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. 11 There are a number of design criteria and design solutions to assist in submitting development applications. Design criteria states that: 1. the objectives are not achieved unless alterations and additions are sympathetic to the architectural style or character of existing dwellings in the vicinity; 2. new dwellings are visually harmonious with other dwellings in the vicinity; 3. … 4. relates to semi-detached dwellings and states that semi-detached dwelling house development maintains the design integrity of existing semi-detached dwellings and ensures that they present as pairs or groups of dwellings. 12 The design solutions in terms of S(4) are that extensions to the roof form of an existing semi-detached dwelling are designed on the assumption that the other dwelling in the pair may, at a future time, incorporate extensions of a similar nature. Development applications for such extensions may include a plan of how the building would appear if both dwellings were extended in this way. And design criteria C(5) states extensions to the roof form of an existing semi-detached dwelling are visually and stylistically integrated with existing roof form, are appropriate in their streetscape context and do not contribute excessively to the bulk of the building and once again there are a number of design solutions and a number of sketches to show what is the preferred form of extending a semi-detached dwelling. 13 The council has also prepared a new development control plan or amended Development Control Plan No. 2, Dwelling House and Dual Occupancy Development and this took effect on 23 March 2005. Although it is noted that the council would continue to consider development applications already submitted under the previous development control plan. 14 The new amended development control plan provides for streetscape and visual impact, a strategy with controls states: "that dwellings are to be reflected in the design facades for new buildings and the bulk scale and proportions of new dwellings shall be consistent with existing surrounding dwellings. The use of contemporary design may be acceptable provided it addresses the character of the locality in respect to bulk and scale of adjoining development siting pattern and the character of the established streetscape." 15 It is noted that the new DCP provides for character statements, however, there is not a character statement for North Bondi in the DCP. There are character statements for Dover Heights, Queens Park, Bronte but not for North Bondi, where the subject development application is located. 16 For semi-detached dwellings there is a strategy S9.4.1, "semi-detached dwelling house development maintains the design integrity of existing semi-detached dwellings and ensures that they visually present as pairs or groups of dwellings." The control is that extensions to the roof form of an existing semi-detached dwelling are designed on the assumption that "the other dwelling in the pair will incorporate extensions of a similar nature. Development applications for such extensions may include a plan of how the building would appear if both dwellings were extended." I note that the applicant did provide a sketch to show how the other semi-detached dwelling of this pair could also be redeveloped. 17 There are other issues covered by the DCP which relate to streetscape and visual amenity. For semi-detached and attached dwellings one criteria is that "the first floor level additions or extensions do not result in the creation of a blank dividing wall along the boundary between semi-detached dwellings." It is noted that there had been the development of one semi-detached dwelling opposite where the other one in the pair was not redeveloped and that there was evidence of a blank dividing wall when seen from the street. 18 The DCP also provides controls for fences, vehicle parking and access and the extent of impervious areas to be minimised as well as landscaped open space provisions and solar access and amenity. It was not disputed that the Court should not have some regard to the amended DCP. It is a matter of weight as to whether in fact the Court considers it of such significant weight that it should be determinative. Council's DCP clearly states that applications submitted are to be determined under the controls when the application was lodged. However, it was also agreed that the Court could not ignore the new development control plan and in fact that was considered to be a commonsense approach and was not objected to by the council. 19 The Court was taken to two development applications which had been before this Court previously, one being the matter of Westwood v Waverley Council [2004] NSWLEC 574 revised 10/11/2004. This particular development application was for one side of a semi-detached house at No. 22 Wiley Street, Waverley. As I mentioned in the preface to my judgment, I did inspect this particular property and it is clear that the streetscape in which this property is located is one that does have unique character in terms of the streetscape, the street trees that are listed as a heritage item and the ambience of this street is one where the properties all contribute to a consistent theme in terms of the general roof pitches of dwellings and the period of many of the semi-detached and single dwelling houses and terraces that are within this area, clearly developed before the subject street that the Court is considering this development application in. 20 The Court was taken to this judgment because of the importance that was attached to Zhang v Canterbury City Council [2004] NSWLEC 500 wherein the Court must have a central focus of the provisions of the development control plan in the assessment of any development application and in that regard I must give the DCP a focus in terms of its controls in terms of my assessment of this development application. 