Raymond v Waverley Council
[2004] NSWLEC 446
•06/11/2004
Land and Environment Court
of New South Wales
CITATION: Raymond v Waverley Council [2004] NSWLEC 446 PARTIES: APPLICANT
RESPONDENT
Benjamin and Yvonne Raymond
Waverley CouncilFILE NUMBER(S): 10800 of 2001 CORAM: Murrell C KEY ISSUES: Development Consent :- Modification under section 96 - impact on adjoining properties and conservation area LEGISLATION CITED: Environmental Planning and Assessment Act CASES CITED: DATES OF HEARING: 10/06/2004 EX TEMPORE
JUDGMENT DATE :06/11/2004 LEGAL REPRESENTATIVES: RESPONDENT
APPLICANT
Mr B Raymond, self represented
Ms C Schofield, solicitor
SOLICITORS
Pike Pike and Fenwick
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Murrell C
11 June 2004
JUDGMENT10800 of 2001 Benjamin & Yvonne Raymond v
Waverley Council
1 This is an appeal under s 97 of the Environmental Planning and Assessment Act against Waverley Council’s refusal of a development application for a garage facility at the premises known as 25 Edward Street, Bondi.
2 The subject site is one where there is currently erected on the land a semi-detached dwelling which is the pair to No. 23 Edward Street, Bondi.
3 The area is one that can be described as eclectic in that it has existing in the streetscape a variety of housing forms including a number of semi-detached dwellings but also residential flat buildings and single detached dwelling houses.
4 It is noted that the subject property is within a conservation area covered by council’s LEP and there is a development control plan also that pertains to the subject site.
5 These proceedings commenced on site and the Court had the opportunity of doing an extensive walk of the street to understand the streetscape which is also whilst it is eclectic it is an attractive streetscape which is brought together by the street trees in many respects which are rather predominant in the streetscape and add to the amenity.
6 There were two objectors on the view. The objectors from No. 23 which is the other side of the semi, Mr and Mrs Strickland, objected to the proposed development on the basis that it would reduce the heritage significance of the pair of cottages.
7 And Mr Valdandlownes(?) also objected to the proposed development. They have a dwelling which is separated from the subject property by a 3 m walkway and they objected to the proposal on the basis of streetscape, the noise from a garage door opening and closing and they were concerned about the general amenity afforded to their property. Their subject property has a high wall erected at the front and the Court had the opportunity of also going into that property.
8 From the site inspection I was satisfied that the proposed development would not impact on the amenity of the residents at No. 27 in terms of the garage door and the opening and closing of that door. It is clear that their property is shielded in some respects from noise impacts by the high wall which has been erected around their property and that there is also a separation distance of the laneway which is afforded to that property.
9 The Court did have concerns about the proposal in terms of conservation and in that regard amended plans were drawn up and this is now the third occasion that the parties in the Court have met with respect to the development application. And the council has detailed a number of conditions with respect to making the development more acceptable in its terms in terms of the heritage streetscape significance of the dwelling and its contribution to the conservation area as well as providing for a better fit in terms of the reading of the two semi-detached dwellings together.
10 I do note that the council does object to the proposed development and these are not consent orders. The relevant portions of council’s development control plan were pointed out to the Court and it is clear from that development control plan in particular the development control plan which relates to streetscape and conservation areas that where there are unaltered pairs of semi-detached dwellings there should be a conscious effort that the dwellings remain as a pair. The matter that is before me now is for the garage at the front of the dwelling which will be accommodated by way of an extension of the gable of a front room which will then protrude to approximately within a metre or less of the boundary with the street and a garage door to be provided.
11 The situation is that the subject property is also being altered in accordance with an approval granted by the council which provides for extensive rear extensions to the subject property and they are matters that are not the subject of these proceedings. They are clearly something that were approved not by this Court and that the council consider them to be appropriate in terms of the streetscape at the time of its determination of those alterations and additions. I make no comment on the appropriateness or otherwise of those extensions. The role of the Court in this particular matter is to look at the development application as submitted in terms of the streetscape and in accordance with council’s controls.
12 I do understand that development by creep is also of a concern in many instances but I am satisfied that the proposed garaging which will afford the occupants of the subject dwelling an off street carparking space garage is appropriate.
13 The Court also had regard to what would be lost in terms of carparking space and it can be seen that one car parking space to accommodate the drive cross over would be lost on the street. There can be retention of the street tree which is an important concern also to many residents of the area.
14 I am satisfied that the proposed development in terms of council’s controls, its development control plan which focuses on streetscape and I have given the DCP a focal point in my consideration of the application. But in circumstances of the case I am satisfied that the proposed development as now outlined in the amended plans and as further amended by the deferred commencement requiring attention to the detail for the heritage of the proposed garage is appropriate and will not be one that will be incompatible with the streetscape or inconsistent with the streetscape.
15 The Court had the opportunity of viewing the way garaging had been provided on other properties. In some instances this was via a hard car stand space in front of the verandah areas of some of the semi-detached dwellings which did not appear to contribute to the streetscape. I am satisfied that the proposed development will be satisfactory and the necessary attention to detail in terms of conservation of the elements that contribute to the streetscape in terms of a pair of semi-detached dwellings will not be contrary to the provisions of the development control plan.
16 On the basis of my assessment and the amended plans therefore the Court is satisfied that the proposed development is one that warrants approval. I also make the point that the original development application that was submitted to the council was one that the Court would not have approved at the first meeting of the parties and the Court on site. The applicant proposed a number of options and the options were discussed on the view and it is from those options that the current plan has evolved and with the assistance of the council I am now satisfied that the proposal is appropriate.
17 As I stated, I do understand that the council still contests the development application and does not consider it appropriate in terms of the heritage significance of the pair of cottages. And in that regard further evidence was brought to the Court from council’s heritage consultant who considered that the garage and the established and surviving line of residential construction remaining within the semi-detached residences and other residence to the northern side of Edward Street and that the proposed edition lacked appropriate articulated and refined detail that the existing standard of work provides little assurance that suitable detailing will be employed unless this is detailed and specified in the approval and that comments relating to the scale of the front fence were also sought.
18 In that regard the heritage expert’s comments have been taken on board and incorporated in terms of specific conditions handed up by the council in terms of detailing of the garage and the garage door and also the fence such that it is consistent with the property at No. 23 Edward Street and would provide for the continuity in terms of reading the two dwellings as a pair of semi-detached dwellings.
19 Therefore on the basis of my assessment the orders of the Court are:
1. The appeal, under section 96(2) of the Environmental Planning and Assessment Act to amend the consent issued by the Court 31 March 2003, is upheld.
2. The application submitted to Waverley Council, and as amended, to modify the consent for a mixed use commercial residential development at 314-316 Bronte Road, Charing Cross, is approved subject to the consolidated conditions contained in Annexure ‘A’.
__________________________3. The exhibits except for 17(A), 23(A), V(A), W(A) and AC(A) are returned.
J S Murrell
Commissioner of the Court
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