Land and Environment Court of New South Wales CITATION : McQueen v Waverley Council [2008] NSWLEC 1202 APPLICANT Peter McQueen PARTIES : RESPONDENT Waverley Council FILE NUMBER(S) : 10079 of 2008 CORAM: Murrell C KEY ISSUES: Development Consent :- Alterations and additions to a dwelling house, setbacks, residential character, streetscape and landscaping, views and vistas. Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Waverley Local Environmental Plan 2007 Waverley Development Control Plan DATES OF HEARING: 27/03/2008 EX TEMPORE JUDGMENT DATE : 27 March 2008 APPLICANT Mr Perkins, solicitor of Colin Biggers & Paisley LEGAL REPRESENTATIVES: RESPONDENT Mr McAlvery, solicitor of Sparke Helmore JUDGMENT: - 1 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 27 March 2008 10079 of 2008 Peter McQueen v Waverley Council JUDGMENT 1 These proceedings today are about a section 96 application for the property known as No. 60 Alt Street, St Queens Park. The modification sought is to the original development consent for alterations and additions to the dwelling house and the application at the that time showed on the plan at the rear of the property a garage with access from Alt Lane. 2 The subject property is on the corner of Cuthbert Street and Alt Lane. 3 The Council has come hear today contending that the proposed modification should not be approved. The condition of consent now sought to be amended is condition No. 2(d) in Council's original approval that requires the wall height of the garage to be 2.7 metres. The proposal before the Court is for a wall height of 3.4 metres and that the height of the top of the ridge be reduced from 5.15 metres to 4.4 metres. 4 The Court has had the opportunity this morning of walking the extent of the laneway and has also had the opportunity of viewing the subject site from the adjoining property at No. 2 Cuthbert Street owned by Mr and Mrs Travers who attended the site inspection earlier this morning. Mr Travers gave evidence and expressed concern about the proposal being an undesirable precedent and that there are matters that the Court must have regard to in terms of the character of Queens Park. 5 The subject site is zoned residential under the Waverley LEP and the guidelines for development are provided in Council's Development Control Plan, which was adopted in January 2007. Given that there was concern expressed about the character of the area and the numeric controls the Court enquired as to whether in fact council had resolved to amend its recent DCP and there is no proposal to amend the controls contained in the DCP. 6 The DCP is a comprehensive document. The Court has been provided with one part of same which is the residential part. It is noted that there are aims and objectives in the DCP and the DCP also sets out how to use the DCP. In this part there are guidelines for dwelling houses and it also contains objectives strategies and controls. The strategies and controls are set out under various headings with each strategy relating to a particular control. There is a note in the DCP that: "compliance with a control does not guarantee that the strategies satisfied and in some instances the design solutions may not be appropriate for the particular site or situation, therefore, having regard to the physical characteristics of the site and the nature of proximity of adjoining a nearby development Council may require alternative design solutions. The controls may not normally be varied however if an applicant is able to clearly demonstrate the particular control is unreasonable or unnecessary in the circumstances Council may consider varying the same. Conversely having regard to the physical characteristics of the site and the nature of proximity of adjoining a nearby development Council may require a more restrictive control so as to minimise or eliminate any likely negative impacts." 7 The DCP includes the residential character studies and the residential character study for Queens Park is contained within the document which commences at page 20 and includes residential character, streetscapes and landscaping subdivision patterns, views and vistas, topography etc. 8 It is noted that there are also a number of diagrams or figures that refer to "the narrow corridor like rear access lanes dominated by garage doors, high fences and walls, landscape screening a variety of building setbacks." In this instance there is no landscape screening as such at the rear as the properties have garage access and vehicle access to this laneway. The characters statement also refers to the architectural styles and the objectives specific to the Queens Park residential character study area include to reinforce existing views in the north/south Street corridors to reinforce existing street categories to encourage dwelling styles integrated with the established front rear and side streetscapes and there are then also a number of performance criteria related to same. 9 The diagram on page 80 also demonstrates examples of rear laneway development. It can be seen by the diagrams that there are large structures to rear laneways with habitable areas over garages with gables and dormers. 10 The proposal is for a pitched roof of 35 degrees consistent with the pattern that one sees in the streetscape. It is proposed there be no dormers but a fixed obscure glazing at the upper level within the roof to the laneway with timber ventilation and doors to the elevation facing inwards to the rear yard of the dwelling. 11 When the Court met on site this morning the respondent raised a new issue which was one of floor space ratio in that the proposal exceeds the floorspace ratio. The floor space ratio for the subject dwelling and garage left is 0.83:1 however it is agreed between the experts that the proposal if one calculated or included part of the floor area above the garage would be about 0.89:1. 