Land and Environment Court of New South Wales CITATION : Halstead, C and Fong, M v Wingecarribee Shire Council [2007] NSWLEC 167 APPLICANTS: PARTIES : Clynton Halstead and Margaret Fong RESPONDENT: Wingecarribee Shire Council FILE NUMBER(S) : 11268 of 2006 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Location and appearance of the garage within the streetscape Wingecarribee Local Environmental Plan 1989, (WLEP1989) LEGISLATION CITED: Wingecarribee Development Control Plan - Residential Development, (WDCPRD) Environmental Planning and Assessment Act 1979, ss 79C and 97 DATES OF HEARING: 28/03/2007 EX TEMPORE JUDGMENT DATE : 28 March 2007 APPLICANT: Mr A Halstead, solicitor SOLICITORS: Bradfield Mills LEGAL REPRESENTATIVES: RESPONDENT: Mr D Wilson, barrister, instructed by Mr J S Lee, Director, Environment and Planning Wingecarribee Shire Council SOLICITORS: N/A JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Watts C 28 March 2007 11268 of 2006 - Clynton Halstead and Margaret Fong v Wingecarribee Shire Council JUDGMENT 1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Wingecarribee Shire Council (the council) of a development application to erect a single-storey, four (4) bedroom, brick veneer dwelling house at Lot 10, Section 2, DP 792, being No 42 Biggera Street, Braemar. 2 I visited the land in company with the parties on the morning of the on-site hearing. 3 I have concluded that the application should succeed provided the front garden is landscaped to ensure that the proposed garage is discrete in the streetscape and to minimise its visual dominance. The land 4 The land is situated on the northwestern side of Biggera Street, Braemar. The land has a frontage to Biggera Street of 18.29m, a depth of 60.96m with an area of 1,113m2. 5 The land falls about 1m from the rear down to the street, and is vacant. Some remnant native vegetation exists on the land, including eleven (11) trees. 6 The subject land within the Braemar/Willow Vale locality wedged between the Old Hume Highway to the east and the old Mittagong-Picton railway loop line on the west. The railway line separates this part of Willow Vale from the larger area of housing to the west of the line. 7 Access is via the intersection of Badgery Street and the Old Hume Highway. There is no through traffic and hence both Badgery Street and Biggera Street are very low traffic volume local streets. 8 In this locality there are older style cottages and newer brick and tile homes. 9 Immediately to the south of the subject land, running to the corner of Biggera and Badgery Streets, on similar allotments, are five (5) recently erected single-storey brick and tile homes of similar scale to that proposed. Immediately abutting the land is a dwelling with a garage near the land that is setback 8.5m from the street alignment. 10 Immediately to the north of the subject land, are eight (8) vacant allotments of identical dimensions to the subject lot. It is anticipated that these lots will be similarly developed for housing in the future. 11 Opposite the subject land on the eastern side of Biggera Street are allotments of identical dimensions to the subject land, with a range of older housing of various styles. Relevant planning controls Wingecarribee Local Environmental Plan 1989, (WLEP1989) 12 Under the provisions of the WLEP1989 the land is zoned 2(c) (Village or Township Zone) and the proposal is permissible with consent. Wingecarribee Development Control Plan - Residential Development, (WDCPRD) 13 The council's WDCPRD applies to the land and came into force on 19 April 2006. Clause 3.09 of the WDCPRD deals with design and streetscape and provides as follows: 3.09 Garaging attached to the dwelling. The location and treatment of driveways and garages can have a significant impact on the streetscape. In general it is desirable to ensure that structures for vehicular access, circulation and storage do not dominate streetscapes and are situated behind the front building line. [Court's emphasis added] Objectives i. Minimise the dominance of garages and driveways in the streetscape. Development Controls i Where garages form part of the dwelling they should not exceed more than 40% of the total width of the dwelling frontage. Design Guidelines i. Locate garages so as to be setback behind the front facade of the dwelling. [Court's emphasis added] (a) In established residential areas garages should be located towards the rear of the lot, preferably behind the dwelling. (b) Avoid double garages to the street. Utilise tandem parking or single garage and carport options to reduce need for double garages. Garages can be reorientated to present entries to side boundaries instead of the front. (c) Utilise changes in level across a site to provide basement or sub-basement garaging. ii Locate vehicular crossing to match existing patterns in the street. iii Provide a minimum of two carspaces behind the building line which may include an accessway to the side of the dwelling of a minimum 2700mm. The proposal and its history 14 Development application No LUA 06/1071 was lodged with the respondent council on 4 October 2006 to erect a single-storey brick-veneer dwelling with 'Colorbond' roof with a driveway off Biggera Street near the southern boundary. The proposal is described in plans prepared by Beechwood Homes, Bombaderry. 15 The proposal would have a floor area of about 306m2 and would comprise four (4) bedrooms, two (2) bathrooms, living areas and attached garaging providing direct internal access to the dwelling. The attached garage would have a width of 5,850mm, a depth of 11,500mm, for a total area of 68m2. The garage would be set back 10m from Biggera Street. This would be 5m forward of the alignment of the lounge room and 7.48m forward of the alignment of the front door entrance patio to the dwelling. 16 The proposal would maintain a 1.5m set-back to the southern side boundary and a 2.009m set-back to the northern side boundary. Notification 17 The application was not notified to nearby owners and occupants as this was unnecessary under the council's policies. There was no referral to any external government authorities or agencies. The council's decision 18 When the appeal was filed the council had not determined the application. 19 The council officers visited the land and a checklist was completed on 9 October 2006. 