Land and Environment Court of New South Wales CITATION : Fairless v Warringah Council [2008] NSWLEC 1152 APPLICANT Susan Gay Fairless PARTIES : RESPONDENT Warringah Council FILE NUMBER(S) : 10096 of 2008 CORAM: Hoffman C KEY ISSUES: Development Application :- construction of a carport, pergola and privacy screen, parking, privacy, noise, views, landscaping, streetscape, desired future character LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Warringah Local Environmental Plan 2000 DATES OF HEARING: 08/04/2008 EX TEMPORE JUDGMENT DATE : 8 April 2008 APPLICANT Mr J. Hones, solicitor of Hones La Hood Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr N. Howie, solicitor of Wilshire Webb Staunton Beattie Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 8 April 2008 10096 of 2008 Susan Gay Fairless v Warringah Council JUDGMENT 1 This is Appeal No. 10096 of 2008 between Susan Gay Fairless and Warringah Council in regard to the refusal of Development Application No. 2007/1104 for a construction of a double carport and associated driveway works and the erection of a privacy screen along southern property boundary and the erection of a new pergola to the south of the dwelling between the new privacy screen and the house. 2 The site contains an existing 2-storey house on Lot 2 DP 939105 No. 23 O'Connors Road, Beacon Hill. The site is approximately 464 square metres in area. It is rectangular in shape as are the adjoining allotments. The frontage to the street is on the western boundary. It is the low side of the street and the site falls considerably down hill along the length of the block. As a result, the second storey of the house occurs at the rear of the house. The street boundary is approximately 15.34 metres in width and the side boundaries are just over 30 metres. 3 The existing house appears to be one storey with a pitched tile roof from the street and being on the low side is not prominent in the streetscape. The proposal as shown in amended plans in Exhibit B has lowered the height of the proposed carport which has a pitched tile roof to match the existing house. The concrete roof tiles shown on the drawings are changed to terracotta to match the existing house. The carport has been setback from the front boundary by 700 millimetres and the height of the timber privacy screen on the southern boundary is reduced to 2 metres high above the paving. Also the proposal has a panel lift style grill door using pike staves to match panels in the existing front fence. A new pedestrian gate is proposed on the north side of the carport using pike staves grill construction. As a result the visibility of the front garden area, except when there are cars, will still be available for persons in the street. 4 The hearing was dealt with by agreement of the parties via a binding s 34 conference on site. 5 Attending for the Respondent was: o Mr Howie, solicitor, o Mr B. Cole, Senior Planner at the Council; o Mr A. Melo, Assistant Planner and o Ms K. Allen, solicitor 6 Appearing for the Applicant was: o Mr J. Hones, solicitor; o Mr B. Swain, solicitor; o Mr N. Fletcher, Town Planner; o Mr and Mrs Fairless; and o Mr C. Heaton, Architect 7 The issues surrounding the refusal of the proposal were: compliance with the desired future character statement for the G3 Manly Lagoon suburb locality as set out in the Warringah Local Environmental Plan 2000, and the relevant Built Form controls regarding the front building setback that require normally a minimum front setback of 6.5 metres. 8 There was an issue in regard to the side boundary envelope and side setback however the parties had agreed that this was de minimus and should not form an issue at the time of the hearing. 9 In regard to the front setback the Court was taken to various provisions in the statute and the Built Form controls. The argument related to the meaning of the controls particularly the requirement for the front setback to be void of structures. The applicant pointed out that exceptions were permitted for carparking in the front setback where there were particular constraints due to the topography for existing buildings. 10 The argument then revolved around whether or not the exception of carparking could be interpreted to include carports. The respondent said that a carport being a structure would be contrary to the normal interpretation of the front setback being free of structures whereas the applicant put that the term carparking can be extended to include structures, that might cover a carpark and therefore it must be included as part of the exceptions. 11 It seems to me that the general term carparking could potentially encompass lightweight structures so long as the terms of the character statement are complied with in the G3 locality. The statement is entitled Desired Future Character, however it contains clauses that refer to existing character being recognised. There is no conflict of the proposal with the primary character statement requiring that detached style housing should be the principal character, apart from the areas specifically set aside for apartments. The proposal will not change the existing presence as a detached style house. 12 In future development, the statement requires that the pattern and predominant scale of existing detached style housing in the locality be retained. It goes on to say the street, which I interpret to mean the street of the particular application will be characterised by landscape front gardens and consistent building setbacks. This particular component of the desired future character involved an assessment of the street within which the proposal exists. 