A J Cordato & C Comerford-Cordato v City of Canada Bay [2005] NSWLEC 705

Land and Environment Court of New South Wales

CITATION : A J Cordato & C Comerford-Cordato v City of Canada Bay [2005] NSWLEC 705

APPLICANT: A J Cordato & C Comerford-Cordato PARTIES : RESPONDENT: City of Canada Bay

FILE NUMBER(S) : 10742 of 2005

CORAM: Watts C at 1

Development Application :- Heritage impacts of the height of the stair tower KEY ISSUES: Height bulk and scale of the proposed garage/studio

Drummoyne Local Environmental Plan 1986, (DLEP) LEGISLATION CITED: Drummoyne Comprehensive Development Control Plan 1999, (DCDCP) Environmental Planning and Assessment Act 1979, ss 79C, 97

CASES CITED: Tenacity Consulting v Warringah [2004] NSWLEC 140

DATES OF HEARING: 06/12/2005

DATE OF JUDGMENT: 12/09/2005

APPLICANT: Mr G B Newport, barrister instructed by Ms H Cook, solicitor SOLICITORS: LEGAL REPRESENTATIVES: Cordato Partners

RESPONDENT: Ms J L Wauchope, solicitor SOLICITORS: Maddocks Lawyers

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

9 December 2005

10742 of 2005 - A J Cordato & C Comerford-Cordato v City of Canada Bay

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the City of Canada Bay (the council) to refuse a development application to erect a two-storey garage with basement, in-ground swimming pool and extension of a stair tower with internal viewing platform at Lot 101, DP 1070278, being No 9 Wolseley Street, Drummoyne. 2 I visited the land in company with the parties on the morning of the first day of proceedings when nearby residents gave evidence. 3 I have concluded that when considered under s 79C of the Environmental Planning and Assessment Act 1979, the proposal would be of a bulk, height and scale that would be acceptable in the streetscape and would not detract from the heritage significance of the building on the land, or on No 11 Wolseley Street. The land 4 The land is situated on the southern side of Wolseley Street. It has a frontage to Wolseley Street of 18.14m; to Raglan Street of 6.6m; with a 28.985m eastern (side) boundary; a 13.645m eastern (side) boundary; a 27.27m southern (rear) boundary; and a 41.555m western (rear boundary). It has an area of 830.9m2. The land slopes down from the south (rear) to the north towards Wolseley Street. There is no significant vegetation on the land. 5 Erected on the land is a two-storey Federation style dwelling house. The house is being conserved. On the day of the site inspection the front fence was being erected. 6 Development near the land is residential and comprises a mixture of both single dwelling houses and residential flat buildings. Abutting to the west and south are single dwelling houses. Abutting to the east at No 7 Wolseley Street, is 'Leon Manor', a six or seven unit residential flat building. Relevant planning controls Drummoyne Local Environmental Plan 1986, (DLEP) 7 Under the provisions of the DLEP the land is zoned residential 2(b) and the proposal is permissible with consent. Clause 21 of the DLEP relates to heritage items. Drummoyne Comprehensive Development Control Plan 1999, (DCDCP) 8 Under the provisions of the DDCP there are requirements for setbacks, bulk and scale, streetscape, heritage, built form. 9 Part 6.5 Building Envelope – minimum standards for single dwellings of the DCDCP states: M3 Maximum floor space ration is 0.5:1 and maximum height is two-storeys. M4 The dwelling is to be setback at least 6m from the rear boundary. M5 Side boundary setback for all building walls are a minimum of 900mm for single storey and 1.5m for two storey dwellings. Lesser setback may be permitted where the wall does not contain windows and the levels or width of the site or other exceptional site conditions make compliance impractical. 10 Part 6.6 Building Design Objective of the DCDCP states: 01 To promote housing forms of a scale and appearance in keeping with the street and neighbourhood character. 11 Performance Criteria P5 and P16 of the DCDCP state: P5 The design of additions and alterations should demonstrate architectural unity with the existing dwelling. The extension or replication of roof pitches and matching of external finishes is encouraged. P16 All applicants should refer to Part 4 Heritage for detailed guidelines and controls for development of or near heritage items and development in conservation area. 12 Part 6.12 – Parking and Access Objectives O3 and O4 state: O3 To encourage the location of carports and garages behind the building line where possible. O4 To encourage integrated and high quality garage and carport design. 