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. Planning instruments Clause 2A, 21 and 22C of the Drummoyne Local Environmental Plan ("DLEP)" Drummoyne Comprehensive Development Control Plan ("DCDCP") Part 4, and in particular: General Objectives:O1, O2, O3; Part 4.2 Objective O2; Part 4.4 Objectives O2, O4; Part 4.4 Performance Criteria P2, P3, P4, P8, and P11 of Part 4.4 of the [DCDCP]. STREETSCAPE 2. Whether the proposed design, height, bulk and scale of the studio building housing the proposed garage is consistent with the scale of adjoining structures and will detract from the appearance of the streetscape. Particulars: (a) The proposed two-storey garage building is designed and located so that it would dominate the streetscape. (b) The proposed garage building is a two-storey building with zero front and side setbacks. The height, bulk and scale will dominate and detract from the existing streetscape. (c) The first floor component of the building does not comply with rear or side setback requirements. Planning instrument: DCDCP Part 6.6 Objectives O1, Performance Criteria P16, P5; DCDCP Part 6.12 Objectives O3, O4; Performance criteria P4, Minimum Standard M13; DCDCP Part 6.5 M3, M4, M5. PUBLIC INTEREST 3. Whether the proposal is in the public interest on account of the issues raised by the objectors. Particulars: (a) Heritage impact; (b) Impact of excavation for basement; (c) view loss as a result of height of two storey building/garage; (d) vehicle movements, possible collision; and (e) wind tunnel effect. (f) 26 The principal-contested issues are: · Height of the tower from a heritage viewpoint and · Bulk height and scale of the garage in the streetscape. The evidence and findings 27 The question of the bulk, height and scale of the proposal was addressed from two viewpoints. The first was the heritage impact of the height of the proposed stair tower and the second was the bulk, height and scale of the proposed new two-storey garage/studio fronting Raglan Street and its impact on the streetscape and the neighbour to the south at No 34 Collingwood Street. Height of the stair tower from a heritage viewpoint 28 Ms Newell, the Court-appointed heritage expert, gave evidence on site as to the expected height of the proposal. She determined, to the parties satisfaction, that the top of the eaves of the proposed stair tower would appear slightly higher than an imaginary horizontal line intersecting with the ridge of the main roof, when the viewer is standing opposite the front door of the subject on the far side of the street. Ms Newell and Ms Choong confirmed that the tower shown in the photomontage was apparently shown too high. This photomontage, [Exhibit 1 Tab 25], was not relied upon in the hearing. 29 Ms Newell stated in respect of the heritage impact on No 9 Wolseley Street, [Note: Exhibit 5, p 5, para 5.3]: I consider that the proposed stair town would have some heritage impact on No 9 Wolseley Street in that it would introduce a new element to the otherwise fairly intact first floor as it appears at the front of the dwelling and it would appear to stand proud of the current roof ridge line. Its strong vertical lines and solid appearance would create the overall impression of a more symmetrical northern elevation to the building, with more vertical design elements and features introduced to the eastern half of the northern elevation. The current façade is asymmetrical and its dominant vertical elements/treatments and features are largely limited to its western half. Asymmetry is a characteristic of Arts and Crafts buildings. However, I do not believe that the proposed tower has an unacceptable heritage impact on the heritage values of No 9 Wolseley Street. 30 Assessing the heritage impact on No 11 Wolseley Street, Ms Newell stated, [Note: Exhibit 5 p 7, para 5.10]: [The proposed stair] would not have an unacceptable impact on the heritage significance of No 11 Wolseley Street and that it is consistent with the aims stated in cl 2(a) of the Drummoyne Local Environmental Plan 1986 (Amendment No 44) in that it is an alteration and addition that is in scale and character with the surrounding land (in this instance No 11 Wolseley Street). It is my view that the proposed tower is consistent with performance criteria P4, P8, P11 of s 4.4 of the DCDCP in that its location and scale means that it is unlikely to be able to be viewed from No 11. It matches the style, form and detailing where possible of No 9 and thereby No 11 and its form and materials generally complement the dominant façade character (windows, gables/roof pitch, masonry, render) of No 11. 31 Assessing the heritage impact on surrounding heritage items and streetscape, Ms Newell stated, [Note: Exhibit 5, p 8, para 5.17]: Because the Wolseley Street streetscape has no apparent or discernable heritage values or streetscape characteristics or elements with potential heritage values, and because the proposed stair tower would have an acceptable heritage impacts on No 9 and no discernable heritage impact on No 11 (as viewed from the street and otherwise), it is my opinion that the proposed tower would have no effect, in heritage terms, on the streetscape of Wolseley Street and its overall form and scale would not detract from the current streetscape. 