McEwen v Ku-ring-gai Council

[2012] NSWLEC 1033

Land and Environment Court

New South Wales

Medium Neutral Citation:	McEwen v Ku-ring-gai Council [2012] NSWLEC 1033
Hearing dates:	31 January 2012
Decision date:	01 February 2012
Jurisdiction:	Class 1
Before:	Morris C
Decision:	Appeal dismissed
Catchwords:	DEVELOPMENT APPLICATION: streetscape
Legislation Cited:	Land and Environment Court Act 1979; Ku-ring-gai Planning Scheme Ordinance
Texts Cited:	The Ku-ring-gai Residential Design Manual - Development Control Plan No. 38
Category:	Principal judgment
Parties:	Robert McEwen (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Mr S Kondilios Maddocks Lawyers (Applicant) Mr T Flaherty Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	10994 of 2011

Judgment

1. Mr McEwen lodged Development Application No. 383/2011 which proposed the construction of a carport at the front of an existing dwelling house at No. 16 Warrangi Street, Turramurra. Ku-ring-gai Council refused that application and Mr McEwen is appealing that determination.

1. The matter was heard on site under the provisions of s34AA(2)(b)(i) of the Land and Environment Court Act 1979 (the LEC Act) as the parties failed to reach an agreement during the conciliation conference. The issues between the parties are whether the proposed carport is appropriate in terms of streetscape, location, landscape character/setting and whether it is consistent with the council's planning controls.

Background and the proposal

1. In June 2004, Mr and Mrs McEwen obtained development consent from the council to carry out alterations and additions to their dwelling house. That consent authorised the construction of additions to the rear of the single storey dwelling including an expansive timber deck around the perimeter of those additions and demolition of the existing living room and construction of a new two-car garage in the north-eastern corner of the dwelling accessed from an existing driveway that serviced a single car garage in the backyard of the site. First floor additions to provide four new bedrooms, bathroom, family room and further terrace and decks were also approved as part of that consent. (DA 7/04).

1. In November 2004, DA 7/04 was modified by the deletion of the double garage and the retention of the living room at the front of the dwelling and minor changes to the configuration of the stairs that access the rear deck. The effect of those changes is relevant to the application as, by deleting the double garage and not altering the configuration of the rear deck, access to the existing garage by any size car was no longer possible due to the proximity of the deck to the entrance of the garage. The consequence of this change is that no covered area was provided on the site for car parking, with parking accommodated along the driveway in front of the dwelling house.

1. The works authorised under the consent as modified have been completed and no formal parking area exists on the site. Whilst it is possible to drive along the northern side of the dwelling, the use of that area for parking is constrained by its narrow width.

1. The application before the Court proposes the construction of a two-car carport adjacent and to the east of a verandah that opens off the living area that was originally to be converted to the garage but now retained as one of two living areas within the ground floor of the dwelling house. The carport would be constructed 845mm from the side, northern property boundary and 5.7m from the front boundary to Warrangi Street. It has dimensions of 5.8m x 5.8m and would comprise four 350mm x 350mm corner piers supporting a tiled, pitched roof designed to match the existing dwelling. The carport would have an internal height of 2.1m and ridge height 4.18m above slab level, which corresponds to the existing first floor level of the dwelling. A concrete driveway is proposed to access the carport and the existing driveway would be re-aligned to facilitate vehicle access.

1. The plans lodged indicate new planting to the garden bed to the north of the proposed carport and the removal of a garden bed located to the front of the existing verandah. No trees are to be removed from the site.

1. The development application was lodged with the council on 26 July 2011 and was refused on 2 September 2011 on grounds of design, amenity and environmental character.

The site and its context

1. The site is located on the western side of Warrangi Street between the Pacific Highway and Turuga Street, has a frontage of 19.09m and area of 971.68sqm. The existing dwelling house is erected on an alignment of 11.5m to Warrangi Street and 2.5m from its northern boundary (apart from the area in the vicinity of the chimney, which is 2.45m from the boundary). Immediately to the south of the site is a battle-axe driveway that provides access to a dwelling to the rear with single dwelling houses erected on similar alignments further to the south and a residential flat building currently under construction at the corner of the Pacific Highway. To the north of the site are more detached dwelling houses. Four of these are setback greater distances than the building alignment of No. 16, ranging from 22.65m to over 30m however further to the north, the building alignment changes to reflect that of the site.

1. A view of the vicinity of the site showed that the majority of garaging was integrated within the main dwelling structure. The Court observed one residence with a single garage attached to but well forward of the main dwelling structure however, that garage was setback over 22m from the front property boundary, being considerably further behind the required building line.

The planning controls

1. The site is zoned Residential 2(c2) under the Ku-ring-gai Planning Scheme Ordinance and the proposed carport is permitted with consent.

1. Clause 25D prevents the grant of consent unless a consent authority has regard to the objectives for residential zones set out in that clause. The parties agreed that the relevant objectives to which the Court must have regard are:

(b) to encourage the protection of existing trees within the setback areas and to encourage the provision of sufficient viable deep soil landscaping and tall trees in rear and front gardens where new development is carried out,

(c) to provide side setbacks that enable effective landscaping, tree planting between buildings, separation of buildings for privacy and views from the street to rear landscaping,

(d) to minimise adverse impacts of car parking on landscape character,

1. The Ku-ring-gai Residential Design Manual - Development Control Plan No. 38 (the DCP) applies to the site. The DCP includes a number of aims including one that is to encourage development which does not dominate, but harmonises with and contributes to the treed landscape and is sympathetic to the street and locality in which it is proposed .

