Land and Environment Court of New South Wales CITATION : Ryan v Waverley Council [2004] NSWLEC 382 revised - 24/08/2004 APPLICANT Alan Ryan PARTIES : RESPONDENT Waverley Council FILE NUMBER(S) : 11476 of 2003 CORAM: Murrell C KEY ISSUES: Development Application :- Garage - impact on streetscape and adjoining properties LEGISLATION CITED: CASES CITED: Environmental Planning and Assessment Act; Waverley Local Environmental Plan DATES OF HEARING: 25/05/2004 EX TEMPORE 06/11/2004 JUDGMENT DATE : APPLICANT Mr W Chaffey, solicitor SOLICITORS Wordsworth Lawyers RESPONDENT LEGAL REPRESENTATIVES: Mr M Staunton, solicitor SOLICITORS Staunton Beattie RESRONDENT Mr M Staunton SOLICITORS Staunton Beatty JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 11 June 2004 11476 of 2003 Alan Ryan v Waverley Council JUDGMENT 1 This is a verbal judgment for an appeal under s 97 of the Environmental Planning and Assessment Act against Waverley Council's refusal of a development application for a garage facility at the premises known as 25 Edward Street, Bondi. 2 The subject site currently has erected on the land a semi-detached dwelling, and this is one of a pair with No. 23 Edward Street, Bondi. 3 The area can be described as eclectic in the streetscape there is a variety of housing forms including a number of semi-detached dwellings but also residential flat buildings and single detached dwelling houses. 4 It is noted that the subject property is within a conservation area covered by council's Local Environmental Plan and there is a Development Control Plan also that pertains to the subject site. 5 These proceedings commenced on site and the Court had the opportunity of doing an extensive walk of the street to understand the streetscape. Whilst there is a great variety of housing forms it is also an attractive streetscape which is brought together by the street trees that predominant in the streetscape and add to the amenity. 6 The Court heard from objectors on site from two adjoining properties. The objectors from No. 23, the other semi in this pair, Mr and Mrs Strickland, objected to the proposed development on the basis that it would reduce the heritage significance of the pair of cottages. The other objectors, Mr Valder and Ms Lowndes also objected to the proposed developmentand they reside in the dwelling at No 27 that is separated from the property by a 3 m walkway and they objected to the proposal on the basis of streetscape, the noise from a garage door opening and closing and they were concerned about the general amenity afforded to their property. Their property has a high wall erected at the front and the Court had the opportunity of also going into the property. 7 From the site inspection I was satisfied that the proposed development would not impact on the amenity of the residents at No. 27 in terms of the garage door and the opening and closing of that door. It is clear that their property is shielded in some respects from noise impacts by the high wall which has been erected around their property and that there is also a separation distance of the laneway between the properties. 8 The Court did have concerns about the proposal in terms of the conservation area and in that regard amended plans were drawn up. This is now the third occasion the Court has met with the parties. The council has detailed a number of conditions with respect to making the development more acceptable in terms of the heritage streetscape significance of the dwelling and its contribution to the conservation area as well as providing for a better fit in terms of the reading of the two semi-detached dwellings together in the streetscape. 9 I note for the record that the council still objects to the amended development. The relevant portions of council's development control plans were pointed out to the Court and it is clear from in particular the development control plan which relates to streetscape and conservation areas that where there are unaltered pairs of semi-detached dwellings there should be a conscious effort that the dwellings remain as a pair. The matter that is before me now is for the garage at the front of the dwelling which is to be accommodated by way of an extension of the gable to the front room which will then protrude to approximately within on metrre or less of the boundary to the street and a garage door to be provided. 10 The current situation is that the subject property is undergoing alterations and additions in accordance with an approval granted by the council that provides for extensive rear extensions to the subject property, not the subject of these proceedings and notapproved by this Court. At the time of its determination of the alterations and additions the council considered them to be appropriate in terms of the streetscape. I make no comment on the appropriateness or otherwise of the extensions. The role of the Court in this particular matter is to look at the development application as submitted in terms of the streetscape and in accordance with council's controls. 