MA v Ku-ring-gai Council
[2004] NSWLEC 710
•12/15/2004
Land and Environment Court
of New South Wales
CITATION: Ma v Ku-ring-gai Council [2004] NSWLEC 710 PARTIES: APPLICANT
RESPONDENT
Jessie Ma
Ku-ring-gai CouncilFILE NUMBER(S): 11224 of 2004 CORAM: Hussey C KEY ISSUES: Development Application :- Encroachment into building line - draft Urban Conservation Area LEGISLATION CITED: Ku-ring-gai Development Control Plan No. 6
Development Control Plan No. 38CASES CITED: DATES OF HEARING: 15/12/2004 EX TEMPORE
JUDGMENT DATE :12/15/2004 LEGAL REPRESENTATIVES: RESPONDENT
APPLICANT
Ms J Ma, self represented
Ms J Smith, solicitor
SOLICITORS
Wilshire Webb
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESHussey C
15 December 2004
11224 of 2004 Jessie Ma v Ku-ring-gai Council
JUDGMENT
1 This appeal is against council's refusal of a development application for a double carport ( 5.5 m x 5.5 m), with a 4.9 m street setback and situated at 15 Waimea Road, Lindfield.
2 The applicant Ms Ma requires the carport for car protection, safer access in terms of turning and for it to be located so as not to interfere with existing solar access. In support of her application, she has identified a number of other similar carports, which have been situated in front of the building line. These have been inspected today.
3 Against this, Mr S Swanepoel (council town planner) says that significant weight should be given to the intactness of this section of the street, where intrusions of carports are not characteristic. Accordingly he considers the provisions of DCP 38 should be applied, which discourages carports and garages within the building setback area.
4 In response to Mrs Ma’s reference to the encroaching carport at No.19 Waimae Road, he says :
§ "Approval granted in 1996 in terms of Ku-ring-gai Development Control Plan 6 . DCP 6 was superseded by “The Good Design Manual” in 1998. The latter plan was subsequently updated into 2002 and is now known as Development Control Plan 38 . The current DCP is clear-cut in its treatment of carports and discourages garaging forward of the established building line.
· This property is an irregular shaped allotment with its northern side boundary tapering to the rear. The open carport aligns with this boundary and results in a setback that varies from 5.6 m to 7 m, with an average setback in excess of 6.5 m to Waimea Road.
· The carport structure is located to the side of the dwelling and does not interrupt the landscape setting between the boundary and the primary facade of the building."
5 With respect to the subject proposal, he says that it does not comply with the requirements of DCP 38, wherein cl 5.5.4 provides:
| Assessment Criteria | Design Requirements |
| 5.5.4 Location of Parking structures | |
| The location of carports or garages needs to consider existing trees, structures on adjacent sites, streetscape, visual character and heritage issues | The location of a carport or garage must have regard to: · Where it is not possible to provide parking behind the building line only open sided carports will be considered in locations forward of the established building line; · Setbacks from the street alignments should be maximised. |
6 In his assessment, the subject property does have the benefit of side access, albeit relatively narrow at about 2.5 m, which leads to a rear garage. He considers there is reasonable opportunity to achieve the required car parking off this driveway and adjacent to the existing garage, with minimal amenity loss.
Conclusion
7 Having considered the submissions and observations on the view, I am satisfied that this section of Waimea Road does exhibit a high degree of intactness and consistency of setbacks with the other neighbouring dwellings. I also note that there are two local heritage dwellings, opposite the subject site. Furthermore, I understand from the submissions that a heritage study was undertaken by Godden Mackay Logan, which indicates the site as contributing towards the significance of the Roseville Urban Conservation Area. Apparently council is pursuing an LEP to conserve this area.
8 In the circumstances of this case then, I consider that the DCP 38, s 5.5.4 provisions should apply because no exceptional case was presented to vary these provisions. Instead, I accept Mr Swanepoel’s evidence that there are alternatives for garaging behind the building line. This includes the opportunity for a carport adjacent to the existing rear garage, which could provide the shelter required without undue impact on the streetscape.
9 Whilst this may result in a lower level of convenience for the property owner, due to the 2.5 m (approximate) width, nevertheless I consider it reasonable to maintain the provisions of DCP 38, in this case.
10 Insofar as reference was made to a number of other non-complying carports forward of the building line, it appears that the majority were erected prior to the provisions of DCP 38 coming into effect. It also appears to me that the majority of these carports are at properties with other constraints, such as no side access or difficult levels/topography, which generally precludes any garaging behind the building line.
11 In summary then, I am not satisfied that there are sufficient constraints on this site, to warrant dispensation of the DCP 38 provisions, which discourage garages and carports, within the front building setback area. In my assessment, alternative options are available behind the building line, and in this regard I rely on Mr Swanepoel’s conclusion to refuse the application.
Court orders
1 The appeal is dismissed.
2 The development application DA 964/03 for the construction of a double carport at 15 Waimea Road, Lindfield, is refused.
- ____________________
R Hussey
Commissioner of the Court
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