Sailer v Waverley Council - [2009] NSWLEC 1328

Land and Environment Court

of New South Wales

CITATION: Sailer -v- Waverley Council [2009] NSWLEC 1328

PARTIES:
Peter Sailer
First Applicant
Ann Sailer
Second Applicant
Waverley Council
Respondent

FILE NUMBER(S): 10436 of 2009

CORAM: Dixon C

KEY ISSUES: :- Heritage item, garage in wall

LEGISLATION CITED: Land and Environment Court Act 1979
Waverly Local Environmental Plan 1996
Waverley Development Control Plan 2006 (WDCP)

CASES CITED: Gibson V Mosman Municipal Council [2001] NSWLEC 134
Segal & Anor v Waverley Council [2004] NSWLEC 363
Zhang v Canterbury City Council [2001] NSWCA 167
Gibson V Mosman Municipal Council [2001] NSWLEC134

DATES OF HEARING: 2/9/2009

DATE OF JUDGMENT:
6 October 2009

LEGAL REPRESENTATIVES:
Michael McMahon
M E McMahon & Assoc
Stephen Patterson
WIlshire Webb Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

10436 of 2009 Sailer v Waverley

1 The applicant has approval to build a five level dwelling house with a swimming pool at 455B Bronte Road, Bronte. However, the approval includes a condition that deletes the garage level of the development and therefore no off street parking is now provided.

2 The applicant now appeals the imposition of condition 2(a) of DA/291/08 which reads:

“To minimise the impact upon the heritage listed sandstone wall at the front of the property, and to remove a component of the development which is contrary to various DCP controls, the proposed garage level is to be deleted from the plans in its entirety. This includes the proposed lift access to this level, the bin storage area and hallway, the turning circle and any works to the front of the site relating to the provision of a garage entry point or works to the council ‘s footpath.”

3 The principle issue for determination, in this section 97 appeal, is whether it is acceptable to puncture the heritage listed sandstone wall to allow for garage access to the development from Bronte Road if there is alternative rear access to the site.

4 Following a consideration of the evidence and submissions and the relevant matters in section 79C, and the peculiar constraints of this site, I have decided the appeal should be upheld.

5 I set out the reasons for my decision below.

The site

6 The site is located on the western side of Bronte Road near the corner of Nelson Ave. It is triangular in shape with a frontage of 18.11 m to Bronte Road and a narrow rear access off Gardyne Street with a width of about 2.6m. The southern boundary adjoining 457 Bronte Rd has a length of 39.44m and the northern boundary adjoining 455a Bronte Rd has a length o 35.7m. The site has a total area of 323.5m.

7 A three level dwelling house with a single garage located at the rear of the site accessed by a stairwell from Gardyne Street is erected on the site. The surrounding development is generally two and three storey dwelling houses stepped down the topography of the site. Many of the surrounding residences have parking at the rear fronting Gardyne Street and some have garages fronting Bronte Road. To the east of the site, on the opposite side of the road is Bronte Park and Bronte Beach.

Rear Access from Gardyne Street

8 It is agreed that the rear access to the site from Gardyne Street is narrow. The existing single garage, occupies the whole of this frontage, it has an external width (measured from the outside walls of the two adjoining garages) of approximately 2.67m. The internal width of the existing garage (measured from the inside walls of the garage) is approximately2.58m (it being noted that the existing garage only has a wall on the southern side, utilising the wall of the adjoining garage to the north). The drop from the floor level of the existing garage (RL34.08) to the rear yard (RL 30.45) is about 3.65m.The existing garage does not comply with the Australian Standard or council’s controls with regard to internal width; however, the parking space can be used and is currently used for the parking of a car.

9 The rear of the site is further restricted by its position on the bend in Gardyne Street. This site is distinguishable from the adjoining and other sites fronting Gardyne Street because it is the narrowest rear access handle from Gardyne Street.

Sandstone wall

10 The other constraint to the development of this site is the sandstone retaining wall and street planting which runs along its frontage at Bronte Road.

11 The wall is a Heritage Landscape Item (L14) under Waverly Local Environmental Plan 1996 and is listed by the NSW Heritage Office as having local significance. The listing reads:

“…At the lower part of the road (nos447 –455B), on the high side, there are sandstone retaining walls, from 1920. These incorporate two gateways and impressive stone lintels …”

12 The heritage listing concludes the walls have local significance and describes them as “ …Impressive sandstone walls from c.1900 to 1920 of considerable aesthetic value. Reflecting road design and construction methods of the period. “

13 The sandstone wall outside the applicant’s site also contains a public pedestrian path with a later addition sandstone buttress enclosing a set of concrete stairs that provides pedestrian access to the middle of the site from Bronte Road. It is accepted that the wall is substantially intact apart from this added pedestrian stair, which is to be removed if the proposed garage is allowed. While most of the wall is on the applicant’s land apparently a small portion is situated on the road reserve. The applicant submits that the court has power to approve the works on the road reserve based on the court’s decision of Gibson V Mosman Municipal Council [2001] NSWLEC 134 (22 June 2001) per Talbot J.

The Proposal

14 The applicant seeks deletion of condition 2(a) and thereby the reinstatement of the basement carpark with a single width opening off Bronte Road through the existing sandstone wall. This opening will be at the northern end of the sandstone wall and require the removal of the stair access to the site however; this is not an original part of the wall. Internally the basement carpark will splay out to provide for the parking of two motor vehicles with a turntable to enable vehicles to enter and leave in a forward direction onto Bronte Road. A hallway at the back of the garage leads to a lift that provides internal access to the pool level and the main living room area. A household waste bin/s area is also provided at this level.

