Shea v Waverley Council

Land and Environment Court (NSW)|2010-06-04

Background and the proposal 11 A development application for the construction of what the council describes as a new "podium style" garage with a terrace and roof area above was lodged with the council in June 2009. One submission was received objecting to the loss of outlook and light and interference with trees. 12 An amended plan was lodged for the proposal in October 2009 and no submissions were received. 13 The application was initially assessed by a council planner who prepared a draft report recommending approval of the project. The draft report was forwarded to council's Development and Building Unit (DBU) in December 2009. The DBU resolved to refuse the application for the following reasons: 1. The proposed podium style garage is not an acceptable development in the site's Residential 2(a) zone under Waverley Local Environmental Plan 1996, in respect of objective (b) of the zone concerning local amenity. 2. The proposed podium garage does not comply with streetscape and transport controls and objectives in Waverley Development Control Plan 2006 (Amendment No. 4), in respect to the following controls Part D1 cl. 5.7 Vehicular Access and Parking and Part I cl 5 Urban Design, Streetscape and heritage Conservation. 3. The introduction of a podium style garage into this portion of Andrews [sic] Street is considered inappropriate on streetscape and urban design grounds and as the site provides for adequate off-street parking to service the needs of the existing dwelling house.

14 A Notice of Determination stating the reasons for refusal was issued on 10 December 2009. 15 The proposal before the Court is the amended version put to council in October 2009. The proposal is for the construction of a new double garage to be centrally positioned in front of the dwelling and set back from the street frontage by 900 mm. The retaining wall to the north is to be set back from the front of the garage and that area is to be landscaped. Part of the previous driveway is to be landscaped. The proposal would also require the driveway to be widened with the loss of a small triangular patch of turf. 16 A paved terrace with a glass balustrade is proposed for the top of the garage. It is also proposed that the current verandah roof be removed and replaced with a more steeply pitched roof. The central part of this roof is to be extended forward and over part of the proposed terrace. A photomontage of the proposal is included as Annexure A.

Planning controls 17 The relevant environmental planning instrument is the WLEP. The sections and clauses relevant to this matter are: 10 Zone objectives and development control table Zone No 2(a) Residential - Low Density 1 Objectives of zone (b) to maintain and improve the amenity and existing characteristics of localities predominantly characterised by dwelling houses 18 The WDCP 2006 (Amendment No.4) applies. Specifically, relevant sections of Part D1 Dwelling House and Dual Occupancy Development which needs to be read in conjunction with other parts, in particular, Part I1 - Land Use and Transport. 19 1.1 The relevant aims of Part D1 are (c) To ensure that alterations to existing dwelling houses and dual occupancy developments do not significantly detract from the amenity, privacy and views of other dwellings and public view corridors;

(e) To enure that alterations and additions to existing dwellings and dual occupancies are sympathetic in form and character with other dwellings in their vicinity; 1.3 Strategic context The areas of Bronte, Dover heights and Queens Park have been identified as areas that have unique physical qualities and an intrinsic residential character that should be preserved….The Character Studies outline the desired future objectives and design guidelines to ensure that the unique character of each of these areas is maintained or enhanced.

1.4 How to use this part Compliance with a control does not guarantee that the strategy is satisfied. In some instances the design solutions may not be appropriate for the particular site or situation. Therefore, having regard to the physical characteristics of the site and the nature and proximity of adjoining and nearby development, Council may require alternative design solutions.

The development controls may not normally be varied. However, if an applicant is able to clearly demonstrate that a particular control is unreasonable or unnecessary in the circumstances of the case, Council may consider relaxing the control…

1.5 Residential Character Studies The character studies ensure that the design of dwelling houses and dual occupancies within the study areas result in development that achieves Councils Desired Future Character Objectives for those areas. The Performance Criteria should be used to achieve Council's objectives for the desired future character of these areas.

