Matthews v Waverley Council

Land and Environment Court (NSW)|2012-02-20|Before: Mr J

Judgment 1COMMISSIONER: This is an appeal against the refusal by Waverley Council of Development Application No. DA-205/2011 for alterations and additions to a dwelling at 48-50 Blenheim Street Queens Park. The appeal is made under s 97 of the Environmental Planning and Assessment Act 1979. 2The alterations include the modification of the front verandah and street facade and the erection of a new carport and front fence on the western/ street frontage, and new external stairs to the southern shared boundary. The design introduces a flat roof over the verandah and carport. The construction of the elevated slab for the carport requires the removal of a small Magnolia tree. The fence is to comprise masonry pillars with horizontal timber slats.

The site and locality 3The site is located at the southern end of Blenheim Street on the eastern side of the road. The western side of Blenheim Street is a heritage conservation area. The eastern side of the street is included in the Blenheim Gully Conservation Area - the gully being at the rear of the dwellings. The site is not listed as a heritage item. 4The site was originally two semi-detached dwellings. In 2004, council approved development application (DA-363/2003) to convert the two dwellings into one three-storey dwelling including a new top floor addition. The works on this DA have commenced but are not yet finalised, including the top floor addition. The entrance to the dwelling is set below street level. 5The street comprises a mixture of single and two storey free-standing and semi-detached dwellings of a range of ages and architectural styles. Of relevance is the presence of a smash repairs workshop with a frontage to Blenheim Street. More than half the eastern side of the street has been developed as attached terraces (of traditional design with small front gardens and picket fences) with provision for underground parking. The entrance to the underground carpark is through large gates at the southern end of the development. To the immediate north of the site are three contemporary developments with garage doors and/or off-street parking at the street frontage. Opposite the site is a row of single storey terraces. 6Blenheim Street runs between Birrell Street to the north and adjoins Cuthbert Street at its southern end. It is a one-way street with on-street parking confined to the eastern side. A section of the road reserve on the northern end of the street is occupied with large planter beds, which restrict on-street parking.

Issues in contention 7The issues in contention can be summarised as:

Impact of the form of the structure on visual amenity and the character of the streetscape including architectural styles, in particular the heavily framed form of the carport;
Contravention of controls concerning carports/garages forward of the building line;
Loss of landscaped area and a tree in the front setback;
Loss of on-street parking.

Relevant controls 8The site is zoned 2(a) Residential - Low Density under Waverley Local Environmental Plan 1996 (WLEP). Relevant aims and objectives require the maintenance and improvement of the amenity and existing characteristics of localities that are predominantly characterized by dwelling houses. 9The site is located in the Queens Park residential character study covered in Waverley Development Control Plan 2010 (WDCP) Part D1 cl 3.0. Clauses 3.2.6 and 3.6.7 describe the residential character of the streetscapes and the range of architectural styles. The styles range from Victorian through to contemporary. 10The desired future character objectives include the need to reinforce the existing street categories through appropriate dwelling facades, setback, fences and landscaping treatments that are consistent with developments in the immediate vicinity and in the overall context of the street (cl 3.3.2.1). In regards to architectural style, the objectives encourage symmetry in alterations and additions and the associated performance criteria considers that the incorporation of carports, garages and areas for vehicle accommodation within the building envelope of existing dwellings detracts from the neighbourhood character and is not supported (cl 3.3.4.2). 11The main contentions go to vehicular access, parking and landscape. Part I1 of WDCP - Land use and Transport categorises the site as Parking Provision Zone B. Clause 3.2.1 provides for a minimum of zero and a maximum two spaces per dwelling. The relevant objectives and controls in Part D1 WDCP are: 5.7 Vehicular Access and Parking Objective 5.7(a) Ensure that the design and size of off-street carparking facilities does not unreasonably detract from the appearance and quality of the dwelling house or streetscape. Strategy and (relevant) controls (dot points) 5.7.2 Garages and carports are designed not to detract from the architectural integrity of the dwelling. Garage/carport design is integrated with the design of the dwelling No part of the street façade of a building is to be altered or demolished primarily to accommodate car accommodation 5.7.3 Garages do not dominate the streetscape All car accommodation is to be located behind the front building line 5.7.5 Consideration has been given to the provision of dual access driveways and vehicular crossings to minimise the number of crossings and to maximise on-street parking. No vehicle crossing or off-street parking (other than from rear lanes) are permitted in heritage conservation areas where there will be an adverse impact on existing streetscape, the character of the built form or landscape setting. Note: Where an allotment has no existing off-street parking, and off-street parking is not characteristic of the streetscape, vehicular access from the street is not allowed. 5.8 Landscaped Open Space Objective 5.8(d) Maximise outdoor space to allow for soft landscaping including tree planting and maintenance of existing vegetation 5.8.2 Landscaping contributes to streetscape character, with significant vegetation retained. Minimum of 50% of the area between the front of the building and the street alignment should be landscaped. Minimum of 50% of the landscaping provided at the front of the site is to be soft landscaping. Existing significant vegetation is to be retained unless this is unfeasible.