15 Pedestrian access from Bronte Road is proposed from the existing pathway and new stairs at the southwestern corner of the site. The stair is a lightweight open metal stair, which will traverse the existing stone retaining wall to the lawn level. Some remediation work is proposed to Council land to reinstate the existing concrete ramp and footpath where the existing stairs are to be removed.

16 The front entry to the house is to be located on the southern side of the under croft adjacent to the new front gate and entry which is the main beach access for residents. The entry is partly covered with a deck above and opens to a landing and an enclosed stair that leads up along the southern side of the house to the various levels above. The main entrance to site and the house for guests is from Garydne Street.

The Planning Controls

17 The site is zoned Residential 2(a) under Waverley Local Environmental Plan 1996 (WLEP) and is also controlled by Waverley Development Control Plan 2006 (WDCP).

18 The relevant provisions of the WLEP include the general and specific aims. Council referred me to the following particular clauses of the WLEP:

19 Clause 2 (c) which provides that the general aim of the plan is “to improve the amenity, safety and environmental quality of the built and natural environment” and the specific aim in clause 3(6)(d) “…to ensure development does not adversely affect the heritage significance of heritage items …” and clause 3(7)(f) “to improve the amenity of residential areas…”

20 Part 4 –HERITAGE PROVISIONS - Clause 49 which requires that “The Council must take into consideration the likely effect of the proposed development on the heritage significance of a heritage item …when determining an application for consent to carry out development on land in its vicinity.”

21 A relevant objective for development in the residential 2(a) zone is “…(b) to maintain and improve the amenity and existing characteristics of localities predominately characterised by dwelling –houses;”

22 The relevant provisions of the WDCP include: Part D1 –Dwelling House and Dual Occupancy Development including Part 4 – Bronte Residential Character Study while the site lies within the Bronte Terraces (Precinct B):

“5.2(a) all car accommodation is to be located behind the front building line”

5.3 (c) Vehicular crossings should be provided from the rear lanes where possible”

6.1 the WDCP adopts design in accordance with the Australian Standards.

Note: The characteristics of some sites may mean that car parking should not be provided on site.”

WDCP Part H Heritage H1 Heritage Conservation particularly the objectives 1.0

Council’s Approval

23 The application for this new dwelling was lodged with council on 29 May 2008. The proposal was notified and council received 11 submissions in support of the application and two objections. Following an assessment under section 79C council approved the development subject to the deletion of the garage from Bronte Road.

24 Council assessed in its report dated 13 January 2009 that the development satisfied the relevant provisions of the LEP “…with the distinct exception of the proposed garaging from Bronte Road.”

25 The report states “…the garage structure through the heritage listed sandstone wall fronting the property does not satisfy the zone objectives relating to the amenity of the residential 2(a) zone (clause 10b) and does not satisfy the specific aims of the WLEP with respect to heritage conservation (clause 3(6d&e).”

26 Clause 3(6) says: “ …To ensure that development does not adversely affect the heritage significance of heritage items, heritage conservation areas and archaeological sites and their settings:” and clause 3 (6) e provides “ …To control the demolition of heritage items and buildings and works within heritage conservation areas.”

27 Council’s assessment concludes that the vehicular access via Bronte Road is not acceptable and fundamentally fails to meet DCP and LEP controls. The undersized space at Gardyne Street does not in council’s opinion justify the provision of parking from Bronte Road. Part I1 of the WDCP provides that properties with two street frontages, are only permitted to have one vehicular crossing and vehicular crossings should be provided from rear lanes where possible. The words “where possible” are particularly relevant to this case.

28 Furthermore, council assesses that the proposed excavation for the garage is excessive and contrary to the max 3m depth as provided in the WDCP. The demolition of part of the sandstone wall for the entry point for the parking of two cars associated with the new dwelling is considered to have an adverse impact on the significance of the heritage item (wall) and the streetscape.

The Issues

29 The applicant’s statement of facts and contentions filed on 24 July 2009 and the joint report of the planners filed on 26 August 2009 articulate the agreed facts in the appeal and the issues between the parties.