Where there is any discrepancy the character study performance criteria will prevail. [emphasis as per WDCP] 20 The site is located in the 'Bronte Terraces' and forms part of the Bronte Residential Character Study included in Part D1, section4 of the WDCP. The relevant clause pressed by council is: 4.3 Bronte Terraces existing Character Elements (a) The upper Bronte Terrace sites (iv) The residential types are rich and diverse. They include the predominant double storey detached dwelling and small numbers of residential flat buildings (e.g., in Andrew Street). With the exceptions of Harlow Place and Andrew Street, the existing height controls and steeply sloping sites have resulted in a variety of building heights from one to three storeys. ..

21 In the alternative, the applicant presses the character elements that relate to (b) The lower Bronte Terrace sites (i) The fronts of lower sites commonly present a single storey of roof-scape façade to the street, with a low front fence and sloping landscaping. As with the upper sites, the absence of rear land access results in a light structure/ open pergola or garage facing the street. Most are built on a raised platform and linked to or integrally designed with the main house. Very few garages are separate structures. (iii) The streetscape character of the lower sites is created by elements including garage structures and doors, car access ways and low set, rear building facades. The street facades often become of secondary importance, marginalised in design, scale and proportion. A further concern is that garage doors often dominate the overall composition of the streetscape and individual site frontages.

