Azzopardi v Waverley Council

CASES CITED: Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75

APPLICANT Mr A. Perkins, solicitor of Colin Biggers & Paisley LEGAL REPRESENTATIVES:

RESPONDENT Mr A. Hudson, solicitor of Wilshire Webb

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT Background. 1 This appeal was lodged against conditions imposed by Council on a development consent for the construction of a single garage with attic room over, fronting onto (No 58) Alt Lane, Queens Park. The application follows a similar proposal, which was refused by the Court on 1 November 2006 in Appeal No 10502 of 2006.

2 The site is occupied by a part 1 part 2-storey row house, with recent additions to the dwelling constructed. A garage has been demolished from the back yard adjacent to the rear lane.

3 One and two-storey row houses adjoin the site with garages fronting Alt Lane. These garages are of various designs including some with single level flat roofs and other higher garages incorporating attics within the pitched roof space area.

4 The appealed conditions required amendments to the proposal involving; o a reduction in the overall height of the garage, with particular attention to the side walls being lowered from 3.6m to 2.7m. o deletion of the proposed dormer windows to minimise bulk and avoid overlooking.

The Proposal. 5 The proposed garage has a floor area of 5.5m x 3.2m and incorporates a staircase to the upper-level attic. This attic is within the pitched (350) roof space and has a total ridge height of 5.28m, which is obtained using a springing point off a 3.6m wall height. The garage is oriented with a transverse ridgeline to the laneway.

6 The attic incorporates fixed windows in the gabled ends and 3 awning windows in the dormers on each side of the roof. The awning windows are to have obscure glazing.

Planning controls. 7 Waverley Local Environmental Plan 1996 (WLEP). Under this WLEP, this site is within the Zone No. 2 (a) Residential - Low Density and the proposal is permissible with consent.

8 The street trees in Alt, Cuthbert and Newlands Streets are in close proximity to the site and are heritage listed as landscape items under Schedule 5 in the WLEP.

9 Development Control Plan 2006 (DCP). This DCP came into force on 31 January 2007 and contains the relevant development controls for this area. The site is within the Queens Park Residential Character Study area, which notes that "the narrow, corridor like rear access lanes are dominated by garage doors, high fences and walls, landscape screening, and a variety of building setbacks …"

10 Section 3.3 details the specific objectives for this area, including the following desired future character objectives and accompanying performance criteria:

Desired Future Character Objectives Performance Criteria 2. Streetscape 2.1 To reinforce existing street categories, through appropriate dwelling façade, building setback, fence and landscape gestures. 2.1 New development and alterations and additions to existing dwellings should be compatible and consistent with development both in the immediate vicinity and in the overall context of the street 2.2 To encourage dwelling styles that integrates with the established front, rear and side streetscapes. 2.2 Where properties have side street or rear lane frontages, alterations and additions reinforce the desirable side or rear streetscape. 2.3 To maintain streetscape character through consistent building setback, particularly where a building is part of a row of identical buildings. 2.3 Building setbacks, terraces, balconies and rooflines are consistent within the defined street corridor and provide uniformity to a group of terraces, or mirror an attached semi. 2.4 To promote fencing design which is consistent with the original style of the dwelling and character of the street, while providing for surveillance and promoting a wider ambience for pedestrians. 2.4 Where side setbacks between two dwellings result in two narrow paths, shared access and removal of side fences is encouraged, to widen and improve the functionality of the space (refer to Figure 36). 2.5 Low fences are desirable, especially where setbacks are close to the street, and a wider ambience for pedestrians, and gives a better scale to the building façade (refer to Figure 37 overleaf). 2.6 Front fences are to be of a low or transparent style. Fences are to be not higher than 600mm, while transparent fences may not exceed 1200mm in height.

2.7 Where rear lane access is provided, garages and driveways re to be located at the rear.

2.5 To progressively improve the existing clutter character of rear access lanes. 2.8 Where no rear lane access is provided, garages are to be set back from the street. The width shall be minimised and landscaping used to unify the garage and dwelling with the landform.

2.9 In the rear access lanes, a single car width garage door is encouraged where it contributes to the coherency of the street (refer to Figure 38).

2.10 Where rear lanes are characterised by varied building forms and setbacks, vegetation and screen plantings are to be used to enhance the streetscape.

2.11 Rear fences should be between 1.8m and 2m in height.

11 The DCP refers to vegetation and planting being encouraged to screen the cluttered image of rear access lanes and to soften the streetscape. A consistent rhythm of single garage doors and gable roofs is a desirable rear lane character. Figure 42 indicates "that rhythm is achieved through repetition of identical architectural features."

12 Section 5.9 deals with Laneway Development and Ancillary Buildings and the stated objectives are: (a) To avoid excessive development of landscape areas and open space of dwellings; (b) To minimise the adverse impacts that laneway development and ancillary buildings may have on adjoining properties; and (c) To ensure laneway development is compatible with the streetscapes of the laneway and primary street.