30 The applicant contends that condition 2(a) should be deleted for the following reasons.

1. “That the proposal satisfies the heritage provisions of WLEP 1996 as the proposal minimises the effect of the proposal on the sandstone wall due to the retention of the majority of the wall, the sensitive location of the proposed garage entry and the sympathetic design of the garage entry, as supported by council’s heritage and urban design officer. Furthermore, the degree of impact to the wall is considered reasonable given its modified form and lack of cohesion along this part of Bronte Road.
2. That the proposed garage level allows for compliance to be achieved under Part 13.2.1 Car Parking for Residential Land Use which requires 2 car spaces for a 4 bedroom dwelling noting that the approved dwelling has 4 bedrooms and that the council’s condition creates a non compliance with the numerical parking provision.
3. That the proposed garage, although being forward of the building line (i.e. inconsistent with Part 15.2 (a), would be unobtrusive, given the retention of the majority of the retaining wall, whilst the provision in this manner is also more sympathetic than the provision of garage access associated with the numerous dwellings along this part of Bronte Road. The proposed garage entry in the sandstone wall would not be responsible for setting an undesirable precedent as there are numerous examples of the wall being modified in the immediate vicinity and further along Bronte Road in a northerly and eventually western direction (as Bronte Road winds around to the west approximately 150 Metre north of the site).
4. That the proposed garage level is considered to be a sympathetic design solution to the provision of garage access as it would not be creating a detrimental streetscape impact as the garage opening is replacing unoriginal stair access, is located at the northern end of the site frontage and thereby unobtrusive from the main aspect of the site, which is considered to be when travelling west along Bronte Road from the beach, park, and shops toward the site.
5. That the proposed garage level provides the dwelling with desirable, equitable and reasonable amenity as it allows for a double garage in a location where there is high demand for on street parking by visitors whilst also allowing for lift access from the garage level to all levels of the dwelling.
6. That the proposed garage level allows for the removal of the existing garage (which has a non compliant internal width under AS2890.1) at the rear which allows for the opportunity to obtain views to the Pacific Ocean from Gardyne Street to the rear.
7. That the proposed degree of excavation, despite being greater that 3 metres inn depth and thereby inconsistent with Part D1 –Single Dwellings, Part 5.1.1a of the WDCP 2006 does not affect the bulk or scale of the dwelling while it is likely to create any adverse impacts upon the structural integrity of adjoining dwellings nor will it unduly affect any significant landscaping.
8. That the provision of the garage level, although resulting in a loss of on street parking, is not unreasonable given the high demand for on street parking by visitors to Bronte Beach, park cafes. The removal of the garage at the rear along Gardyne Street would result in thee driveway crossing being redundant, thereby allowing for the creation of a motorcycle space.”

31 The applicant relies on the evidence of its town planner Mr Betros and the written report of its heritage consultant Kerime Dannis of City Plan Heritage dated 28 April 2009. In support of the garage entry into the heritage wall Ms Dannis’ expert opinion is:

“… The wall has been heavily modified over time and very little of it forms an intact and cohesive stretch. From the subject site to the corner to the north where the road turns west there are approximately 7 different treatments to the wall using various types, colours, textures and block sizes of stone. Additionally, the walls to the individual properties are of different heights and feature different gate treatments. Therefore, it is considered that the wall does not have such a high degree of integrity that is unable to sustain some level of change. … Most of the wall fabric is to be retained and the garage will be a proportionality small insertion of 3 m wide. Furthermore, the garage is setback from the street edge reducing its visual prominence. Consequently, the perceived impact of the garage will be marginal and the existing and significant character and form of the wall is maintained. The wall will remain the dominant visual element despite the insertion of the garage. “

32 Council’s internal heritage/urban design officer in his report dated 13 January 2009 supports the proposed garage at its Bronte Street location in preference to Gardyne Street.

33 Council’s internal heritage/design officer writes: “The vehicle entry from Gardyne Street is of insufficient width to enable practical access. The alternate vehicle entry through the lower sandstone wall will have some impact upon the integrity of the wall but has been provided in a manner that minimises this impact by virtue of opening size and detail. “

34 Council’s consultant town planner, Ms Gordon, who prepared the joint report with Mr Betros, assessed the proposed works as having a detrimental effect on the heritage significance of the wall. However, much of Ms Gordon’s evidence related to her assessment that no impact to the wall is necessary, or justifiable when there is potential for alternative garaging at the rear of the site with access off Gardyne Street. Her evidence is at odds with the council’s internal heritage/design officer’s assessment that the vehicle entry from Gardyne Street is of insufficient width to enable practical access.

35 Ms Gordon, while accepting that the existing car space at the rear is not compliant with AS 2890.1 in terms of internal width, she assessed that it remains workable and usable. Referring to clause 45 (5) of the WLEP her evidence is that the heritage provision of the WLEP requires a full consideration of the proposal and its impact on the heritage significance of the wall and it’s setting. Her evidence is that the applicant has not taken up the opportunity to investigate other parking options at the rear including stack parking and or retaining the existing small space (which would require a redesign of the approved plans and a loss of the view corridor that its removal will allow from Gardyne Street); or removal of the garage structure at the rear other (than the floor) and the conversion of the space into a short access driveway to a new garage for 2 cars, utilising a stacker. These alternate designs she submits avoids any impact on the heritage wall and provides parking for the new dwelling.

36 Ms Gordon spent some time onsite and in court suggesting alternative design options to achieve off street parking from Gardyne Street. Her evidence is consistent with the comments made in the Heritage and Urban Assessment Report prepared for the council by Colin Brady dated 20/6/08 which concludes that the applicant and its heritage expert Cityplan have not provided due consideration to the opportunities for a vehicle access from Gardyne Street. Mr Brady notes the site widens beyond the existing garage and opportunity would appear to exist for the relocation of the vehicle parking further into the site from Gardyne Street.

37 The applicant’s evidence is that he has exhausted all possibilities for rear parking off Gardyne Street. His evidence is that he has had several experts assess the car stackers and several design options without achieving an acceptable alternative. Despite assertions that a car stacker or other alternative designs would work the applicant said his expert advice is that the rear access is just too narrow and impractical to accommodate parking at the rear for the approved 4-bedroom dwelling. Both adjoining neighbours and other local residents support the garage as proposed at the Bronte Street frontage. I have read those submissions in council’s bundle of documents. The adjoining owners on the southern side in fact attended the hearing to voice their concerns against a car stacker or bulky garage canter levered at the rear of the site which they say would have a detrimental impact on their home particularly; their rear bedrooms, rear courtyard and kitchen/ family room positioned adjacent to the area. Not only would garaging at the rear of the site be visually intrusive there evidence is that it would result in additional overshadowing and unacceptable acoustic impacts. Speaking on behalf of the neighbours to the north they told me that they too were particularly concerned that a rear garage would interfere with their rear courtyard amenity and would result in them felling boxed in and result in a loss of air flow to their rear courtyard. At the view I had an opportunity to inspect these rear yards to better understand this evidence.