32 Ms Newell concluded, [Note: Exhibit 5, p 9, para 6.1]: …the design of the proposal would be generally acceptable from a heritage viewpoint, subject to the following recommendations and modifications: · A mostly glass connecting section between the roof and the stair tower (roof materials need not be glass but should not be tiled) to clearly distinguish new from original elements. · All effort should be made to reduce the height of the proposed tower, while retaining its capped roof form so that the degree it stands proud of the east-west gable ridgeline is reduced. Subject to implementation of the above conditions, I consider that the proposal would satisfy the heritage objectives and provisions contained within the DLEP and DCDCP. 33 Once having determined the height and likely impact of the stair tower on the site inspection, Ms Newell did not insist on any further lowering or modifications of the stair tower, as set out in dot point 2 above. 34 Mr Witherdin for the council indicated that he was content, given the evidence of Ms Newell, and that there was no longer any issue in respect of the height, bulk and scale of the proposed stair tower. 35 Nearby residents gave evidence on the site inspection and expressed concern for the height and character of the proposed stair tower. 36 Ms Spanos of No 11 Wolseley Street, Drummoyne, whose dwelling abuts the subject land to the west, was of the opinion that the proposed stair tower "…does not have a heritage ambiance and not aesthetically pleasing and quite ugly." 37 Mrs Heslop of No 34 Collingwood Street, Drummoyne, whose dwelling abuts the land to the south, was not so concerned about the tower. She did request that if approval were contemplated by the Court, that the south facing windows of the tower be translucent above the ridge of the existing dwelling at No 9 Wolseley Street. The purpose of this request was to ensure that the occupants of the stair tower could not look into her dwelling. The applicant agreed to a condition to this effect. 38 I accept that the parties have reached a measure of agreement as to the impact of the height of the proposed stair tower and I agree with Ms Newell that despite their being some visual impact due to the imposition of the stair tower on the existing building, the impact on the heritage significance of No 9 Wolseley Street would be acceptable. I am satisfied that there would be no discernable adverse heritage impact on No 11 Wolseley Street when viewed from the street and from other viewpoints to which I was taken to on the site inspection. I am also satisfied that there would be no adverse effect, on the streetscape of Wolseley Street. I would not refuse the application for this reason. Bulk height and scale of the garage in the streetscape 39 During the course of the hearing the applicant agreed to lower the height of the ridge over the studio by a further 250mm. This had the effect of reducing the visual impacts of the proposal when viewed from the street and from the neighbouring property to the south at No 34 Collingwood Street. 40 Mr Witherdin had previously assessed the streetscape impact of the proposed two-storey garage and concluded, [Note: Exhibit 4, p 4 para 5.5]: …the height of the proposed garage dwarfs any other similar ancillary development within Raglan Street and as the proposed siting of the garage introduces a two storey element forward of the established two-storey building line, the garage as proposed will have an obtrusive appearance within the street and therefore have a detrimental impact on the streetscape contrary to objective O3 and O5 and performance criteria P2 and P4 and minimum standard M13 of Part 6.12 of the DCDCP and minimum standard under M5 Part 6.5. 41 Ms McCabe for the applicant addressed the height, bulk and scale of the proposed two-storey garage/studio from the streetscape and on views from No 34 Collingwood Street. She was of the opinion that as amended the proposal would, [Note: Exhibit D, pp 4 and 5]: · improve the impact of the building when viewed from Raglan Street; · impact to a lesser extent on the outlook to the northeast when viewed from No 34 collingwood Street first floor balcony; · not significantly adversely impact upon the streetscape or adjoining development to such an extent that it would dominate…, and · be an improvement on the original design in terms of appearance from the street and impacts on outlook and could be approved. 42 Mrs Heslop of No 34 Collingwood Street, spoke about the enclosing effect of the proposed garage/studio, adding to the sense of enclosure caused by the newly erected boundary walls and sheds in the rear of No 9 Wolseley Street. From the first floor balcony off a bedroom she observed that the peak of the roof, as shown by height staves, would be much higher than she had previously thought and she was concerned that all she "…would see from that balcony was the bank of tiles of the roof and a wall across her existing view of the flats at No 7 Wolseley Street." She acknowledged that the amended proposal that shaved off the eastern end of the studio, by setting back a further 1.5m and adding a Dutch gable, did go some way to addressing her concerns about view loss. However, she remained concerned about bulk and height of the garage/studio in the streetscape. 