13 The following controls are listed in order to achieve these objectives:

Strategy Controls · Laneway development is to be designed as a separate structure to the main building. · Laneway development should be a minor and secondary building associated with the main dwelling. · Laneway development should be designed with simple built forms, built at or very close to the lane alignment and should not provide a strong visual element when viewed from the primary street frontage. 5.9.1 Laneway development should not impact on the streetscape of the laneway or the primary street. · Laneway development design should incorporate a pitched roof. · Laneway development should not occur if it will result in a significant alteration to the landscape character of the laneway. · Visually significant trees should not be removed to make way for laneway development. · Laneway development should not compromise the provision of open landscaped space in the rear yard. · The external wall heights of laneway development shall not exceed 3.6 m and maximum height to the roof ridge shall not exceed 5.6 m. 5.9.2 Laneway development does not result in overshadowing or loss of privacy to adjoining dwellings. · The design of laneway development shall not incorporate decks or balconies. · Any stairs shall be contained within the building. · Laneway development is not to be used as a separate occupancy, nor is it to contain bathrooms or kitchen facilities.

Discussion of the evidence. 14 From the outset, the submissions on behalf of the council acknowledge that the proposal complies with the principal numerical controls of wall and ridge height for a laneway garage. However Council still does not consider the proposal achieves a reasonable level of rhythm with the other existing garages, in this particular laneway because of its height.

15 Based on assessments of the existing garage walls and heights, Council considers that the side wall height should be reduced to 2.7m and the ridge height correspondingly reduced to 4.4m. Accordingly, this requirement was imposed on the consent and supported by a number of the neighbours, whose properties are impacted on by the proposal. The main impacts being loss of outlook, impact on views and possible overshadowing.

16 Against this, the applicant argues that the proposal complies with the controls, it does not create any unreasonable impacts on neighbouring properties and the additional height is required to optimise the utility of the attic area. The applicant accepts that a condition be placed on the consent, which restricts its use to non-habitable purposes.

17 Having considered the evidence and undertaken a view, I am inclined to give reduced weight to council's reliance on the existing wall height of garages fronting the Lane. It is apparent that the existing garages are of various eras and design. However, the more recent garages have incorporated loft areas, some of which have lower ridge- lines due to their utilisation of a side wall height of approximately 2.7m.

18 Notwithstanding this, it seems to me that it is a reasonable expectation for a property owner to optimise the building envelope with a development that complies with the development controls, providing the amenity impacts are acceptable. This is the situation in the current case where the increased wall height to 3.6m allows more convenient stairway access to the attic area, better natural light and storage/attic usage.

19 With regard to the amenity impacts, Mr and Mrs Travers own the neighbouring property at 2-4 Cuthbert Street. They accept the restrictive height conditions imposed by Council and their objections to the 0.88m higher garage, are that the height of the structure will unreasonably intrude into their view corridors, there will be a loss of outlook and the additional height will cause unnecessary shadowing of their property. They also expressed concern about the precedential effect of allowing the proposal.

20 At the view the impact on the Travers property was assessed. The main impact appears to be on the ground level dining-room and family room windows. Taking into account that the controls do allow for attics in the pitched roof space, I do not consider the impact of the proposal is unreasonable.

21 From the dining room window, whilst the garage structure will been observable, the outlook of a structure (albeit closer) will generally be maintained within the backdrop of the existing 2-storey dwellings fronting Alt Street. The existing mature tree canopy outlook will be maintained above the structure, as will most of the skyline. Under these circumstances, I do not consider that the relatively marginal impact arising from the increased height (0.88m) of the ridge height of the garage, or the impact on outlook is sufficient to warrant the reduction of the attic level.

22 As there was no substantive evidence to indicate that the proposal will unduly overshadow the neighbouring properties, I do not consider this concern sufficient to warrant amendment of the proposal.

