Southall v Lane Cove Council

[2011] NSWLEC 1051

Land and Environment Court

New South Wales

Medium Neutral Citation:

Southall & Anor v Lane Cove Council [2011] NSWLEC 1051

Hearing dates:

18 February 2011

Decision date:

02 March 2011

Jurisdiction:

Class 1

Before:

Morris C

Decision:

(1) The appeal is dismissed.

(2) The application to modify Development Consent No. D94/10 by the deletion of conditions 2, 4 and 5 is refused.

(3) The exhibits are returned.

Catchwords:

Modification of consent: Streetscape; Encroachment of building alignment; Rooftop terrace.

Legislation Cited:

Land and Environment Court Act 1979;
Lane Cove Local Environmental Plan 2009

Cases Cited:

Super Studio v Waverley [2004] NSWLEC 91;
Pafburn v North Sydney Council [2005] NSWLEC 444

Texts Cited:

Building Code of Australia;
Lane Cove Development Control Plan

Category:

Principal judgment

Parties:

Sarah Southall (Applicant)
Ian Middleton (Applicant)
Lane Cove Council (Respondent)

Representation:

Solicitors:
Marsdens Law Group (Respondent)
Mr A Seton (Respondent)

File Number(s):

11031 of 2010

Judgment

1. This is a determination of proceedings pursuant to s34(4)(b)(ii) of the Land and Environment Court Act 1979 . The matter the subject of the appeal relates to three conditions imposed by the Lane Cove Council (the council) in development consent D94/10 (the consent) which approved the construction of a two car garage at street level, alterations and additions to the ground floor of the existing, elevated dwelling, the construction of a new first floor area, swimming pool, cabana, and fences to the front and rear yards.

The site

1. No. 9 Holdsworth Avenue, St Leonards (the site) is located on the western side of the roadway, has a frontage of 15.24 m and an area of 557.4 square metres. The site falls approximately 6 m from the rear to the street and the floor level of the existing dwelling is approximately 5m above street level. Holdsworth Avenue is a residential street, comprising a mix of generally older, single-storey dwelling houses with some more recent twostorey dwellings located on the high side of the street. There is also evidence of recent renovations to a number of dwellings. Sandstone retaining walls, varying in height from approximately 1.2m to 1.8m, are prevalent along the western side of the road where the dwellings are elevated, responding to the slope of the land.

The proposal

1. T he original development application proposed:

The construction of a double garage and storeroom at footpath level to the front property boundary and use of the roof of the garage as a view terrace. The construction of this element of work would require excavation of the site. Proposed finished floor level of the garage is not designated on the plans before the Court however, would be approximately RL68.3, reflecting the current footpath levels. Proposed finished floor level of the rooftop terrace is RL 71.37, approximately 3m above the footpath level. A 500mm planter box is proposed along the front portion of the terrace and this wall extends along the sides of the garage as a parapet. Balustrading to accord to the requirements of the Building Code of Australia is to be erected above the parapet. The applicant indicates this would increase the finished level of this element to approximately RL72.37, increasing the height of the front wall to a minimum of 4.0m, however it is noted that the balustrading could be glass, thereby reducing the visual impact of the structure.

Alterations and additions to the existing dwelling house involving the removal of walls and windows, the introduction of balconies to the ground floor and the construction of a second floor level with front and rear balconies and roof top planter boxes above the side entry and laundry areas. Finished ground floor level would be RL73.37 and first floor RL76.72. The proposed ground floor terrace area would be slightly below the ground floor level and would be linked to the view terrace by way of a 3.5m wide staircase. That staircase extends approximately 3.5m beyond the proposed terrace, 6.2m in front of the front wall of the dwelling house, and to within 2.7m of the front property boundary.

Construction of a pool and cabana in the rear yard.

New retaining walls and fencing.

The contentions

1. There are three conditions that are the subject of the appeal being conditions 2, 4 and 5. These read as follows:

2. In order to reduce the visual impact of the front ground floor terrace from the street and so improve amenity, and to ensure this structure would not exceed the minimum front setback under Council's DCP 2009, the terrace is to be reduced in depth so that it is no closer than 7.5 m from the front property boundary, and its front steps are to be deleted and the area is to become landscaped area. Plans are to be amended to comply prior to the issue of a construction certificate.

4. In order to promote public safety by improving the line of sight in both directions, the garage is to be setback 1 m from the front boundary and a 1 m x 1 m splay is to be created on each side of the driveway. Plans are to be amended to comply prior to the issue of a construction certificate.