38 Ms Gordon’s final assessment that there are alternate design solutions available for garaging at the rear, was the reason why she stated I “…cannot support the proposed solution which had a detrimental impact upon the heritage significance and the streetscape /landscape significance of the wall”

39 Mr Betros did not support garaging at Gardyne Street. His evidence is that the existing garage is barely large enough to allow the side doors of a car to open or to allow goods such as groceries to be removed. In his opinion this non-complying space with its width of 2.6m is insufficient to allow manoeuvring into and out of a garage or stacker. Mr Betros was particularly critical of any proposal requiring reversing along the seven-metre distance from a mechanical stacker at the rear of the property onto the street as discussed by Ms Gordon. The stacker in the location suggested by Ms Gordon would be behind the existing garage and would lie above and next to the adjoining properties. Assuming it could be built with a turning circle and stacker such a development in Mr Betros’ opinion would cause an unacceptable loss of amenity to both neighbours.

40 Mr Betros was of the opinion that the southern neighbour has limited rear open space and their windows /doors and bedrooms, and family room are adjacent to the area for the proposed rear garaging. In his view such garaging would create unacceptable overshadowing, acoustic and visual impacts for the southern neighbour, which is at odds with the objectives of the WLEP and the WDCP. Furthermore, it would result in a significant proportion of the approved dwelling being removed.

41 In support of the application Mr Betros said the proposal is a sensitive design retaining the majority of the wall. The opening is proposed, according to the Site Inspection Report of DOBLE Engineers dated 18 April 2008, in an area of the wall where the most movement has occurred and a retrofit of the remaining wall is required, because it does not meet current structural capacity requirements. This coupled with positioning the entry through the latter addition stair ensures limited interference with the integrity of the heritage significance of the wall.

42 The applicant’s heritage evidence is that the significance of the wall is its length and height and material. In Ms Dannis’ opinion most of the wall fabric is to be retained and the garage will be a proportionately small insertion of 3m together with its setback from the street edge reduces its visual prominence.

The WDCP Parking Controls

43 Both experts accept that council’s controls in Part I-3.2.1 of WDCP 2006 allow for a range in the number of parking spaces required for dwellings of 4 bedrooms of between 0 to 2 spaces and as such both the approved development (without any parking spaces) and the proposed development (with 2 spaces if condition 2 is deleted) would comply with the control.

44 Ms Gordon expressed the view that the WDCP parking rate is a deliberate decision by council that some sites are not suitable for parking due to site constraints and loss of on street parking and that a requirement other than 0 to 2 spaces would be inconsistent with those provisions.

45 Both experts agreed that the proposed garage would be inconsistent with Part 1-5.2(a) of the WDCP 2006 but in this section of Bronte Road there are garages inconsistent with this provision namely properties at 439,441 and 451.

Precedent

46 The council is concerned about the precedent effect in approving this application. However, the case law is clear on this point. The Court of appeal decision in Segal & Anor v Waverley Council [2004] NSWLEC 363 confirmed each case must be decided on its particular facts and this case is clearly distinguishable. Both experts agreed that this site’s narrow rear access makes it different other sites with frontages to Gardyne Street and Bronte Road. There was no real disagreement with the proposition that this site’s development potential is constrained by its particular location and its lot configuration compared to adjoining properties.

Southern Stair

47 The experts did not agree about the impact of the relocation of the stair to the southern side in the Bronte Street frontage. Ms Gordon maintaining that it is an unsympathetic intrusion into the streetscape and a further unjustifiable interference to the heritage wall.

48 The experts did, however, agree that the removal of the existing garage in Gardyne Street would open up a new view corridor for the public. Pedestrians walking along Gardyne Street would be able to view the ocean over rooftops and dwellings, with a glimpse of the foreshore views between the roofs. While accepting that a view corridor would be opened up Ms Gordon judged it as not significant and does not justify the detrimental impact of the proposed garage upon the heritage item and streetscape /landscape significance of the retaining wall viewed from Bronte Road.

Excavation

49 Both experts accepted that the excavation while non-complying did not affect the bulk or scale of the building and if constructed appropriately will not impact on the structural integrity of the adjoining dwellings.

Removal of one car space

50 It was agreed that the removal of the garage at the rear would potentially create street parking for up to 2 motorcycles.

Reasons

51 The court had an opportunity to view the site and surrounds and take evidence from the residents and the experts on site and then later in Court. Ultimately, a judgement must be made as to acceptability of the impact of the proposal on the wall balanced against the opportunity to develop a garage at the rear or no off street parking for the site.

52 I accept the evidence of the applicant’s heritage expert, which is consistent with council’s, own internal heritage evidence that the sandstone wall is already heavily compromised as it has been heavily modified over time and little of it forms an intact and cohesive stretch. From the subject site to the corner there are 7 different treatments to the wall using various types, colours, textures and block sizes of stone. The significance of the wall is its length and height and the material used. The significance is not related to the aesthetic character derived from a high quality of workmanship or as an unaltered single wall treatment. I accept her assessment that there is an opportunity to provide a garage opening and door to the wall while conserving its landmark qualities by the use of the materials and the maintenance of the wall size as a dominant element in the street.

