O'Toole v Waverley Council
[2006] NSWLEC 610
•25/09/2006
Land and Environment Court
of New South Wales
CITATION: O'Toole v Waverley Council [2006] NSWLEC 610 PARTIES: APPLICANT
RESPONDENT
Damian O'Toole
Waverley CouncilFILE NUMBER(S): 10628 of 2006 CORAM: Hoffman C KEY ISSUES: Appeal :- Erection of additional garage, desired future character, performance criteria, view loss, non-compliance with floor space ratio, setbacks, visual impact, on-street parking LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Waverley Local Environmental Plan 1996
Development Control Plan No. 14 - Land Use and TransportDATES OF HEARING: 25/09/2006 EX TEMPORE JUDGMENT DATE: 09/25/2006 LEGAL REPRESENTATIVES: APPLICANT
Ms S Jellie, solicitor
Pricewaterhousecoopers Legal
SOLICITORSRESPONDENT
Mr M Staunton, solicitor
SOLICITORS
Staunton Beattie
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Hoffman C
25 September 2006
JUDGMENT10628 of 2006 Damian O’Toole v Waverley Council
1 This is a class one appeal No. 10628 of 2006 between Damian O”Toole and Waverley Council in regard to refusal of an application for garage at No. 504A Bronte Road, Bronte. The house has two frontages, on the north-east is Calga Place which adjoins the beach, on the south-west is Bronte Road. There is about 10 m fall on Bronte Road to Calga Place, so that most houses are single storey to Bronte Road and two or three storeys to Calga Place above sandstone retaining walls.
2 The subject house is typical of this. A new house at No. 502 on the northern side of the site is actually two storeys to Bronte Road and four storeys to Calga Place and is built to the Bronte Road boundary and also built to the common side boundary of the subject property having a single storey garage against the subject property. This house was approved by the council.
3 Currently the existing house on the subject site has a garage set 3 m off the side boundary with No. 502. The garage appears as a single garage but has a car lifting system that puts a car below the footpath level on a hydraulic jacking system. As a result another car can go in at street level.
4 The council approved this jacking system to achieve the desired single garage appearance to the street. This appearance fitted the streetscape local character desired in council’s policies of trying to maintain separation between houses to get views of the ocean and to allow vegetation to grow.
5 The car lift system the applicant says has not worked out well in practice. The mechanism does not allow access to the backseat of the car to put children into safety pods before exiting the garage. As a result one has to reverse out and do it whilst on the footpath. The same applies to loading the car or bringing in the shopping. The resident owners of the house say this has resulted in a number of parking police bookings due to obstruction of the footpath even though it occurs only for short periods. This area of Bronte Beach is heavily policed due to the demand for parking and the pedestrian movements along the footpaths to and from the beach.
6 Another cause of parking fines is the lack of on-street parking in peak periods. The parking fine problem comes when temporarily parking the car on the drive entry whilst going inside the house to operate the car lift. The garage door has to be shut for safety reasons during the operation that takes a few minutes. Parking police, in thinking the car is left across public footpath, write a ticket within that period for the blocking of the footpath. Arguments of temporary parking to operate the car lift are not accepted by the police due to the garage door being shut. In peak periods of beach activity finding an on-street car park is almost impossible and means several city blocks walk to the house to operate the car jack then walk back to get the car. If a child is with you the inconvenience is multiplied.
7 In summary the garage really needs an apron on site, the length of the car to avoid all these problems of parking fines, but it was approved by the council as it is.
8 The applicant wants to put a new garage in the 3 m side boundary setback to No. 502 and use the bottom level of the existing car lift for storage only. In this way each car can access its garage independently.
9 The issues are:
- 1. Whether or not the proposal satisfies Clause 2(c) - General Aims of Waverley Local Environmental Plan 1996 , having regard to section 79C(1)(a)(i) of the Environmental Planning Assessment Act 1979 .
2. Whether or not the proposal satisfies Clause 3(7)(f) - Specific aims of Waverley Local Environmental Plan 1996 , having regard to section 79C(1)(a)(i) of the Environmental Planning and Assessment Act 1979 .
3. Whether or not the proposal complies with the Residential 2(a) - Low Density Zone objective (b) of Waverley Local Environmental Plan 1996 , having regard to section 79C(1)(a)(I) of the Environmental Planning and Assessment Act 1979.
4. Whether or not the proposed development is considered contrary to the Council's Development Control Plan No. 2 in respect to the following:
f) The objectives and standards concerning Part 12 Vehicular Access and Parking, in particular the non-compliance with the number of permitted on-site car parking spaces and the location of the proposed garage given the impact upon the streetscape presentation of the building.a) The desired future character objectives and performance criteria concerning Part 5 Bronte Beach Residential Character Study Area, in particular the non-compliances with view loss, double garage on the front boundary, and a double vehicle crossing.
(b) The control and objectives concerning Part 7 Size and Bulk of Dwelling Houses, in particular the non-compliance with the floor space control or the overall bulk of the proposed building.
(c) The control and objectives concerning Part 8 Setbacks, in particular the non-compliance with the front building line setback given the proposed garage would be a dominant feature in the streetscape, adversely affecting the character and visual amenity of the streetscape.
(d) The control and objectives concerning Part 8 Setbacks, in particular the view loss as a result of proposed garage being located on the side boundary.
(e) The objectives concerning Part 9 Streetscape and Visual Impact, in particular the objective requiring dwelling-house development to be visually sympathetic to other buildings in its vicinity and to the streetscape of which it is part.