The hearing and the evidence 12The hearing commenced on site as a s 34AA conciliation conference. Car parking arrangements and the architectural styles of the dwellings in Blenheim Street were noted and the views to the applicant's dwelling were observed from the north and south. The site was inspected and the proposed alterations discussed. 13The layout of the front garden was observed. On the northern side are an established Frangipani and a Melaleuca that protrudes over the masonry wall. The Magnolia (probably Magnolia soulangiana ) is in a small bed on the southern side of the front garden. 14The applicant and his wife gave evidence regarding the difficulties in finding an on-street parking space in the vicinity of their dwelling, particularly at night. They raised their concerns about the security of their cars and their personal security when having to park some distance away. The parking practices of the nearby commercial premises were raised as was the site's proximity to Bronte Road and its associated institutional and commercial premises. 15As there was no agreement between the parties, in accordance with s 34AA(2)(b) of the Land and Environment Court Act 1979 , the conciliation conference was terminated and the matter proceeded to a hearing. 16Mr M Neustein, planner and architect for the applicant, and Mr S McDonald, planner for the council, provided planning evidence. The planners prepared a joint report and no agreement was reached on any of the contentions. 17In regards to the character of the streetscape, Mr McDonald contends that the street comprises attached and detached single dwellings with modest setbacks and some landscaping. The site's visual catchment is from Birrell Street to the north and Cuthbert Street to the south. The street includes examples of architectural styles over a range of periods, most of which do not have off-street parking. He says that off-street parking is the exception rather than the rule and is not a characteristic of the streetscape. 18In regards to the controls, Mr McDonald maintains that the broad aims and objectives of the WLEP are detailed in the WDCP; the WDCP must be considered holistically. In his view, the proposal clearly contravenes the controls that state that carports and the like shall not be built forward of the building line and that the facades of dwellings should not be altered to enable the accommodation of vehicles. He contends that the design introduces a flat roof element forward of the building line, and this combined with the heavy columns, the elevated slab and the loss of the magnolia, will create a structure that is overly and unacceptably dominant and unrepresentative of the street. In his opinion, no cue should be taken from the non-compliant garages and car stands to the immediate north of the site. He contends that additional landscaping and screening will not satisfy his fundamental concerns over departures from the controls. He also asserts that the controls are contemporary and the council has turned its mind to their appropriateness. 19While Mr McDonald agrees that off-street parking is desirable for the applicants, it is at the expense of the rest of the street. In his view, there should be no transfer of a public parking space to a private space. 20Mr Neustein considers that the impact of the proposed development on the streetscape will be negligible. He contends that drivers moving down the one-way street won't notice the carport, as they will be focussed on turning into Cuthbert Street. Any pedestrians will only get a partial glimpse from the south. Even though the car will be parked at street level, the view from the street will be screened by the height of the fence, existing landscaping and a proposed screen on the south. 21In regards to the controls, in Mr Neustein's opinion a merit assessment of the proposal would deem the proposal to be acceptable especially as he considers the development to be not visually dominant and something capable of being ameliorated. The dwelling is not a heritage item and the façade has been altered on a number of occasions. There are a number of examples of non-compliant garages in the street and elsewhere in the area - both Court and council-approved. In his opinion, the controls are ten years old and don't adequately address the pressing need for parking, something he says has been considered by council in a strategic plan. Further, Mr Neustein considers if the proposal were for a new dwelling, it would require a driveway and up to two off-street spaces.