11 Development by creep is also of a concern in many instances but I am satisfied that the proposed garaging to afford the occupants of the subject dwelling an off street carparking space in the form of a garage integrated with the dwelling is appropriate in the circumstances of this case. 12 The Court also had regard to what would be lost in terms of on-street carparking and it can be seen that one car parking space to accommodate the driveway cross over would be lost on the street as a result of this development. The proposal allows for the retention of the street tree which is an important concern also to many residents of the area. 13 I have assessed the proposed development in terms of council's controls, including its development control plan that focuses on streetscape and this has been a focal point in my consideration of the application. In the circumstances of the case I am satisfied that the proposed development as now outlined in the amended plans and as further amended by the deferred commencement requiring attention to the detail for the heritage of the proposed garage is appropriate and will not be one that will be incompatible or inconsistent with the streetscape. 14 The Court had the opportunity of viewing the manner in which garaging is provided in the case of other properties in the vicinity. In some instances this is via a hard car stand space in front of the verandah areas of some of the semi-detached dwellings that did not appear to contribute to the streetscape. I am satisfied that the proposed development will be satisfactory and the necessary attention to detail in terms of conservation of the elements that contribute to the streetscape in terms of a pair of semi-detached dwellings will not be contrary to the provisions of the Development Control Plan. 15 On the basis of my assessment and the amended plans therefore the Court is satisfied that the proposed development is one that warrants approval. The original development application that was submitted to the council was one that the Court would not have approved. However, the applicant proposed a number of options and the options were discussed on the view and it is from those options that the current plan has evolved and with the assistance of the council and I am now satisfied that the proposal is appropriate. 16 I note the council still contests the development application and does not consider it appropriate in terms of the heritage significance of the pair of cottages. And in this regard further evidence was brought to the Court from council's heritage consultant who considered that "the garage should be behind the established building line of the semi-detached residences and other residence to the northern side of Edward Street and that the proposed addition lacked appropriate articulation and refined detail and that the existing standard of work provides little assurance that suitable detailing will be employed unless this is detailed and specified in the approval and this comment relates to the scale of the front fence also ". 17 In this regard the heritage expert's comments have been taken on board and incorporated with specific conditions handed up by the council of detailing for the garage and the garage door and also the fence such that it is consistent with the property at No. 23 Edward Street to provide for continuity in terms of reading the two dwellings as a pair of semi-detached dwellings. To provide certainty as to the built form a deferred commencement requiring amended plans to be submitted to the council for approval is proposed by the Court. 18 Therefore on the basis of my assessment the orders of the Court are: 1. The appeal in respect of the property known as No. 25 Edward Street, Bondi, is upheld in part. 2. The development application submitted to Waverley council, as amended, is approved subject to a deferred commencement and the conditions contained in Annexure 'A'. 3. The exhibits except for the amended plans and the draft conditions are returned to the parties. J S Murrell Commissioner of the Court Nmc/rjs Annexure A Conditions of Development Consent Alan Ryan v Waverley Council 25 Edward Street, Bondi PART 1 Deferred Commencement under s 80(3) of the Environmental Planning and Assessment Act the following conditions must be complied with before the consent operates. An amended plan shall be submitted for the approval of council to show the following: a. Extension of the gable front to incorporate a recessed gable infill equal in depth to the eaves overhang of the existing gable front. The recessed gable infill is to be faced in matching detail to the existing gable incorporating roughcast render infill between dressed and painted timber battens. Return eaves linings are to be of tongue and grooved boarding paint finished. A sloped awning is to be provided from the base of the gable infill to the proposed garage frontage. The awning is to be clad in corrugated ripple iron or flat sheet metal over marine ply base. b. The garage door is to be of typical Federation pattern comprising four equal vertical sections constructed as panelled doors divided into upper and lower framed panels in the proportion of 1:3. Panels are to be assembled over a proprietary panel lift frame with flush set joints to each horizontal segment. Infill of