- a) Objective ensuring that the provision of off-street parking is subject to considerations of urban design, streetscape and heritage conservation.
b) Design Consideration 4.2(a), which states that all car accommodation, is to be located behind the front building line.
6. Whether or not the proposal is in the public interest.
10 The proposal was advertised and two objections were received after the closing date of notification. However they raised only similar matters to those in the council’s issues and none of the objectors are nearby residents that might be directly affected.
11 The attendances at the hearing for the respondent were:
- Mr M Staunton, solicitor and
- Ms E Hillier, solicitor
12 The attendances at the hearing for the applicant were:
- Ms S Jellie, solicitor
- Mr D 0’Toole, applicant and town planner
- Mrs Irene and Mr S Ash, resident owners of the subject property and
- Ms S Karunakaran, solicitor
13 The evidence was as follows: Within 100 m of the site were several other garages and double door designs on the garages on relatively new houses. This section of Bronte Beach being beach front and having had older houses demolished, has been redeveloped with new houses over the last 10 years. At No. 501 opposite the site the council has recently approved new apartments with a car park at the street level clad in sandstone and a double door garage entry. At No. 508 just uphill of the site council has recently approved a new house with two single garages facing the street.
14 In regard to the floor space ratio (FSR) when the subject house was built the FSR control did not apply subject to those parts of the building that might add to the bulk not doing so from the public domain. Obviously as previously mentioned the subject house is single storey to Bronte Road and steps down the hill as do other houses recently approved by council. The FSR exceedence arises from that time and the proposed additional garage adds only about 16 sq m to the area, again at a single storey level to the street. This would not significantly add to its bulk considering that the council has approved in the same location on the street front boundary a high masonry fence with planter trough vegetation on top of it that reaches approximately to the height of the proposal.
15 On vistas retention from the public domain through the 3 m side setback between No. 504A and No. 502, I noted that council had approved the solid masonry high fence referred to, and the planter box with thick shrubbery on the front boundary which blocks any possible view to the ocean. If the shrubs and the high wall had not been approved by council then the view would still not occur due to a large coral tree and palm tree on Calga Place directly opposite the gap between the two houses that prevents the vista to the ocean in any case.
16 In regard to the streetscape impact the new garage would actually remove the existing high masonry wall on the street boundary that is flush with the garage of No. 502 and create about 1½ m setback that would give some more articulation to the streetscape. The existing and the new garage front are intended to be clad in standstone that would give a change of material to the render finish of existing facades and fit in with other sandstone walls both existing and proposed in the immediate environs of the site in the streetscape.
17 The roof of the new garage is to be a planter trough to grow overhanging plants to soften the architectural form. In looking at the plans they show only about 200 mm of solid depth which is insufficient to sustain thriving vegetation. The ceiling of the new garage is 3 m high and with this height it can be lowered to give 500-600 mm of soil depth, whilst maintaining the proposed parapet to the street front at the same level as the existing garage parapet. The extra ceiling height in the new garage comes from a step of 400 mm down from the floor of the existing garage. This step is caused due to the slope of the kerb line across the frontage of the site.
18 Looking at the drawings again they do not recognise on the façade or plan drawings, this step between the entry of the new and the old garages. This step occurs in a space on the street elevation about 500 mm wide shown as a sandstone masonry column between the two garage doors. The applicant said this space, which could also include the setback to the front boundary, could create a garden bed approximately 1 m x 0.5 m to grow shrubs and climber vines to further soften the garages. A similar recess between the existing garage door and the entry gate to the front door could accommodate more and similar vegetation.
19 Combined with the garage roof vegetation this would to some extent maintain a green separation between No. 502 and No. 504A. Number 502 is attempting to grow vegetation on its garage roof as a similar feature in the streetscape approved by council.
20 In terms of on-street car parking, the evidence is that existing kerb length between the drive entries of No. 504A and No. 502 is too small to be a parking space. As a result the proposal creates no loss of public car parking. Even with the extra drive width for the new garage there would remain enough space between No. 502 and No. 504A to plant a street tree to continue the line of existing street trees down the hill.
21 Overall I have come to the conclusion that the proposal will not be anathema to cl 2(c) General Aims of the Local Environmental Plan; will improve the streetscape amenity of the residential area as in cl 3(7)(f); and will maintain the amenity and characteristics of the Residential 2(a) zone.
22 Although it is contrary to some of the objectives and performance criteria of the Bronte Beach Residential Character Study inter alia two garages fronting the street. Those aspects have not been applied by council even in its most recent approvals. The proposed design has compensated in streetscape terms as now amended by the increased modulation of the street façade, provision of sandstone materials, two single garage doors instead of a large double door, softening of the architectural form with vegetation; and does not block vistas from the public domain, nor reduce public on street car parking.
23 There is a need however, for amended drawings to show those features not on the drawings and referred to in this judgment. I propose to do this and by a deferred commencement consent. Overall the proposal with these changes is acceptable for approval.
24 Therefore the orders of the Court are:
1. The appeal is upheld.
2. Deferred commencement consent is granted for an additional garage at No. 504A Bronte Road, Bronte Beach, in accordance with Drawing Nos. DA01-04, all Issue B by drafting consultant Form Follows Function, all as amended by, and built in accordance with the conditions in Annexure ‘A’ hereto.
3. The exhibits are returned to the parties except Exhibit C and the draft conditions in Exhibit 1 tab 4.
4. The respondent to forward electronic version of updated conditions to Court within 5 days hereof.
___________________
- K G Hoffman
Commissioner of the Court
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