Lucas v Waverley Council

Lucas v Waverley Council - [2009] NSWLEC 1390 - NSWLEC 2009 case summary — Zoe

[37]

41 I agree with Ms Holten that the streetscape is an eclectic mixture of housing styles and housing types of a wide range of ages. There are many garages and carports on the street frontage in the immediate vicinity of the site. I also agree with Mr Coady's evidence and the photographic study of garages in the streets surrounding the site that the proposed garage is not out of character with the existing streetscape of the area. This finding is not inconsistent with cl 4.2 WDCP D2. 42 The s 82A plans show the proposed garage at a setback of 1.56m from the street frontage. The impact of this setback on views from the street to the house was discussed at the hearing. Ms Holten argued that with the proposed planter boxes and balustrading on top of the garage, the view from the street immediately in front of the garage would be limited to views of the upper section of the verandah and that this was an unacceptable outcome in terms of streetscape and amenity. Based on the discussions noted in the joint heritage planning report, a setback of 3.5m from the street was considered along with changes to the nature and setback of the balustrading. A plan of the sight lines from both setbacks was marked up. The 3.5 m setback with a repositioned planter box indicated this would enable views from the street to the bottom of the verandah. Requiring conditions to this effect will alleviate the non-compliance with cll 3.6 WLEP,4.2 WDCP Part D2 and 1.2 WDCP Part I1. Findings - Amenity 43 There is some limited off-street parking at the front of the property. According to table 2 in cl 3.2.1 of WDCP Part I1, if the site is treated as a medium density development of three 2 bedroom townhouses and one 4 bedroom dwelling the minimum rate is 3.4 car spaces and the maximum is 4.5 for parking zone B. If treated as a single dwelling, the minimum is zero and the maximum is 2. It seems to me that the council has approved a medium density development on the site and that the provision of some off-street parking is not inconsistent with the provisions of the WDCP.

[41]

48 In terms of the controls for landscape in cl 4.6.3 (a) in Part D2 of the WDCP, Ms Holten admitted to having not calculated the percentage of the site proposed for deep soil planting. The relevant control states that a minimum of 30% of the site area is to be deep soil and of this, a minimum of 50% is to be at the rear of the property and a minimum of 30% to be at the front. By my calculations, this is a figure of 9% of the site to be deep soil planting at the front of the building. It would appear from the council's submissions that a subsequent calculation of the proposed landscaping at the front of the site gives a figure of 6.2%. The modifications proposed at the hearing would increase that percentage to levels I consider would achieve council's objectives in this regard. 49 At the hearing, the planning and heritage experts discussed the potential impacts of the landscape on views to the heritage listed dwelling. The applicant's landscape architect was not present. There was a degree of tension between the desirability of trees and shrubs, hence the need for deep soil planting, and retaining views from the street to the building. The desirability for some symmetry in the landscape plan was also discussed in the context of the style of the dwelling. This tension was resolved by the parties agreeing to modifications of the landscape plans should the appeal be upheld and the application approved. Findings - Heritage 50 The WLEP refers to heritage in several sections as outlined in (13) and (14). In cll 45(3) and 49, the WLEP states that the impact of development on the heritage item must be considered. In cl 3(6)(d) of the WLEP, the specific aim is to ensure that development does not adversely affect the heritage significance of heritage items. It was agreed, by the heritage experts in their joint report and at the hearing, that any development is likely to have an adverse impact on heritage significance. The decision to be made is whether the impact is acceptable or unreasonable when weighed up with the competing interests of the amenity to the applicant and the public interest.

[42]

51 The respondent drew my attention to the planning principles in Anglican Church Property Trust v Sydney City Council [2003] NSWLEC 353. Roseth SC and Brown C at 34 state How can impact on the aesthetic and landmark significance of a heritage item be assessed? When is the impact acceptable? It seems to us that four main principles apply to such an assessment:· First, new development should not unreasonably reduce public views of the heritage item and its setting. This is because the pleasure people derive from a landmark heritage building is by viewing it. If one cannot see a landmark, it ceases to be one. Second, new development should not visually dominate the heritage building. A dominant new building, even when it does not obscure the heritage building, will render the experience of seeing the heritage building more complex and less delightful. Third, new development should not unreasonably overshadow the heritage building. Fourth, new development should relate to the character and form of the heritage item. This does not require imitating style or using the same materials. It requires only that new development should sit comfortably in a view that embraces both the old and the new. 52 If I was to have regard for these principles, given that the matter before the Court is not of the same 'landmark' significance as Anglican Church, it is my opinion that the additional setback of the proposed garage to 3.5 m from the street frontage and the proposed changes to the balustrading would ensure that the heritage listed dwelling will be visible from the street immediately in front of the garage and therefore satisfies the first principle. The second and fourth principles are satisfied to a degree if the bulk is reduced and the colour and nature of the materials used, including the landscaping, are sympathetic to the colour and style of the dwelling. The third principle is not applicable as the proposed garage is to be below the dwelling. Findings - in conclusion 53 I have assessed the application in terms of the relevant provisions of the WLEP and the WDCP and the particular circumstances of the site. With respect to the findings in Zhang v Canterbury Council [2001] NSWCA 167, I accept that while the WDCP is the focal point for my consideration of this appeal, I am not required to adopt it uncritically if I am otherwise satisfied that I have properly assessed the matter in accordance with s 79C of the Act. In this regard, I have considered the provisions of the relevant environmental planning instruments and development control plan. I have assessed the likely impacts of the development on the built environment and have considered the suitability of the site for the development and the public interest.

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Judgment (124 paragraphs)

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