CSA Architects Pty Ltd v Waverley Council [2005] NSWLEC 311

Land and Environment Court of New South Wales

CITATION : CSA Architects Pty Ltd v Waverley Council [2005] NSWLEC 311

APPLICANT CSA Architects Pty Ltd

PARTIES : RESPONDENT Waverley Council

FILE NUMBER(S) : 11353 of 2004

CORAM: Murrell C

KEY ISSUES: Development Application :- Demolition - alterations and additions

Waverley Local Environmental Plan LEGISLATION CITED: Development Control Plan No. 2

Westwood v Waverley Council [2004] NSWLEC 574 revised - 10/11/2004; CASES CITED: Zhang v Canterbury City Council [2004] NSWLEC 500; Ryan v Waverley Council [2004] NSWLEC 382 - revised 24/08/2004

DATES OF HEARING: 13/05/2005 and 16/05/05 EX TEMPORE JUDGMENT DATE : 05/16/2005

APPLICANT Mr M Staunton, solicitor SOLICITORS Staunton Beattie LEGAL REPRESENTATIVES: RESPONDENT Mr I Hemmings, barrister Instructed by: Mr J Lloyd of John Lloyd & Co.

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Murrell C

16 May 2005

11353 of 2004 CSA Architects Pty Ltd v Waverley Council

JUDGMENT 1 This is an ex tempore judgment for a matter that commenced on site last Friday. The Court adjourned for the opportunity to view a matter that had been referred to the Court in a judgment whereby the provisions of the DCP were considered to be determinative in terms of the alteration and addition of another semi-detached dwelling house in Wiley Street, Waverley. 2 This morning the applicant has also provided the Court with an amended set of plans to detail the change in levels between the split level design of the dwelling house and Mr Staunton has provided amended conditions to reflect the need for a dilapidation report on the adjoining dwellings. 3 This is a s 97 appeal against Waverley Council's refusal of a development application for the demolition of a semi-detached house and the erection of a two-storey new modern dwelling on the subject site. The subject site is known as 63 Gilgandra Road and it has a width of some 5½ m at the street frontage and it has an area of approximately 206 sq m. The adjoining site at No. 65 where the other semi-detached dwelling is erected is a wider block of some nearly 7½ m with a larger site area than the current development application site under consideration. 4 The Court heard evidence from council's planner and also the applicant provided evidence from a consultant town planner, Mr Boutris. The Court had the opportunity of a site inspection on the view and also an inspection of the surrounding area. The area is one that can be described, as agreed to between the parties as most eclectic, and in fact it does not exhibit any specific character. There are a number of semi-detached dwellings within the street. There are also a number of single dwelling houses within the street. The street is dominated by the built form and the subject site is not within a conservation area and indeed the streetscape has little vegetation, whether it be the verges or whether it be the vegetation within dwelling houses. The area is one that has relatively little vegetation. 5 The subject site is at the end of the cul-de-sac and it is evident from the photographs as well as the site inspection that the subject property, being the second last house, the other semi-detached house being the last house within the street, is not highly visible in the streetscape. 6 The Court heard from two objectors on site. The owner of No. 65, Mr Robert Kleinlehrer and he does not object to the development of the subject site with a modern development as proposed on the subject site and advised the Court that he may develop his semi-detached house, the one of the other pair, in a similar fashion in the future. He was concerned about the barbecue or rather its location on the back deck. 7 Dr Shraibman, who lives at No. 19 Plowman Street is concerned about the development of the subject property because his rear yard adjoins the eastern side boundary of No. 65, the other semi and his concern is that his ground level is some 7 m below the ground level of the subject properties and he is concerned about an extension further back into the yard in terms of the bulk and the impact on his dwelling. The Court inspected the property at No. 19 and it is clear that there is a significant change in topography and the height of the dwelling is one that would have to be taken into consideration in the assessment of any development of No. 65. 8 The council planner is Mr Faruki and he is council's statutory planning officer. He is of the opinion that the proposed development is one that does not accord with council's development control plan and as such it would not relate to the integrity of the design of the semi-detached dwelling as it does not provide a roof form that is consistent from the point of view of the streetscape and the development of a semi-detached dwelling. 9 The subject site is zoned Residential 2(a) under the Waverley Local Environmental Plan and the zone objectives are: (a) to allow for housing only in the form of dwelling houses and boarding houses, (b) to maintain and improve the amenity and existing characteristics of localities predominantly characterised by dwelling houses. 10 The guidelines or further controls for development are contained within council's Development Control Plan No. 2 for dwelling house development as amended. The relevant provisions relate to streetscape and visual impacts. The objectives are: (1) to encourage dwelling house development to be of a high standard incorporating good building design and detail and (2) to encourage dwelling house development to be visually sympathetic to other buildings in its vicinity and to the streetscape of which it is a part.