Land and Environment Court of New South Wales CITATION : Hart v Ku-ring-gai Council [2007] NSWLEC 352 APPLICANT Robert Hart PARTIES : RESPONDENT Ku-ring-gai Council FILE NUMBER(S) : 10110 of 2007 CORAM: Murrell C KEY ISSUES: Section 96 Application :- dual occupancy/carport, streetscape and heritage Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Ku-ring-gai Local Environmental Plan 2000 Ku-ring-gai Planning Scheme Ordinance Ku-ring-gai Development Control Plan 38 DATES OF HEARING: 04/05/2007 EX TEMPORE JUDGMENT DATE : 4 May 2007 APPLICANT Mr R. Hart, litigant in person LEGAL REPRESENTATIVES: RESPONDENT Ms C. Bracks, solicitor of Home Wilkinson, Lowry Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 4 May 2007 10110 of 2007 Robert Hart v Ku-ring-gai Council JUDGMENT 1 This is an extempore judgment for a matter heard on site this morning against Ku-ring-gai Council's refusal of a s 96 application to modify the approval for a dual occupancy development. The premises the subject of this modification application is the property known as No. 23 Highfield Road, Lindfield. 2 By way of background the council granted approval for a dual occupancy development, subject to certain amendments that were subsequently incorporated into amended plans the subject of the formal approval for the dual occupancy development. One of the conditions was that the carport for house No 1, the subject dwelling be setback further from the street and a change to a flat roof (2 degree). 3 The applicant has now decided to submit a modification application to the council to change the approved flat roof to a Dutch gable with a 30-degree pitch, which is the same pitch of the roof of the federation dwelling house erected on the subject site. 4 The applicant cites the example of the approval of next door at No. 25 Highfield Road, Lindfield where there was an approval by the Court for a Dutch gable carport in front of the dwelling. I will state at this point in my determination that each individual development application must be looked at on its own merits although precedent is a matter that cannot be disregarded but one must have regard to the individual circumstances of the each case. The major issue raised in the appeal for the adjoining carport was that rear access to the dwelling should be from the laneway and no access be from Highfield Road. 5 The modification application before the Court today is for a Dutch gable roof to the carport that is to provide car accommodation for the existing dwelling that no longer has access from the rear street. The new dwelling approved as part of the dual occupancy now has separate Torrens title. 6 The council contends that the issues in the proceedings are the design quality and integrity. That is "the proposed Dutch gable roof will not compliment the design of the dwelling as a federation style dwelling with distinctive gables on the front façade". The council considers the proposal would detract from the architectural integrity of the house and that the proposed pitched 30 degree roof is visually bulky and means the carport would dominate the front façade of the house and the views to the house from the street. Furthermore council contends blocking the distinctive front façade window elements by the roof of the carport will significantly diminish the attractiveness of the federation style building. 7 The Council cites the provisions of the Ku-ring-gai Planning Scheme Ordinance as amended 15 December 2006. Clause 25(c) sets out the aims and objectives as: 1(b) to encourage orderly development of land and resources in Ku-ring-gai. 2(c) to achieve high quality urban design and architectural design. 2(g) to achieve a high level of residential amenity in building design for the occupants of buildings through sun access, acoustic control, privacy, security design, outdoor living, indoor amenity. 8 The second issue raised by the council is with respect to amenity, the internal amenity of bedroom No. 1 in that the proposed pitched roof will result in reducing the residential amenity for the occupants of the building, and block views to the street from the windows of the master bedroom. 9 As such there are basically two issues, one is the internal amenity and the other is in terms of the architectural integrity of the proposed dwelling as it presents to the street. 10 By way of background the subject site is zoned 2(c2) under the Ku-ring-gai LEP 2000. This LEP identifies a number of sites for medium density development and dual occupancy development is permissible on site's over 1200 sq m to which applied to this particular site prior to the approval for the dual occupancy which included a Torrens Title subdivision. The adjoining dwelling house to the west at No. 25 is also on land 1200 sq m and the property to the east at No. 21 is also within the category of a large site. 11 The streetscape is varied/eclectic in that the three dwelling houses on these large allotments represent federation period development. There is a mixture of development within the streetscape with most dwellings constructed in later decades of the 20th Century, many in the middle decades and some in the 1920's. It is noted that the street is not in a conservation area and therefore the heritage provisions under the councils LEP are not applicable. The house itself is not a heritage item either in terms of council's planning controls regime. 12 The zoning of the subject site also permits other uses such as family flats under the new LEP 200. The DCP's, which have been cited in these proceedings, are: DCP 38 for Residential Design Manual for dwelling houses within Ku-ring-gai; and also the dual occupancy development code. I note in these documents there is guidance for applicants in terms of the design of carports and garages. 13 I say at this point in the proceedings in terms of the statutory planning regime the development application is not considered formally under these controls. However, in the circumstances of the case they provide guidance in terms of what council contemplates for development within the area. 14 The DCP 38 refers to the design of carports and garages in that "the design of carport and garage structures should be sympathetic to existing development on site and consider adjacent buildings". Carport and garages should not dominate the site or the streetscape". The provision for the location of parking structures states: "the location of carports needs to consider existing trees, structures on adjacent sites, streetscape, visual character and heritage issues". There are very similar provisions mirrored in the code for dual occupancy development. 