Land and Environment Court of New South Wales CITATION : Blackman v Waverley Council [2007] NSWLEC 173 APPLICANT Adam & Andrea Blackman PARTIES : RESPONDENT Waverley Council FILE NUMBER(S) : 10013 of 2007 CORAM: Bly C KEY ISSUES: Development Application :- construction of a two car carport, streetscape and character. Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Waverley Local Environmental Plan 1996 Waverley Development Control Plan 2006 DATES OF HEARING: 28/03/2007 EX TEMPORE JUDGMENT DATE : 28 March 2007 APPLICANT Mr T. Riley, solicitor of Terrence W. Riley Solicitors LEGAL REPRESENTATIVES: RESPONDENT Mr M. Staunton, solicitor of Staunton Beattie JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 28 March 2007 10013 of 2007 Adam & Andrea Blackman v Waverley Council This decision was given extemporaneously on site. It has been revised and edited prior to publication. JUDGMENT 1 This appeal relates to Development Application No. 469/2006, which is for a construction for a two car carport in front of the existing dwelling house at No. 26 Lyons Street, Dover Heights. 2 The car port is to measure about 5.6 m by 6 m and has minimal setbacks to the east boundary and the northern street boundary. It is to have a flat roof with a sliding steel mesh gate having an open character to match the existing steel picket front fence. It will be a little over 2.4 m high. 3 The site is included in the Residential 2(a) zone under the Waverley Local Environmental Plan 1996 ("the LEP") and in this zone the proposed development is permissible with development consent. Relevantly applicable the Waverley Development Control Plan 2006 ("the DCP"). 4 Part D - Residential of the DCP includes controls and provisions relating to streetscape and under the heading Desired Future Character Objectives it provides that: The established scale, open character and view quality of streets be preserved and that consistent front, side and rear setbacks be retained so as to define a coherent street corridor and reinforce the established detached dwelling character. The relevant performance criteria include the need for setbacks to be consistent with the predominant character of the street so as to enhance street surveillance and avoid unattractive facades at the street level. 5 Section 5.7 of the DCP deals with vehicular access and parking and includes objectives to the effect that the design and size of off-street parking facilities should not unreasonably detract from the appearance and quality of the dwelling house or streetscape. This objective can be achieved by garages and carports being designed as to not to detract from the architectural integrity of the dwelling and not dominating the streetscape. The relevant controls require that garages and carports have a design that integrates with the associated dwelling. Double garages/carports should not front the street and all car accommodation is to be located behind the building line. 6 The application was notified and no submissions were received. I note however, that as part of the application the applicant provided to the council several letters of support. Those letters of support speak of a need to provide off street parking to reduce on street congestion. They also submit that the carport would not adversely affect the streetscape. 7 The application was considered by council's Development and Building Unit ("the DBU") that recommended that the application be refused for reasons involving non compliance with the requirements of the DCP particularly in relation to its breach of the established front building line. 8 The application was subsequently refused by the council on 8 December 2006 for the same reasons indicated by the DBU. In the report of the DBU there is an analysis of the reasoning utilised to reached the conclusion that the proposal is unsatisfactory. That report notes the following: During the site visit it was noted that whilst there are some garages existing on the northern side of Lyons Street, the southern side of Lyons street east of Lord Howe Street intersection has no garages except for No. 39 which is located at the end of the street and the garage for this dwelling is not readily visible. The southern side of this section of the street is characterised by low and open design fencing and the proposed double carport with a setback of 380 mm from the front boundary is considered to be out of keeping with the streetscape and contrary to council policy. The DBU were of the opinion that there is no adequate justification of to depart from council policy especially in cases where the dwellings in the street have a consistent building line. 9 That reasoning provided by the DBU became in essence the council's submission being the reasons why the Court should dismiss the appeal. 10 In response, the applicant invited me to consider the Statement of Environmental Effects provided by Mr P. Le Bas, a consultant town planner who prepared that statement. In it he acknowledges the non compliances with the DCP and in support of these non compliances he makes reference to the fact that there is an existing car space (or hard-stand) in front of the dwelling in the location where the car port is to be constructed. The design of the carport is light-weight and will present as a recessive element in the street. It will not dominate the streetscape as it will not be readily apparent from the street due to it having a level roof and open sides. 11 Mr Le Bas also notes that there are other examples of garages of in the street at No 28 Lyons Street and No. 14 Avoukir Street. He concludes that due to its design the carport will have a lesser impact on the streetscape than the other examples in the street and locality. 12 I have had the opportunity of considering an earlier planning report prepared by a council officer who also recognised the requirements of the DCP that garages and carports should not front the street and such accommodation should be located behind the front building line. Despite this he noted that the carport, being constructed of light weight material with an open steel security gate to match existing front fencing, although not being a common element in the street it would not dominate the streetscape and would integrate well with the existing two storey dwelling. He concluded that the proposed development should be approved. 13 Having considered all of this evidence it is plain that the issue for the determination of the Court is whether the proposal would be appropriate in the streetscape and whether the particular provisions of the DCP are determinative. 14 When considering the streetscape question I have considered the approach taken by the DBU in restricting the streetscape analysis to the properties between and not including No. 30 Lyons Street and No. 16 Lyons Street. In my opinion this is too narrow a focus for the proper consideration for streetscape in this instance. 15 Having walked the street I have decided that both sides of the street down as far to the west as Lord Howe Street should be included in the analysis. In this area there are a number of garages and carports that extend to the front building line. Also there are a number of other heavy-weight built forms that extend to the front boundary including high masonry fences. Taking these matters into account I accept the conclusions of Mr Le Bas that the proposed carport would be satisfactory in the streetscape. Whilst not by itself determinative it would be a significantly better outcome than a number of the other examples that I saw. 16 The car port's open, relatively light-weight character will enable passers by to look through the structure to the predominant building on the site thus enabling it to blend in with the existing dwelling and not dominate it. It is this open character that leads me to conclude that its impact would be so low as to not require the strict application of the provisions of the DCP in relation to setbacks. Indeed, I am satisfied that the carport would not be inconsistent with the predominant character of Lyons Street. By way of contrast, an application for the construction of a more conventional garage in this location would have been unacceptable. 17 The appeal is therefore upheld and conditional development consent granted. Exhibits 4 and A are retained. ___________________ T A Bly 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.