Land and Environment Court of New South Wales CITATION : Petallen Building & Drafting Pty Ltd (A.C.N. 001 171 697) v Ashfield Municipal Council [2007] NSWLEC 42 APPLICANT Petallen Building & Drafting Pty Ltd (A.C.N. 001 171 697) PARTIES : RESPONDENT Ashfield Municipal Council FILE NUMBER(S) : 10979 of 2006 CORAM: Murrell C KEY ISSUES: Development Application :- Excessive bulk and scale, heritage item, loss of residential amenity, conservation of the area, car parking, streetscape, low density Heritage Conservation Development Control Plan LEGISLATION CITED: Development Control Plan No. 1 Ashfield Local Environmental Plan 1985 CASES CITED: Zhang v Canterbury City Council [2001] NSWCA 167 DATES OF HEARING: 30/01/2007 EX TEMPORE JUDGMENT DATE : 30 January 2007 APPLICANT Mr C To, solicitor With Ms Mary-Lynne Taylor, solicitor SOLICITORS Norman Waterhouse LEGAL REPRESENTATIVES: RESPONDENT Mr S Patterson, solicitor SOLICITORS Wilshire Webb JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 30 January 2007 10979 of 2006 Petallen Building & Drafting Pty Ltd (A.C.N. 001 171 697) v Ashfield Municipal Council This determination was given extemporaneously and it has been edited prior to publication JUDGMENT 1 This is an extempore judgment for a matter heard on-site this morning in respect of the property known as 30 Eccles Avenue, Ashfield. The council refused a development application for alterations and additions to the property on the basis that the proposed structure is excessive in bulk and scale in comparison to surrounding buildings and it is inconsistent with the Ashfield LEP and the Eccles Avenue Conservation Area. Furthermore Council determined it not to be in the public interest as the proposal would have adverse impacts: on the street character because of bulk and scale; loss of privacy; and visual impact. Council also refused the application because of breaches to council's DCP including the provisions relating to parking. 2 The Statement of Issues is based upon council's reasons for refusal. The issues are contained within council's bundle at Tab six and I will not reiterate them here, but in summary the council's issues relate to the fact the proposed development should not be approved under the Ashfield LEP in terms of excessive bulk and scale and the Heritage Conservation Development Control Plan and the Development Control Plan No. 1. In particular cl 1.4 in that the proposed development is not considered to be consistent with the established character and residential amenity of the neighbourhood and causes a loss of residential amenity to neighbours and the conservation of the area. 3 Council also raises an issue with what it considers to be excessive car parking provision and access of the proposed development should not be approved because the entry to the underground car parking is uncharacteristic of the streetscape and uncharacteristic of low density residential areas, some seven vehicles and the loss of on-street parking. The configuration of the subject site is such that the juxtaposition of the site with a dead end street as opposed to a cul-de-sac means a loss of on-street parking to access the site. Council also raises an issue with the proposed excavation and is of the opinion it should not be approved because of this and the garaging is not an integral part of the dwelling itself. 4 In terms of the public interest the Court has heard from a number of local resident objectors to the proposed development today. The Court has the benefit of having council's bundle of documents prior to to-day's proceedings and it has read the letters of objections and I have taken these into consideration in my determination of this application. 5 In summary the objectors' concerns are about an overdevelopment of the site, in that the proposed development would not be in character with the Eccles Avenue Heritage Conservation Area and the overshadowing of the adjoining properties and the basement car parking and the loss of on-street car parking would impact not only on the immediate neighbours but the street itself in terms of a reduction in the availability of on-street parking. 6 The Court has the benefit of Court-appointed experts in this matter. Mr Goodyer, a consultant town planner provided a report and also gave oral evidence to the Court to-day as did Mr Stephen Davies, a heritage consultant. 7 In general the Court-appointed experts are in favour of the proposed development although there are concerns with respect to details of the proposal. In particular the contribution of the existing trees on the site to the canopy of the area and the concern that the landscaping plan as received before us today does not provide for replacement canopy trees in the total context of the contribution of the site to the general area. 8 The street is one that does display a coherency in terms of a conservation area and it has been duly recognised as such in council's LEP. 9 The subject site is on the interface of a zone with residential flat buildings to the east and here there are significant brick boundary fences, higher than a normal paling fences. To the east of the subject site is a similar cottage that also contributes to heritage conservation area and it has a driveway that adjoins the boundary of the subject site. 10 The property to the south at No. 32 Eccles Avenue is a wider frontage property than many in Eccles Avenue. It is also a contributory item in terms of the streetscape and there is concern from the objector that the proposed development would unreasonably would unreasonably overshadow his property. He is also concerned about the 90 degree parking which he avails himself of outside the front of his property which is the end of the Avenue. 