5. In order to address Council's practice of prohibiting trafficable roofs above car parking structures, and to reduce the potential for overlooking of each adjoining front yard, the roof above the garage is to be non-trafficable. Plans are to be amended to comply prior to the issue of a construction certificate.

1. The effect of these conditions would be to reduce the depth of the terrace, which opens from the living and dining area of the lower level of the dwelling, by approximately 1 m and delete the 3.5 m wide staircase which connects that terrace to a proposed view terrace, located on the roof level of the garage (condition 2), set back the proposed garage 1 m from the front property boundary and provide a splay at the driveway (condition 4) and remove the barbecue structure and ensure that no recreational use is made of the area above the garage.

The planning controls

1. The site is located within the Zone R2 Low Density Residential, pursuant to the provisions of the Lane Cove Local Environmental Plan 2009 (the LEP). The LEP requires the consent authority to have regard to the objectives for development in the zone when determining a development application in respect of land within that zone. Relevant objectives of the R2 zone are:

To retain, and where appropriate improve, the existing residential amenity of a detached single family dwelling area.

To ensure that landscaping is maintained and enhanced as a major element in the residential environment.

1. Lane Cove Development Control Plan (the DCP), which came into effect on 22 February 2010, also applies to the site. Part C of that DCP relates to residential development and Section 3.1 applies to dwelling houses and dual occupancies. The objectives for dwelling houses and dual occupancies are found at clause 1.1 and are to:

1. Provide dwellings in landscaped lots.

2. Ensure new dwellings and alterations and additions to existing dwellings are well designed and compatible with the surrounding context and enhance the streetscape within the area.

3. Achieve a reasonable level of amenity for both development sites and neighbouring dwellings.

1. Specific streetscape objectives also apply (clause 1.2), and those relevant to the application are:

1. Achieve development of a scale and appearance which is in keeping with the predominant street and neighbourhood character.

2. Ensure the existing landscape character of the area is maintained and enhanced.

5. Ensure that garages, carports and driveways do not dominate the dwelling or streetscape.

1. Setback objectives (clause 1.3) are

1. To maintain the prominent street setback

2. To enhance and maintain vegetation corridors through landscaping within front and rear gardens and side boundaries.

1. Provisions relating to front setback require that the alignment of the building shall be consistent with the prevailing setback along the street and where there is no predominant setback within the street, the setback should be a minimum of 7.5 m. Minor architectural design features such as awnings, sun shades, and balconies may project into the front setback up to a maximum of 500mm depth providing these do not occupy the entire facade of the dwelling.

1. Fencing (clause 1.4) is to:

1. Contribute positively to the streetscape character and architecture of the dwelling.

2. Provide privacy and security to the residents.

In relation to front fences, if the fence height is from 1.2 m to 1.8 m, the entire fence shall be set back a distance of 1 m from the front property boundary, unless the site has frontage to a major road. The parties agree that Holdsworth Avenue is not a major road. Splays may be required for fences over 900 mm on major roads or corner allotments.

1. The DCP requires minimum landscaped areas and the parties agree that the development, without the view terrace and balcony, would achieve the requirements of the DCP.

1. Clause 1.6 relates to building design and the relevant objective is:

4. Minimise impact in terms of overshadowing, loss of privacy, light spillage to adjoining properties, loss of views and amenity.

1. Specific, relevant amenity objectives (clause 1.7) are:

2. To provide reasonable acoustic and visual privacy for neighbouring properties.

3. Minimise overlooking between adjoining the dwellings and their private open spaces.

1. Car parking provisions are incorporated in clause 1.8 and require the provision of at least one off street parking space per dwelling. Carports are permitted within the front seat back area where a carport does not have a trafficable roof and the posts are set back a minimum of 1 m from the street alignment. During the hearing were made in relation to whether the DCP permitted garages within the front setback area. Mr Thomas, council's town planner, indicated that in his opinion, the proposed garage would be a semi-basement garage, although he was agreed that it did not meet all of the requirements of the council's DCP. Mr Seton, for the council, argued that only carports would be permitted forward of the building line.

The evidence

1. Evidence was heard from both adjoining neighbours. The owner of the property to the north of the site raised matters which were not subject to the appeal, being objections that had been made in relation to the original plans, now approved by the council. The owner of the adjoining dwelling to the south raised concerns regarding noise and loss of privacy from the use of the terrace and balcony areas.