12 It was submitted by Mr McAlvery, exceedence in FSR should be taken into consideration as part of the suite of controls. 13 The controls within the DCP allow for garages at the rear of properties to have a height of 5.6 and a wall height of 3.6, the proposal is within the controls set out in Council's DCP. The issue of floor space ratio I can take into consideration as a discretionary matter in the DCP. I am satisfied however the exceedence does not impact unreasonably on adjoining properties or represent an overdevelopment of the subject site and therefore in my assessment the exceedance is acceptable in the circumstances. 14 The Court as I stated has had an extensive walk of the area and the Court must have regard to and provide as its focal points and give central consideration to the provisions of the recently adopted DCP of the council consistent with the principles articulated in Zhang v Canterbury City Council [2001] NSWCA 167 where the Chief Justice stated the DCP must become a central point of consideration. I also have had regard to the note in the front of the DCP which states that more compliance does not mean that a merits assessment would necessarily dictate that an application should be approved. 15 I have also considered the issue of precedent and thus can at times warrant refusal of development applications if the precedent is such that it would be undesirable if repeated. In terms of precedent however, one must have regard to what the councils controls contemplate the numeric controls under the performance criteria provide that "garages of 5.6 metres with wall heights of 3.6 metres would generally be acceptable. At the same time there may be unique circumstances of a particular site as to why those performance criteria do not lead to appropriate development". 16 In the circumstances of this case I have not been persuaded by the council or the evidence of the objectors that the impacts that would flow from the proposed compliant development are unreasonable. Furthermore I am not persuaded that the proposal is inconsistent with that contemplated by councils development control plan in terms of a holistic reading of the DCP having regard to the objectives, character statement and FSR. 17 The exceedence in FSR is some 15 square metres, which is the centre of the pitch of the roof for a maximum width of 1 metre where it is 1.8 to 2.1 metres in height. As such it is not conducive to be used as a habitable room but rather it is to be used as storage with a pull down ladder from the garage itself that clearly cannot be converted to a habitable room. There are other buildings along the laneway that given the size of the developments would allow habitation. 18 By way of comment it is noted that the council officers report had considered the proposal to be consistent with the council's controls and there was no reason to refuse the development application. Clearly it is the right of every council not to adopt or accept the recommendations of its experts but in the circumstances of this case there has been no evidence presented to the Court as to why council is now seeking a variation from its own clearly articulated controls. The controls are also provided with desired future character objectives and the performance criteria and from the points in the DCP the Court was taken to earlier today in the council's and in my assessment the proposal does not offend the desired future objectives and it satisfies the performance criteria for rear garages. 19 I have had regard to the objections and resident objectors in my deliberations however in terms of the Queens Park character statement I am satisfied the proposed development would not be inconsistent with the provisions of Council's recently adopted development control plan. The circumstances of this case including the relationship with adjoining properties are not ones that would warrant a variation to reduce Council's standards or guidelines, in terms of the wall height and ridge height. 20 I stated earlier the issue of precedent is not a matter that I consider would warrant refusal of this application. Furthermore, it seems to me that from Mr Travers evidence that he is concerned with the numeric control provisions within the DCP. The DCP provisions are matters for the Council and I note that there has been no resolution to amend same. As is often the case with zoning the concerns expressed by Mr Travers appear to go to the heart of the standards that are contained within the DCP and while compliance with same cannot guarantee approval in the circumstances of this case I see no reason as to why they should be further limited because it has not been demonstrated to the Court on this occasion that there are unreasonable impacts. 21 On the issue of rhythm I am satisfied the proposed development is consistent with the rhythm one observes in the rear laneway. Rhythm is not dictated by the arithmetical precision of copying or mimicking dimensions or averaging of existing garages on the laneway. In an urban design context for this area it is important to respect the rhythm and I am satisfied the proposed development will do so. 22 Accordingly, the formal orders of the Court in this matter will be issued as follows: 1 The appeal in respect of the property known as 60 Alt Street, Queens Park is upheld. 2 The s96 modification application dated 3 September 2007 submitted to Waverley Council to delete condition 2 (d) in the consent for DA 660/2006 issued by the Council 23 January 2007, is approved. (Except for the above modification the conditions contained in the original consent granted by the Council 23 January 2007 continue to apply to the development.) 3 The exhibits are returned except for the architectural plans, Exhibit 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.