Teasdale and Anor v Waverley Council

APPLICANT Mr M McMahon (solicitor) SOLICITOR Michael McMahon and Associates LEGAL REPRESENTATIVES:

RESPONDENT Mr S Patterson (solicitor) SOLICITOR Wilshire Webb Staunton Beattie

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10952 of 2009 Paul Anthony Teasdale & Lucinda Perrin v Waverley Council

JUDGMENT 1 The applicant in these proceedings is seeking to provide a hardstand area within the front setback of the dwelling at No. 37 Blenheim St, Queens Park. This matter commenced as a section 34 conciliation conference however, the parties could not reach agreement and they consented to me adjudicating the appeal under section 34 (4) of the Land and Environment Court Act, 1979. 2 The council approved alterations and additions to the dwelling and attached a condition to delete the proposed car space in the front setback area. The applicant is appealing this condition and the Council does not raise any issue with the alterations to the dwelling. Site and environs 3 The subject site at No. 37 has a part one and two-storey dwelling of rendered sandstone and weatherboard cottage erected on the site. The original sandstone portion of the dwelling was erected over 100 years ago with Council recently approving alterations and additions including a first-floor at the rear. Number 39 and 37 are forward of the cottage at No. 37. 4 Adjoining the subject property at No. 35 is a single storey weatherboard cottage and this is a listed heritage item. The subject site is not a heritage item but is within the conservation area. 5 To the south of the subject site at No. 39 is a two storey residential flat building that has a car parking hard stand area on its southern side, forward of the building. 6 The subject dwelling is setback further from the front boundary than the heritage item to the north and the flat building to the south. There is not sufficient setback to the heritage item to accommodate a car space. On site today one could see other dwellings where a car space is within the front setback, although approval pre-dated the current controls. 7 The Blenheim Street conservation area is characterised by a variety of early 19th-century cottages and more recent multi-unit development. The historic remnants of the streetscape include the subject site a rare early Victorian sandstone cottage. Opposite the subject site for an extensive width is an attached townhouse form of development with basement parking accessed at the northern end of the street. This presents as a row of townhouses of similar width to the other dwellings in the street. 8 The street is relatively narrow with one-way traffic in a southerly direction. No parking is permitted on the western side of the street and parking with landscaping is on the eastern side, opposite the site.

The Proposal 9 The proposal in the plans submitted to the Council was to provide a hard paved car stand area adjoining the heritage item on the northern side. The open car space has dimensions 2.95 x 6 metres and it is proposed to excavate the front area to a depth of approximately 600 mm to the level of the existing footpath with the construction of a new road crossing to access the space from the street. The proposal requires the removal of a 3 metre section of the existing front boundary sandstone wall and the construction of a brick retaining wall to a height of 600 mm around the car space. It is proposed that a double hung inward swinging timber picket gate be located on the front boundary.

Planning Provisions 10 Under the Waverley Local Environmental Plan 1996 the site is zoned residential 2(a) the objectives of the zone include to maintain and improve the amenity and existing characteristics of localities predominately characterised by dwelling houses. 11 Clause 44 relates to development in the vicinity of heritage items and this requires the consent authority to take into consideration the likely effect of the proposed development on the heritage significance of a heritage item…and its setting when determining an application for consent to carry out development on land in its vicinity. The dwelling at No. 35 is listed as a heritage item in the LEP.

12 Development Control Plan 2006 for Land-use and Transport has objectives that include: (b) ensure that the provision of off-street parking is subject to considerations of urban design, streetscape and heritage conservation (c) establish parking policies that encourage walking cycling in public transport usage thereby reducing car dependency 13 The requirements in the DCP for the design of parking and access requires: parking and driveway areas in a dwelling house development to be paved using only pervious material to reduce the run-off of stormwater entry gates and structures for car accommodation are to be of an open design to allow for improved security by way of street surveillance. An open design will also reduce any impact on the streetscape. New vehicle crossings are not permitted. no new vehicle crossings or offstreet parking, other than from rear lanes permitted, in heritage conservation areas where there will be an adverse impact on streetscape continuity, the character of the built form and landscape setting.

