Voltraint No. 1368 Pty Limited v Waverley Council

[2008] NSWLEC 1530

Land and Environment Court

of New South Wales

CITATION:

Voltraint No. 1368 Pty Limited v Waverley Council [2008] NSWLEC 1530

PARTIES:

APPLICANT
Voltraint No. 1368 Pty Limited

RESPONDENT
Waverley Council

FILE NUMBER(S):

10665 of 2008

CORAM:

Hoffman C

KEY ISSUES:

Development Application :- Alterations and Additions to semi detached dwelling, streetscape, disruption of the appearance of the semis as a pair,front setback, landscaped area of front yard, new garage in front setback

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Waverley Local Environmental Plan 1996
Waverley Development Control Plan 2006

DATES OF HEARING:

30/09/08, 22/12/2008 and 23/12/2008

EX TEMPORE JUDGMENT DATE:

23 December 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr G. McKee, solicitor
of McKees Legal Solutions

RESPONDENT
Ms C. Morton, solicitor
of Sparke Helmore Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

23 December 2008

10665 of 2008 Voltraint No. 1368 Pty Limited v Waverley Council

This decision was given extemporaneously.

It has been revised and edited prior to publication.

JUDGMENT

1 This is a Class 1 Appeal No. 10665 of 2008 between Votraint No. 1368 Pty Limited and Waverley Council in regard to the refusal of DA 46/2008 for major alterations and additions to a semi detached house at No. 106 Hewlett Street, Bronte. The semi is paired with No. 108.

2 The land slopes up gently from the street causing the front façade to be elevated about 1.5 metres above the ground to the floor level. The two semis have a single front yard with a single brick front fence across both the front boundaries. The original pair appears to be 1920s to 1930s single storey with tiled roof California bungalow style. Each has a side driveway originally to a garage in each back yard.

3 The built form is a large gable at the street covering both dwellings with a flat roofed elevated verandah at the front. Over the years the front verandah of each has been covered in. No. 108 has retained its original side front door off the driveway. No. 106, at some stage, has put its front door into the enclosed verandah with a simple wooden stair and landing up from the ground.

4 According to the evidence, around the late 1970s No. 108 had a second floor added and it generally matches the original detailing and finishes of the pair retaining the line of the large front gable with an attached wide eave and a narrower eave to the upper small gable of the addition. The enclosed flat roof front verandah was retained. Although the addition to No. 108 is at the same front alignment as the original large gable the setback of the upper eave behind the lower wide eave retains the original dominant large front gable appearance.

5 The proposal on No. 106 originally projected forward of this original façade and during s 34 conciliation under the Land and Environment Court Act1979 amended plans moved most of the projections back to align with the original gable. However, the replacement of the existing enclosed verandah with a new Bedroom 2 of the proposal, projects it about 250 millimetre forward of its pair on No. 108. As well as being 250mm forward of the enclosed verandah of No.108, the new Bedroom 2 is raised about one metre to give a high ceiling to the new Bedroom 2 on the ground floor. On its roof there is a new balcony to the new master bedroom on the new upper floor.

6 At the street front it was proposed to remove the original fence in front of No. 106 but in the amended plans most of it is retained. The proposed splitting of the existing front garden has been deleted to retain the combined area in front of both dwellings in the pair. There is a little less area of garden in front of No. 106 than in front of No. 108.

7 Another change is to widen the drive entry gate and put a two car garage set 2 metres in from the street boundary. The dwelling’s front façade is about 6 metres setback so the roof of the garage creates a 4 metre wide terrace. In the amended plans this is to be wholly landscaped to extend the visual appearance of the front garden.

8 The side setback where the driveway exists is to be retained for the house, but the new garage goes to zero side setback against No. 104 Hewlett Street. The latter property has its own garage with zero setback to the subject lot and also its garage is placed right on the front boundary with zero setback. Behind the proposed garage on the subject lot there is a set of stairs up to the new laundry door and a deep soil garden area and then further towards the rear but still between the house and the side boundary is a lap swim pool where the driveway now sits. The back yard benefits by the removal of the existing garage and being landscaped for family recreation.

