Stephanie T Avery v Waverley Council [2004] NSWLEC 287

Land and Environment Court of New South Wales

CITATION : Stephanie T Avery v Waverley Council [2004] NSWLEC 287 APPLICANT PARTIES : Stephanie T Avery RESPONDENT Waverley Council FILE NUMBER(S) : 10333 of 2004 CORAM: Watts C at 1 Development Application :- Impact of proposed first floor balcony KEY ISSUES: · Impact of proposed garage on the dwelling and streetscape. Waverley Local Environmental Plan 1996 (As amended), (WLEP)· Waverley Development Control Plan No 2 - Dwelling House Development, (DCP2)· LEGISLATION CITED: Waverley Development Control Plan No 19 - Controls for site waste minimisation and management, (DCP19)· Waverley Development Control Plan No 29 - Advertising and Notification, (DCP29)· Environmental Planning and Assessment Act 1979, ss79C and 97 CASES CITED: Mison v Randwick Municipal Council [1991] 23 NSWLR 723 DATES OF HEARING: 26 May 2004 and 3 June 2004 DATE OF JUDGMENT: 06/08/2004

APPLICANT Ms S T Avery, in person RESPONDENT LEGAL REPRESENTATIVES: Mr M A Staunton, solicitor with Ms R Findlay-Debeck, solicitor SOLICITOR Staunton Beattie

JUDGMENT: In the Land and Environment Court of New South Wales Appeal No: 10333 of 2004