22 For each residential character area, the WDCP sets out specific objectives. For each Desired Future Character (DFC) Objective there are Performance Criteria (PC). The relevant DFC objectives and performance criteria for the Bronte Terraces area are: 4. Streetscape and Architectural Style 4.1 (DFC Objective) To reinforce a street's coherency through (1) building siting and orientation; (2) building envelope, bulk and scape: and (3) building typology that fits the established built form of the street. 4.1 (PC) Where varied setbacks are presented as a result of non standard site layout or building siting, a building's orientation should match the predominate façade orientation of the street. 4.2 (DFC Objective) To encourage individual expression where the site is irregular in shape and has unique characteristics, without undermining the established character of the street. 4.8 (PC - relating to this objective) Where the natural landform allows car access onto the site, garage doors facing the street should be avoided. Where the landform restricts car access onto the site refer to criteria 4.9 to 4.12. 4.9 (PC - written as 4.10 in DCP but follows point 4.8) For both upper and lower sites, single car width garage door openings are preferred… 4.10 (PC) Where the placing of a garage door facing the street is inevitable, the 'fortress wall' effect on the street can be minimised by consistent garage siting, modulation of material finishes…(etc). Single width garages assist to reduce the scale and intrusion of the garage openings on the streetscape. 4.12 (PC) Where the garage faces the street, a semi-open garage is encouraged to enable visible connection with the street. Council encourages single car crossings. Tandem garages/parking with single car width street access is preferable to double width crossings and double garages…Where there is no opportunity to provide for tandem parking, only single car accommodation is allowed. 23 A number of generic controls found in section 5 of Part D1 of the WDCP are relevant. Further details are found in Part I1 - Land Use and Transport. The objectives are not achieved unless specific strategies and controls are complied with. 5.7 Vehicular Access and Parking - objectives (a) To ensure the design and size of off-street carparking facilities does not unreasonably detract from the appearance and quality of the dwelling house or streetscape. (b) To maximise pedestrian and vehicular safety. If the proposed off-street parking facilities or associated works will unreasonably detract from the appearance of the dwelling, streetscape or landscape…(etc), a zero parking requirement may be imposed. 5.7.2 (Strategy) Garages and carports are designed not to detract from the architectural integrity of the dwelling (Controls) Garage/ carport is integrated with the design of the dwelling….; no part of a building is to be altered or demolished to primarily provide car parking except where topography or appropriate building design allows. 5.7.3 (Strategy) Garages do not dominate the streetscape (Controls) Where the site allows, double garages/carports do not front the street; all car accommodation is to be located behind the front building line; The location of garages within the building façade: single garage widths (up to 3M) are preferred to double garage widths. Double garage widths may be acceptable where the existing streetscape reflects this kind of development. 5.7.4 (Strategy) Design of off-street car-parking spaces and driveways allows efficient and easy access and does not endanger the safety of pedestrians. (Controls) Access ways and driveways enable vehicles to enter the parking space in a single movement and to leave the space in a maximum of two turning movements… 24 Both parties highlighted clauses in Part I1 of the WDCP - Land Use and Transport. These reinforce the objectives, strategies and controls in Part D1. Specifically: 5.0 Urban Design, Streetscape and heritage Conservation. 5.1 Design considerations The continuity of streetscapes, streetscape elements and landscaping is maintained Car parking bays, garages, etc and vehicular access do not dominate the streetscape Site layout, landscape design, deep soil zone provision and drainage are not detrimentally affected through the provision of on-site car parking. 5.2 Design of parking and access (b) No part of the building is to be altered or demolished to primarily provide car parking except where topography or appropriate building design allows. (d) The external appearance of any parking or loading structure or area is to be of a high standard and finish when viewed from the street. Landscaping is to be used to soften the impact of such structures areas. The evidence 25 The hearing commenced with a view of the streetscape in Andrew Street and a walk around nearby streets. There were no resident objectors. Mr A Betros, planning expert for the applicant, and Ms K Gordon, planning expert for the respondent, provided assistance. Also on site to answer questions about the proposal was Mr P Shorten, architect for the applicant. The intent of the walk was to view and discuss the existing character of Andrew Street and those streets in the immediate vicinity with respect to the presence or not of 'podium style' garages and the location of garages with respect to the building frontage and the extent to which the proposed development was compatible with the current character of the area. 26 In their joint expert report, there were no points of agreement in terms of compliance with the planning controls or the issue of it setting an "undesirable precedent for future development in Andrew Street". However, there was an agreement that a proposed 'foundation space' to replace what is currently the front terraced lawn, be retained as a deep soil space. 27 The planning experts advised that in their joint report, they considered that the visual catchment for the site is principally Andrew Street. It was clear from the inspection of Andrew Street that on the eastern side (Residential 2(a) zone) there are no 'podium' style garages and all garages are completely or substantially incorporated into the building structure. Only one garage (at No 10 Andrew Street) projects slightly forward of the building line. The other consistent feature of the garages in Andrew Street is that they are located on the lower /southern ends of the street frontage. There are no garages in Andrew Street demonstrating the style and placement of the proposed development. 28 On the western side of the street, residential flat buildings dominate. Most, if not all, appear to have been constructed some decades ago and pre-date the current planning controls. It was argued by the applicant that some of the parking arrangements are of a 'podium' style however, the majority of all parking spaces and garages are incorporated into the building structure. 29 As the WDCP refers to 'the vicinity', we inspected garages in nearby streets, specifically Darling, Thompson, Wolaroi and Harlow. Darling, Thompson and Wolaroi, all display the more typical topography of the Bronte Terraces. That is, there is a distinct high side and a distinct low side. Apart from one old 'podium' style garage at the frontage of a property near the corner of Thompson and Andrew Street, the garaging arrangements are generally very consistent on each side of the street. The garages on the high sides could be described as 'podium' style but the style is consistent. In Harlow Place, all but one garage is set back at the building line. 30 Some considerable time was spent at the site discussing the current garaging arrangements and the possibility of amending the design in accordance with a suggestion made by Ms Gordon. That suggestion is to widen the existing garage and retain it in its present location, that is within the building line. Mr Shorten considered that this would require substantial and expensive engineering works to overcome issues of drainage, adequate support for the house and so on and therefore he considered the suggestion to be unsuitable. 31 Mr Betros gave evidence. In his opinion, the design and size of the proposed garage does not unreasonably detract from the quality of the streetscape. He cited examples of recently approved double garages elsewhere on the eastern side of Andrew Street that are readily seen by any passer by. He considers that the amended plans showing the further setback of the wall, the use of timber slat fencing and landscaping at either end of the proposed garage satisfy the zone objectives by improving the appearance of the house and therefore the streetscape. 32 He also considers that the location of the dwelling at the end of a cul-de-sac supports his opinion that, when combined with the amendments, the proposed double garage will not unreasonably detract from the streetscape and thus satisfies cl 5.7(a) of Part 5 of the WDCP. He also considers that the proposed development will provide a better and safer outcome for both pedestrians and anyone manoeuvring in or out of the driveway, thus complying with cl 5.7.4 of Part D1, WDCP. He also stated that the development does not reduce on-street parking, it meets the numeric provisions of the WDCP in providing two car spaces, and it does not result in loss of views. 33 Mr Patterson, solicitor for the council questioned Mr Betros about the compliance or otherwise with the controls in the WDCP. Mr Betros agreed that there is no strict compliance with the control on 'no car accommodation in front of the building line' (control 5.7.3 of Part D1, WDCP). However, he argued, in person and in the joint report, that as there is already an 'elevated, built podium form' in front of the building, [that is, the retained grass terrace described in paras 9 and 10 of this judgement] that the proposed development is not inconsistent with the character of the site or of the locality. He considers that the proposed development, in its entirety, integrates the garage into the structure of the dwelling through the introduction of the portico above it and by exceeding the landscaping controls. 34 After questioning by Mr Patterson, Mr Betros estimated that the proposed development would occupy more than 60% of the front of the dwelling. When questioned as to whether he could provide examples of this degree of coverage on the eastern side of the street, he said he could not.