Suggested additional conditions 22Following from the discussions on site and in response to council's contentions and comments from council's heritage architect (recorded in the minutes of the council's Development & Building Unit report on the proposal), the applicant proposed a number of additional conditions with which they would comply. These include:

Replace the horizontal fence slats with vertical metal slats not more than 40 mm wide,
Delete the part of the carport roof where it stands proud of the current verandah,
The fence is to be painted in a recessive colour such as Dulux Yarwood or similar,
The soft landscaping of the front yard is to be increased on the northern side of the gate and the magnolia is to remain in its current bed but be pruned of two branches to the north. The height and configuration of the side stairs is to be adjusted to enable its retention, and
An additional street tree is to be planted at a position in Blenheim Street to be determined by the council and at the applicant's expense. 23Mr McDonald was questioned as to whether these additional conditions would make the proposal acceptable to him. Mr McDonald agreed that while these suggestions were an improvement, he did not resile from his opinion that the proposal is unacceptable because it departs from a suite of planning controls and it will still be a flat roof form forward of the building line in a façade altered to accommodate a vehicle. 24Mr Neustein considers the original proposal to be acceptable but the revised conditions make it even more acceptable.

The applicant's position 25The applicant's position is that the proposal meets the relevant aims of the WLEP in that it improves the amenity of the area. 26Ms Taylor for the applicant contends that the site is not a heritage item nor is it in a heritage conservation area. She submits it is unreasonable to indicate the desired future character of the area should be based on the traditional terraces on the western side of the street (as indicated at the view) when more recently approved developments are nothing like those dwellings. Ms Taylor states that site itself has been subject to many changes, including changes to the front façade, and the latest proposal is a significant improvement in its appearance. In this she cites Dickson Designs Pty Limited v Waverley Council [2008] NSWLEC 1295 where a proposed garage to be incorporated into the front façade of a significantly altered dwelling was found to be acceptable as it was compatible with and integrated into the design of the building. 27Overall, the site exceeds the landscape requirements and retains and conserves the significant landscape at its rear and what happens at the front of the dwelling is not relevant with respect to the site's inclusion in the Blenheim Gully Conservation Area. The amended conditions for landscaping increase the area of soft landscaping and the retention of the Magnolia retains its contribution to the landscape and as a screen. 28Given the size of the dwelling, Ms Taylor contends that if this were a new dwelling, up to two off-street parking spaces would need to be provided. In this proposal, the net effect is neutral by removing one car space on the street and replacing it with one off-street space. Given the usual, if not entirely legal, practice of the street whereby residents with more than one vehicle park across their own driveway, there is effectively a better outcome. 29Ms Taylor states that the existing high masonry wall is an approved structure. She submits that when the gates are closed, the high fence and existing landscaping will effectively screen the parked car from the street. These strategies, she says, have been used by the Court in other cases involving off-street parking in Waverley local government area including Lucas v Waverley Council [2009] NSWLEC 1390 - landscaping (of a heritage item) and Teasdale and Anor v Waverley Council [2010] NSWLEC 1049 - landscaping (in Blenheim Street). 30In conclusion, Ms Taylor contends that the council has not considered the proposal on its merits. Given the applicant's proposed additional conditions, she maintains that the proposal is now more acceptable. With respect to the public interest, council's original contention in this regard was in response to the one objector to the proposal. She asserts that the loss of an on-street parking space was not raised as a matter of public interest. 31Ms Taylor states that the applicant has no objections to council's draft without prejudice conditions of consent.

