Stephanie T Avery v Waverley Council - [2004] NSWLEC 287

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Stephanie T Avery v Waverley Council [2004] NSWLEC 287

PARTIES: APPLICANT
Stephanie T Avery
RESPONDENT
Waverley Council

FILE NUMBER(S): 10333 of 2004

CORAM: Watts C at 1

KEY ISSUES: Development Application :- Impact of proposed first floor balcony
·
Impact of proposed garage on the dwelling and streetscape.

LEGISLATION CITED: Waverley Local Environmental Plan 1996 (As amended), (WLEP)·
Waverley Development Control Plan No 2 - Dwelling House Development, (DCP2)·
Waverley Development Control Plan No 19 - Controls for site waste minimisation and management, (DCP19)·
Waverley Development Control Plan No 29 - Advertising and Notification, (DCP29)·
Environmental Planning and Assessment Act 1979, ss79C and 97

CASES CITED: Mison v Randwick Municipal Council [1991] 23 NSWLR 723

DATES OF HEARING: 26 May 2004 and 3 June 2004

DATE OF JUDGMENT: 06/08/2004

LEGAL REPRESENTATIVES:
APPLICANT
Ms S T Avery, in person
RESPONDENT
Mr M A Staunton, solicitor with Ms R Findlay-Debeck, solicitor
SOLICITOR
Staunton Beattie

JUDGMENT:

In the Land and

Environment Court

of New South Wales

Appeal No: 10333 of 2004

Stephanie T Avery
v
Waverley Council

Judgment

Environmental Planning and Assessment Act 1979,

33. To reduce impact on the amenity of the surrounding properties, the rear first floor level balcony is to be reduced so as to extend a maximum of 1.5m from the rear wall of the additional storey and 1.6m high privacy screens are to be provided to both side elevations of the balcony.

34. To reduce impact on the streetscape, the proposed garage is to be deleted.

Environmental Planning and Assessment Act 1979

The land
5 The land is situated on the western side of Nancy Street, north of its intersection with Clyde Street, North Bondi. The land has a 6.1m frontage to Nancy Street, a depth of around 43.4m and an area of some 264.6m2.
6 Erected on the land is a single-storey semi-detached dwelling.
7 Single-storey and two-storey freestanding and semi-detached dwellings characterise the area.
8 Opposite the land at Nos 53-5 Nancy Street, is a 1930s or 1940s duplex with brick garages built to the front alignment under a deck. Elsewhere the front gardens are open, and to provide on-site accommodation for cars, some are with hard standing areas and some with single carports.

Relevant planning controls

Waverley Local Environmental Plan 1996 (As amended), (WLEP)
9 The land is zoned Residential 2(a) - Low Density under the provisions of the WLEP, and dwelling houses and alterations and additions to dwellings are permissible with the consent of the council.
10 The objectives of the WLEP are:
(a) to allow for housing only in the form of dwelling houses and boarding houses;
(b) To maintain and improve the amenity and existing characteristics of localities predominantly characterised by dwelling houses.
(c) …

Waverley Development Control Plan No 2 - Dwelling House Development, (DCP2)
11 The aims of the DCP2 adopted May 1999 are:
· to ensure that alterations and additions to existing dwellings are sympathetic in form and character with other dwellings in their vicinity;
· to ensure that the scale of dwelling house is appropriate for their allotment sizes and in relation to other dwellings in their vicinity;
· to ensure that new dwelling houses and alterations to existing dwelling houses do not significantly detract from the amenity, privacy and views of other dwellings;
· …

Floor Space Ratio
12 Under DCP2 a maximum floor space ratio of 0.82:1 applies to the subject land. With a site area of 264.6m2 the maximum permissible floor space applicable to the site is 264.6 x 0.82 = 217m2. The council calculated the total floor space of the proposal at 130m2, or a floor space ratio, (FSR) of 0.49:1, and Mr Faruqi of the council considered that the bulk and scale of the proposal to be satisfactory.

Height
13 DCP2 specifies a maximum external wall height of 7.5m and a ridge height of 9.5m for dwellings within a Residential 2(a) zone. The proposal would have a maximum external wall height of 6m, and a ridge height of 7.3m. Mr Faruqi of the council considered the height of the proposal to be satisfactory.

Building Setbacks
14 DCP2 requires a minimum side setback of 900mm. The proposal would be set back of 1,040mm, which Mr Faruqi of the council considered satisfactory.
15 The front setback of the second storey is considered satisfactory by the council, as it would retain the hipped roofline at the front. The first floor rear setback is considered acceptable by the council, as it would align with the predominant rear setback of adjoining dwellings.