9 The respondent in looking at the amended plans still has some fundamental disagreements with its acceptability. Conciliation was terminated and the parties asked to convert to a hearing under s 34(4)(b). The issues remaining can be summarised as:

(1) compliance with the local environmental plan and development control plan objectives;

(2) streetscape, whether the impact of the proposal on the streetscape of Hewlett Street is acceptable and if it is appropriate that the development replace one of a pair of existing semi detached dwellings with a dwelling of independent character;

(3) car parking, whether the car parking arrangement is acceptable in terms of its manoeuvrability and streetscape impact;

(4) landscaping, whether adequate landscaping is provided in the front setback area of the subject site; and

(5) street setback, whether the building setback from Hewlett Street is acceptable.

10 Appearing for the applicant were Mr McKee, Solicitor, Mr B Miller, applicant, Mrs L Miller, applicant, Mr S Hanson, architect and Mr L Fletcher, consultant town planner.

11 Appearing for the respondent was Ms C Morton, Solicitor and Ms I Yap, town planner for the council.

12 Also giving evidence at the hearing was Mr Birrell, objector of No. 108 Hewlett Street. I note that Mrs Birrell had given a letter saying the amended plans are an improvement and would look more aesthetically in line with her home at No. 108. Mr Birrell took a different view and gave oral evidence that although the form or envelope of the proposal had improved, the result did not give a unified appearance so that the semis would remain seen as a pair. He said the high gable of the master bedroom is all glass and should have matching features of shingles and framed panels similar to No. 108. The roof should be tiled as is No. 108. Other details should be similar whereas the proposal, he said, tries to look separate to No. 108, not a pair.

13 Ms Yap and Mr Fletcher had prepared a joint report on the issues but remain far apart on most of them. On the Waverley Local Environmental Plan 1996 objectives for the residential 2(a) zone they agreed that the proposal complies with objection (a) in that it is a dwelling. Ms Yap said it does not comply with objective (b) and that objective can be considered. It reads:

“To maintain and improve the amenity and existing characteristics of localities predominantly characterised by dwelling houses.”

14 Mr Fletcher said the statute says that a proposal only has to comply with one objective as stated in the statute. I agree that the latter compliance determines permissibility of any proposal but it does not eliminate any consideration of the other objectives. Closer consideration of objective (b) involves going to the details in the Waverley Development Control Plan 2006 amendment No. 4. Of particular note is cl 5.4.3 for semi detached dwellings and it says:

“Strategy - Cl 5.4.3(a). Semi detached dwelling house development maintains the design integrity of existing semi detached dwellings and ensures that they visually present as pairs or groups of dwellings. Note: The other provisions contained within this section also apply and are required to be met.
Controls - extensions to the roof form of an existing semi detached dwelling are designed on the assumption that the other dwelling in the pair will incorporate extensions of a similar nature. Development applications for such extensions may include a plan of how the building would appear if both dwellings were extended in this way.”

15 Also, I read cl 5.4.4 on streetscape and visual impact:

“The objectives for streetscape and visual impact are not achieved unless strategy, cl 5.4.4(a), extensions or additions to an existing semi detached building:
(a) are visually and stylistically integrated with the existing roof form;
(b) are appropriate in their streetscape context; and
(c) do not contribute excessively to the bulk of the building. Note: The other provisions contained within this section also apply and are required to be met.
Controls - the style and pitch of the roof matches, compliments and extends the existing roof form, characteristic features of the existing roof are incorporated where possible in extensions. Details such as terra cotta ridge tiles and finials, shingles and timber collar ties are incorporated where this will continue the style of the existing roof form (refer figure 72). First floor level additions or extensions do not result in the creation of a blank dividing wall along the boundary between the semi detached dwellings. Extensions to the rear of an existing semi detached dwelling are to be no higher than the existing ridge. The roof pitch of an extension to a semi detached dwelling matches that of the existing dwelling.”

16 These are critical considerations in this appeal.

17 Mr Fletcher correctly observes that the amended proposal in form or envelope of the upper floor and roof in the amended plans generally match that of No. 108. Ms Yap says that may be true but the other details of the controls are not achieved that would give compliance to the outcome strategy of No.s 106 and 108 presenting as a pair or as a single dwelling.