53 The additional conditions proposed in the joint report would ensure the integrity of the wall is maintained because they require the re use of the uncleaned existing sandstone, a minium amount of the wall is to be demolished, and dictate that materials and colours to refect the existing sandstone wall.. The additional conditions achieve the objectives in council’s WDCP and WDCP by ensuring sympathetic development that will not adversely affect the heritage significance of the heritage item. I have considered the heritage impacts in the terms of clause 49 of the WLEP as required and find that the development is acceptable.

54 Accepting that the wall may be changed to accommodate the garage from Bronte Street one must then consider whether it is necessary to interfere with the wall. If there are other design options to have garaging at the rear as required by the WDCP and not forward of the front building line then clearly that is the preferred option. No one would suggest a garage opening in the front of the wall for a site that has adequate width rear access like the adjoining properties. The remaining issue is does this site really have viable rear access?

55 Despite considerable effort by Ms Gordon to offer design alternatives for a garage at the rear of the site I do not accept that such options are viable. I accept the evidence of the applicant that the rear access is just too narrow to accommodate a complying garage or stacked parking to be accessed through a narrow seven-metre tunnel without unacceptable impacts on the neighbouring properties. I accept the evidence of the applicant that rear parking would have an unacceptable impact on the adjoining neighbours furthermore it would require a significant redesign of a dwelling, which the council has approved.

56 The applicant’s evidence is that there is no viable option to provide a rear garage with this approved dwelling. I accept that the applicant has investigated alternate designs and that the current proposal has been developed to achieve off street parking for a substantial new dwelling in an area where parking is at a premium opposite Bronte Beach.

57 While clause 5.7 of WDCP envisages no off street parking in certain circumstances I accept the applicant’s evidence that the car parking proposed is a sensitive design with minium interference with the wall and achieves the objective of ensuring that development does not adversely affect the heritage significance of the heritage item.

58 I accept the expert heritage evidence that the wall does not have “such a high degree of integrity that it is unable to sustain some level of change.” Surrounding development has already intruded into the wall for car parking. This proposal is a sympathetic design with minium intrusion, which offers at least two off streetcar spaces for this large dwelling and thereby improves street parking and the amenity for the occupants of this site and the area. This development according to the evidence does improve the amenity, safety and environmental quality of the built and natural environment as is the general aim of clause 2(c) of the WLEP. Furthermore, it is consistent with clause 3(6) d of the WLEP because the development does not (according to the evidence of the Ms Dannis and the council’s internal heritage/design officer) have an adverse effect of the heritage significance of the heritage item but in accordance with clause 3(7)f improves the residential amenity of the area by providing off street parking for this four bedroom dwelling which had been approved by council.

59 The adjoining homes have car parking at the rear because they enjoy a wider rear access to Gardyne Street and such development is easily achieved. The applicant has a small non-complying parking space at the. While this proposal results in a breach of WDCP Land Use (I) clause 5.2 (a), which requires all car accommodation to be located behind the front building line the proposed car parking off Bronte Road will not be visible from the street and therefore the objective to design new development to ensure that the continuity of streetscapes, street elements and landscaping is maintained is achieved if the proposed additional conditions contained in the joint report are imposed. The opening in the wall is a single car space, it is recessed into the wall and it is to be developed where the later addition sandstone stair is placed. The existing sandstone blocks (uncleaned) are to be reused in the existing pattern to ensure the integrity of the wall is maintained. The evidence is that the design is sensitive and together with appropriate conditions achieves the objective of clause 5.1 for new dwellings in keeping with the continuity of streetscape.

60 Clause 5.3 (C) of the WDCP provides that vehicular crossings should be from the rear “where possible” thus providing flexibility to this guideline. If I accept that it is not possible to provide rear parking on this site without an unacceptable impact on the amenity of the neighbours and the amenity of the occupants of the dwelling and the public then the clause is not breached because rear parking is not possible on this site. If this dwelling is build, as approved by council, then the existing garage will be demolished and the result for the public is at least one more car on the street. Off street parking provided on site will mean a loss of one car space in Bronte Road but the provision of two motorcycle spaces at the rear. There is a right to vehicle access to a site, this applicant is swapping that right from Gardyne Street to Bronte Road the resulting impact is acceptable.

61 Having accepted that there is no viable parking alternative at the rear of this site then my assessment is not inconsistent with the WDCP. Furthermore the WDCP is discretionary. 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 on a proper assessment under 79C of the Environmental Planning and Assessment Act 1979 Zhang v Canterbury City Council [2001] NSWCA 167.

62 In the circumstances, given the sensitive design and the resulting amenity off street parking would provide to the occupants of the new dwelling and the public I accept that the opening in the wall of 3m opening for a recessed garage to accommodate 2 cars is acceptable in the circumstances.

63 Furthermore, I do not discount the real public benefit afforded by a new view corridor form Gardyne Street by the existing garage being deleted. Opportunity to achieve such improved public amenity by new development is to be embraced when the opportunity arises. The conditions need to address the fabric and design of any gate to the rear entry at Gardyne Street to ensure that the view corridor from the public domain is maximised.