1. In addition, there are specific streetscape objectives, two of which are relevant to the application and seek to ensure that development is sensitive to the landscape setting, environmental conditions and established character of the street and locality and that the appearance of new development is of a high visual quality, enhances the streetscape and complements good quality surrounding development.

1. Clause 4.1.3 has criteria for building setbacks including one that requires development to be appropriately located on site to maintain streetscape character. In regard to building lines, development must be appropriately located on the site having regard to the existing setback of adjoining properties, the setback pattern of the street block within which the proposal is situated and Council's minimum average setback requirements. For two-storey development on the low side of the street, as agreed between the parties, a minimum setback of 9m is required with an average of 11m and this is not met.

1. Clause 4.5 of the DCP provides objectives and assessment criteria for access and parking. The objectives are:

a. To encourage the integrated design of vehicle access and functional car parking facilities to minimise adverse visual and environmental impacts on the streetscape.

b. To minimise stormwater run off from driveway surfaces.

c. To minimise the extent of hard surfaces forward of the building line.

1. Clause 4.5.3 provides controls relating to the design of carports and garages and requires the design of such structures to be sympathetic to existing development on-site and consider adjacent buildings as well as proximity to drainage systems so that they do not dominate the site or the streetscape. Parking spaces, whether covered or uncovered, are to be located at or behind the required front setback as specified in the DCP or the building line defined by the existing dwelling, whichever is the lesser however, consideration for structures within that area can be considered where, owing to limited side setback space (less than 3.6m) or topographical constraints it is not possible to locate the parking space behind the minimum permissible setback or the building line. In these cases the structure must be open sided; located at the maximum possible distance from the front property boundary and its design must be of a scale and form that is compatible with the streetscape character.

The evidence

1. Expert evidence was heard from Mr I Glendinning for the applicant and Mr L Donovan for the council. They agree that the required setback of the carport is as specified in clause 4.1.3 of the DCP and is a minimum of 9m provided an average of 11m is achieved across the site, that two parking spaces behind the building line are required, the carport is open sided and that sufficient area was available for the provision of a landscape screen on the northern boundary. They also agreed that prior to the recent development of the site, vehicular access was provided via a driveway along the northern boundary to the existing single garage at the rear of the site and that the width of that setback is 2.5m for a length of 12m and limited under the terms of Section 4.5.3 of the DCP.

1. Mr Glendinning says that the proposed carport has been sited and designed to minimise intrusive impacts and to complement the existing dwelling, that it would be unreasonable to expect that substantial modifications be required to that dwelling to accommodate the required carparking and because the site maintains extensive perimeter landscaping to the street frontage, the visual impact of the carport would be substantially screened by this vegetation and the only full view of the carport will be observed from the street immediately in front of the carport. He contends that the development as proposed is consistent with the objectives of the council's planning controls.

1. Mr Donovan disagrees and says that the construction of a double carport 5.7m from the front property boundary will represent a significant interruption of the streetscape, is inconsistent with the prevailing front setbacks of adjoining development, represents a built form of unreasonable scale and bulk which is uncharacteristic and incompatible with the existing streetscape which it fails to enhance. He contends that a carport, forward and detached from the dwelling is unnecessary and unreasonable given the history of development on the site and that the original consent to DA 7/04 clearly demonstrates that car parking can be provided in accordance with DCP39 controls without compromising the design of the dwelling.

1. In relation to the landscape character and setting of the site, Mr Donovan says that existing and proposed landscaping should not be relied upon to screen a non-compliant development and that car parking can be provided to the rear of the site, or behind the building line without compromising the landscape character. Mr Glendinning says that there is sufficient space to provide reasonable landscape screening to the northern side of the carport and when considered with the existing landscaping it is reasonable to allow a carport forward of the dwelling and that the council's controls envisage this form of development in the circumstances that apply to the site. He suggested that the impacts of the structure could be further minimised by reducing the scale of the proposed columns.

Conclusion and findings

1. Having regard to the council's planning controls, the evidence provided and the character of the locality in which the site is located, I agree with the evidence of Mr Donovan that the proposed carport will interrupt an established streetscape, is not sympathetic to the character of the locality and will therefore have an adverse visual impact on the that streetscape. There is no evidence of any other structures forward of the building line within the locality and the proposed carport would therefore introduce a foreign building element into the established streetscape.

1. Whilst I am satisfied that the objectives of the LEP are met, I don not consider the proposal has sufficient regard to the objectives and controls contained in the DCP.

1. I acknowledge the desire of the applicant to provide undercover parking on site however, consider that the design of the development as proposed is inconsistent with the objectives of the council's planning controls and should not be allowed. I do not agree with Mr Glendinning that the development will be sufficiently screened so as to be acceptable, nor would the reduction in width of the proposed columns be sufficient to reduce the impact of the structure.

Orders

1. The Orders of the Court are:

(1)   The appeal is dismissed.

(2)   Development Application No. 383/2011 which proposed the construction of a carport at the front of an existing dwelling house at No. 16 Warrangi Street, Turramurra is refused.

(3)   The exhibits, other than exhibits 1, A and C are returned.

Sue Morris

Commissioner of the Court

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Decision last updated: 22 February 2012