23 With regard to the precedent issues, reference was made to Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75, where His Honour Justice Lloyd said : 28. A number of things could be said about these authorities and the competing submissions upon which they are based. In Emmott v Ku-ring-gai Municipal Council, Sugerman J considered the proposition that a proposed development which is itself unobjectionable should not be allowed because it is likely to lead to other developments of a similar character, the totality of which would prove objectionable. His Honour went on to say that this is in turn dependent upon "a sufficient probability that there will be further applications for a number of undistinguishable developments of the same class sufficient in their totality to bring about the objectionable condition of affairs" . As I understand the decision, if the Court is entertained with an application for a proposed development which is both objectionable in itself and where there is a sufficient probability that there will be further applications of a like kind, then the fact that a consent would operate as a precedent may be taken into consideration. 29. In the present case the Senior Commissioner noted (at par [42]) that the notion of precedent is treated with considerable caution by the Court. He also found as a fact that one approval would tend to lead inexorably to a further three over time. He also noted the existence of 25 lots that could be seen as benefiting from what seems likely to be an inevitable consequence of approvals in this location. Importantly, the Senior Commissioner found (at par [44]) that the present proposals had an undesirable visual impact. In other words, the present proposals satisfied the criteria identified by Sugerman J which give rise to a valid consideration of precedent: the present proposals were not "unobjectionable" in themselves and there was a sufficient probability for further applications of undistinguishable developments of the same class and in the same locality. 30. In Milner v Willoughby Municipal Council, Cripps J expressly adopted the observations of Sugerman J in Emmott . In Maxwell James Maxwell Pty Ltd v North Sydney Municipal Council, Stein J accepted that a precedent argument may be raised, albeit as an argument of the last resort, but did not refer to any authority for that statement. His Honour emphasised, as did Cripps J, that it is the merits of any particular development application that is important. In Dale v Maritime Services Board of New South Wales, Pearlman J followed the judgments of Cripps J in Milner and of Stein J in Maxwell James Maxwell Pty Ltd . In doing so it does not seem, from a reading of her Honour's judgment, that her Honour was departing from what Sugerman J said in Emmott , that forming the basis of the decision of Cripps J in Milner. 31. The authorities relied upon by Mr Hale show clearly that the precedent effect of a particular proposal is a valid consideration. In Shellcove Gardens Pty Ltd v North Sydney Municipal Council , Sugerman J expressly referred to his earlier decision in Emmott, in which he corrected the misprint in the latter judgment. Sugerman J acknowledged that "if one application were granted it might prove difficult for the council to refuse others unless the circumstances were distinguishable". In the present case there has been a finding of fact by the Senior Commissioner that there is more than a mere "chance or possibility" of such later applications. 32. In particular, the decision of the Court of Appeal in BP Australia Ltd v Campbelltown City Council is, of course, binding upon me. As noted above, that Court held that the risk of establishing a precedent is readily invokable by prospective developers of other land in the vicinity is a valid consideration.

24 Whilst there was some speculation about what other property owners might do with their existing garages, there was no evidence put before the Court regarding a number of other similar applications, except for the neighbouring property, which apparently has been conditioned similar to the subject proposal, that would rely on any precedental effect from the subject approval.

25 In the ultimate however, my assessment is that any concerns about precedent should be given reduced weight when the proposal complies with controls. It seems to me that the DCP controls have been reviewed quite recently and the building envelope with a maximum side wall height of 3.6m, together with a pitched roof form (with maximum pitch of 350) adopted to achieve the desired future character of this area. The maximum height of the building is then dependent on the width of the lot, up to a maximum of 5.5m. This proposal complies with these controls and I do not consider it so objectionable, to warrant significant amendments.

26 Insofar as reference was also made to the Tenacity principles, in respect of the impact on views, the principles allow for a relaxation to the view sharing principles, where the proposal is a complying development. I am satisfied in the subject case that the introduction of the garage/attic, of a scale which complies with the current development controls, does not create such adverse impact on views to warrant a further reduction in the overall height of the structure.

Conclusion. 27 My assessment of this proposal is that it complies with the relevant DCP controls and in particular, is below the maximum height allowed for a garage ridgeline in this area.

28 Whilst the controls refer to a preference for maintenance of the rhythm of garage structures, I consider that significant weight can be given to the proposals compliance with the numerical standards and orientation of the ridge line, which have presumably been adopted to achieve the desired future outcome and may involve the redevelopment of some of the older garage structures. Taking into account the apparent age and condition of these garages, I do not consider it reasonable to place significant reliance on their dimensions, as a benchmark considering the redevelopment opportunities are allowed in the DCP. In this regard, I note that it is not a conservation area. 29 Apart from this, I have also considered the objections to the dormer windows. However these dormers are below the ridge height and accordingly I do not consider they adversely impact on views or create adverse visual impacts. Furthermore, the windows are oriented towards the side boundaries and have obscure glazing, so that overlooking on the neighbouring properties is adequately restricted. In the subject circumstances, they allow natural light and facilitate the stairway, and I before consider their retention acceptable.

30 In reaching these conclusions, I have also considered the detailed council officers assessment of the proposal, which resulted in a recommendation for approval of the complying proposal. As I stated previously, I do not consider that any amenity impacts on the neighbouring properties are sufficient to warrant significant alteration of the attic level, which reduces its amenity significantly. Therefore the Court makes the following orders, which involve the deletion of the deferred commencement condition requiring amendments to the proposal to lower the ridge line and delete the dormers.

1. The appeal is upheld.
2. The conditions of consent for DA No 707/2006 granted on 23 January 2007 are amended as follows: 1) Deferred condition 1 is deleted. 2) Condition 3 is amended to: The premises are to be used only as a single dwelling house with the garage and attic room not to be used as a separate dwelling or as habitable space.
3. Exhibits may be returned except for 1 and A.

      R Hussey
      Commissioner of the Court
      ljr

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.