The council's position 32Ms Morton for the council maintains that the fundamental reason for refusal of the proposal is that is does not preserve or enhance the character of the streetscape as set out in the controls. She contends that any assessment of character should include the desired future character of the area. She asserts that the streetscape is not characterised by off-street parking forward of the building line; only three out of seventeen dwellings on the eastern side have off street parking and those that do are not a reasonable starting point for an approval. Ms Morton contends that the proposed carport will detract from the amenity of the streetscape. 33Ms Morton presses the controls in the WDCP with respect to parking and landscaping. She contends that landscaping and screening should not be relied upon to overcome the non-compliance. She maintains that the design of the carport is such that it is not integrated into the dwelling in a way that is compatible with the strategies and controls in the WDCP. In this she cites GLW Pty Ltd v Waverley Council [2011] NSWLEC 1153 where the Court found that a proposed garage dominated the landscape and that it was inappropriate to depart from the controls provided in the WDCP. Ms Morton contends that the applicants have not provided any real evidence to justify the departures from the controls. Overall, the council's position is that the proposal does not comply with the aim in the WLEP in that it does not maintain or enhance the amenity and existing character of the locality.

Findings 34I am obliged to consider the matters required by s 79(C) of the Act including any relevant DCP. I am reminded that WDCP is the starting point for my consideration ( Zhang v Canterbury Council [2001] NSWCA 167) however, I am not required to accept it uncritically and strict compliance with the controls of WDCP is discretionary if the particular circumstances of a matter warrant a variation in their application. The Court of Appeal in Segal v Waverley Council [2005] NSWCA 310 confirms that each case must be decided on its particular facts and circumstances. 35With respect to the character of the streetscape, while I agree that off-street parking forward of the building line is not a characteristic of Blenheim Street, I note that where it is physically possible to do so, it has been permitted either by the Court (in one instance on the western side) or by council on the eastern side. I agree that the three dwellings north of the site are not good examples of sensitive integration of garages/ car stands into the fabric of the dwellings. However, I am unaware of the circumstances of their approval. I also note that the majority of the dwellings on the eastern side of the street comprise a large development of sufficient size that enabled the provision of underground parking - not an option readily available to smaller lots. On-street parking in front of that development is restricted by the large in-road planting beds, at least two of which were observed to be unmaintained grass. 36The council's position, supported by Mr McDonald, is that the proposal will have an undesirable visual impact on the streetscape. While I accept Mr McDonald's position is focussed on the controls in the WDCP regarding the modification of the façade of the dwelling to accommodate a vehicle as well as parking forward of the building line, I agree with the applicant's position in that this is a dwelling that has been altered by previous approvals. The matter of building symmetry was discussed as this was something raised as a particular in one of council's contentions. The implementation of the remaining stages of the plans approved for DA-363/2003 will see a more symmetrical form of the first storey, probably the most visible element of the dwelling. Given the height of the front fence, I am satisfied that the setback of 110mm of the southern portion will be not be especially visible from the street. 37Mr McDonald objected to the flat roof form. I note that the 2004 approved plans show the removal of the skillion roof above the front verandah and its replacement with a flat pergola. In my opinion, the applicant's agreement to remove the framing and roof extension of the carport removes those elements considered by council, and Mr McDonald, to be the most visually intrusive and unsympathetic elements of the proposal. Council's heritage architect recommended the use of recessive colours. 38As established during the hearing, the high masonry wall is an approved structure. It is high enough to screen an average vehicle parked at street level. I find that the applicant's additional conditions make the proposal significantly less intrusive. The change from horizontal slats to vertical slats is in keeping with the majority of fences I observed in the street. 39Therefore, considering the merits of the proposal as well as the controls and objectives in Part D1 cl 5.7 of WDCP, I find that the design and size of the proposed off-street parking, as amended by the applicant's additional conditions, does not unreasonably detract from the appearance and quality of the dwelling or the streetscape. This finding accords with objective 5.7(a) and strategy 5.7.2 although it does not agree with the control requiring alteration of the street façade of a building to accommodate a vehicle. However, on balance I find that the circumstances of the design and the amelioration measures proposed provide a reasonable basis for allowing a variation in the application of this control. 40Similarly, the eastern side of the street is not a heritage conservation area and the control in cl 5.7.5 does not apply to the site however, I do not consider a vehicle crossing in front of the site will detract from the heritage conservation area on the western side of the street. 41The retention of the Magnolia by use of a suspended slab above the bed in which it is planted addresses several of the council's concerns over the loss of the tree. In my opinion, the form of the tree will enable the pruning of the northern stem and another branch to enable vehicular access but retain enough of the plant to ensure its viability and to maintain it's screening value from the south. It's screening value being limited by the fact it is a deciduous tree. The retention of the tree will require a suspended slab and tree protection measures during construction, including measures to protect the soil in which it is growing. 42I consider the retention of the tree and the agreement to extend the soft landscaping on the northern side of the front garden satisfies council's contentions in this regard. Therefore I find that the proposal, as amended by the applicant's additional conditions, satisfies the relevant objectives and controls in cl 5.8 - Landscaped Open Space in WDCP. I also consider the proposal satisfies the relevant objectives in the WLEP and it maintains the amenity and existing character of the locality. 43With respect to the loss of one on-street space, while I agree that it may make it marginally more difficult for residents without off-street parking to compete with visitors for a parking space, the overall impact is neutral and this should not be a reason for refusing the appeal. I am not convinced by the council's arguments that this proposal is not in the public interest. 44The applicant has agreed to be bound by a condition requiring bearing the cost of planting an additional street tree at a position in Blenheim Street if the council agrees. The Court does not press this condition and leaves it for council to determine if it is appropriate. In some ways, the planting of a street tree in the road reserve in front of the applicant's dwelling may further limit on-street parking. The site view indicated planting opportunities in the unkempt beds at the northern end of the street. 45Therefore on balance, I am satisfied that the development should be allowed subject to the incorporation of the applicant's additional conditions of consent. These conditions are attached to this judgment as Annexure A. The plans are to be amended to reflect the changes specified in the conditions.