Stephanie T Avery v Waverley Council

Judgment

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Waverley Council (the council) to impose on 24 February 2004 two conditions of development consent (LD 852/2003) in respect of a proposal to alter and add to the existing dwelling at Lot A in DP 384141 being No 74 Nancy Street, North Bondi. 2 The conditions in dispute are: 33. To reduce impact on the amenity of the surrounding properties, the rear first floor level balcony is to be reduced so as to extend a maximum of 1.5m from the rear wall of the additional storey and 1.6m high privacy screens are to be provided to both side elevations of the balcony. 34. To reduce impact on the streetscape, the proposed garage is to be deleted. 3 I visited the land in company with the parties on the morning of the first day of the hearing. 4 I have concluded that the conditions in dispute should be imposed on the development after consideration under s 79C of the Environmental Planning and Assessment Act 1979 . The land 5 The land is situated on the western side of Nancy Street, north of its intersection with Clyde Street, North Bondi. The land has a 6.1m frontage to Nancy Street, a depth of around 43.4m and an area of some 264.6m2. 6 Erected on the land is a single-storey semi-detached dwelling. 7 Single-storey and two-storey freestanding and semi-detached dwellings characterise the area. 8 Opposite the land at Nos 53-5 Nancy Street, is a 1930s or 1940s duplex with brick garages built to the front alignment under a deck. Elsewhere the front gardens are open, and to provide on-site accommodation for cars, some are with hard standing areas and some with single carports. Relevant planning controls Waverley Local Environmental Plan 1996 (As amended), (WLEP) 9 The land is zoned Residential 2(a) - Low Density under the provisions of the WLEP, and dwelling houses and alterations and additions to dwellings are permissible with the consent of the council. 10 The objectives of the WLEP are: (a) to allow for housing only in the form of dwelling houses and boarding houses; (b) To maintain and improve the amenity and existing characteristics of localities predominantly characterised by dwelling houses. (c) … Waverley Development Control Plan No 2 - Dwelling House Development, (DCP2) 11 The aims of the DCP2 adopted May 1999 are: · to ensure that alterations and additions to existing dwellings are sympathetic in form and character with other dwellings in their vicinity; · to ensure that the scale of dwelling house is appropriate for their allotment sizes and in relation to other dwellings in their vicinity; · to ensure that new dwelling houses and alterations to existing dwelling houses do not significantly detract from the amenity, privacy and views of other dwellings; · … Floor Space Ratio 12 Under DCP2 a maximum floor space ratio of 0.82:1 applies to the subject land. With a site area of 264.6m2 the maximum permissible floor space applicable to the site is 264.6 x 0.82 = 217m2. The council calculated the total floor space of the proposal at 130m2, or a floor space ratio, (FSR) of 0.49:1, and Mr Faruqi of the council considered that the bulk and scale of the proposal to be satisfactory. Height 13 DCP2 specifies a maximum external wall height of 7.5m and a ridge height of 9.5m for dwellings within a Residential 2(a) zone. The proposal would have a maximum external wall height of 6m, and a ridge height of 7.3m. Mr Faruqi of the council considered the height of the proposal to be satisfactory. Building Setbacks 14 DCP2 requires a minimum side setback of 900mm. The proposal would be set back of 1,040mm, which Mr Faruqi of the council considered satisfactory. 15 The front setback of the second storey is considered satisfactory by the council, as it would retain the hipped roofline at the front. The first floor rear setback is considered acceptable by the council, as it would align with the predominant rear setback of adjoining dwellings. Car Parking 16 The proposed garage would have an internal length of 4.7m with a maximum useable length of 4.1m. The council's car parking policy would require a minimum length of 5.5m. The required minimum width would be 2.5m. The length of the proposed garage falls short of prescriptive requirements/ standards and Mr Faruqi of the council considered this to be not acceptable. Waverley Development Control Plan No 19 - Controls for site waste minimisation and management, (DCP19) 17 DCP19 also applies to the land. There was no issue in this regard. Waverley Development Control Plan No 29 - Advertising and Notification, (DCP29) 18 DCP29 also applies to the land and sets out the council's notification of development applications procedure. There was no issue in this regard. The proposal and its history 19 Development application No 852/ 2003 was lodged with the respondent council on about 28 November 2003 to alter and add to the existing dwelling and to erect a new first floor, free standing garage within the front yard area and an in-ground swimming pool within the rear yard area. 20 As part of the application it is proposed to erect a single car brick garage on the northern side of the front garden to the street alignment. 21 At the rear at the first floor it is proposed to erect off Bedroom No 2, a balcony 2.3m wide. Notification 22 The application was notified to nearby owners and occupants and the next-door neighbours at No 72 Nancy Street, North Bondi made a submission to the council, [Note: Exhibit 1 pp 11-2]. 23 After making observations concerning alleged discrepancies in the plans Mr H Woods and Ms S Woods relevantly commented on the statement of environmental effects that: There is no 'existing garage' and we believe a freestanding garage sets a precedent and will not 'blend; with the streetscape. The garages referred to at Nos 53-5 form part of a duplex. The council's decision 24 By notice dated 24 February 2004 the council approved the application subject to conditions. 25 The council sought to impose Condition No 33, which would require the rear first floor balcony to be reduced in width to a maximum of 1.5m, and for a 1.6m high privacy screen to be provided on either side of the balcony to prevent over-viewing of adjoining properties. 26 Furthermore the council sought to impose Condition No 34, which would require the proposed garage at the front to be deleted. The hearing 27 The appeal was filed on 23 March 2004. 28 At the hearing the court heard evidence on behalf of the respondent council from: · Mr M A Faruqi, Statutory Planner, Waverley Municipal Council. 29 On behalf of the applicant evidence was given by: · Ms S T Avery, in person. The issues 30 On the council filed a statement of issues. 1. To reduce impact on the amenity of the surrounding properties, the rear first floor level balcony is to be reduced so as to extend a maximum of 1.5m from the rear wall of the additional storey and 1.6m high privacy screens are to be provided to both side elevations of the balcony. 2. To reduce impact on the streetscape, the proposed garage is to be deleted. The evidence and findings Issue No.1: To reduce impact on the amenity of the surrounding properties, the rear first floor level balcony is to be reduced so as to extend a maximum of 1.5m from the rear wall of the additional storey and 1.6m high privacy screens are to be provided to both side elevations of the balcony. 31 Section 8.0 - Privacy and Noise Control, of DCP2 provides the objectives: i. To minimise the extent of overlooking from dwelling-house development to internal areas and open spaces of other dwelling-house development; ii. To ensure that dwelling-house development minimises overlooking impacts upon the existing dwelling from other buildings, iii. To ensure that dwelling-house development minimises noise-impacts to an acceptable level. 32 Design Solution S1 of Section 8.0 of DCP2 states: ...Where a courtyard or deck is visible from other dwellings, privacy screening, landscaping and vegetation is used in combination to minimise these impacts. However, existing and/ or proposed vegetation is not relied upon exclusively for screening. Elevated external decks are generally less than 10 square metres in area and have a depth not greater than 1.5 metres so as to minimise privacy and noise impacts to surrounding dwellings. Decks along the side and rear boundaries are generally not permitted. 33 Mr Faruqi for the council was of the opinion that, [Note: Exhibit 2]: …large elevated decks tend to compromise the amenity of the neighbouring properties and have visual and acoustic impact on the adjoining neighbours. In this respect Waverley Council's DCP No 2 recommends that elevated decks have a maximum depth of 1.5m and provided with privacy screens to minimise overlooking impact on adjoining properties. Having regard to the council's policy it is considered that the depth of the deck be maintained at 1.5m and provided with a privacy screen to minimise impact on adjoining properties. 34 Ms Avery who sought to have a deck like that on a neighbouring property stated: · It seems as if there are no rules of the council in respect of the balconies; and · If the balcony were made smaller and the screens added the enjoyment of the balcony would be lost.