Land and Environment Court of New South Wales CITATION : Kirwan v Ku-ring-gai Council [2005] NSWLEC 540 APPLICANT Kathryn Kirwan PARTIES : RESPONDENT Ku-ring-gai Council FILE NUMBER(S) : 10682 of 2005 CORAM: Nott C Appeal :- s 96 application to change the size and location of an approved carport - landscaping - streetscape. KEY ISSUES: Environmental Planning and Assessment Act 1979, s 96 LEGISLATION CITED: Ku-ring-gai Planning Scheme Ordinance DATES OF HEARING: 28/09/2005 EX TEMPORE JUDGMENT DATE : 09/28/2005 APPLICANT Ms K. Kirwan, in person LEGAL REPRESENTATIVES: RESPONDENT Mr M. Driscoll, solicitor of Deacons JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Nott C 28 September 2005 10682 of 2005 Kathryn Kirwan v Ku-ring-gai Council JUDGMENT 1 This is an appeal against the council's refusal of an application under s 96 of the Environmental Planning and Assessment Act 1979 in respect of a proposal to change the size and to some extent the location of an approved carport at 15 Belgium Avenue, Roseville. The application under s 96 was refused by council's letter dated 6 June 2005. 2 I have taken into account the filed Statement of Issues and the Statement of Basic Facts. The main issue it appears relates to the fact that the proposed carport will be forward of the building line and partly in front of a Californian bungalow house erected in 1915. Moreover, the council placed emphasis on the provisions of its planning instruments. 3 The subject land is zoned 2(c1) under the Ku-ring-gai Planning Scheme Ordinance. The proposal is permissible with consent. Reference was made in the documents that were tendered to cl 1(b) of schedule 9 of the ordinance. 4 DCP 43 (Carparking) also applies. It requires two carparking spaces for a dwelling house but is silent on whether or not there is a need for garages or carports. These are dealt with more specifically in DCP 38 (Residential Design Manual). In note in particular in clauses 5.1.3, 5.5.1, 5.5.3 and 5.5.4 of DCP 38. 5 At the on-site hearing, the council was represented by Mr M. Driscoll, solicitor. Evidence for the council was principally given by Ms R. Pearson, executive planner of the council assisted by Ms Nabila Sarwary, development assessment officer. 6 The applicant herself partly conducted her case assisted by Mr I. Glendinning, consultant town planner. Evidence was presented on the applicant's behalf also from Ms S. O'Neill, architect and heritage planner. 7 I have been assisted by a view of the locality, particularly of Belgium Avenue. 8 On the particular facts of this case I am of the opinion, for the reasons which I will elaborate, that development consent should granted subject to conditions. 9 The subject land is at the curve in Belguim Avenue from where the avenue proceeds in a south-westerly direction towards Trafalgar Avenue. The avenue also proceeds from the subject land in a south-easterly direction. The avenue does have a very attractive appearance as referred to by Ms Pearson, particularly in the stretch proceeding south-easterly where the lot sizes are generally larger and wider and where there are no carports or garages forward of the building lines. It appears that for these wider lots, there would not be any need for a carport to be erected forward of the building line and that there is adequate covered parking on these properties. 10 The subject property has a more restricted area where a carport can be erected. In the past there was an old carport or garage structure on the narrow side area of the existing house at 15 Belgium Avenue. 11 The purpose of the development consent, which is the subject of the proposed modification, was to approve alterations and additions to the house and to approve an open-sided carport on the western side using the existing driveway. This carport was approved forward of the building line and it also had a design which provided a gable-ended roof on the suggestion of council officers. The height or rest the height of this roof is higher than what is presently proposed and the design is different. 12 What is of concern to the council is that what was approved by the consent of 15 June 2004 was a tandem carport whereas the present proposal is for a double-width carport. 13 The plans which were originally lodged with a s 96 application provided for a carport at 6.6 m wide and also a depth of carport of about the same dimensions. At the commencement of the on-site hearing, an application was made to reduce the width of the proposed double carport and also its depths. I allowed that amendment as I considered that it improved the proposal and reduced the sideways extension of the carport so that it would not extend across a small part of the front of the existing house as much as the original s 96 application. 14 The carport as proposed will extend about 1.5 m across the western end of the frontage. At this location of the existing house there was an open verandah in the past, which has since been enclosed. The original main windows at the front elevation however will not be affected by the proposal. 15 I am of the opinion that the design of the proposed carport as amended will be sympathetic to the house and I rely on the evidence presented by the heritage architect Ms O'Neill. Among other things, there is an existing driveway and crossover, and these will be retained. The existing roof pitch will be matched although there will be no gable-ended but rather as it were a hipped roof with slate tiles. This will enable the large main gable of the house to attract the eye and there will not be a conflict between what is proposed and the existing house. Behind the main gable of the existing house a slate tiled roof can be seen in part. 16 It is not feasible to take to construct a double carport in the rear yard of the subject property, and I have taken this circumstance into account in balancing the public interest as disclosed by the guidelines in DCP 38 and the reasonable aspirations and convenience of the owners of the subject land. 17 Where possible it seems to me that it is desirable to have covered carparking for the required two carparking spaces that are to be provided for each dwelling house. I do not have to express an opinion as to whether an open-sided carport would be appropriate elsewhere in the stretch of Belgium Avenue running south-east from the subject land. I take into account that council is concerned about possible adverse precedents. As I mentioned earlier, the attractive houses on the north-eastern side of Belgium Avenue are probably not going to require any carparking to be provided that cannot be provided behind the building line. There is one house, more or less directly opposite the subject land, which does not have covered carparking and that house to some extent has been altered by a double-storey addition and some of the features of the Californian bungalow style house have been removed. Again I do not wish to express a definite opinion about whether or not a carport would be appropriate at that location in front of the building line. 18 As I said earlier, the proposed carport is of a design sympathetic to the existing dwelling house and while it will be apparent from some locations in Belgium Avenue, the existing trees in the nature strip and the proposed landscaping immediately adjoining and partly in front of the proposed carport will assist in providing a reasonable integration of the proposed carport into the streetscape and I do not think that it will dominate the street. 19 It could be that the subject locality might be made a heritage conservation area. The subject site and adjoining sites would not be heritage items, although they would be contributory items. However, there was some hearsay evidence to the effect that the government is not prepared to approve a further conservation area but I do not base my decision on this rather on the limited evidence. As I have said, Belgium Avenue is an attractive one, and wherever reasonably possible it seems to me off-street covered carparking should be provided behind the front building alignment but at the same time when making a decision. The reasonable needs of the owners and the circumstances of the particular site have to be considered. 20 A new landscaping plan will be required in relation to the proposal. 21 Accordingly, the orders of the Court are: 1. The appeal be upheld. 2. Pursuant to s 96 of the Environmental Planning and Assessment Act 1979, the council's development consent dated 15 June 2004 relating to 15 Belgium Avenue, Roseville is modified as follows: (1) Insert Condition 1A: 1A. The above condition 1 is modified to the extent that the development should be carried out in accordance with drawing Nos 01A and 02A dated May 2005 by Susan O'Neill. (2) Delete Condition 35 and insert the following condition instead: 35. Prior to the release of a construction certificate for the proposed carport the applicant is to submit to council for its approval an amended landscape plan generally in accordance with the landscape plan by Hortus Design, issue C, dated 31 August 2005. The amended plan is to detail additional landscaping immediately adjoining the proposed carport. (3) Delete Condition 49. 3. The exhibits other than exhibits 2, 3, 4, A, B and C may be returned. __________ A J Nott 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.