Car Parking
16 The proposed garage would have an internal length of 4.7m with a maximum useable length of 4.1m. The council's car parking policy would require a minimum length of 5.5m. The required minimum width would be 2.5m. The length of the proposed garage falls short of prescriptive requirements/ standards and Mr Faruqi of the council considered this to be not acceptable.

Waverley Development Control Plan No 19 - Controls for site waste minimisation and management, (DCP19)
17 DCP19 also applies to the land. There was no issue in this regard.

Waverley Development Control Plan No 29 - Advertising and Notification, (DCP29)
18 DCP29 also applies to the land and sets out the council’s notification of development applications procedure. There was no issue in this regard.

The proposal and its history
19 Development application No 852/ 2003 was lodged with the respondent council on about 28 November 2003 to alter and add to the existing dwelling and to erect a new first floor, free standing garage within the front yard area and an in-ground swimming pool within the rear yard area.
20 As part of the application it is proposed to erect a single car brick garage on the northern side of the front garden to the street alignment.
21 At the rear at the first floor it is proposed to erect off Bedroom No 2, a balcony 2.3m wide.

Notification
22 The application was notified to nearby owners and occupants and the next-door neighbours at No 72 Nancy Street, North Bondi made a submission to the council, [Note: Exhibit 1 pp 11-2].
23 After making observations concerning alleged discrepancies in the plans Mr H Woods and Ms S Woods relevantly commented on the statement of environmental effects that:

There is no ‘existing garage’ and we believe a freestanding garage sets a precedent and will not ‘blend; with the streetscape. The garages referred to at Nos 53-5 form part of a duplex.

The council’s decision

The hearing
27 The appeal was filed on 23 March 2004.
28 At the hearing the court heard evidence on behalf of the respondent council from:
· Mr M A Faruqi, Statutory Planner, Waverley Municipal Council.

29 On behalf of the applicant evidence was given by:
· Ms S T Avery, in person.

The issues

1.

To reduce impact on the amenity of the surrounding properties, the rear first floor level balcony is to be reduced so as to extend a maximum of 1.5m from the rear wall of the additional storey and 1.6m high privacy screens are to be provided to both side elevations of the balcony.

2.

To reduce impact on the streetscape, the proposed garage is to be deleted.

The evidence and findings

Issue No.1: To reduce impact on the amenity of the surrounding properties, the rear first floor level balcony is to be reduced so as to extend a maximum of 1.5m from the rear wall of the additional storey and 1.6m high privacy screens are to be provided to both side elevations of the balcony.
31 Section 8.0 - Privacy and Noise Control, of DCP2 provides the objectives:
i. To minimise the extent of overlooking from dwelling-house development to internal areas and open spaces of other dwelling-house development;
ii. To ensure that dwelling-house development minimises overlooking impacts upon the existing dwelling from other buildings,
iii. To ensure that dwelling-house development minimises noise-impacts to an acceptable level.

...Where a courtyard or deck is visible from other dwellings, privacy screening, landscaping and vegetation is used in combination to minimise these impacts. However, existing and/ or proposed vegetation is not relied upon exclusively for screening.

Elevated external decks are generally less than 10 square metres in area and have a depth not greater than 1.5 metres so as to minimise privacy and noise impacts to surrounding dwellings. Decks along the side and rear boundaries are generally not permitted.

…large elevated decks tend to compromise the amenity of the neighbouring properties and have visual and acoustic impact on the adjoining neighbours. In this respect Waverley Council's DCP No 2 recommends that elevated decks have a maximum depth of 1.5m and provided with privacy screens to minimise overlooking impact on adjoining properties.

Having regard to the council's policy it is considered that the depth of the deck be maintained at 1.5m and provided with a privacy screen to minimise impact on adjoining properties.

34 Ms Avery who sought to have a deck like that on a neighbouring property stated:
· It seems as if there are no rules of the council in respect of the balconies; and
· If the balcony were made smaller and the screens added the enjoyment of the balcony would be lost.

“…people tend to build larger on the back.”

Issue No.2: To reduce impact on the streetscape, the proposed garage is to be deleted.
40 Section 9.0 - Vehicular Access and Parking of DCP2 provides the objectives:
i. To ensure that off-street car-parking facilities are provided in circumstances where the design and size of the proposed garage, carport or other facility does not unreasonably detract from the appearance and quality of the dwelling-house or streetscape;
ii. To maximise pedestrian and vehicular safety,
iii. To minimise loss of on-street parking.