21 I do consider the proposal in Wiley Street, while I have not seen the plans as such, I have the benefit of the judgment and I do have the benefit of a site inspection and I consider that the circumstances are distinguishable in terms of the streetscape or the importance of the streetscape for Wiley Street as opposed to the significance of the location of this site in its streetscape. Firstly the streetscape of the development application which I am assessing does not have any particular cohesion in terms of both the built form or the street trees and secondly the specific location of the subject site is at the end of the cul-de-sac and in many respects with the proposed development it would be difficult to view the other half of this pair of semi-detached cottages, except if one was standing right at the very end of the cul-de-sac. In these respects I distinguish the current application before me. 22 The other judgment that was referred to the Court was that of Ryan v Waverley Council [2004] NSWLEC 382 revised 24 August 2004 and this is a matter where a garage was permitted to be erected in front of the front boundary setback, once again a pair of semi-detached dwellings. The streetscape and the circumstances of that particular application are also distinguishable from the subject development application. 23 The determinative issue as put forward by the respondent and it is agreed it is the determinative issue, is the one of streetscape and the alteration of this pair of semi-detached dwellings. 24 I have given central consideration to council's development control plan and the design criteria and the design solutions. I have also considered council's amended development control plan in terms of semi-detached dwellings and the Court considers that the provisions for semi-detached dwelling houses to read as pairs is one that should be generally upheld. However, the particular circumstances of this development application in my assessment warrants the approval of the proposal. The major difference with this development application is its visual catchment in terms of the streetscape and the visual catchment of viewing the semi-detached dwellings. There is limited opportunity to view this pair of semi-detached houses in terms of its streetscape. There is another distinguishing factor in terms of the quality. I will not argue with the fact that the 'architectural integrity of the building' means the form of the pair of semis in terms of the roof and the form of the semi-detached dwellings, however, the architectural quality of these semi-detached dwellings is one that is not high but if it was highly visible in the streetscape it should be respected despite the fact that it is not of high architectural quality. 25 However, given the location of the subject site at the end of the cul-de-sac I am satisfied that the proposed development is one that would sit within the streetscape, especially having regard to the broader context of this streetscape where there are modern dwellings and older dwellings have been demolished to make way for new modern dwellings. This street is not one that is within a character statement and that has special qualities in that regard and it was evidenced from the view that the street is very much undergoing a change, clearly because of its high desirability in terms of general location within Sydney itself and being at North Bondi and there is opportunity for the subject site to also be redeveloped to provide for an appropriate dwelling house. The dwelling house as proposed in the architectural plans is one that does demonstrate good design and it will make a positive contribution to the streetscape. 26 I am satisfied that in terms of the development control plan that the future development of the other semi-detached dwelling house could be appropriately accommodated with the development as proposed for No. 63. It is often difficult to approve of the development of one semi-detached dwelling when there is no certainty as to what the future of the other semi-detached dwelling being developed. However, it is not a precedent in my opinion to allow the proposal, in view of the fact that the semis are not clearly read together at the end of the cul-de-sac and in particular with the proposed development the semi-detached dwelling at No. 65 will be partly obscured also by its own garage and partly obscured by a high front fence. The roof form in terms of the hipped roof will be visible, there is no doubt about this, however, in the shorter term it is acceptable, although clearly redevelopment of the other semi will provide for greater cohesiveness in the future. 27 The subject dwelling will be setback further from the front boundary than what it currently is, some 6½ m and it will be a two-storey modern flat roofed development with a garage at the street boundary. The proposal is some 11 m from the rear boundary and it will be visible from the rear street, separated by another property where there are three garages. The proposal has been amended such that the rear portion is lowered and it would appear that this is more appropriate in terms of respecting the topography. It will also assist in providing a more appropriate level for the dwelling at No. 65, if and when it is redeveloped, and this is important in terms of Dr Shraibman's concerns of No. 19 Plowman Street to ensure that the difference in topography is not further exacerbated by any dwellings at the upper level. Clearly where there are such major or significant differences in topography one must expect there to be some impacts in terms of the appearance of bulk of buildings but lowering the RL for the floor level of the proposed development at the rear will assist in ameliorating this when it is translated to the adjoining development at No. 65. 