Udler v Waverley Council
[2013] NSWLEC 1173
•20 September 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: Udler v Waverley Council [2013] NSWLEC 1173 Hearing dates: 19 September 2013 Decision date: 20 September 2013 Jurisdiction: Class 1 Before: Brown C Decision: On filing of amended plans and conditions that reflect the findings in the judgment, the Court will make the following orders in chambers:
1. The appeal is upheld.
2. Development Application DA541/2012 for alterations and additions to an existing dwelling at 58 Queens Park Road, Queens Park is approved subject to the conditions in Annexure A.
3. The exhibits, other than exhibits A and B, are returned.
Catchwords: DEVELOPMENT APPLICATION: alterations and additions to an existing dwelling that includes a first floor addition, replacement of rear double garage and new cabana - breach of predominant rear building line - bulk, loss of sunlight Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Waverley Local Environmental Plan 2012Category: Principal judgment Parties: Alex and Kim Udler (Applicant)
Waverley Council (Respondent)Representation: Mr G Green, solicitor (Applicant)
Mr S Patterson, solicitor (Respondent)
Pikes & Verekers Lawyers (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s): 10510 of 2013
Judgment
COMMISSIONER: This is an appeal against conditions imposed by Waverley Council on the approval of Development Application DA541/2012 on 20 August 2013 for alterations and additions to an existing dwelling that includes a first floor addition, replacement of rear double garage and new cabana at the rear at 58 Queens Park Road, Queens Park (the site)
The disputed conditions state:
1. The proposed first floor is to be reduced at the rear by 1 metre on the western side and 2 metres on the eastern side so as to be set back generally in line with the existing predominant rear building line of the two adjoining properties.
2. The rear garage and cabana structure to be reduced in size and the design altered to include a pitched roof and to reflect the design character of the existing building and general area.
The appeal was subject to mandatory conciliation and arbitration on 19 September 2013 under s 34AA of the Land and Environment Court Act 1979 (the Court Act). As no agreement was reached, the conciliation conference was terminated pursuant to s 34AA(2)(b), and the proceedings dealt with forthwith pursuant to s 34AA(2) b)(i) and on the basis of what occurred at the conciliation conference pursuant to s 34AA(2)(b)(ii).
The contention that remained in dispute centred on the rear building line of the proposed first floor addition. The council maintained that the setback was in breach of the council requirement and as such had an unsatisfactory impact on the Queens Park area, the Queens Park Heritage Conservation Area and the amenity of the adjoining properties. The height of the garage/cabana and roof form was addressed through a condition to reduce the height by 100 mm and agreement by the experts that a flat roof form was more appropriate than the pitched roof.
The site and surrounding area
The site is rectangular in shape with a frontage to Queens Park Road and a secondary frontage to Arnold Street of 12.19m. It has a depth along each side boundary of 54.87 m and an area of approximately 669.20 sq m. Existing development on the site includes a single storey federation style freestanding dwelling with slate pitched roof and a double garage at the rear facing Arnold Street. The dwelling is setback approximately 13m from Queens Park Road and the front has significant landscaped area with large trees within the front setback. A swimming pool is also located in the rear yard between the dwelling house and garage.
Adjoining the site to the east is 60 Queens Park Road which is a two storey residential dwelling. Further immediately adjacent to the east is a four storey residential flat building at 62-64 Queens Park Road.
Adjoining the site to the west is 56 Queens Park Road which is a corner site consisting of a single storey residential dwelling with a detached garage for three vehicles at the rear.
Opposite the site is Queens Park, a large public open space reserve. The surrounding area is characterised by both detached and attached dwellings and medium and low scale residential flat buildings.
Relevant planning controls
The site is zoned R2 - Low Density Residential under Waverley Local Environmental Plan 2012 (LEP 2012). The site is not a heritage item under LEP 2012 but is located within the Queens Park Heritage Conservation Area. Queens Park is a State listed heritage item.
Waverley Development Control Plan 2012 (the DCP) is relevant. Part C provides requirements for Residential Development with pt 1.1 providing specific requirements for the Queens Park Heritage Conservation Area. The relevant Desired Future Character objectives in pt 1.1.1 are:
2.1 To reinforce the existing street character, through appropriate dwelling facades, building setbacks, fence and landscaping.
2.2 To encourage dwelling styles that integrate with the established front, rear and side streetscapes.
2.3 To maintain streetscape character through consistent building setback, particularly where a building is part of a row of identical buildings.
Part 2.5.2 provides objectives for side and rear setbacks. These are:
(a) To reinforce the existing side and rear setbacks of the street.
(b) To maximise building separation with adjoining sites to the rear, providing visual and acoustic privacy.
(c) To maximise the opportunity to retain and reinforce mature vegetation to maximize natural site drainage and protect the water table.
(d) To maximise the useability of side setback space.
(e) To provide setbacks that positively contribute to the landscape of the site, and it's presence in the streetscape.
Part 1.4 addresses rear setbacks and states:
1.4.1 Rear Setbacks
(a) The rear building line of new buildings, and extensions to existing buildings, is to be built no further than the predominant rear building line of buildings in its vicinity. The predominant rear building line is determined by the average setbacks of both the main buildings on either side of the subject site and includes 2 storey development and first floor extensions to existing dwellings (refer to Figure 20). In most circumstances development at first floor level and above shall be set back from the rear building line of the ground floor level in order to minimise bulk and scale
impacts and provide visual relief for the open space and living areas at adjacent properties.