Contentions 14 The Council contends that the proposal will not maintain and improve the amenity of the locality and the proposal is inconsistent for development in the vicinity of heritage items. Furthermore Council contends that the loss of the sandstone wall and insertion of a car space into a heritage listed streetscape will degrade the amenity of the neighbourhood. 15 Council also raised precedent as an issue.

Evidence 16 In Council's bundle the planner's assessment report on the development application states: "it is that considered that the hard stand area is contrary to a number of councils polices, most notably the need to provide parking behind the front building line as well as a policy that sandstone walls are not to be removed purely to accommodate vehicle access. 17 At the same time Council's heritage consultant, Mr Colin Brady provided comments as follows: The site is occupied by an existing stone cottage in a street of new and early residences. The site is bounded by a high stonewalled to the street frontage. The stonewall is of later construction and whilst sympathetic to the fabric of the residence is not in keeping with the pattern of picket fences traditional to this street of former workman's cottages. Whilst the sandstone wall is of some aesthetic quality it is not associated with the original cottage construction. Removal of a section of fence and replacement with timber gates introduces an element more akin to the original picket fence common to early stone cottages in Queens Park. … the current application provides a well considered approach to the setting and fabric. The proposal is considered to have an acceptable impact upon the setting and conservation area subject to the side return fence being constructed in stone laid to the same pattern as the existing front wall. 18 The applicant's heritage architect,Mr Staas, in his report states: The sandstone wall on the site is not an early feature of the site and is not highly contributory to any established heritage character, its modification is acceptable in heritage terms. …the hard stand area screened by the proposed boarded gates are more akin to the traditional picket fence detailing that was common to the area… The level of degradation arising from the provision of a car space is minimal in the context of previous development in the street and its established visual character… Findings 19 I have had regard to the planning regime provisions of the LEP and the guidelines in the DCP including the amendment and have the benefit of being on site today to understand the site in the context of the adjoining heritage item, streetscape and the heritage conservation area. 20 The details of the proposal have been carefully assessed today and with the modifications agreed to by the applicant in my merits assessment I am satisfied that the proposed car parking space within the front setback area is satisfactory and will not have an adverse impact on the heritage item or the conservation area or the streetscape. In this regard I am persuaded by the evidence of council's heritage officer and Mr Staas. 21 The applicant has agreed to a number of amendments to the plans that provide for a more sympathetic development in the context of the heritage item to the north and the streetscape. The applicant agreed that the sandstone could be utilised in pillars for the picket fence and the applicant agreed to restrict the maximum height of the picket fence and the picket fencing gates to be one metre high above the existing lawn level on the southern portion of the entry gate above the existing sandstone base. 22 It is also clear on site that a setback to the heritage item, in particular the dwelling itself would be appropriate and as such the setback is to be a minimum of 500 mm to provide for a landscaping strip and also to ensure that excavation does not impact on the heritage item. 23 Having regard to Council's DCP in my assessment it is appropriate in the circumstances that a permeable/pervious material should be used for the base of the parking space and in this regard the applicant has agreed to a gravel finish. 24 In my assessment the proposed car parking space would not present as precedent in the context of this conservation area and the streetscape. The development opposite the subject site is one that resembles two-storey town attached townhouses that has the common entry in to basement parking at the northern end of the site. The streetscape also shows evidence of where car parking spaces that are not original to dwellings have been allowed although I note that these are prior to the amended DCP. Approval of this space in the front setback area could not be readily invoked by others because other existing sites without parking have reduced setbacks that would not accommodate a car space 25 The applicant has agreed to remove the cubby house that protrudes well above the existing stone fence and is prominent and antipathetic in the streetscape. The applicant has also agreed to retain the stone base on the southern side of the existing gate and erect a picket fence above this that will be more in keeping with the dwelling and the existing gate and the proposed picket gates to access the car space and provide for continuity of the fence in the streetscape. 26 The requirement in the DCP for front landscaped gardens is satisfied by the proposal in my assessment. The subject site contains a mature Jacaranda tree towards the southern boundary, which has a large canopy, and this is to be retained. The applicant agreed to further landscaping in the now to be provided setback area adjacent to the heritage item and limited landscaping behind the car parking space in front of the stone cottage while still allowing access to the rear yard 27 On the basis of my assessment above and with the amendments that have been agreed to by the applicant I am satisfied the proposed car parking space is one that warrants approval on its merits. 28 Following the onsite conference the applicant has now provided amended plans and the elevation is shown at Figure 1. This demonstrates in my assessment that a picket and sandstone fence is appropriate in the context having regard to the heritage item to the north and is also sympathetic to the dwelling itself at No. 37 29 Overall the proposal is one that warrants approval and the dwelling, fence and car space as now proposed will make a positive contribution to the streetscape and conservation area. 30 Accordingly, on the basis of my assessment above the formal orders of the Court are: 1. The appeal in respect of the property known as No. 37 Blenheim Street, Queens Park is upheld. 2. The development application submitted to Waverley Council and as amended is approved subject to the conditions in Annexure A. 3. The exhibits except the amended plans and amended conditions are returned to the parties.