Orders 46The Orders of the Court are: (1)Appeal 11046 of 2011 is upheld. (2)Development consent is granted to DA-205/2011 for alterations and additions to a dwelling at 48-50 Blenheim Street, Queens Park subject to the additional conditions in Annexure A of this judgment and council's draft without prejudice conditions of consent. (3)A consolidated agreed set of conditions is to be forwarded to the Court electronically by close of business 2 March 2012 for incorporation in to the final orders. Final orders will be made in chambers. (4)All exhibits except A, D and 2 are returned.

J Fakes
Commissioner of the Court
ANNEXURE A
ADDITIONAL CONDITIONS OF CONSENT

The front boundary fencing and the front top floor balcony balustrade are to comprise matching metal vertical slats in place of the horizontal slats shown in the DA drawings. The slats are to be not more than 40mm wide in elevation and to have a paint finish.
The fence colours are to be recessive, such as Dulux Yarwood (warm, dark grey) or similar as per colour sample.
The proposed soft landscaping shall be increased to at least 25% of the landscape open space in the front garden, by extending the existing northern garden bed in a southerly direction at the same width until it reaches the edge of the existing front stairs. 4.An additional street tree is to be planted, at a position in Blenheim Street if agreed by the Council, at the expense of the applicant. 5.The frame of the carport is not approved where it stands proud of the current verandah. 6.The Magnolia tree shall be retained subject to pruning to the trunk of the two northern branches, and amendment to the side stairs for sufficient head room. 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. Decision last updated: 25 February 2012

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