35 At this stage of the proceedings, the option for redesigning the garage was revisited. Following some remeasuring, Mr Betros and Mr Shorten considered that the garage and associated walls could be setback a further 500 mm, that is from a 900 mm setback off the street frontage to 1.4m and that this would enable the landscaping to be brought forward. They also considered that the overall width of the garage could be reduced from 6.1m to 5.6m with the doors to be 4.8 m. 36 Ms Gordon, planner for the council gave evidence and in that, considered the further amendments put forward by the applicant's planner and architect. 37 Ms Gordon considers that the topography of Andrew Street is atypical of the Bronte Terraces as there is no readily identifiable high or low side. Rather, the houses and garages step down the slope. She noted that the WDCP specifically refers to this street. She also stated that the layout of garages and landscaping on the eastern side of Andrew Street is fairly consistent with garaging on the low side and retained front gardens on the higher side. She stated that what is unusual about the applicant's property is the vertical extension of the 'blade' wall at the southern end of the grassed terrace. However, she considers this to be insufficient to prove exceptional circumstances to enable any relaxation of the planning controls. 38 In the joint report, Ms Gordon considers that a "podium is a built element, not a deep soil landscaped area behind a retaining wall". In summary, apart from finding the proposed development neutral on both on and off-street parking, she considered the development would not improve pedestrian safety and overall, was of the opinion that the proposed garage and extension of the verandah roof would have an unacceptable impact on the streetscape and would not maintain or improve the existing character of the locality.

39 Ms Gordon considers that the proposed tree planting to the north of the double garage could restrict the driver's view of the street and could therefore be detrimental to pedestrian safety. She recommends reducing the height of the vegetation in this section. 40 When asked if she considered if the additional setbacks suggested by the applicant's planner and architect would satisfy her objections, she stated that they would not. 41 On behalf of the council, Ms Gordon produced draft Without Prejudice Conditions of Consent, should the development be approved. The relevant conditions relate to the amended plans and essentially detailed additional setbacks to the retaining walls, garage and balustrade with additional requirements for landscaping. These were generally agreed however, the applicant rejected a condition requiring the deletion of the forward projection of the verandah. 42 With respect to the council's contentions that the development would set an undesirable precedent for future development in Andrew Street, it was discussed that the most likely place for this to arise would be the adjoining property to the north. The parties disagreed on the likelihood of this occurring.