1. I will deal with each condition separately however, the stairway is relevant to the issue of whether or not I find the use of the garage roof as the view terrace as proposed by the applicant to be appropriate. In the event that I find this area should not be used, the stairs would not be required.

Condition 2

1. The front wall of the lower floor of the approved dwelling is a straight section and opens onto a terrace area. The applicant is seeking approval for that terrace to be wider in the vicinity of the living area and to connect to the lower level view terrace by way of a 3.5 m wide stairway. The plans before the Court do not include dimensions to accurately define the width of these two terrace sections. However, it was agreed during the hearing, that it would need to be reduced in width by at least 1 m and possibly 1.2m to comply with the requirements of condition 2.

1. The plans approved by the council, reflecting the conditions of consent, allow for the encroachment of the entire lower level balcony and the upper level bedroom 2 into the setback. I note that this is contrary to the provisions of clause 1.3 of the DCP. A metal sunshade above the windows to bedroom 2 extends further into the setback by 500mm. The applicant is seeking further structures within the building alignment, being the wider portion of the terrace and the 3.5m wide staircase. These structures are elevated above the roadway and would be visible when viewed from opposite the site and traveling along the road however, would not be visible when standing on the adjacent footpath due to the presence of the approved garage wall.

1. The council argues condition 2 should remain so as to maintain the streetscape and comply with the objectives of the LEP and DCP. The applicant, Mr Middleton, argues the structures would not be visible when viewed from the adjacent footpath and referenced sketches tendered as Exhibit C to support his opinion that there would be no adverse impact on the streetscape. I do not agree, as a view of the site from other vantage points along the street shows that the structures will be visible from other locations.

1. I note that there are a number of stairways within the building alignment along the street, however these provide pedestrian access from the footpath to the front entry of each property. A similar stairway is proposed along the northern portion of the site, the stairs (referred to in condition 2) being a second stairway within the setback area. There are no other balconies or stairways that encroach the building alignment at the higher levels proposed in the application, other than minor balconies complying with the DCP's width restriction of 500mm in Holdsworth Avenue.

1. In order to address the concerns of the adjoining resident in relation to visual and acoustic privacy associated with use of the terrace and stairs, the applicant proposed a privacy screen along the southern edge of the proposed balcony. That structure adds further bulk to the setback area. The width of the stairway also reduces the area available for landscaping.

1. I find, based on my observation of the site and locality, that the proposed encroachments will dominate the setback area to such an extent that the objectives of the council's planning controls are not met.

Condition 4

1. Dwelling houses on both sides of Holdsworth Avenue are erected on a consistent building alignment, being approximately 9m. The streetscape is well established by way of the masonry retaining walls, which dominate the front boundaries, the landscaped front yards and the regular building alignment. There are a number of garages and carports within that building alignment, the older style structures being built to the boundary and the newer garages setback 1m with splayed sections at the doorways. The properties immediately to the north and south of the site contain older style garages, both built to the front property boundary. The roof of the garage to the north is utilised for recreation purposes however the garage roof of the southern property is not. None of the other garages or carports along Holdsworth Avenue within the front setback comprised trafficable roofs. I was shown one garage to the side of a dwelling on the eastern side of the street that comprised a rooftop terrace. This was not within the front setback area.

1. The requirement for setting back the garage by one metre from the front property boundary and providing a 1m x 1m splay adjacent to the garage entry door was, on the evidence of Mr Thomas, to ensure pedestrian safety. Evidence was also provided during the site view, that recent approved garages and carports within the front setback required provision of both the setback and the splay however, the consent to enlarge the existing garage to the south of the site did allow the retention of the garage to the front boundary. Mr Thomas advised that this is due to the fact that there is an existing garage and that this was not the case for the subject site. He confirmed that the consent issued for that work included a condition that the roof be non-trafficable.

1. The applicant tendered a letter from his structural engineer that suggests that the setting back of the garage would present structural issues that would increase the building costs and be noisy and disruptive when under construction. No precise evidence was available as to these costs or impacts however, I do accept that the works would increase construction costs. I also accept the council's evidence that this is a matter for the applicant to determine in deciding whether to take up the consent.

1. As works have commenced on site, it is apparent that reduced options are available to the applicant on how necessary excavation works can be accommodated. This however, is not a matter for the Court. I must consider the reasonableness of the consent condition, whether that condition reflects the council's policy, whether that policy has a planning purpose and whether it has been consistently applied. I find that the condition does have a planning purpose as it is in the public interest to ensure safety of pedestrians, it does reflect council policy and the policy has been consistently applied as evidenced from the site view and accordingly, I find the condition to be reasonable.