64 With respect to the works within the road reserve I accept that applicant’s submission that the Council pursuant to the Road Act is the constant authority for all public roads within the Waverly area. On appeal the court by section 39(2) of the Act has the additional functions and discretions that the council has in respect of this appeal: Gibson V Mosman Municipal Council [2001] NSWLEC134.Therefore, the Court may grant the consent for the works on the road reserve and may orders reflect that consent.

65 The council has approved a substantial five level dwelling on this site. While the WDCP control provides for no off street parking the WDCP is not a mandatory document and having regard to the relevant matters in section 79C and the public interest, the evidence and the submissions it is appropriate that this application be approved. This decision cannot be a precedent for other sites under the controls because of the particular constraints and circumstances of this site.

The Court makes the following orders:

1. The appeal is upheld.

2. Condition 2(a) of Development Application 291 of 2008 is deleted from the Development Consent.

3. The council is to forward draft to the court conditions refecting my judgement by Friday 16 October 2009.

___________________

Annexure ‘A’

Conditions of Consent

PETER AND ANN SAILER –v- WAVERLEY COUNCIL

The development must be in accordance with:

The proposal shall be amended as follows:

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

(d) The proposed gate on the Gardyne Street elevation is to be designed and constructed of fabric and materials to maximize the view corridor from the public domain in Gardyne St.

An archival record shall be prepared of the existing building for deposit in Waverley Council's Archive. This record must be carried out prior to the removal of any significant building fabric or furnishings from the site and must be submitted to Council prior to the commencement of any demolition work and the issue of a Construction Certificate. The record shall comprise photographic documentation of the site and its context, and the exteriors and interiors of the existing building(s), photographed where appropriate, using a camera/lens capable of 'perspective correction', comprising:

The premises are to be used only as a single unit dwelling house.

Excavation shall be limited to that shown in the approved plans. Excavation, proposed or undertaken in the certification or construction of the development, that results in additional habitable or non-habitable floor space (including storage) shall require the submission of a new development application or Section 96 application to modify the approved development. During consideration of this application construction work on site shall cease without prior agreement of Council. Failure to comply with this condition may lead to Council prosecuting or taking a compliance action against the development for breach of its consent.

The construction of the garage and pedestrian access shall be carried out such that:

a) The minimum amount of the retaining wall is demolished to allow for the construction works;

b) The front façade of the garage surrounding the garage door, the side returns and the return of the new retaining wall to the north of the driveway crossing within the footpath are to be reconstructed using the sandstone removed from the retaining wall;
c) The re-used sandstone is not to be cleaned and the existing exposed face of the stone is to be used for the new exposed face of the above elements;
d) The garage door and doors within the returns are to be of a matt finish and of similar colour to the existing sandstone of the retaining wall;
e) The pedestrian access stairs are to be of open form with timber treads with a metal hand rail with steel wire balustrade infill. The timber components of the stair are to match the colour of the existing timber retaining walls below;
f) That the fence above the retaining wall is to consist of a lightweight steel fence with steel wire balustrade infill;
g) That the remaining raised paved area within the footpath in front of the site is to be replaced with a planter bed in a similar manner to the southern side of the driveway. Existing sandstone is to be re-sued in accordance with c) above.

B. COMPLIANCE PRIOR TO ISSUE OF CONSTRUCTION CERTIFICATE

Environmental Planning and Assessment Act 1979

"Waverley Council Development Contributions Plan 2006”

"Waverley Council Cost Summary Report"; or,

"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.

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.

8. Security Deposit

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.

9. Long Service Levy

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.

10. No Building Works Prior To Release Of Construction Certificate

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

11. Hoarding Required

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.

12. Geotechnical Engineers Report

A geotechnical report, regarding the stability of the subject site and stating that damage should not occur to any adjoining premises as a result of the proposed bulk excavation, driven type piles and shoring works, is to be submitted to the Principal Certifying Authority, Council and the owners of adjoining premises. The report is to be submitted prior to the issue of a Construction Certificate and commencement of any such works on the site.

13. Details Of Bulk Excavation, Shoring Or Pile Construction

Any practices or procedures specified in the Structural Engineer's report in relation to the avoidance or minimisation of structural damage to adjoining properties are to be fully complied with and incorporated into the plans and specifications together with the Construction Certificate.

14. Erosion, Sediment And Pollution Control

Erosion, sediment and pollution control measures are to be implemented on this site. These measures are to be in accordance with Council's Stormwater Policy and are to be implemented prior to commencement of any work or activities on or around the site. Details of these measures are to be submitted to the Principal Certifying Authority prior to the issuing of a Construction Certificate.

15. 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.

16. 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 9.2, prior to a Construction Certificate.

17. Engineering Details

Structural details prepared and certified by a practicing Structural Engineer being furnished to Council or Accredited Certifier in connection with the sandstone wall to Bronte Road prior to the issue of a Construction Certificate.

18. Basix - New Dwelling House

The above condition is a prescribed condition under the Environmental Planning and Assessment Act Regulations clause 97A and the above Basix commitments are mandatory and cannot be modified under Section 96 of the Environmental Planning and Assessment Act, 1979.

19. Use Of Renewable Timbers

Council requires, wherever possible, the use of renewable timbers and/or plantation timbers such as Radiata Pine or Oregon as an alternative to the use of non-renewable rainforest timber products in buildings so as to help protect the existing areas of rainforest. In this regard, a schedule of proposed timber products to be used in the building is to be submitted for approval by the Principle Certifying Authority prior to the issue of the Construction Certificate. Where the applicant is to use timbers not recommended in Council's Policy, reasons are to be given why the alternative timbers recommended cannot be used.