11 The Court must have regard to the provisions of council's LEP and it must have regard to the heritage provisions in the LEP. The heritage provisions of the Ashfield Local Environmental Plan 1985, are what can be referred to as, the standard heritage provisions. It is noted that there are two dwellings within the street that are also heritage items and so they must be considered in the context of an assessment of this development application in terms of the impact of the development proposal not only on the heritage conservation area but also in terms of being within the vicinity of heritage items. 12 The Court has looked at the proposal in terms of cll 31 and 32 of the LEP and the Court must be satisfied, as the local authority must be satisfied the development application respects the conservation area and is one that would not detract from the conservation area. 13 The Court must also have regard to the other instruments in council's local planning regime that is the Ashfield Municipal Council's Development Control Plan for Heritage Conservation and this requires that the objectives of the development control plan must be considered. In particular Objective 2.1(iv): to ensure that necessary change such as alterations and extensions to buildings and other features in the conservation areas will respect the contribution of those buildings and features to the heritage significance of the particular area and will have no ill affect on the heritage significance of the area as a whole. 14 In many respects this reiterates the provisions of the LEP. The DCP, however, does not contain a specific streetscape or conservation descriptor for Eccles Avenue but this in no way undermines the importance of Eccles Avenue as a conservation area. The DCP also provides for guidelines in terms of additions and cl 11.3 states that extensions are acceptable where they do not compete with the integrity or character of the original building and a modest traditional extension is often the best solution and the only solution on a small lot in certain circumstances. Extensions must be subservient to the scale of the existing building and respect the shape, setback and materials without imitation or reproduction of detail. 15 The LEP requires council to consider the pitch and form of any new roof proposed to a heritage item or heritage conservation area and the details of the elements also have a direct bearing on the scale and bulk of the resultant roof. The roof form was one reason why council also refused the application. 16 The Court must give "real, proper and genuine consideration to a development control plan" as provided in the judgment of Zhang v Canterbury City Council [2001] NSWCA 167 wherein the Chief Justice of NSW Spiegelman CJ stated that it must be the central focus in a consideration of a development application. Therefore I must give central consideration to the DCP in my assessment. At the same time the Chief Judge also note that DCP's are discretionary and I must have regard to the circumstances of the case in terms of whether it is appropriate to have strict adherence to a DCP. 17 The control for car parking is contained within council's DCP No. 1 and in cl 7.2 the minimum number of spaces to be provided for a single detached dwelling is one preferably two and no visitor spaces are required. This is a minimum control and in terms of design and location the entrance to an underground car park must not be visible from the street frontage. 18 In terms of appearance car parking under cl 7.4.1 should be designed as an integral part of the development and excavations for driveways it notes are uncharacteristic of Ashfield. The first 6 m of any driveway should be at grade to improve appearance and pedestrian safety. 19 It has been submitted on behalf of the respondent that basement car parking, underground car parking is not characteristic of Eccles Avenue in terms of the conservation area and indeed it is uncharacteristic of residential dwelling houses in the area. 20 The Court in its assessment of the development application has taken into consideration council's planning regime and the merits of the development application. At this point I need to describe the development application. The development application is for a major extension to the existing dwelling. The dwelling has a 9 m frontage to the roadway. However, it is approximately twice that boundary in terms of a side yard and the side yard does not have access to the street as such but it is adjoined by the property at No. 32 Eccles Avenue along its side boundary. The evidence is that this was formerly a tennis court and from the configuration it would appear as such. The subject dwelling is concentrated on the western portion of the site and as I stated it has a narrow frontage to the roadway. 