      J S Murrell
      Commissioner of the Court
      ljr

Figure 1

Annexure 'A' Conditions of Consent Teasedale & Perrin Vs Waverley Council

(a) Architectural drawing Issue A Nos 01-06 dated November 2008 and received by Council on 18 November 2008 and amended by drawing Issue C Nos 01, 03 and 04 dated February 2010 prepared by Red Rock design;

(c) The Site Waste and Recycling Management Plan (SWRMP) and Checklist, in accordance with the SWRMP Checklist of Part G1, Waverley DCP 2006.

Except where amended by the following conditions of consent;

This condition was modified by the Land and Environment Court in Proceedings No. 10952 of 2009

(a) The existing 'cubby house' within the front yard is to be removed; and

(b) The area between the proposed hardstand and the existing house is to be landscaped to the satisfaction of Council.

The amendments shall be submitted for the approval of Council prior to the issue of a Construction Certificate under the Environmental Planning and Assessment Act 1979.

This condition was modified by the Land and Environment Court in Proceedings No. 10952 of 2009

The premises are to be used only as a single unit dwelling house.

B. Compliance Prior to Issue of Construction Certificate

A cash contribution is payable to Waverley Council pursuant to Section 94A of the Environmental Planning and Assessment Act 1979 and the ' Waverley Council Development Contributions Plan 2006' in accordance with the following:

(a) A cost report indicating the itemised cost of the development shall be completed and submitted to Council: (i) Where the total development cost is less than $500,000: "Waverley Council Cost Summary Report" ; or,

(ii) Where the total development cost is $500,000 or more: "Waverley Council Registered Quantity Surveyor's Detailed Cost Report".

(b) Prior to the issue of the Construction Certificate, evidence must be provided that the levy has been paid to Council in accordance with this condition or that the cost of works is less than $100,000.

Waverley Council Development Contributions Plan 2006 may be inspected at Waverley Council Customer Service Centre, 55 Spring Street, Bondi Junction.

Advisory Note A development valued at $100,000 or less will be exempt from the levy. A development valued at $100,001 - $200,000 will attract a levy of 0.5%. A development valued at $200,001 or more will attract a levy of 1% based on the full cost of the development.

A deposit or guarantee satisfactory to Council for the amount of $2,000 must be provided as security for the payment of the cost of making good any damage that may be caused to any Council property as a consequence of this building work.

This deposit or guarantee must be established prior to the issue of the Construction Certificate. The full amount of the difference after recovery of Council's cost for any repair of damage to Council property will be refunded after satisfactory completion of the building work.

A long service levy, as required under Section 34 of the Building and Construction Industry Long Service Payments Act, 1986, is to be paid in respect to this building work. In this regard, proof that the levy has been paid is to be submitted to Council prior to the issue of a Construction Certificate.

Note: Council acts as an agent for the Long Service Payment Corporation and the levy may be paid at Council's office. The levy rate is 0.35% of building work costing $25,000 or more.

7. no building works prior to release of construction certificate

The building work, including demolition, must not be commenced until:

(a) a Construction Certificate has been obtained from Council or an Accredited Certifier in accordance with Section 81A(2) of the Environmental Planning & Assessment Act, 1979; and

(b) a Principal Certifying Authority has been appointed and Council has been notified of the appointment in accordance with Section 81A(2)(b) of the Environmental Planning & Assessment Act, 1979 and Form 7 of Schedule 1 of the Regulations; and

(c) Council is given at least two days Notice in writing of the intention to commence the building works.