Submissions 43 Ms Culkoff for the applicant contends that the amended plans increased setbacks and reduced the size of the garage, and as a result, the council planner who first assessed it recommended its approval. She also contends that it met with the approval of council's traffic engineer. 44 With respect to the planning controls, Ms Culkoff contends that the WDCP is not limited to the immediate vicinity and that similar podium style garages are common in the area. She considers that this dwelling already has a podium type structure and wall and therefore the proposed development does not set a precedent. She also considers that the Bronte Terraces area is eclectic in character and therefore the proposed development does not 'significantly' detract from the amenity of the area (cl 1.1(c) Part D1) and therefore does not 'unreasonably' offend the WDCP (cl 5.7(a),(b) Part I1). 45 Similarly, she considers that the site has unique characteristics and that as such, the Desired Future Character Objective in cl 4.2, Part D1 of the WDCP encourages individual expression of the kind proposed by the applicant. With respect to this submission I was taken to Zhang v Canterbury City Council [2001] NSWCA 167 where at paras 74 and 75 it was held that: 74 A development control plan is not an "environmental planning instrument"…Nor can such a plan contain a "non-discretionary development standard" which, if complied with, would take away a consent authority's discretion under 79C(2) 75 The consent authority has a wide ranging discretion - one of the matters required to be taken into account is 'the public interest' - but the discretion is not at large and is not unfettered. DCP 23 has to be considered as a "fundamental element" in or a "focal point" of the decision making process. A provision so directly pertinent to the application for consent before the Council as was cl 4.0 of DCP 23 was entitles to significant weight in the decision making process but was not, of course, determinative. 46 Ms Culkoff considers that I should consider the findings in a number of similar cases concerning garage developments in the Waverley local government area that have been determined by the Court. In particular Sailor v Waverley Council [2009] NSWLEC 1328 at para 46 concerning the precedent effect, and Lucas v Waverley Council [2009] NSWLEC 1390 at paras 53 and 54 regarding the circumstances of the appeal and the provisions of the WDCP. 47 In conclusion, Ms Culkoff contends that as the WDCP allows some reasonable detraction from its controls, that in the particular circumstances of this matter I should uphold the appeal. 48 Mr Patterson for the council contends that, in concurrence with Zhang v Canterbury, the WDCP is a focal point of the decision making process. He contends that as there is non-compliance with cl 5.7 Part D1 of the WDCP, the applicant must prove that there are good reasons why those provisions should be varied to permit the proposed development. 49 I was taken to Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 paras 86 and 87 and McClellan CJ's consideration of the importance of a DCP. In this matter, Mr Patterson contends that the WDCP should be given significant weight as it is a comprehensive amalgamation of many former DCPs, it has been amended three times and has thus been adopted after considerable consultation.