Condition 5

1. It is apparent from the evidence provided during the hearing that the DCP may not permit garages within the setback area however, it is not necessary for me to determine whether this is the case as the consent allows for the garage within that area. The applicant, Mr Middleton, argues that the restriction on non-trafficable roofs applies only to carports, as the DCP is silent on garages. He cited the council's former policy, Code and Development Application Checklist for Dwelling Houses, Fences, Private Swimming Pools and Outbuildings and argued that the controls, which were contained within that document, were not brought forward into the DCP and therefore did not apply. Those controls permitted garages within the building line provided at least two-thirds of the garage was below natural ground level, the garage did not extend more than 900mm above that ground level, it was setback 1m from the street alignment and did not have a trafficable roof.

1. If this were the case, then a merit-based assessment of the impacts of the use of the rooftop would be required. Mr Middleton advises that the purpose of the deck is for use for recreational purposes in the morning when the deck will be in sunlight for activities such as breakfast or general relaxation and recreation. Mr Seton, for the council, argues that the approved development provides for the necessary open space provision and solar access specified in the council's controls and that without the extended deck, the property enjoys access to a further two balconies, an undercover terrace and a pool terrace.

1. The evidence available to me is that the streetscape primarily comprises landscaped setback areas without rooftop terraces and that the introduction of such elements would result in a significant change to that streetscape and the future amenity of the area. Accordingly, I find that these structures would introduce a foreign element within the building alignment are contrary to the council's planning objectives and should not be allowed.

1. The masonry walling along the front property boundaries on the western side of Holdsworth Avenue contributes to the streetscape. This walling varies in height however, it is not as high as the wall height proposed in the subject application. The proposed height reflects the desire of the applicant to utilise the terrace area for recreational purposes. I acknowledge that the adjoining property enjoys the use of its garage roof for recreational purposes however this structure was approved many years prior to the council's controls. I also acknowledge that the non-use of the rooftop will have negligible benefits to the streetscape however, it will allow achievement of the objectives of the council's planning controls, in particular, the zone objectives and the principal DCP objective.

1. The evidence available to me is that the council has consistently applied its controls preventing use of garage/carport roofs and accordingly, I find that the condition of consent imposed by the council is appropriate in the circumstance of the case.

Conclusion and findings

1. For the reasons outlined above, I find that the proposed changes to the development approved by the council would be inconsistent with the objectives of the council's planning controls, would introduce foreign building elements into a well established and consistent streetscape, reduce the area available for landscaping and would significantly change the character of the area. The use of the terrace area is also likely to affect the amenity of residents within the street due to the noise impacts of that use. I was referred to the planning principles detailed in Super Studio v Waverley [2004] NSWLEC 91 and also to Pafburn v North Sydney Council [2005] NSWLEC 444 in regard to assessment of impacts on neighbouring properties which, I find are relevant to the application and provide guidance in assessing the impact of the proposal.

1. In Super Studio at paras 5 and 7, Roseth SC states:

5.Several planning principles are relevant to the determination of this appeal. The first is that the acceptability of an impact depends not only on the extent of the impact but also on reasonableness of, and necessity for, the development that causes it.

7. The third principle relates to the extent to which an approval for this application would be used as a precedent in favour of approving other applications for roof terraces.

1. In Pafburn, Roseth SC, at para 21 says:

21 The second theme is that in assessing an impact, one should balance the magnitude of the impact with the necessity and reasonableness of the proposal that creates it. An impact that arises from a reasonable or necessary proposal should be assessed differently from an impact of the same magnitude that arises from an unreasonable or unnecessary proposal. For example, adding a balcony to the living room of a dwelling that has no other balconies is a more reasonable proposal than adding a balcony to a dwelling that already has six balconies.

1. Applying the above planning principles, I consider that there is no necessity for the works which are the subject of the appeal. The approved development of the site allows for adequate recreational use, consistent with the council's planning controls and it is therefore in the public interest to maintain those controls. Whilst I accept that the additional areas would improve the amenity of the residents of the site, I do not consider that this outweighs the detriment that the impacts of those areas would cause to the broader area.

1. Accordingly, the appeal should be dismissed.

Orders

(1) The appeal is dismissed.

(2) The application to modify Development Consent No. D94/10 by the deletion of conditions 2, 4 and 5 is refused.

(3) The exhibits are returned.

S Morris

Commissioner of the Court

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Decision last updated: 14 March 2011