41 Mr Faruqi for the council stated that the minimum internal dimensions for a car space under the council’s DCP14 and DCP2 S2, are 5.5m x 2.5m. Also, under Australian Standard (AS 2890.1-2004), car parking spaces and garages should be able to accommodate the 85-percentile car, which has a length of up to 4.9m.
42 The internal length of the proposed garage would be 4.7m with a useable length of around 4.1m. Mr Faruqi for the council considered this to be significantly short of minimum standards and not supportable for that reason as well.
43 He was also of the opinion that the proposed garage with a width of 3.1m occupying 50% of the street frontage, would detract from the uniformity of the existing semi-detached dwelling.
44 Mr Faruqi for the council concluded that the proposed garage would detract from the streetscape and would reduce the extent of soft landscaping and would be an over-development to the street. The proposed garage he considered would reduce the street corridor and provide a bland elevation to the streetscape. He acknowledged that there are some carports in the immediate vicinity of the land; however, the proposed garage would be a solid structure that would dominate the streetscape and be obtrusive.
45 He supported the decision of the council to impose Condition No 34 on the consent, as he was satisfied that the conditional approval would reflect the policies of the council as given in DCP2 and DCP14.
46 Mr Faruqi was of the opinion that there would be no problem with a carport in the position of the proposed garage, but considered a garage would be in appropriate. However, having regard for the need to provide sufficient length for car parking, Mr Faruqi was of the opinion that it would be better to locate the car parking in front of the sunroom. This would give a clear distance of 5.8m for car parking.
47 Ms Avery referred to on-site discussions and stated:
· the garage seemed to have approved by the council because the council when it issued the consent Conditions No 13, 14, 22 and 24 referred to the garage;
· the consent was approved by a positive assessment of the planning officer and no further assessment was made;
· deletion of the garage is in effect a refusal of the application; Mison.
· deletion of the garage would leave the development unfinished;
· deletion of the garage would be unfair; and
· deletion of the garage would leave the consent unclear and uncertain.

Conditions
54 The conditions are those in Exhibit 3 and on disc. The conditions have been renumbered and the original Conditions No 13, 14, 22 and 24 have been deleted to remove reference of the garage.

Orders
55 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld in part.
2. Development application No 852/ 2003 lodged with the respondent council on about 28 November 2003 to alter and add to the existing dwelling, to erect a new first floor, and an in-ground swimming pool within the rear yard, at Lot A in DP 384141 being No 74 Nancy Street, North Bondi, is approved subject to Conditions 1 to 30 in Annexure A.
3. The exhibits with the exception of Exhibits B and 3 are returned.
S J Watts
Commissioner of the Court
sw

In the Land and

Environment Court

of New South Wales

Appeal No: 10333 of 2004

Conditions of development consent

Annexure A

Stephanie T Avery

v

Waverley Council

1. Compliance in all respects with Drawing No. 20232 – 01 Revision B received by Council on 29 January 2004 prepared by The Plan Workshop dated November 2003, except where amended by the following conditions of consent.

2. A deposit of guarantee satisfactory to Council for the amount of $3000.00 must be provided as security for the payment of the cost of making good any damage that may be caused to any Council property as a consequence of this building work.

Note: This deposit or guarantee must be submitted before a construction certificate is issued. 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.

3. The building and demolition work must only be done between the hours of 7am and 5pm on Mondays to Saturdays and building work must not be carried out on Sundays and public holidays.

4. The building work must not be commenced until:

a) a Construction Certificate has been obtained from Council or an Accredited Certifier in accordance with Section 81A(2) of the Environmental Planning & Assessment Act, 1979; and

b) a Principal Certifying Authority has been appointed and Council has been notified of the appointment in accordance with Section 81A(2)(b) of the Environmental Planning & Assessment Act, 1979 and Form 7 of the Schedule 1 of the Regulations; and

c) Council is given at least two days notice in writing of intention to commence the building works.

The owner/applicant may make application to Council or an Accredited Certifier for the issue of a Construction Certificate and to be the Principal Certifying Authority.

Should Council be appointed the Principal Certifying Authority, the applicant/owner is to pay an inspection fee of $765.00 in accordance with Council's Pricing Policy prior to commencement of any works.

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

6. 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 licencee 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.

7. 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, whereby 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 principle certifying authority that they have complied with the applicant requirements of Part 6, before any work commences.

8. Structural details prepared and certified by a practicing Structural Engineer being furnished to Council or Accredited Certifier in connection all reinforced concrete work ,structural beams and columns prior to the issue of a Construction Certificate

9. A Certificate of Adequacy prepared by a practicing Structural Engineer, certifying the adequacy of the existing building structure to carry the extra load of the proposed additions is to be provided to Council or the Accredited Certifier prior to the issue of a construction certificate.