50 I was reminded of the importance given in the WDCP to the Residential Character Studies and the emphasis given in cl 1.5 of Part D1: Where there is any discrepancy the character study performance criteria will prevail: specifically the focus on single car width openings in cl 4.10 and cl 4.12. Mr Patterson contends that the existing garaging and parking arrangements meet the Desired Future Character Objectives for the Bronte Terraces and these should be maintained. 51 With respect to the generic controls in cl 5.7.2 that garages are to be integrated into the design of the dwelling and not to detract from it and cl 5.7.3 that all car accommodation is to be located behind the front building line, Mr Patterson contends that there is clear non-compliance. Similarly he stresses the various clauses that assert that garages are not to dominate the streetscape. 52 With respect to the draft planning report that recommended approval of the development, he drew my attention to the inconsistencies in the report and the absence of consideration given to other relevant controls in WDCP Parts D1 and I1. He contends that the DBU report should be given significant weight in any determination. 53 In terms of the undesirable precedent that the development may set, Mr Patterson drew my attention to Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 at paras 31 and 32 where Lloyd, J found that "the precedent effect of a particular proposal is a valid consideration". 54 In conclusion, Mr Patterson contends that the proposed development is inconsistent with the character of the street, that it will have an unreasonable impact on the streetscape and on public amenity, that it could set an undesirable precedent for future development in Andrew Street, and it is non-compliant with the planning controls. As a result, he contends that the appeal be dismissed. Findings 55 A component of the parties' differences in this matter appears to be the interpretation of the council's description of the garage as being a 'podium style' garage. The applicant contends that a 'podium style' element already exists on the site and therefore the proposal is not inconsistent with the existing character of the site. The 'podium style' feature they refer to is the retained grassed area in paras 9 and 10 of this judgement. 56 A search of the Oxford English Dictionary and the Macquarie Dictionary suggests the word 'podium' applies to something that is constructed as a platform whereas the word 'terrace' would better describe the current retained grassed area. 57 In my opinion, the retained grassed area is simply that, and it does not create a precedent on that site that in itself could be interpreted, as the applicant contends, as a unique characteristic of the site sufficient to justify relaxation of the planning controls. 58 It is very clear from Andrew Street itself that there are no double garages in the position proposed by the applicant, that is, well in front of the building line. As stated previously, a relatively new development at 10 Andrew Street has a double garage projecting slightly forward of the building line, however, the bulk of the structure is integrated into the structure of the dwelling. I agree with the council that the introduction of a development as proposed by the applicant would be an entirely new feature and one not one in continuity with the other similarly zoned dwellings on the eastern side of the street. 59 In my opinion, the proposed development will have an unacceptable impact on the streetscape as the dominant feature will be a double garage set towards the front property line. This is contrary to the Desired Future Character Objectives and Performance Criteria for the Bronte Terraces in cls 4.1, 4.2, 4.9, 4.110 and 4.12 of Part D1 of the WDCP. These consistently refer to the preference for single width garage doors and driveways and the avoidance of the 'fortress wall' effect that can result from double garages at or near the street frontage. 60 Similarly, I find that on the evidence, the proposed development does not comply with the relevant provisions of the generic controls in cl 5.7 of Part D1 or the design considerations in cl 5.1 of Part I1 of the WDCP. 61 Under s 79C(1)(a)(iii) I am required to consider the provisions of any development control plan. With regard to Zhang v Canterbury Council I accept that while the WDCP is the focal point for my consideration of this appeal and I am not required to accept it uncritically, in the circumstances of this case I find that there are no extraordinary or unique circumstances of this site that would lead be to determine that a variation in the controls in the WDCP is warranted. I also find that there is nothing in this proposal that makes it necessary in the public interest. 62 Whilst the applicant drew my attention to Sailor v Waverley Council and Lucas v Waverley Council, both cases in which garages were allowed, the Court of Appeal decision in Segal & Anor v Waverley Council [2005] NSWCA 310 confirms that each case must be decided on its particular facts and circumstances. The circumstances in this matter are quite different to the circumstances in those other matters. 63 With respect to the issue of an undesirable precedent being set, I agree with Lloyd, J in Goldin & Anor v Minister for Transport.. that it is a valid consideration however, as stated above, should the adjoining property be re-developed, that application would have to determined on its own merits and compliance with the planning controls. 64 Whilst I find that some elements of the planning controls have been complied with, such as no impact on on-street parking, cl 1.4 of part D1 of the WDCP states that 'Compliance with a control does not guarantee that the strategy is satisfied'. 65 I find after viewing the plans, Andrew Street and the nearby streets as well as hearing the evidence, that there is substantial non-compliance with the key relevant streetscape and transport controls in the WDCP sufficient to warrant the dismissing of the appeal. I also find, with the council, that the proposal is contrary to objective (b) of the Residential 2(a) zone under the Waverley Local Environmental Plan 1996 (WLEP) and it will not maintain and improve the amenity and existing characteristics of the locality. 66 With respect to the extension of the verandah, it was evident from the applicant's architect that the terrace on top of the proposed garage is an integral part of the redesign of the verandah roof and that the extension of the verandah structure relies on the construction of the double garage. Therefore it follows that a refusal of the garage element, that being the most non-compliant element of the proposal, leads to a refusal of the verandah extension as it is currently proposed, especially as the proposed extended verandah would occupy part of the site now currently used as the garage and driveway. 67 I also agree with the council that the site has existing and adequate garaging that is consistent with the streetscape and transport controls for the area and that meet the Desired Future Character Objectives for the Bronte Terraces.

68 As a consequence of all of the forgoing, the Orders of the Court are; 1. The appeal is dismissed. 2. The development application (DA 286/2009) for the construction of a new garage with a terrace and roof above at 2 Andrew Street Bronte is refused. 3. The exhibits are returned.

J Fakes Commissioner of the Court Annexure A

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.

CITATION : Shea v Waverley Council [2010] NSWLEC 1133

Zhang v Canterbury City Council [2001] NSWCA 167 Sailor v Waverley Council [2009] NSWLEC 1328 CASES CITED: Lucas v Waverley Council {2009] NSWLEC 1390 Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 Segal & Anor v Waverley [2005] NSWCA 310 Goldin & Anor v Minister for Transport...[2002] NSWLEC 75

At a glance

Court

Decision date

Source

Judgment (17 paragraphs)

Parties

Cases Cited (7)