21 The council is concerned that this development application if approved would create an undesirable precedent and precedent is a relevant matter for the Court's consideration. Precedent is where other owners of similar properties would seek to invoke the approval if one is granted. The Court in its assessment of the underground car parking considers that the circumstances of this site are such that it is satisfactory. The relationship of this site to the street itself and the size of the allotment being some 750 sq m the average allotment in the street is approximately 400 sq m (although it is noted from the site inspection that there is a range in size of the building lots some being very deep that have rear access from other streets in particular Nos. 32 and 34 Eccles Avenue). 22 The Court however is of the opinion that this should not be used as a precedent for basement parking generally within the Ashfield area in particular in conservation areas. However, the merits of this application in my opinion are such that the basement parking would not be a reason as to why it should not be approved. In particular I do not consider it can be used as a precedent because of the circumstances of the dwelling house in terms of the height of the plinth. The basement parking will be utilising approximately 1.4 m of the plinth on the western side of the dwelling and the driveway will adjoin the driveway of the adjoining property at No. 28 Eccles Avenue. In the Court's assessment this relationship means it will not dominate the streetscape in the location as proposed. 23 The entrance to the underground car park will be visible but as I said it will not be dominant in terms of the streetscape. The alterations and additions are ones that are compatible and conform with what is envisaged by council's planning regime for the Eccles Avenue Conservation Area. The proposed extension in the Court's assessment is not an overdevelopment. The proposed extension to the eastern side of the dwelling is setback from the common boundary with No. 32 Eccles Avenue which provide for an area to be soft landscaped and it also provides such a relationship with the setback from the street that the extension may be visible but these will dominate or impact adversely on the heritage conservation of Eccles Avenue. The proposal is to provide accommodation in the roof as well as alterations and additions to the ground floor of the current dwelling. The Court is satisfied that the internal alterations would not impact on the heritage significance of the dwelling. It is noted it is not a heritage item it is a contributory item in the conservation area and I am satisfied that the reconfiguration of the internal layout would not warrant refusal of the application. In this regard I agree with Mr Davies. 24 The roof extension is contained within the same pitch as the current roof and I am satisfied with the alterations as suggested by the Court-appointed expert Mr Davies that in terms of the skylights or sky domes being removed and replaced with a more appropriate in plane light panels would be appropriate. 25 The applicant has also provided details in terms of the materials and finishes of the dwelling from a heritage conservation point of view and Mr Davies concurs with the schedule of materials, finishes and colours. However in my assessment the fence requires further detailing to ensure that the proposed alterations and additions provide a satisfactory fit and can make a positive contribution to the streetscape of Eccles Avenue Conservation Area. 26 The Court in its assessment has had regard to the concerns of residents in terms of canopy trees and the applicant has now agreed that a revised landscape plan be the subject of a deferred commencement condition such that a revised plan with canopy trees reaching a minimum height of 12 m of an be provided to council officer's approval and this is to ensure that the existing canopy trees in the streetscape and in the area generally is maintained and enhanced. This will also provide for an outlook for many of the residential flat buildings to the east. It will not be an instant tree canopy provision clearly but I consider it appropriate to replace the camphor laural trees as camphor laural trees are generally not considered to be a desirable species and on the extensive alterations and extensions to this dwelling it is appropriate that such trees be replaced with more appropriate species. Also in terms of the arborist report and council officer's report there is no disagreement that the trees currently on the site should not be removed and in my assessment this is on the proviso that there be replacement canopy trees and this will be the subject of a deferred commencement condition. 27 Similarly the Court is of the mind that in terms of the engineering and in terms of the structural stability of the dwelling house given that this is a conservation area and it is important to retain the dwelling that there be a deferred commencement condition for the engineering geotechnical matters be satisfied prior to the development consent taking affect. The deferred commencement condition for the landscape plan can also show the detailing of the fence with Mr Davies guidance and regard to the applicant's preference for a face brick fence as opposed to a timber fence. These details are to be provided on the landscape plan as well. Similarly the landscaping for the western boundary portion next to the driveway should also provide for appropriate landscaping to soften the impact of the garage opening. 