10. The floor and wall surfaces of the proposed bathroom and ensuite being protected against water in accordance with the Building Code of Australia.

Note: Water proofing is to be in accordance with AS 3740 - Water Proofing of Wet Areas within residential buildings.

11. All wet areas in the proposed bathrooms and ensuite to be examined and certified by an Accredited Certifier.

12. No portion of the proposed additions and fencing to encroach beyond the boundaries of the subject property.

13. The external finish of the proposed addition is to have a uniform appearance to match the external finish of the existing dwelling house.

14. Roof waters from the proposed addition to be collected and conveyed to the existing storm water drainage system or directly conveyed to the street gutter.

15. A smoke alarm system is to be installed within the building in accordance with the requirements of the Building Code of Australia.

16. 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.

17. The building works are to be inspected during construction by the Council or by an Accredited Certifier or other suitably qualified person and documentary evidence of compliance with the relevant terms of the approval/standards of construction detailed in the Building Code of Australia, is to be obtained prior to proceeding to the subsequent stages of construction. Inspections are to include the following:

a) sediment control measures;

b) foundation material;

c) footings, slabs and structural beams and columns;

d) floor, wall and roof frame;

e) storm water drains prior to covering.

18. The payment of a long service levy as required under Section 34 of the Building and Construction Industry Long Service Payments Act, 1986, in respect to this building work, and in this regard, proof that the levy has been paid is to be submitted to Council prior to the issue of a Construction Certificate.

Note

19. 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 having obtained prior approval. Applications or enquires for the occupation of Council's footpath can be obtained from Council's Technical Services Section.

20. A waste management plan shall be submitted to Council for approval in accordance with Council's Development Control Plan No. 19 (controls for site minimisation and management). The plan is to provide for the location and design of waste facilities, and the disposal of construction and demolition waste, and must be submitted and approved prior to the issue of the Construction Certificate or undertaking any demolition works.

The approved waste management plan for the site must be complied with at all times during construction.

The builder/construction company shall be provided with at least one copy of the waste management plan.

21. Erosion, sediment and pollution control measures are to be implemented on this site. These measures are to be in accordance with Council's Soil and Water Management 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 Council prior to the issueing of a Construction Certificate.

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

23. The pool water being treated by an approved water treatment and filtration unit.

24. To prevent noise nuisance to surrounding properties, the pool filtration motor and pump unit are to be housed within a ventilated soundproof enclosure.

25. 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 1926-1986 "Fences and Gates 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.

26. Swimming pool reinforcement is to be inspected by an Accredited Certifier or other suitably qualified person prior to the pouring of concrete.

27. 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 with water. These signs are available from Council's Planning & Environmental Services Department located at the Council Chambers.

28. 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.

29. To reduce impact on the amenity of the surrounding properties, the rear first floor level balcony is to be reduced so as to extend a maximum of 1.5m from the rear wall of the additional storey and 1.6m high privacy screens are to be provided to both side elevations of the balcony.

30. To reduce impact on the streetscape, the proposed garage is to be deleted.

Advice to Applicant

Your Construction Certificate will not be issued until all the conditions of consent are satisfied.

Sydney Water Requirements

You are required to submit your plans to the appropriate Sydney Water office to determine whether the development will affect Sydney Water’s sewer and water mains, stormwater drains and/or easements.

S J Watts

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Citations

Stephanie T Avery v Waverley Council [2004] NSWLEC 287

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CITATION:	Stephanie T Avery v Waverley Council [2004] NSWLEC 287
PARTIES:	APPLICANT Stephanie T Avery RESPONDENT Waverley Council
FILE NUMBER(S):	10333 of 2004
CORAM:	Watts C at 1
KEY ISSUES:	Development Application :- Impact of proposed first floor balcony · Impact of proposed garage on the dwelling and streetscape.
LEGISLATION CITED:	Waverley Local Environmental Plan 1996 (As amended), (WLEP)· Waverley Development Control Plan No 2 - Dwelling House Development, (DCP2)· Waverley Development Control Plan No 19 - Controls for site waste minimisation and management, (DCP19)· Waverley Development Control Plan No 29 - Advertising and Notification, (DCP29)· Environmental Planning and Assessment Act 1979, ss79C and 97
CASES CITED:	Mison v Randwick Municipal Council [1991] 23 NSWLR 723
DATES OF HEARING:	26 May 2004 and 3 June 2004
DATE OF JUDGMENT:	06/08/2004
LEGAL REPRESENTATIVES:	APPLICANT Ms S T Avery, in person RESPONDENT Mr M A Staunton, solicitor with Ms R Findlay-Debeck, solicitor SOLICITOR Staunton Beattie