Figure 20. Predominant rear building line and established front building line for single dwellings.
(b) Where it is proposed to build beyond the predominant rear building line, the onus is upon the applicant to justify that the proposed building line is appropriate. Matters that must be addressed in justifying a building alignment extending beyond the predominant rear building line include, but are not limited to:
(i) Compliance with applicable development standards, including Floor Space Ratio and Building Height;
(ii) Compliance with the landscaped and open space controls;
(iii) Compliance with side setback controls;
(iv) Emergence of a new rear building alignment beyond the dwellings either side of the subject site (note that any reliance on an emerging rear building alignment as a precedent can only be justified where the emerging alignment is itself based on compliant development with respect to building height, FSR and side setback controls);
(v) Location and retention of existing significant vegetation;
(vi) Visual aspect of the bulk and scale as viewed from the private open space and living areas of adjoining properties; and
(vii) Acceptability of amenity impacts on adjacent properties with regard to solar access, visual and acoustic privacy and views.
The rear building line
Expert town planning evidence was provided by Mr Kerry Nash, for the council and Mr Anthony Betros, for the applicant. The owners of the two adjoining properties provided evidence on site and supported the councils contention on the unacceptable rear building line.
The fundamental issue between the parties is whether the rear building line of the first floor additions is appropriate. Mr Betros maintains that the extension of the first floor by 1 m on the western side and 4.9 m on the eastern side beyond the adjoining buildings is acceptable whereas Mr Nash maintains that the extension of the first floor should be reduced by 1 m to approximately align on the western side with the adjoining building and reduced by 2 m on the eastern side so the first floor extends only 2.9 m beyond the adjoining building. Mr Nash claims that the first floor, as proposed by Mr Betros, will have unacceptable loss of daylight and visual bulk impacts, particularly on the property to the west.
In my view, the first floor extension to the rear as proposed by Mr Betros is acceptable for a number of reasons. First, and while it was agreed that the first floor extended beyond the predominant rear building line, as determined by pt 1.4.1 of the DCP, that is not the end of the enquiry. Part 1.4.1 clearly envisages a building beyond the predominant rear building line but subject to the applicant satisfying certain criteria in subsec(b).
Second, pt 1.4.1 does not dictate that the rear building line of a building should align with adjoining buildings. Figure 20 clearly anticipates situations where the rear building alignments do not align with adjoining buildings even when there is compliance with the predominant rear building line.
Third, the criteria in subsec(b) are satisfied. There was no dispute that the development complied with the requirements for floor space ratio and building height ((b)(i)), landscaped and open space controls ((b)(ii)), side setback ((b)(iii)) and location and retention of existing significant vegetation ((b)(v)). The criterion in (b)(iv) is not relevant, in this case. The criterion in (b)(vi) raises the visual aspect of the bulk and scale as viewed from the private open space and living areas of adjoining properties. With the benefit of the site inspection of the site and the dwelling to the east, I am satisfied that the first floor rear setback does not create an unreasonable level of enclosure or an appearance of unacceptable bulk from adjoining properties to the point where a greater rear setback is required. To the east, the first floor extends 4.9 m beyond the adjoining dwelling however it is largely unobservable from inside the dwelling and screened by existing vegetation and the roofed enclosure from patio of the existing dwelling. The extension of 1 m on the western side is even less imposing. I am similarly not satisfied that the amenity impacts raised in subsec(b)(vii) warrant an increased rear setback. I am also mindful of Figure 20 where the strict alignment of adjoining buildings is not a requirement of the DCP. Of the matters in subsec(b)(vii), Mr Nash only raised issue with solar access although he accepted that the first floor setback does not impact on solar access as there is compliance with the solar access requirements in pt 1.8. He notes that daylight might be reduced in the afternoon in mid winter although I do not accept that this is sufficient to warrant an increased rear setback.
Fourth, and as I understand the history of the application, it was sensibly suggested by the council staff that the original dwelling be retained as part of the alterations and additions because of its location in the Queens Park Heritage Conservation Area and opposite Queens Park. To preserve the existing roof form and maintain the heritage presence of the dwelling from Queens Park Road, it has been necessary to move some of the floor area towards the rear. Given the lack of impact from the breach of predominant rear building line and the compliance with the FSR requirements, the design approach contributes in a positive way to the Queens Park Heritage Conservation Area and views from Queens Park.
Fifth, the proposed rear setback satisfies the relevant Desired Future Character objectives in pt 1.1.1 and the objectives for side and rear setbacks in pt 2.5.2.
Directions
As the judgment requires some amendments to the plans and conditions, it is more efficient have a final set of plans that address these amendments. These plans can then be referred to in the development consent to avoid any confusion.
On filing of amended plans and amended conditions that reflect the findings in the judgment and the agreements by the experts, the Court will make the following orders in chambers:
1. The appeal is upheld.
2. Development Application DA541/2012 for alterations and additions to an existing dwelling at 58 Queens Park Road, Queens Park is approved subject to the conditions in Annexure A.
3. The exhibits, other than exhibits A and B, are returned.
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G T Brown
Commissioner of the Court
Decision last updated: 20 September 2013
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