The owner/applicant may make application to Council or an Accredited Certifier for the issue of a Construction Certificate and to be the Principle Certifying Authority.

A Site Waste and Recycling Management Plan (SWRMP) Checklist Part 2 shall be submitted to the Principal Certifying Authority for approval in accordance with Part G1, Waverley DCP 2006 prior to the issue of the Construction Certificate. In this regard, Council expects demolition and excavated material to be reused and/or recycled wherever possible.

The builder and all subcontractors shall comply with the approved SWRMP (Part 1 and 2) at all times during construction. At least one copy of the SWRMP is to be available on site at all times during construction.

Erosion, sediment and pollution control measures are to be implemented on this site. These measures are to be in accordance with Council's Stormwater Policy and are to be implemented prior to commencement of any work or activities on or around the site. Details of these measures are to be submitted to the Principal Certifying Authority prior to the issuing of a Construction Certificate.

Certification is to be provided from a suitably qualified professional, that the stormwater system has been designed in accordance with the Water Management Technical Guidelines. Stormwater system details are to be submitted in accordance with the Waverley Development Control Plan 2006 (Amendment No. 2) - Part B, Clause 9.2, prior to the issue of a Construction Certificate.

Structural details prepared and certified by a practicing Structural Engineer being furnished to Council or Accredited Certifier in connection with all structural components prior to the issue of a Construction Certificate.

The undertakings provided in the BASIX Certificate shall be provided for in the Construction Certificate plans and documentation prior to the issue of the Construction Certificate plans. The Principal Certifying Authority shall be responsible for ensuring that all the undertakings are satisfied prior to the issue of an Occupation Certificate.

The above condition is a prescribed condition under the Environmental Planning and Assessment Act Regulations clause 97A and the above BASIX commitments are mandatory and can not be modified under Section 96 of the Environmental Planning and Assessment Act, 1979.

The Principal Certifying Authority must be informed in writing before any site works, building or demolition commences of:

(a) the name and contractor licence number of the licensee who has contracted to do, or intends to do, work ; or

(b) the name and permit number of the owner/builder who intends to do the work; and

(c) any change to these arrangements for doing of the work.

The builder or person who does the residential building work shall comply with the applicable requirements of Part 6 of the Home and Building Act, 1989. In this regard a person must not contract to do any residential building work unless a contract of insurance that complies with this Act is in force in relation to the proposed work. It is the responsibility of the builder or person who is to do the work to satisfy the Principal Certifying Authority that they have complied with the applicant requirements of Part 6, before any work commences.

Prior to commencement of any works on the site and during construction a sign shall be erected on the main frontage of the site detailing the name, address and contact details (including a telephone number) of the Principal Certifying Authority and principal contractor (the coordinator of the building works). The sign shall be clearly legible from the adjoining street/public areas and maintained throughout the building works.

At least five (5) days prior to the demolition, renovation work or alterations and additions to any building constructed before 1987, the person acting on the consent shall submit a Work Plan prepared in accordance with Australian Standard AS260-2001, Demolition of Structure and a Hazardous Materials Assessment by a person with suitable expertise and experience. The Work Plan and Hazardous Materials Assessment shall:

(a) outline the identification of any hazardous materials, including surfaces coated with lead paint;

(b) confirm that no asbestos products are present on the subject land; or

(c) particularise a method of safely disposing of the asbestos in accordance with the Code of Practice for the Safe Removal of Asbestos NOHSC 2002 (1998);

(e) describe the precautions to be employed to minimise any dust nuisance; and

(f) describe the disposal methods for hazardous materials.

All site works complying with the occupational health and safety requirements of WorkCover NSW.

Stockpiles of topsoil, sand, aggregate, soil or other material shall not be located on any drainage line or easement, natural watercourse, footpath or roadway and shall be protected with adequate sediment controls.

Building operations such as brick cutting, washing tools or brushes and mixing mortar are not permitted on public roadways or footpaths or in any locations which could lead to the discharge of materials into the stormwater drainage system.