15 In my assessment I have taken into consideration council's planning regime and the zoning of the subject site as 2(c2) and also council's guidelines. The applicant cites examples within the area and indeed the Court together with the parties carried out a view of the surrounding area to understand what developments council has previously consented to and also to enable the Court to understand the general residential amenity of the area and what is contemplated in terms of council's controls. 16 This appeal can be distinguished from the adjoining property at No. 25 Highfield, in that the issues ventilated during the proceedings are not the same and the circumstances different. 17 The Court in its deliberations must have regard to the circumstances of this case and the issues that have been raised during these proceedings. Firstly I will go to the issue of amenity. The issue of amenity is that council is concerned that the proposed roof structure that is a Dutch gabled roof as apposed to a flat roof as originally approved would unreasonably impact on the amenity of the main bedroom. The Court had the opportunity of also viewing the proposed carport area from inside this bedroom. I note that at the side of the bedroom is a verandah that has been in-filled to provide for an ensuite. 18 The Court considers that with a setback of some 1.3 to 1.6 m from the master bedroom windows facing south they are not windows that enjoy solar access in particular during the winter months. In my assessment I am satisfied that the bedroom will still receive light and ventilation and that the amenity of the master bedroom would not be so significantly diminished or unreasonable impacted to warrant refusal of the development application. The outlook from the master bedroom would be effected in terms of looking out to the surrounding vegetated district, however, I am satisfied that the proposal will not represent unreasonable amenity for the occupants of the master bedroom. 19 The other issue that the Court must now look at is the issue of architectural integrity and if the proposed Dutch gable roof should be refused because it would significantly dominate the streetscape and not be sympathetic to the federation architectural style of the dwelling. The dwelling was built in 1906 circa but as stated earlier there is not a heritage item itself nor is it a part of a conservation area. And indeed the dwelling is on a site previously identified by the council for medium density development. 20 The character of the street is the issue that council considers would also be impacted by the dominance of a carport. The carport is setback some 12.1 m from the front boundary and council's standard is for carports to be a minimum of 12 m. The setback of the structure is important. As could be observed on the view this morning, carports that are forwarded of council's setback requirement generally have the impact of dominating the streetscape. I have also had regard to the topography and viewing points from the opposite side of the street and as one walks up and down Highfield Road. 21 The council contends that the two-degree pitch roof and structure as approved in the original development application is far more sympathetic to the dwelling house and less dominant in the streetscape. It is true to say that it would be less dominate in the streetscape being of a lighter material however, that is not the test. The test is whether the Dutch gable roof would be of such dominance in the streetscape that would impact on the streetscape and impact on the architectural integrity of the dwelling. The applicant submits that in his opinion the Dutch gable while not mimicking the gables currently on the federation style dwelling would be far more sympathetic to the dwelling than providing for the approved flat roof structure. As I have stated the test for the Court is whether the Dutch gable would be appropriate in the streetscape and whether it would be appropriate in terms of an addition and the architectural integrity of the dwelling house itself. 22 I am satisfied that the Dutch gable whilst it would be more visible in the streetscape it is not of such dominance that would warrant refusal of the development application. In my assessment the proposal will not detract from the dwelling house itself but rather would be sympathetic. In terms of council's controls it refers to the roof pitch reflecting the existing dwelling. I acknowledge this is does not mean that all carports are to have a roof pitch the same as the dwelling houses but the control states that "carports and garage structures should be designed to not dominate the site or the streetscape and be sympathetic to any existing development on site…this should be achieved through the use of compatible materials, colour, scale and roof pitch". I am satisfied the proposed Dutch gable satisfies this requirement and the resolution of the design on balance, is consistent with the DCP provisions. 23 In my assessment I am satisfied that a Dutch gable over the open carport would be more sympathetic to the period of architecture of the dwelling than the flat roof. While I recognise the point council raised about the in- fill of the verandah for the ensuite being a flat roof this is a very minor element in the streetscape and the flat roof double carport would be a major element. I do not consider the small discrete element of the verandah infill should provide the cue for the roof of the carport. In my assessment the proposed 30 degree pitch roof is more sympathetic to the architectural style of the federation dwelling. The existing dwelling demonstrates appropriate alterations and additions for today's living that respects and reflects the period of the dwelling house and the carport with a Dutch gable would similarly be sympathetic and compatible with the federation dwelling and the streetscape. 24 Accordingly, the formal orders of the Court are: 1. The appeal under of s96(6) of the Environmental Planning and Assessment Act is upheld. 2. The modification application submitted to Ku-ring-gai Council and as shown in Exhibit A, plans CC04C and CC02C amendment C is approved subject to the conditions contained in Annexure A. 3. The exhibits are returned to the parties with the exception of Exhibits 5 and A. ___________________ J S Murrell 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.