13 There are topographic constraints at the southern end of O'Connor Street where it descends the hill. In fact two house lots south of the subject property the street is unconstructed due to the topography. 14 As I have mentioned before, the subject property is on the low side of the street and due to street trees and shrubs on the footpath reservation it is difficult to see until one is actually opposite the house itself. 15 The carport is on the low side of the block where the embankment down from the road way has the flattest gradient and there is an existing driveway into the subject property. The council had previously refused the carport in the front setback when it approved alterations and additions to the house. In that development the carport was on the northern side of the block with paving extending right across the full front setback. This fresh application places the double carport on the southern side of the allotment where the existing driveway is so that only minor widening of the driveway across the public footpath is needed to gain entry to it. 16 The pergola structure referred to could potentially be a carport however it will cover an existing elevated concrete slab used as a patio. The pergola has a privacy screen on the southern side largely because the adjoining neighbour is further down hill such that from the patio it is easy to see into the two bathrooms of the adjoining neighbour and other windows. If the patio was to be used as a carport there would be noise from cars starting adjacent neighbours bedrooms. Also a solid structure at that point would increase shadows on the northern windows. For their amenity, the pergola with obscured glass privacy screen is better. 17 A carport located in the front setback on the subject property is preferable so its shadows do not fall on the neighbours windows. The neighbour on the south side has an existing carport in its front setback adjoining the proposal so any shadows only fall on it. 18 The controls also require that one take into account development on adjoining land and nearby land. In walking O'Connor Street and two nearby cross streets it was found that immediate neighbours adjoining the subject property each have carports in their front setback, and another four properties in nearby streets and approximately 50 metres to 150 metres away from the subject property have carports. These were all apparently approved prior to LEP 2000. However, they do create an existing presentation within the street that makes carports in the front setback of this particular location not unusual. It seems that in most cases the carports relate to topographic constraints at this end of O'Connor Street. 19 The applicant's town planner Mr Fletcher said that he had looked at the option of creating stack parking behind the front setback utilising part of the existing patio. He said it would have to be extended further to the east over an existing bedroom on the floor below in order to get enough length to have two cars stacked behind the front setback. It would bring the amenity impacts mentioned previously on the southern neighbour. It would also mean that stacked cars would need to be manoeuvred up the sloping driveway and into the sloping street more regularly than would be necessary with a double carport. He felt that the visibility of this carport was limited due to the reasons I mentioned previously, the topography and street vegetation and the amended design has see-through qualities that will tend to lighten its appearance from the street. 20 One of the council's concerns was that the carport would not be integrated with the existing building. The council said it could be integrated if the carport was done as a tandem setback behind the front setback or just the patio used as the carport with an unroofed carparking space in the front setback. This is not the application before me however it is an option. 21 Looking at the design and seeing the location of the subject property however I accept Mr Fletcher's evidence in regard to streetscape presentation of the proposal. It seems to me that it is integrated having been designed with matching tiled hipped roof to the existing house. The amended plans reduce its visual impact particularly by providing see-through grills as the gate and overhead door so that the front garden will still be visible. One can see right through to the ocean through the carport from the street if there are no cars in it. It will have a relatively light weight presentation in the street and due to the location of the site and the nature of the adjoining properties with their own carports in the front setback will comply sufficiently with the locality statement G3 to justify approval. 22 The parties had considered draft conditions in Exhibit 4. There were amendments as annotated by hand in Exhibit 4 to conditions 1, 4, 13 and 32 which I adopt. 23 Therefore the Orders of the Court are: 1. The appeal is upheld. 2. Development application is granted for double carport, privacy screen and pergola at No. 23 O'Connors Road, Beacon Hill as shown on drawings 01A, 02B, 03B by Craig Heaton - architect as annotated in Exhibit B and all as amended by and built in accordance with the conditions as hand annotated in Exhibit 4 and as reproduced in Annexure A hereto. 3. The exhibits are returned to the parties except Exhibit A, B and 4. ___________________ K G Hoffman Commissioner of the Court 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.