Stormwater from roof areas shall be linked via a temporary downpipe to Council's stormwater system immediately after completion of the roof area. Inspection of the building frame will not occur until this is completed.

All building materials and any other items associated with the development are to be stored within the confines of the property. No materials are to be stored on Council's footpath, nature strip, or road reserve without prior Council approval.

Demolition and building work must only be undertaken between the hours of 7am and 5pm on Mondays to Fridays and 8am to 3pm on Saturdays with no work to be carried out on:

(a) The Saturday (except minor renovation or refurbishment to a single dwelling construction) and Sunday which form part of public holiday weekends;

(c) On the Saturday (except minor renovation or refurbishment to a single dwelling construction) and Sunday which immediately precede or follow industry Rostered Days Off, as agreed by the CFME and the Master Builders Association of NSW.

Noise from construction activities shall comply with the Protection of the Environment Operations (Noise Control) Regulation 2000.

All building work must be carried out in accordance with the requirements of the Building Code of Australia.

24. quality of construction act - inspections (dwelling houses class 1 and 10)

The building works are to be inspected during construction by the Principal Certifying Authority (PCA) and in accordance with the Building Legislation (Quality of Construction) Act 2002 and the Environmental Planning and Assessment Regulations. Also, documentary evidence of compliance with the relevant terms of conditions of development consent and standards of construction detailed in the Building Code of Australia is to be obtained prior to proceeding to the subsequent stages of construction and/or issue of an Occupation Certificate.

MANDATORY Critical Stage Inspections MUST be carried out by the PCA for work undertaken during specified stages of construction and prior to issuing an Occupation Certificate.

(b) after excavation for, and prior to the placement of, any footings;

(c) prior to pouring any in-situ reinforced concrete building element;

(d) prior to covering of the framework for any floor, roof or other building element;

(e) prior to covering any waterproofing in any wet areas;

(f) prior to covering any stormwater drainage connections; and

(g) after the building work has been completed and prior to any Occupation Certificate being issued in relation to the building.

Note: Certification may be required from a suitably qualified person, in relation to specialist matters, verifying that particular works satisfy the relevant requirements of the Building Code of Australia and standards of construction.

25. CONSTRUCTION NOISE - PERIODS GREATER THAN 4 WEEKS

The LA10 level measured over a period of not less than 15 minutes when the construction site is in operation must not exceed the background (LA90) noise level by more than 10dB(A) when assessed at any sensitive noise receiver.

D. Compliance Prior to Occupation or During Occupation

The Principal Certifying Authority prior to occupation or use of the development must issue a final Occupation Certificate. In issuing an Occupation Certificate, the Principal Certifying Authority must be satisfied that the requirements of Section 109H of the Environmental Planning & Assessment Act, 1979 have been satisfied.

The hardstand car parking area is to be graded and drained and all surface waters are to be collected and conveyed to the street gutter via underground pipes. A grate drain is to be provided across the front alignment of the hardstand car space.

This condition was inserted by the Land and Environment Court in Proceedings No. 10952 of 2009

A new vehicle crossing is to be provided to access the proposed hardstand. A separate application is required for the modified vehicle crossing, with all work to be carried out with the approval of and in accordance with the requirements of Council. All new vehicle crossings to be wheel strips instead of full width concrete driveway wherever feasible.

This condition was inserted by the Land and Environment Court in Proceedings No. 10952 of 2009

The finished level at the property boundary on both sides of the vehicle crossing is to match the level of the existing concrete footpath.

This condition was inserted by the Land and Environment Court in Proceedings No. 10952 of 2009

All work outside the property boundary is to be carried out with the approval of, and in accordance with, the requirements of Council at the applicant's expense.

This condition was inserted by the Land and Environment Court in Proceedings No. 10952 of 2009

All excavation work is to be undertaken so as not to damage the adjoining heritage property (35 Blenheim Street). Details of the method and extent of excavation are to be submitted to the Certifying Authority for approval prior to the issue of a Construction Certificate.

This condition was inserted by the Land and Environment Court in Proceedings No. 10952 of 2009

J S Murrell 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.