 7am and 5pm on Mondays to Fridays and 8am to 3pm on Saturdays with no work to be carried out on:

(a) The Saturday (except minor renovation or refurbishment to a single dwelling construction) and Sunday which form part of public holiday weekends;

(b) Sundays and public holidays; and

(c) On the Saturday (except minor renovation or refurbishment to a single dwelling construction) and Sunday which immediately precede or follow industry Rostered Days Off, as agreed by the CFMEU and the Master Builders Association of NSW.

Noise from construction activities shall comply with the Protection of the Environmental Operations (Noise Control) Regulation 2000.

27. CONSTRUCTION NOISE - PERIODS GREATER THAN 4 WEEKS

The LA10 level measured over a period of not less than 15 minutes when the construction site is in operation must not exceed the background (LA90) noise level by more than 10dB(A) when assessed at any sensitive noise receiver.

28. BUILDING CODE OF AUSTRALIA

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

29. quality of construction act - inspections (dwelling houses class 1 AND 10

The building works are to be inspected during construction by the Principal Certifying Authority (PCA) and in accordance with the Building Legislation (Quality of Construction) Act 2002 and the Environmental Planning and Assessment Regulations. Also, documentary evidence of compliance with the relevant terms of conditions of development consent and standards of construction detailed in the Building Code of Australia is to be obtained prior to proceeding to the subsequent stages of construction and/or issue of an Occupation Certificate.

MANDATORY Critical Stage Inspections MUST be carried out by the PCA for work undertaken during specified stages of construction and prior to issuing an Occupation Certificate.

The specified MANDATORY inspections are:

In the case of a Class 1 and 10 building:

(a) at the commencement of building work;
(b) after excavation for, and prior to the placement of, any footings;
(c) prior to pouring any in-situ reinforced concrete building element;
(d) prior to covering of the framework for any floor, roof or other building element;
(e) prior to covering any waterproofing in any wet areas;
(f) prior to covering any stormwater drainage connections; and
(g) after the building work has been completed and prior to any Occupation Certificate being issued in relation to the building.

The following additional inspections are required to be undertaken by the PCA:

(a) shoring of excavation works, retaining walls, piers, piling or underpinning works;
(b) steel reinforcement, prior to pouring concrete; and
(c) prior to covering timber or steel framework for floors, walls and roofing, including beams and columns.

Note: Certification may be required from a suitably qualified person, in relation to specialist matters, verifying that particular works satisfy the relevant requirements of the Building Code of Australia and standards of construction.

30. NEW VEHICLE CROSSING

A new vehicle crossing is to be provided to access the proposed garage. A separate application is required for the modified vehicle crossing, with all work to be carried out with the approval of and in accordance with the requirements of Council. All new vehicle crossings to be Wheel Strips instead of full width concrete driveway wherever feasible.

31. VEHICULAR ACCESS - FINISHED LEVEL

The finished level at the property boundary on both sides of the vehicle crossing is to be 30mm above the existing concrete footpath.

32. work outside property boundary

All work outside the property boundary is to be carried out with the approval of, and in accordance with, the requirements of Council at the applicant's expense.

D. Compliance Prior to Occupation or During Occupation

33. FINAL OCCUPATION CERTIFICATE

The Principal Certifying Authority prior to occupation or use of the development must issue a final Occupation Certificate. In issuing an Occupation Certificate, the Principal Certifying Authority must be satisfied that the requirements of Section 109H of the Environmental Planning & Assessment Act, 1979 have been satisfied.

34. LANDSCAPE PLAN

The site is to be landscaped and turfed in accordance with the approved landscaped plan with the landscape works completed prior to the issue of the Occupation Certificate.

35. LIGHTING

Any lighting on the site shall be designed so as not to cause nuisance to other residences in the area or to motorists on nearby roads and to ensure no adverse impact on the amenity of the surrounding area by light overspill. All lighting shall comply with the Australian Standard AS 4282:1997 Control of the Obtrusive Effects of Outdoor Lighting.

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