20. Tree Plan

Trees to be retained and protected

Species

Location

Action

Phoenix palm

Front of property

Retain and protect in conjunction with the tree strelitzia.

Pruning of dead fronds to facilitate movement around the tree is permitted

TPZ of 4 metres radius to be installed as per details below

If retention of the phoenix palm (in current location) is not possible then the following conditions shall apply

Transplant on site to the southern side of the front yard

Transplanting work plan and methods are to be forwarded to Waverley Council’s Tree Management Officer for approval prior to the issue of a construction certificate

*TPZ of 5m to be installed around the tree once it is transplanted to provide protection during the construction process

Tree Strelitzia

Front of property

Retain and protect in conjunction with the phoenix palm

A 1.8m high chain link wire fence or the like shall be erected around the existing/transplanted tree to protect it from damage during construction.

Soil levels are not to be changed around the base of these trees.

No mechanical excavation shall be undertaken within the tree canopy spread (within the dripline) of any tree on the subject or neighbouring site.

If tree roots are required to be removed for the purposes of constructing the approved works they shall be cut cleanly by hand, by an experienced Arborist/Horticulturist (with a minimum qualification of the Horticulture Certificate or Tree Surgery Certificate).

It is the arborist’s responsibility to determine if such root pruning is suitable. If there are any concerns regarding this process then Council’s Tree Management Officer is to be contacted to make a final determination.

21. Tree Protection

Precautions shall be taken when working near trees to ensure their retention, including the following:

Species Location Action

Black Olive Northern boundary Remove and replace

This tree is to be removed with the provision that 1 replacement tree of local native species of 75 litres and 3 metres in height are to be planted on the property as approved by Council’s Tree Management Officer.

The replacement species shall be maintained in a healthy and vigorous condition. Any of the trees found faulty, damaged, dying or dead shall be replaced with the same species at no cost to Council.

22. Amended Landscape Plan

The Landscape Plan is to be amended by the following changes:

(a) The proposed frangipani specimen for the front yard be replaced with a local native species of 100 litre pot size and 3 metres in height
(b) The amended landscape plan is to be submitted to the Principal Certifying Authority with the plans for the Construction Certificate.

C. COMPLIANCE PRIOR TO AND DURING CONSTRUCTION
23. 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.
24. 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.

25. 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.

26. 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.

27. Excavation Below Footings

If an excavation associated with the erection or demolition of a building extends below the level of the footings of a building on an adjoining allotment of land, the person causing the excavation to be made, at their own expense, must:

(a) preserve and protect the building from damage; and
(b) if necessary, must underpin and support the building in an approved manner; and
(c) must, at least seven days before excavating below the level of the base of the footings of a building on an adjoining allotment of land, give notice of intention to do so to the owner of the adjoining allotment of land and furnish particulars of the excavation to the owner of the building being erected or demolished.
28. 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) 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.
29. Toilet Facilities

Toilet facilities being provided on the work site in accordance with the requirements of Sydney Water.

30. 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.

31. Dilapidation Report

A dilapidation report prepared by a practising Structural Engineer shall be submitted to the Principal Certifying Authority, Council and the owners of the adjoining properties prior to the commencement of demolition, bulk excavation or building works, detailing the current condition and the status of all buildings (both internal and external), including ancillary structures located upon No. 455a Bronte Road and No.457 Bronte Road, as well as the sandstone wall, stairs and retaining wall on Council’s land immediately in front of the site.

32. Demolition Or Alteration Of Pre 1987 Buildings

At least five (5) days prior to the demolition, renovation work or alterations and additions to any building constructed before 1987, the person acting on the consent shall submit a Work Plan prepared in accordance with Australian Standard AS260-2001, Demolition of Structure and a Hazardous Materials Assessment by a person with suitable expertise and experience. The Work Plan and Hazardous Materials Assessment shall:

(a) outline the identification of any hazardous materials, including surfaces coated with lead paint;
(b) confirm that no asbestos products are present on the subject land; or
(c) particularise a method of safely disposing of the asbestos in accordance with the Code of Practice for the Safe Removal of Asbestos NOHSC 2002 (1998);
(d) describe the method of demolition;
(e) describe the precautions to be employed to minimise any dust nuisance; and
(f) describe the disposal methods for hazardous materials.
33. Compliance With Workcover NSW Requirements

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

34. 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 DEC'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.

35. 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.

36. Location Of Building Operations

Building operations such as brick cutting, washing tools or brushes and mixing mortar are not permitted on public roadways or footpaths or in any locations which could lead to the discharge of materials into the stormwater drainage system.

37. Temporary Diversion Of Roof Waters

Stormwater from roof areas shall be linked via a temporary downpipe to Council's stormwater system immediately after completion of the roof area. Inspection of the building frame will not occur until this is completed.

38. 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.

39. 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.

40. Crane permits

Crane permits must be obtained from Waverley Council’s Technical Services Department prior to any works where cranes are required.

41. Use Of Heavy Earth Movement Equipment

Excavation works involving such work to be carried out on Saturday, Sunday or a public holiday. the use of heavy earth movement equipment including rock breakers and the like must only be undertaken between the hours of 7am and 5pm on Mondays to Fridays with no such work to be carried out on Saturday, Sunday or a Public Holiday.

