Kazem Daemi - Hamedami v Waverley Council [2004] NSWLEC 617

Land and Environment Court of New South Wales

CITATION : Kazem Daemi - Hamedami v Waverley Council [2004] NSWLEC 617 APPLICANT: PARTIES : Kazem Daemi - Hamedami RESPONDENT: Waverley Council FILE NUMBER(S) : 11048 of 2004 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Streetscape and heritage impact LEGISLATION CITED: Waverley Local Environmental Plan 1996, (LEP 1996) - Environmental Planning and Assessment Act 1979, ss 79C and 97 CASES CITED: DATES OF HEARING: 04/11/04 DATE OF JUDGMENT: 11/09/2004

APPLICANT: Mr M Dean, solicitor SOLICITORS: Michell Sillar LEGAL REPRESENTATIVES: RESPONDENT: Ms A Penklis, solicitor SOLICITORS: Sparke Helmore Lawyers

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

8 November 2004

11048 of 2004 - Kazem Daemi - Hamedami v Waverley Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Waverley Council (the council) to refuse a development application to construct a carport, involving the removal of the front verandah of an existing dwelling at Lot 101, DP 516914, being No 32 Gowrie Avenue, Bondi Junction, NSW, 2022. 2 I visited the land in company with the parties on the morning of the on-site hearing, which was held at the Council Chambers. 3 I have concluded that the application when considered under s 79C of the Environmental Planning and Assessment Act 1979 should fail as a result of its impact on the streetscape and the heritage character of the 'Woodstock' Urban Heritage Conservation Area. The land 4 The land is situated on the northern side of Gowrie Avenue between the intersection of Waverley Crescent and Woodstock Street. The land is level. Erected on the land is a single-storey semi-detached dwelling, similar to many in the street. Front gardens of around 3m depth present to the street. There are grass verges beside the concrete footpath. 5 These dwelling houses in Gowrie Avenue are mainly single-storey, semi-detached built around 1908 of Federation style. They have shared pitch roofs with symmetrical gables. Below each gable facing the street, there is a round arch and verandah. The front wall of the main part of each of the houses is setback around 4.6m from the street alignment and by encroaching into the verandah it is possible to park a car in the front garden. 6 There are carports located in the front of semi-detached dwellings Nos 26, 28 and 30 Gowrie Avenue and apart from No 26, which has a horizontal fascia those at Nos 28 and 30 with gabled roofs would be similar to that proposed. The parties accepted that these carports were erected at least ten years ago and possibly thirteen or more years ago. 7 The locality is characterised by single-storey semi-detached dwelling houses. At northern end of the street there is a two-storey freestanding dwelling of Federation style. In the locality, there are also some examples of around 1960s multi-storey residential flat buildings of around eight storeys in height. One has been erected diagonally opposite the land in Gowrie Avenue. Relevant planning controls Waverley Local Environmental Plan 1996, (LEP 1996) 8 The land is within the Residential 2(a) zone and within 'Woodstock' Urban Heritage Conservation Area under the provisions of the LEP 1996, and the proposal is permissible with consent. 9 Other planning controls include: · Development Control Plan No. 2 - Dwelling House Development, (DCP 2) - Part 9. · Development Control Plan No. 14 -Bicycle and Car Parking, (DCP 14) - Part 4. · Development Control Plan No. 18 - Heritage Conservation - Parts 6 to 8. · Draft Development Control Plan No. 2 - Dwelling House and Dual Occupancy Development -Part 12. On exhibition and scheduled for consideration in December 2004. The proposal and its history 10 Development application No 0413/03 was lodged with the respondent council on about 2 July 2003, to construct a carport, involving the removal of the front verandah of the existing dwelling on the land. 11 The proposed carport would be 4.23 metres in height, and the car space would have dimensions of 2.6m (width) x 4.6m (length as measured on site), [4.615m on plans]. 12 The plans prepared by Krendel's Drafting Services of Waverley show the removal of the brick balustrade between the brick haunches of the arch over the verandah. The clearance between the haunches of the arch would limit the width of the proposed car parking space to 2.6m. The verandah floor and sandstone base course is to be removed and a reinforced concrete slab cast in-situ between the front alignment and the main wall of the dwelling as the new floor for the carport. The grass verge on either side of the council footpath is to be infilled with reinforced concrete slabs and a new concrete crossover constructed at the kerb. A new tiled gabled roof is proposed to match the pitch and materials of the existing roof. The gable, which would present to the street, would incorporate a decorative arched opening. 13 There would be little or no landscaping between the front alignment and the main wall of the dwelling after the works were carried out. Notification 14 The application was notified to nearby owners and occupants from 16 July 2003 for a period of thirty days as required by LEP 1996, and the council received two objections: 15 Concerns raised by the objectors are; · loss of on-street parking; · traffic congestion; · out of character; · adverse impact on Gowrie Avenue streetscape and conservation area; and · loss of grass verge. The council's decision 16 By notice dated 12 December 2003, the council refused the application for the following reasons: 1. The proposed carport is inconsistent with the architectural character of the existing dwelling house and its historic streetscape. 2. The proposed is inconsistent with the streetscape objective and minimum dimensions required for car parking spaces in Part 9 of DCP 2. 3. The proposal will have an adverse impact on the adjoining streetscape and public domain. 4. The proposal is not considered to be in the public interest.