28 In terms of the issues raised by the council I have had comprehensive consideration of council's controls and I am satisfied that the proposed development, with the amendments as suggested by the experts and accepted by the applicant, is one that would not be inconsistent with council's controls and it will be compatible in the heritage conservation area. I consider that the extension will be read in sympathy with the existing dwelling and the conservation area. It is appropriate that the extension is read in harmony with the conservation area and the existing dwelling in the circumstances of this case. 29 With respect to the loss of on-street parking the Court is of the view that the dwelling house will provide for parking which is a requirement of council's development control plan and where there is additions to this dwelling house that will significantly enlarge the dwelling it is appropriate that at least the minimum be provided as in council's control. The balance as indicated by the respondent is one that is for the Court to determine in terms of whether the basement parking is so out of character or it is out of character such that it will impact on the conservation area and I am satisfied that it will not unreasonably impact on the significance of the conservation area. 30 Similarly by providing a greater number of car parking spaces given it will not impact on adjoining properties and given it will not impact on the street I do not consider it necessary to limit the number of car parking spaces in the basement. Clearly there will be a condition requiring that vehicles enter and leave in a forward movement such that there will always be a need for a turning area within basement. 31 With respect to the loss of parking on the street there will be a loss of probably two parking spaces on the street but on balance having regard to council's own DCP that a minimum of two parking spaces be provided on site I am satisfied that this represents a reasonable balance. It is noted that the properties at Nos. 32 and 34 have rear access and that therefore they do have parking whereas this dwelling does not have any parking and in that regard it is the odd one out in the street and the provision of the parking is considered satisfactory in terms of the liveability of the dwelling and in terms of reducing impact of parking on-street generated by this proposal. 32 The issue of excavation is one that I consider should be the subject of a geotechnical report as part of a deferred commencement and council's conditions provide for a pre and post dilapidation report and that is appropriate in the circumstances of this case. 33 In terms of the overshadowing I am satisfied on Mr Goodyer's evidence and having regard to the shadow diagrams that have been submitted that the overshadowing whilst it will be increased in terms of the property at No. 32 to the current situation, I am satisfied the impact is not unreasonable in terms of still availing the open space area of the adjoining property satisfactory solar access. 34 In terms of the adjoining property at No. 28, I am satisfied the proposed development will not adversely impact to warrant refusal. The overshadowing is minimal especially given the orientation and juxtaposition of the subject site with No. 28. I am also satisfied that the extension into the rear yard is not unreasonable on No. 28 as it will not be overwhelming or imposing. 35 The Court has considered all the concerns of the objectors and on balance I consider, with the amendments and with the accepted 'deferred commencement' conditions to satisfy a number of issues before the consent operates, the alterations and additions is worthy of approval. In this regard I have been guided also in my assessment with the benefit of the Court-appointed experts reports and their oral evidence here today. 36 The amended landscape plans are to ensure perimeter planting of the canopy trees should be at least 1.5 to 2.0 m from the boundary and therefore they within the curtilage of the lawn areas and that the canopy trees be positioned such that, from the applicant's point of view, the eastern walls would be softened, and within the grass area of the front of the dwelling house such that it will also filter the views through to the extension when viewed from the end of the street. There should be plantings provided of a canopy tree on the north western corner of the yard as well and there should be appropriate plantings along the driveway on its western side. 37 Accordingly on the basis of my assessment the formal orders of the Court are: 1. The appeal in respect of the property known as 30 Eccles Avenue, Ashfield, is upheld. 2. The development application submitted to Ashfield Council and as amended is determined by a 'deferred commencement' consent and the conditions contained in Annexure "A". 3. The exhibits with the exception of A and H are returned to the party. 4. The approved plans to satisfy the deferred commencement conditions are to be forwarded by the applicant following for the Court's file. ___________________ J S Murrell Commissioner of the Court Rjs/ljr 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.