43 Mr Newport submitted that the view sharing principles in Tenacity Consulting v Warringah [2004] NSWLEC 140 would be met by the amended proposal and that there would be no primary views of Mrs Heslop that now would be affected. He pointed to the retention of water views towards the east from the first floor of No 34 Collingwood Street. 44 Mr Newport submitted that the amendments mean that the proposal's ridge would now stretch around 7m in a east west direction and would be reduced in height by 250mm to 25.41m AHD. He referred to Court to the building envelope controls M3 and M5 under the DCDCP at p 56 in respect of maximum floor space ratio, height of two storeys and side boundary setbacks. In particular, he submitted that the exception to side boundary setbacks under M5 should be applied and this would allow a lesser setback for the garage/studio where walls do not contain windows. He submitted that those exceptional circumstances apply in this case. 45 Ms Wauchope submitted that the proposal that included a habitable room above the garage should be setback from the rear a minimum of 6m. She submitted the studio should be much smaller and much less bulky than proposed. 46 I prefer the expert evidence of Ms McCabe to that of Mr Witherdin in relation to the height, bulk and scale of the proposed garage/studio. I have also considered the objection of Mrs Heslop, and I am satisfied that when viewed from No 34 Collingwood Street, the greater bulk of the garage/studio roof would be in front of the blank end wall of the residential flat building at No 7 Wolseley Street. However, the proposed garage/studio would cut out some distant views of neighbourhoods to the northeast from both the ground and first floor of that dwelling. Some respite is offered by the applicant, in the further cutting back the studio by around 1.5m and adding a Dutch gable. When viewed from the top floor balcony of No 34 Collingwood Street, there would remain a view down Raglan Street to the neighbourhood to the northeast. No view of water would be lost from the first or ground floor as a result of the erection of the proposed garage/studio. The primary views to the east of water and distant land views would remain. 47 I am satisfied that the height, bulk and scale of the proposed garage/studio would not be inappropriate in the streetscape and would meet the objectives of the DCDCP. Public Interest 48 The council received two objections from Ms Spanos and Mrs Heslop, when the application was advertised. I am satisfied that the expert witnesses have adequately addressed those objections. I would not refuse the application for any of the reasons given. 49 Mrs Heslop raised one objection in relation to the need to back out of the proposed garage. The backing out of cars from the garage is not unlike the manoeuvre required by drivers exiting other garages in the vicinity. The backing operation is made slightly more difficult as the garage is at an angle to the kerb. Also there is likely to be some merging with cars backing out of the garage on No 34 Collingwood Street onto Raglan Street. However, as drivers become familiar with the orientation of the garage it is likely that with care and skill this backing manoeuvre will be negotiated successfully. I would not refuse the application for this reason. 50 For the above reasons, the appeal is upheld. Conditions 51 The conditions are those found in Exhibit 4, Annexure 2, and that were emailed to the Court on about 7 December 2005, and as amended during the hearing. 52 Condition 1(a) was added to clarify the terms of the consent and to reduce overlooking to the south and No 34 Collingwood Street as follows). The glazing on the southern elevation of the tower shall be amended to include a transom around 500mm above the sill height and at a level of 27.74m AHD. The glazing above the transom at shall be coloured/tinted glass. 53 The plan numbers in Condition 1 were amended to reflect the plan numbers of the amended plans in Exhibit A. Conditions 13 and 41 were also amended. Costs 54 There were no submissions made in respect of costs, I understand that each party will pay its own costs. Orders 55 My orders are: 1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld. 2. Development application No 681/04 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 at Lot 101, DP 1070278, being No 9 Wolseley Street, Drummoyne, is approved subject to Conditions 1 to 54 in Annexure A. 3. The exhibits are returned with the exception of Exhibits A, B, 4 and 7. S J Watts Commissioner of the Court sw The consequence of the Court's decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ 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.