Whelan v Waverley Council

[2008] NSWLEC 1148

Land and Environment Court

of New South Wales

CITATION:

Whelan v Waverley Council [2008] NSWLEC 1148

PARTIES:

APPLICANT
Sue Whelan

RESPONDENT
Waverley Council

FILE NUMBER(S):

11248 of 2007

CORAM:

Tuor C

KEY ISSUES:

Development Consent - Section 96 Application :- modify consent to permit double carport instead of single garage.
Impact on streetscape and landscape area.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Waverley Development Control Plan 2006

DATES OF HEARING:

11/03/2008

EX TEMPORE JUDGMENT DATE:

11 March 2008

LEGAL REPRESENTATIVES:

APPLICANT
Ms S Hill, solicitor
of Susan Hill + Associates

RESPONDENT
Mr S Patterson, solicitor
of Wilshire Webb Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

11 March 2008

11248 of 2007 Sue Whelan v Waverley Council

JUDGMENT

1 This is an appeal against the deemed refusal by Waverley Council (council) of an application under s 96 of the Environmental Planning and Assessment Act 1979 to modify development consent (88/2007) for alternations and additions to an existing dwelling at 10 Brighton Boulevard, North Bondi (the site).

2 The original development application also sought approval to enlarge an existing single garage to a double garage. The development application was approved on 18 April 2007 subject to conditions including condition 2(b) which states:

The proposed extension of the existing garage is not supported and shall be deleted from the plan. In this respect, the existing dimensions of the existing single garage shall be retained and the driveway shall not be modified.

3 The s 96 application seeks to modify the development consent by the deletion of condition 2(b) allowing the provision of a double carport.

4 The key issue in dispute between the parties is whether the proposal will have an acceptable impact on the streetscape.

5 The site, its context, the history of the application and the planning controls are in the Amended Statement of Facts and Contentions.

The evidence

6 The hearing was conducted on site and the Court heard expert planning evidence from Mr D Aitken, for the council, and Mr T Moody, for the applicant.

7 Mrs Rechnitzer, the adjoining owner of 12-14 Brighton Boulevard, objected to the proposal. Her principal concern related to the wall of the existing garage on the common boundary, which she considered restricted views for cars entering and leaving both her property and the site. This wall was to be retained in the approved garage. For the carport proposal, the applicant has agreed to lower the height of the wall to approximately 1 metre and to render and paint the base of the wall. Mrs Rechnitzer would rather the wall be removed but preferred the proposal to reduce its height rather than the approved garage.

8 The difference in opinion between Mr Aitken and Mr Moody can be summarised as Mr Aitken considers the proposal does not comply with the objectives and controls for parking in Waverley Development Control Plan 2006 (DCP 2006), in particular, cl 5.7.3 which requires that “all car accommodation is to be located behind the front building line”. In Mr Aitken’s opinion the enlargement of the garage will:

significantly impact on the existing streetscape, resulting in further loss of the visual relationship between the open front gardens and the street.

9 Mr Aitken considered that the visual catchment of the site was not characterised by parking in the front setback area, noting in particular the dwellings directly opposite (25, 27, 29 and 31 Brighton Boulevard). Further he considered that where there is parking in the front setback area it is generally for a single car. Mr Aitken was also concerned that the carport would reduce the landscape area in the front setback and did not comply with cl 5.8 of DCP 2006.

10 Mr Aitken also raised concerns about the loss of on-street parking but accepted that the proposed condition and the drawing prepared by the applicant’s traffic engineer demonstrated that the driveway and the kerb would not require widening, and therefore there would be no loss of on-street car parking.

11 Mr Moody considered that the proposal needed to be considered in the context of the existing garage and 1.8 metre fence in the front setback area and the approval for a similar structure. In Mr Moody’s opinion the proposed carport, due to its low profile, use of varied materials, skillion roof and recessed front gate, would be a less dominant element in the streetscape than the approved development, and better achieved the strategy in cl 5.7.3 and the objective of the control.

12 Further Mr Moody considered the street to be characterised by parking in the front setback area. This parking included hardstand areas, single and double carports and garages. He undertook a photographic survey and noted that at least one double garage (36 Brighton Boulevard) was approved under the current version of the controls.

13 Mr Moody considered that the proposal exceeded the requirements of DCP 2006 for landscape area and soft landscaping and would provide excellent amenity for the occupants of the dwelling, and meet the requirements for on-site water infiltration. The landscape appearance from the street, in his opinion, was an improvement over what previously existed and what was approved.

14 The objectives of cl 5.7 of DCP 2006 - Vehicle Access and Parking, include:

a) to ensure that the design and size of off-street car parking facilities does not unreasonably detract from the appearance and quality of the dwelling house or streetscape
b) to maximise pedestrian and vehicular safety
c) to minimise loss of on-street car parking.

15 I am satisfied the proposal meets these objectives. The design of the carport is well integrated into the dwelling, the low walls open up the streetscape and will result in a less bulky structure than that which previously existed and has been approved.

16 The streetscape is extremely varied with residential flat buildings and one and two storey dwellings, with no consistency of style or architecture. I accept Mr Moody’s evidence that the street is characterised by parking in the front setback area of various sizes and forms. The dwellings opposite the site are examples of houses in landscape settings but these are not characteristic of the street or of the existing development on the site.

17 Mr Aitken’s assessment of the proposal would be appropriate if the site had a landscaped front setback area and no previous or approved structure, or if the streetscape were characterised by landscaped front setback areas. This is not the case.

18 The assessment of the application needs to consider the existing streetscape and the current approval for the site. In assessing the proposal against these factors I accept Mr Moody’s evidence. The double carport will be a less dominant element in the streetscape than the approved garage and meets the strategy of cl 5.7.3 of DCP 2006.

19 There is no evidence before me that the proposal will adversely impact on pedestrian or vehicular safety and it will maintain the existing number of on-street car parking spaces. The proposal therefore meets the objectives of cl 5.7 of DCP 2006.

20 The current approval is for a garage and wall on the street frontage which reflects what previously existed on the site. The approved landscaping in the front setback area therefore provides little amenity to the street. While the numerical area of landscaping is reduced by the proposal, the lowering of the carport wall and the setback of the gate with planting to the street will provide greater exposure of the landscaping and front setback area to the public domain. Overall the development meets the numerical requirements of cl 5.8 of DCP 2006, even though the front setback area is below its requirement. I therefore accept Mr Moody’s evidence that the proposal meets the objectives of the control.

21 The orders of the Court are therefore:

1. The appeal is upheld.
2. The application under s 96 of the Environmental Planning and Assessment Act 1979 to modify development consent (88/2007) for alterations and additions to an existing dwelling at 10 Brighton Boulevard, North Bondi is approved subject to the conditions in Annexure A.
3. The exhibits, except Exhibit 3, A and D may be returned.

___________________

Annelise Tuor
Commissioner of the Court
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