the secondary upper panels may be of obscure glass in lieu of timber panelling. The whole assembly is to be paint finished in colours matching detailing of the existing residence. c. All external brickwork is to be finished to match the existing works and is to be painted in a colour sympathetic to the colour of the face bricks of the attached residence at 23 Edward Street. d. The Front fence and gate is to match the height, detail and materials to that at the attached residence at 23 Edward Street. On the above conditions being satisfied and the amended plan being approved by the council, the following conditions of consent in Part 2 may then operate. PART 2 1. The development must comply in all respects with the amended approved plan referred to in the Deferred Commencement above. 2. A deposit of guarantee satisfactory to Council for the amount of $500.00 must be provided as security for the payment of the cost of making good any damage that may be caused to any Council property as a consequence of this building work. 3. The building and demolition work must only be done between the hours of 7am and 5pm on Mondays to Saturdays and building work must not be carried out on Sundays and public holidays. 4. The building work must not be commenced until: a) a Construction Certificate has been obtained from Council or an Accredited Certifier in accordance with Section 81A(2) of the Environmental Planning & Assessment Act, 1979; and b) a Principal Certifying Authority has been appointed and Council has been notified of the appointment in accordance with Section 81A(2)(b) of the Environmental Planning & Assessment Act, 1979 and Form 7 of the Schedule 1 of the Regulations; and c) council is given at lease two days notice in writing of intention to commence the building works. The owner/applicant may make application to council or an Accredited Certifier for the issue of a construction certificate and to be the Principal Certifying Authority. Should Council be appointed the Principal certifying Authority, the applicant/owner is to pay an inspection fee of $175.00 in accordance with council's Pricing Policy prior to commencement of any works. 5. All building work must be carried out in accordance with the provisions of the Building Code of Australia. 6. The Principal Certifying Authority must be informed in writing before any site works, building or demolition commences of: a) the name and contractor licence number of the licencee who has contracted to do, or intends to do, work; or b) the name and permit number of the owner/builder who intends to do the work; and c) any change to these arrangement for doing of the work. 7. The builder or person who does the residential building work shall comply with the applicable requirements of Part 6 of the Home and Building Act, 1989, whereby a person must not contract to do any residential building work unless a contract of insurance that complies with this Act is in force in relation to the proposed work. It is the responsibility of the builder or person who is to do the work to satisfy the principle certifying g authority that they have compiled with the applicant requirements of Part 6, before any work commences. 8. If a public place or pedestrian vehicular traffic may be obstructed because of the carrying out of work involved in the erection or demolition of a building; or a public place is required to be enclosed in connection with the erection or demolition of a building; then; a) a hoarding fence must be erected between the building site and the public place of the proposed building and the public place. If necessary, an awning sufficient to prevent any substance from , or in connection with, the work falling onto the public place, is also to be erected; b) the work is to be kept lit during the time between sunset and sunrise if the work may be of a sort of danger to persons using the public place; c) a hoarding, fence or awning is to be removed when it is no longer required for the purpose for which it was provided. 9. A sign is to be erected a the street frontage of the site stating the following: a) unauthorised entry to the work site is prohibited; and b) the name of the person in charge of thew work site and a telephone number at which that person can be contacted outside working hours. 10. Toilet facilities being provided on the work site in accordance with the requirements of Sydney Water. 11. A final Occupation certificate must be issued by the Principal Certifying Authority prior to occupation or use of the development. In issuing an Occupation Certificate, the Principal Certifying Authority must be satisfied that the requirements of Sections 109H of the Environmental Planning and Assessment Act, 1979 have been satisfied and the works fully comply with the approved plans the subject of the deferred commencement in Part 1 above. 12. Structural details prepared and certified by a practicing Structural Engineer being furnished to Council or Accredited Certifier in connection with the proposed increase in size to the opening for the previous study room prior to the issue of a Construction Certificate. 13. No portion of the proposed front fence, to encroach beyond the boundaries of the subject property. 