28 As I said, it is important for the Court to give careful consideration to council's controls and in particular its development control plan, whether that be the amended version as of March this year or the previous version, which also contains similar principles. It is only the unique circumstances of this site as to why I consider that approval is warranted in the circumstances and that is the location of the actual site at the end of the cul-de-sac and having regard to its greater visual context in terms of the streetscape itself, it will not be an aberration. 29 It appears that there needs to be amendments to the existing landscape plan and in terms of a contribution to the streetscape in terms of landscaping an amendment to the plan that has been provided to me this morning as well, such that there is landscaping for the street verge and an appropriate tree be provided and maintained between Nos. 61 and 63, in particular with the relocation of the gutter opening to the street and the relocation of the garage to the opposite side of the site. Also clearly the garbage bin receptacle area needs to be placed behind the front fence, the front gate should also be set back further. And it is also noted that the amended plan provided to me this morning deletes the paving between the rear deck and the swimming pool and now provides for a lawned area. One of the controls of council's DCP is to reduce impervious areas and this is consistent with council's development control plan in this regard. 30 An amended plan to show these matters needs to be provided to the Court before the final orders are issued and I will issue final orders in Chambers. It is noted that council's conditions already contain a dilapidation condition, which is appropriate to be included. It is noted that the amended plan clearly shows the actual garage door some 230 mm inside of the front wall, which is appropriate, and the parapet has been reduced on the top of the garage by approximately 150 mm. 31 It is also noted that the fence gate is to be of an open design and this is consistent with council's development control plan that at least fifty per cent visibility should be provided through front fences and gateways and that condition will also ensure that this is followed through in the final plan. The amendments are not major, however, it provides for greater certainty in the planning process if an order and approval is granted to the revised plan to ensure the above revisions are executed and the subject of a construction certificate. 32 On the basis of my assessment in the context of council's LEP and its development control plan, in force as at the time this development application was submitted and in terms of the amended DCP, is that the proposal to be revised should be approved. 33 Therefore the orders of the Court will be on the receipt of a revised plan: 1 The appeal for No. 63 Gilgandra Road, North Bondi, is upheld. 2. The development application as amended is determined by the granting of consent and subject to conditions contained in Annexure A (and they are those that have been handed up this morning and agreed to). 3. The exhibits are returned except for 3, E and H. ________________ J S Murrell Commissioner of the Court rjs 34 Just to ensure that there is no misunderstanding with respect to the amendments provided for those plans, they are to show the gate relocated back further towards the door of the garage, such that it does not conflict with the opening of that door and the garbage bin receptacles to also be replaced behind that and that area currently showing where they are to be landscaped. There needs to be the plan to show what the landscaping would be for council's verge and an appropriate species after discussions or consultations with council's landscape expert. And the new gutter crossing/opening of the driveway is to be clearly shown in terms of what this amended plan would require and for the driveway opening to be the minimum width needed for manoeuvrability to provide for a greater verge between 61 and 63 (that is gutter reinstated for that portion). And the parapets for the upper level on the western elevation for the upper storey is to be returned for the extent of that level. And consideration also to be given to, on the eastern elevation, for that just to be a masonry wall for the length of that boundary with the adjoining property at 65. 35 LLOYD: Sorry what was that again? 36 COMMISSIONER: The treatment to the top of the roof adjoining the wall at No. 65 on the eastern elevation that is to be just continued as a masonry wall, flush with the boundary. And the amended plan is also to show the location of the rainwater tank and to allow the landscaping to be established on the rear boundary, the swimming pool should be dropped by 200 mm and the plans which are Revision C are to be adopted in terms of the additional splits to lower it. In other words, the amendments are to be done to Revision C. 37 There should be a landscaping plan provided which has been consulted with the council for appropriate species and I will just double check that there are not any other conditions which should be incorporated in an amended plan at this point in time. I do notice that the stormwater condition 7 requires on-site detention, this should be shown as to how it is going to be accommodated in this development. For example, I do not know where the connection to council's stormwater is from the plans that I have before me. Clearly the landscape plan would have to show the irrigation system that uses the water harvested from the premises. 38 I suggest that if I could have the amended plans that council has the opportunity to see them as well and Mr Staunton if it would be possible to have a letter from the council to advise if council is satisfied that the revised plans reflect the amendments identified. 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