20 On 20 November 2006, the applicant, Beechwood Homes, answered a request by the council as to the identification of the eucalyptus species on the land. 21 On 6 December 2006, Mr Halstead, provided the council with comments in response to an earlier telephone conversation with the council's Building Surveyor, Mr Bob Hall. This email outlined the owner's reason for not complying with the council's residential development control plan with regard to the design and size of the garage. 22 On 20 December 2006 the council requested amended plans to address the non-compliance of the residential development control plan or otherwise the application would be refused. The hearing 23 The appeal was filed on 21 December 2006 and is deemed to have been refused. 24 At the hearing the court heard evidence on behalf of the respondent council from: · Mr J S Lee, Director, Environment and Planning, Wingecarribee Shire Council. 25 On behalf of the applicant written evidence was given by: · Mr P A Robertson, consultant town planner. The issues 26 On 27 February 2007 the council filed a statement of issues: 1. Should development consent be granted to the application, which does not comply with Council's 'Wingecarribee Development Control Plan - Residential Development'? Clause 3.09 of the development control plan provides: "3.09 Garaging attached to the dwelling. The location and treatment of driveways and garages can have a significant impact on the streetscape. In general it is desirable to ensure that structures for vehicular access, circulation and storage do not dominate streetscapes and are situated behind the front building line. Objectives i. Minimise the dominance of garages and driveways in the streetscape. Development Controls i Where garages form part of the dwelling they should not exceed more than 40% of the total width of the dwelling frontage. Design Guidelines i. Locate garages so as to be setback behind the front facade of the dwelling. (a) In established residential areas garages should be located towards the rear of the lot, preferably behind the dwelling. (b) Avoid double garages to the street. Utilise tandem parking or single garage and carport options to reduce need for double garages. Garages can be reorientated to present entries to side boundaries instead of the front. (c) Utilise changes in level across a site to provide basement or sub-basement garaging. ii. Locate vehicular crossing to match existing patterns in the street. iii. Provide a minimum of two carspaces behind the building line which may include an accessway to the side of the dwelling of a minimum 2700mm. The design of the Applicants' proposed dwelling house is such that the attached double garage component of the dwelling house is set well forward of the alignment of the remainder of the frontage of the dwelling house. This siting of the garage emphasises the garage to the streetscape and contravenes the objectives of the development control plan. The dwelling house with the presently proposed garage, would be inconsistent with the existing streetscape and would set an undesirable precedent for future development within the street. The site is not burdened by any particular physical constraints, which would inhibit the Applicants' ability to comply with Clause 3.09 of the development control plan. 27 The salient issue was the location, visual prominence and appearance of the garage within the streetscape. The evidence and findings Location and appearance of the garage 28 There was no dispute between the parties as to the location and appearance of the double garage doors facing the street. The council's concern was that the proposed garage with its double doors facing the street would stand proud of the front façade of the proposed new dwelling and thereby might be dominant in the streetscape. The face of the garage would be 5m forward of the living room wall and thus it is alleged not meet the first part of the design guidelines in Section 3.09 of the DCP to locate garages so as to be setback behind the front façade of the dwelling. 29 However, the façade of the garage would be setback 10m from the street alignment at a greater distance than the required front building line of 8m. Thus the proposal would meet the preamble of Section 3.09. There was no exception taken of the design in respect of the objectives of that section and it was agreed between the parties that it would meet the development control of the garage forming part of the dwelling being less than 40% of the total width of the dwelling frontage. 30 The overall concern of the council was that the proposed garage would be visually dominant in the streetscape. However the applicant was willing to reduce that dominance by heavily planting the northeastern sector of the land with indigenous species of trees and shrubs and was willing to submit to a condition in this regard. This part of the land is low-lying and subject to inundation in wet weather. On the site inspection there was water lying on the ground following the recent rains. Clearly, that sector of the land is not ideal for building upon and might be better used for landscaping. Thus the footprint of the proposed dwelling had been designed to take this environmental factor into account. 31 The dwelling had also been designed to make good use of the orientation with the garage being located in the southeastern sector of the land adjacent the blank wall of the garage of the dwelling to the south. 32 Taking into account s 79C factors in addition to the DCP guideline to locate garages so as to be setback behind the front façade of the dwelling, I have reached the conclusion that the application should be approved and that the design fits the environmental constraints of the land and would be satisfactory the streetscape. 33 For the above reasons, the appeal is upheld. Conditions 34 The conditions are those provided to the Court on site. Condition 31 was drafted on site to address the requirement for landscaping the northeastern sector of the land to reduce the dominance of the garage in the streescape. Orders 35 My orders are: 1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld. 2. Development application No LUA 06/1071 lodged with the respondent council on 4 October 2006 to erect a single-storey, four (4) bedroom, brick veneer dwelling house at Lot 10, Section 2, DP 792, being No 42 Biggera Street, Braemar, is approved subject to Conditions 1 to 31 in Annexure A. 3. Costs are reserved. 4. The exhibits are retained. 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.