42. Construction Noise - Periods Greater Than 4 Weeks And Not Exceeding 26 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.

43. Building Code Of Australia

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

44. 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) sediment control measures prior to the commencement of building work;
(b) foundation material prior to undertaking building work;
(c) shoring of excavation works, retaining walls, piers, piling or underpinning works;
(d) steel reinforcement, prior to pouring concrete;
(e) prior to covering timber or steel framework for floors, walls and roofing, including beams and columns;
(f) prior to installation of fire resisting construction systems (i.e. fire rated ceilings and walls); and
(g) swimming pool fencing prior to filling the pool.

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.

45. Certificate Of Survey - Levels

All construction works shall be strictly in accordance with the Reduced Levels (RLs) as shown on the approved plans. Certification from a Registered Surveyor certifying ground, upper floor/s and finished ridge levels is to be submitted to the Principal Certifying Authority during construction and prior to continuing to a higher level of the building.

46. Certificate Of Survey - Boundaries And Location Of Building

A Certificate of Survey prepared by a Registered Surveyor setting out the boundaries of the site and the actual situation of the building on the site is to be submitted to the Principal Certifying Authority to certify the building is located in accordance with the development consent plans. The Certificate is to be submitted prior to the construction of the external walls above the ground floor level of the building.

47. Water Proofing

The floor and wall surfaces of the proposed bathrooms, ensuites, kitchen and laundry being protected against water in accordance with the Building Code of Australia. The wet areas are to be examined and certified by an Accredited Certifier.
Note: Water proofing is to be in accordance with AS 3740 - Water Proofing of Wet Areas within residential buildings.

48. Hot Tap Water Scalding

To reduce the incidence of hot tap water scalding and, for the purpose of energy efficiency, all new or replacement hot water systems shall deliver hot water to a maximum 50 degrees Celsius at the outlet of all sanitary fixtures used for personal hygiene.

49. Care To Be Taken During Construction

The proposed works are to be carried out in a manner that minimises demolition, alterations, and new penetrations/fixings to the fabric of the Landscape Heritage Item, being the sandstone wall at the front of the site.

50. Excavation To Be Managed By Structural Engineer

Bulk excavation is to be managed by a practising structural engineer, in accordance with the specification for shoring and support, as detailed in the approved Construction Certificate.

51. Existing Vehicle Crossing Is To Be Closed

The existing vehicle crossing on Gardyne Street is to be closed and all work associated with the closure is to be carried out with the approval of, and in accordance with, the requirements of Council.

52. Construction Of Swimming Pools

The following applies to the construction of swimming pools:

(a) Reinforcement is to be inspected by an Accredited Officer or other suitably qualified person prior to the pouring of concrete;
(b) The electrical wiring system for any proposed underwater artificial lighting installation to the pool being installed in accordance with the requirements of Australian Standard 3000, Part 1 - Wiring Rules;
(c) The finished level of the proposed pool is not to exceed a maximum height of 450mm above RL 21.25;
(d) To minimise the likelihood of accidental drowning, the swimming pool is to be provided with a child resistant safety fence, designed and constructed in accordance with the requirements of Australian Standard 1926-1993 "Fencing for Private Swimming Pools". This fencing is to be erected and inspected by the Principal Certifying Authority prior to the pool being filled with water; and
(e) A final inspection of the completed pool is to be carried out by the Principal Certifying Authority prior to the pool being filled with water.
53. Pool Drainage

Waste waters from the proposed pool being discharged into Sydney Water's sewerage system and in this regard, approved plans MUST be submitted to Sydney Water at least fourteen (14) days prior to commencement of building operations.

54. No Works Beyond Boundaries

No portion of the proposed Gardyne Street fence, including the footings, is to encroach beyond the boundaries of the subject property.

D. COMPLIANCE PRIOR TO OCCUPATION OR DURING OCCUPATION
55. Pool Sign

An approved sign outlining details of resuscitation techniques for adults, children and infants must be placed in a prominent position, close to the pool prior to filling the pool with water. Signs are available from Council's Planning & Environmental Services Department.

56. Inspection Of Pool

A final inspection of the completed pool is to be carried out by the Principal Certifying Authority prior to the pool being filled with water.

57. 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.

_______________________
Susan Dixon
Commissioner of the Court
ljr
Order 3 amended.

CITATION:	Sailer -v- Waverley Council [2009] NSWLEC 1328
PARTIES:	Peter Sailer First Applicant Ann Sailer Second Applicant Waverley Council Respondent
FILE NUMBER(S):	10436 of 2009
CORAM:	Dixon C
KEY ISSUES:	:- Heritage item, garage in wall
LEGISLATION CITED:	Land and Environment Court Act 1979 Waverly Local Environmental Plan 1996 Waverley Development Control Plan 2006 (WDCP)
CASES CITED:	Gibson V Mosman Municipal Council [2001] NSWLEC 134 Segal & Anor v Waverley Council [2004] NSWLEC 363 Zhang v Canterbury City Council [2001] NSWCA 167 Gibson V Mosman Municipal Council [2001] NSWLEC134
DATES OF HEARING:	2/9/2009
DATE OF JUDGMENT:	6 October 2009
LEGAL REPRESENTATIVES:	Michael McMahon M E McMahon & Assoc Stephen Patterson WIlshire Webb Staunton Beattie