18 Mr Fletcher points to the diverse streetscape of Hewlett Street that has a variety of ages, styles and building heights that create a character of diversity. The proposal just adds to that diversity, he says.

19 Ms Yap looks at the streetscape and sees the diversity but also sees a number of other semi detached pairs that still appear strongly as unified pairs even though they have had upper storey extensions. Ms Yap agrees those extensions are further set back from the front façade than the proposal because the other semis have hipped roofs not gables as does the proposal.

20 The gable on the existing pair of No. 106 and 108 and the upper storey of No. 108 mean that in Ms Yap’s opinion, No. 106 does not have to set back further than No. 108 but it emphasises the need to achieve a unified appearance of the pair. She agrees one does not need to mirror copy No. 108. It is the details and some other elements that do not match and emphasise the difference instead. Other elements that emphasise the difference are the Bedroom 2 projection forward of the building line and the one metre higher than No. 108 enclosed verandah. Also the garage in the front setback and the reduced area of landscape to the front garden contribute in her opinion. Ms Yap says, in summary:

“The change proposed is not merely one degree it would present as a substantially different building as it is architecturally presented from the existing streetscape. If the proposal were to be permitted the only evidence that it has with its eastern neighbour had previously been part of a semi detached pair would be the fact that there was a shared boundary wall alignment between them. The large full height extension of glazing up to the roof and the incorporation of the balcony at the upper level are quite radical and uncharacteristic of existing dwellings in the vicinity.”

21 Mr Fletcher says that mere details should not prevent approval because in the future No. 108 will probably redevelop and can be made to match No. 106. I regard that as a false argument given the strategy outcome required and that is simply that on completion of any extension or alteration the two dwellings should still look like a pair. In semi detached houses especially of the Californian bungalow period they can be symmetrical pairs or asymmetrical in design. The proposal has elements of both. As I mentioned the envelope of the upper storey and roof are similar to No. 108 and in that part of the design it is the materials and the detailing that are not sympathetic to each other. The lower components are asymmetric.

22 Turning to the lower elements, it seems to me the reasons for the Bedroom 2 projection forward of the building line and one metre above the matching element in No. 108 are purely to suit the internal wishes of the applicant and to disregard the streetscape issues. The garage element is a little different because No. 104, the neighbour, and several other semi detached dwellings in the street have garages right at the front boundary. So setting the garage back in this instance and reducing the door width so it is less dominant and landscaping the garage roof provides some amelioration of that issue.

23 In arguing the landscaped area issue, I note that in the end the only deficiency with the controls is 3.1 square metres of deep soil landscape in the front yard or as it is defined in the development control plan, “soft landscaped area”. The applicant says the 23 square metres of landscaped area versus soft landscaped area on top of the garage roof must compensate for that deficiency. I am inclined to agree for several reasons. A large street tree outside the site and views to the ocean from the two properties means it is unlikely either No. 106 or No. 108 will ever plant a large tree in their front yards. The applicant has, in fact, proposed its obligatory large tree in the back yard where it would have a better contribution to amenity and shade for residents of the dwelling. Given that shrubs are the existing and likely future feature of the front garden, the garage roof will compensate adequately for the 3.1 square metre deficiency of deep soil landscaping and ameliorate the garage component.

24 I return to the determinative issue. In final submissions the applicant proffered a photo montage of the front gable of the proposal filled in with horizontal batons with the garage door front gates and master bedroom balcony balustrade having vertical timber batons or boards. This did not deal with the deficiencies. The proposal, even though it might be quite pleasant as a stand alone design, it fails to meet the essential objectives of the local environmental plan objective (b) for the residential 2(a) zone and cl 5.4.3(a) and 5.4.4(a) of development control plan 2006 for semi detached pairs.

25 The non compliance will result in No.s 106 and 108 not presenting as a pair and they will not be visually and stylistically integrated and characteristic features of the roof form are not incorporated. This would result in the impact of the mismatched pair in the streetscape having a jarring appearance that is unacceptable.

26 Therefore the orders of the Court are:

1) The appeal is dismissed; and
2) The exhibits are returned to the parties except for exhibits A, B and 3.

___________________

K G Hoffman
Commissioner of the Court
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