14. All roof waters from the garage are to be collected and conveyed to the street gutter via underground pipes. 15. Erosion, sediment and pollution control measures are to be implemented on this site. These measures are to be in accordance with council's Soil and Water Management Policy and are to be implemented prior to commencement of any work or activated on or around the sire. Details of these measures are to be submitted to Council prior to the issuing of a Constructions certificate. 16. The building works are to be inspected during construction by the council or by an Accredited Certifier or other suitably qualified person and documentary evidence of compliance with the relevant terms of the approval/standards of constructions detailed in the Building Code of Australia, is to be obtained prior to proceeding to subsequent stages of constrictions. Inspection are to include the following: a. sediment control measures; b. footings, slabs and structural beams and columns; c. floor, wall and roof frame; 17. All work outside the property boundary is to be carried out with the approval of, and in accordance with, the requirements of Council's Manager – Technical Services. 18. A tree preservation order exists in Waverley. Before any site can be developed, an application must be made in writing to council prior to removal of tree/trees. Should permission be granted, the applicant will receive a permit to proceed. 19. A schedule of external finishes shall be submitted for Council's consideration and approval prior to issue of the Construction Certificate. The schedule shall include details of proposed external walls and roofing materials in the form of either trade brochures or building samples. Where specified, the schedule shall also include window fenestration and window frame colour details, as well as fencing, paving and balustrading details and guttering, colour and profile. 20. Council requires, wherever possible, the use of renewable timbers and/or plantation timbers such as Radiata Pine or Oregon as an alternative to the use of non-renewable rainforest timber products in building erected within the council area so as to help protect the existing areas of rainforest. In this regard, a schedule of timber products proposed to be used in the building is to be submitted for approval by the Principle Certifying Authority prior to the issue of the Construction Certificate. Where the applicant is to use timbers not recommended in Council's Policy, reasons are to be given why the alternative timbers recommended cannot be used. 21. The applicant is advised that Council policy prohibits the use of organochlorin pesticides as termite barriers in new development. Rather in accordance with Australian Standard 3660: Protection of building from subterranean termite – Prevention, detection and treatment of infestation, physical barriers are to be used. 22. Where building works or alternations involve the building/demolition an/or removal of materials compromising asbestos-cement or red lead, such work shall be undertaken in a manner that complies with practices approved by the NSW Work Cover Authority. This action will contribute to the reduction of asbestos related disease. 23. Hazardous or intractable wasted arising from demolition process shall be removed and disposed of in accordance with the requirements of WorkCover and EPA and with the provisions of: o New South Wales Occupational Health and Safely 'Act, 1983; o New South Wales Construction Safety Act 1912; regualti9n 8A-J Construction Work Involving Asbestos or Asbestos Cement 1983, o The Occupational Health & Safety (Hazardous Substances)Regulation 1996; o The Occupational Health & Safety (Asbestos Removal Work) Regulation 1996; and o Environmental Offences and Penalties Act, 1997. 24. Intruder alarms shall be fitted with a timing device in accordance with the requirements of the Environmental Operations Act, 1997 and relevant regulations and Australian Standard AS 2201, Parts 1 and 2 – 1978, Intruder Alarm Systems. 25. Stockpiles of topsoil, sand, affregate, soil or other material shall not be located on any drainage line or easement, natural watercourse, footpath or roadway and shall be protected with adequate sediment controls. 26. Building operations such as brick cutting, washing tools or brushes and mixing mortar are not permitted on public roadways or footpaths or in any locations which could lead to the discharge of materials into the stormwater drainage system 27. Any new information which comes to light during redemption, demolition or construction works which has potential to alter previous conclusions about site contamination, shall be notified to the Council and the PCA immediately. 28. The existing underground stormwater pipe which conveys roofwater from the adjoining semi-detached dwelling is to be relocated (due to the new driveway) and re-connected to the street gutter, at the applicant's expense, in accordance with the requirements of Council's Manager of Infrastructure. ________________________ J S Murrell Commissioner of the Court mp/rs 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.