13 Performance Criteria P4 states: Garage and carports should be designed and located so that they do not dominate the streetscape. The proposal and its history 14 Development application No 681/04 was lodged with the respondent council on 25 October 2004 to erect a two-storey garage with basement, in-ground swimming pool and extension of a stair tower with internal viewing platform on the land. 15 Development Application 437/1999 for alterations and additions to the dwelling to create a new garage, covered walkway, attic room, front and side fences, family, study and laundry rooms with works to the main stairs, rear verandah, playroom, study and kitchen was approved by the council on the 22 February 2000. These works are under construction. 16 Under s 96(1A) of the Environmental Planning and Assessment Act 1979, a modification application was lodged with the respondent council on the 20 May 2004. The s 96-modification application was approved by the council on 28 June 2004 and deleted the garage and walkway, and permitted the construction of three sheds abutting the southern boundary and a boundary fence and the extension of the family room by about 2m. Notification 17 The present application (DA No 681/04) was notified to nearby owners and occupants between 29 October 2004 and 12 November 2004 and the council received two (2) objections. 18 Concerns were held in relation to: · The height, bulk, scale and heritage impact of the tower and garage/studio; · The heritage ambiance of the tower and that it would not be aesthetically pleasing and quite ugly; · The enclosing effect of the garage/studio; and · The height of the peak of the roof over the garage/studio. The council's decision 19 By notice dated 1 July 2005 the council refused the application for the following reasons: 1. Pursuant to Section 79C of the Environmental Planning and Assessment Act 1979, it is considered that the applicant has submitted inadequate information to allow for the proper assessment of the application. 2. The application is considered unsatisfactory under section 79C(1)(a)(i) of the Environmental Planning and Assessment Act 1979 as is does not satisfy clause 2A and 21 of the Drummoyne Local Environmental Plan 1986 as the proposed development will detrimentally impact on the heritage significance of the dwelling on land at 9 Wolseley Street, Drummoyne. 3. The application is considered unsatisfactory under section 79C(1)(a)(i) of the Environmental Planning and Assessment Act 1979 as is does not satisfy clause 2A and 22C of the Drummoyne Local Environmental Plan 1986 as the proposed development will detrimentally impact on the heritage significance of the adjoining heritage item at 11 Wolseley Street, Drummoyne. 4. The application is considered unsatisfactory under section 79C(1)(a)(iii) of the Environmental Planning and Assessment Act 1979 as is does not satisfy the following provisions of the Drummoyne Comprehensive Development Control Plan: a. Section 4.2 Performance Criteria No2 (Streetscape); b. Section 4.4 Performance Criteria No 4 (Integrated Addition); Performance Criteria No 8 (Building Form); Performance Criteria No 11 (Roof Form); c. Section 6.5 Performance Criteria No 10 (Bulk & Scale); Performance Criteria No 11 (Alts & Adds to rear); Performance Criteria No 12 (Integrated Addition); Minimum Standard No 5 (Side Setbacks); d. Section 6.6 Performance Criteria No 6 (Bulk & Scale); Performance Criteria No 16 (Heritage); e. Section 6.12 Performance Criteria No 4 (Streetscape). 5. The application is considered unsatisfactory under Section 79C(1)(b) of the Environmental Planning and Assessment Act 1979 as the bulk and scale of the development creates an unacceptable impact on the streetscape, and further unreasonably dominates the dwelling at 34 Collingwood Street. 6. The application is considered unsatisfactory under Section 79C(1)(e) of the Environmental Planning and Assessment Act 1979 by virtue of the adverse impacts created and the public submissions received it cannot be said that the development is in the public interest. The hearing 20 The appeal was filed on 7 July 2005. 21 On the site inspection, Ms Maria Spanos, resident of No 11 Wolseley Street, Drummoyne, [Note: Exhibit 1, Tabs 11, 12 and 17] and Mrs Cheryl D Heslop, resident of No 34 Collingwood Street, Drummoyne, [Note: Exhibit 1, Tabs 14, 15 and 16] gave evidence, on behalf of the council. 22 Mr A Witherdin, Assessment Officer, Canada Bay Council, gave evidence on streetscape issues on behalf of the council and prepared the statement of basic facts dated 8 August 2005. 23 Ms A McCabe, consultant town planner, gave evidence on behalf of the applicant. 24 Ms L Newell, consultant archaeologist, was the Court-appointed heritage expert. The issues 25 On 17 August 2005 the council filed a statement of issues: HERITAGE IMPACT 1. The proposed extension of a stair tower with internal viewing platform will detrimentally impact on the heritage significance of the dwelling, the adjacent heritage item at 11 Wolseley Street and the surrounding streetscape. Particulars (a) The proposed stair tower by way of its siting and design, bulk and scale and proposed construction materials is inconsistent with the host heritage item, the surrounding heritage items and the streetscape generally.