Traylen v Woollahra Municipal Council

[2007] NSWLEC 308

Land and Environment Court

of New South Wales

CITATION:	Traylen v Woollahra Municipal Council [2007] NSWLEC 308
PARTIES:	APPLICANT Julie Traylen RESPONDENT Woollahra Municipal Council
FILE NUMBER(S):	10212 of 2007
CORAM:	Brown C
KEY ISSUES:	Development Application :- erection of a carport structure - streetscape - impact on Heritage Conservation Area
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
DATES OF HEARING:	1/06/07
EX TEMPORE JUDGMENT DATE:	1 June 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr B Goldsmith, agent RESPONDENT Mr M Connell, solicitor SOLICITORS Home Wilkinson Lowry

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

1 June 2007

10212 of 2007 Julie Traylen v Woollahra Municipal Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Woollahra Municipal Council (the council) of DA 823/2006/1 for the erection of a carport structure at 24 Cliff St., Watsons Bay (the site).

2 The proceedings were heard as an On Site Hearing on 1 June 2007 and the judgement reflects the contents of the Statement of Basic Facts and the findings given on-site.

3 The site is rectangular in shape with a frontage to Cliff St of 9.91 metres and a site area of 242 square metres. It is currently occupied by two-storey detached dwelling. An elevated car parking space is located directly off Cliff St and adjoining the southern boundary.

4 The proposal provides for the erection of a carport structure with pitched roof over the existing car space.

5 The site is zoned Residential 2(a) under Woollahra Local Environmental Plan 1995. The proposed use is permissible within this zone. Clause 8(5) provides that consent shall not be granted unless the development is consistent with the objectives of the plan and the objectives of the zone. Part 4 provides heritage provisions, as the site is located within a Heritage Conservation Area.

6 Watsons Bay Heritage Conservation Area Development Control Plan (the DCP) applies. The site is located within Precinct K Camp Cove Village precinct. Specific provisions are provided for this precinct. Relevantly, C32 of the requirements for Precinct K provides that “garages or carports are not to be built to street frontage (with the exception of Camp Street) and are to be setback behind the main building. Only one vehicular access driveway is permitted at the street frontage.”

7 The issues raised by the council relate to the adverse impact on the streetscape particularly considering the location within a Heritage Conservation Area and in close proximity to dwellings designated as contributory buildings

8 With the benefit of a view along Cliff St to understand the existing streetscape and character and taking into account the requirements of the DCP I agree with the council that the proposed development is unacceptable. While the requirements of C32 cannot prohibit garages or carports within the front setback area, the requirement however places a significant onus on the applicant to show why the requirement should not be complied with.

9 The DCP also provides requirements that apply generally to the Conservation Area (for example, cl 4.9 addresses car parking and access as well as C32) however where there is any inconsistency between the general requirements and the more specific precinct requirements, the precinct requirements should prevail.

10 The Court was advised of a recent development approval at 27 Cliff St for a dwelling and garage and where the garage is to be located within the front setback area. The support from the council was based on the fact that the garage was to replace an existing garage in the same location and was designed to relate to the new dwelling approved at the same time as the garage. In my view, this is an example of where some flexibility should be provided in the consideration of the DCP requirements. The circumstances should not be seen as a reason to support a breach of the DCP requirements. While there were a small number of garages located within the front setback area along Cliff St, I understand these garages were constructed under a different planning regime than exists at present.

11 Overall, the impact on the streetscape of the proposed carport is unacceptable considering the streetscape anticipated by C32 for Precinct K. It follows that there will be an unacceptable impact on the adjoining and nearby contributory items and the Conservation Area.

12 I find that, pursuant to cl 8(5), that the proposed development is inconsistent with the plan objective in cl 2(g)(ii) in that the proposal is not undertaken in matter that is sympathetic to the heritage significance of the Conservation Area.

13 The Orders of the Court are:

1) The appeal is dismissed.
2) DA 823/2006/1 for the erection of a carport structure at 24 Cliff St., Watsons Bay is refused.
3) The exhibits are returned.
____________
G T Brown
Commissioner of the Court